ABDULLAHI v. STATE (2020)

ABDULLAHI v. STATE

(2020)LCN/13972(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, March 27, 2020

CA/K/63A/C/2019

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

AMINU ABDULLAHI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN RELY ON A RETRACTED EXTRA-JUDICIAL CONFESSION OF AN ACCUSED PERSON IN THE ADMISSION OF GUILT

Where an extra-judicial confession has been proved and established to have been made voluntarily, and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of fact, regardless of the fact that the maker resiles therefrom or retracted it all together at the trial. See the cases of Okanlawon Vs. The State (2015) 17 NWLR (PT.1489) 445 at P. 478 Paras. A-E; Alarape Vs. The State (2001) 5 NWLR (PT.705) P.75 at P.98, Paras. E-G; Usman Vs. The State (2011) 7 SCNJ 102 at PP.127 – 128; Ubierho Vs. The State (2005) 5 NWLR (PT.919) 644 at pp.655, Paras. B-C; 657, Paras. D-F; Alo Vs. State (2015) 9 NWLR (PT.1464) 238 AT PP. 273 Paras. B-G; Blessing Vs. FRN (2015) 13 NWLR (PT.1475) 1 at Pp. 33-34, Paras. G-B; Adekoya Vs. The State (2015) 3 SCNJ 179 at P.204; Isma’il Vs. The State (2011) 7 SCNJ 102 at Pp. 127 – 128; Edamine Vs. The State (1996) 3 NWLR (PT.438) 530 at P.538, Paras. C-D; Mohammed Vs. State (2014) 12 NWLR (PT.1421) 387 at Pp. 410 Paras E-G; 426 Paras. B-D.

Where an accused person resiles from a confessional statement made by him, his conviction upon the statement will depend on:-
(a) Whether there is anything outside it to show the statement is true,
(b) Whether the statements made in it of fact so far as they can be tested are true,
(c) Whether the accused had the opportunity of committing the offence,
(d) Whether it is consistent with other facts which have been ascertained and have been proved. PER MUKHTAR, J.C.A.

DEFINITION OF THE TERM “COROBORATION”

In the case of State Vs. Gwangwan (2015) 13 NWLR (PT.1477) 600 at page 626 Paras. A-B corroboration was defined as follows:
“Corroboration means or entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness.”
The applicable test to determine the nature and sufficiency of corroboration is to regard the effect of each piece of evidence independently against the appellant and weigh it on the standard of proof in criminal cases to see if on the stand alone merit, it connects or tend to connect the appellant with the crime charged. See the case of Edhigere Vs. The State (1998) 8 NWLR (PT.464) 1 at page 8 paras. B-C.
It is, however, pertinent that the corroborative evidence does need not directly link the appellant to the commission of the offence. It suffices even if it is circumstantial, provided that it connects or leads to connect him with the commission of the offence. See Durugo Vs. State (1992) 7 NWLR (PT.255) P.525 at Paras. C-D; The State Vs. Gwangwan (Supra) at pp. 523-624 paras. H-A; Chokwe Vs. State (Supra) at P.233, Paras. B-D. PER MUKHTAR, J.C.A.

WHETHER OR NOT RETRACTION OF A CONFESSIONAL STATEMENT RENDERS IT INADMISSIBLE IN EVIDENCE

Mere retraction of the confessional statement by the appellant does not render it inadmissible in evidence or in anyway mean that the Court cannot act and rely upon same to convict him. The Supreme Court aptly held in Hassan v. State (2001) LPELR – 1258, (SC) at pp. 12-13 (2001) 15 NWLR (PT.735) 184 that:
‘However, it is very unusual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arrangement against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial judge who is to test the veracity or otherwise of such statement by testing it or correspond with the said statement which will then be regarded as correct. In other words, the statement will be subjected to scrutiny by the Court in order to rest its truthfulness or otherwise in line with other available evidence and circumstances of the case”.
Moreover, the Supreme Court aptly pronounced in Asuquo Vs. State (2016) 14 NWLR PT.1532 PG 309 AT 334 PAR. B thus: “the best evidence against an accused person is his own confession.”PER MUKHTAR, J.C.A.

WHETHER OR NOT THE PROSECUTION IS BOUND TO CALL A NUMBER OF WITNESSES TO PROVE ITS CASE

The prosecution is not bound to call any number witnesses to prove its case. Conviction could be predicated upon the evidence of one credible witness or the appellant’s own confession. See Olayinka Vs. State (2007) 9 NWLR PT. 1040 p 561 at 584 paras A-B. Similarly, in the case of Busari Vs. State (2015) 5 NWLR (Pt. 1040) 584 paras B-C, it was held thus:
“What evidence to tender and witnesses to call to prove the charge preferred against an accused person solely lies at the discretion of the prosecution and not the defence. The latter cannot force the prosecution to call or adduce particular witness or tender particular evidence.”PER MUKHTAR, J.C.A.

WHETHER OR NOT THE JUDGE HAS A DUTY TO HUNT FOR NON-EXISTENT DEFENCE FOR AN ACCUSED PERSON

The Supreme Court per Obaseki, JSC in the case of NWUZOKE VS. STATE(1988) 1 NWLR (PT. 72) P. 529 at P.536 Paras C-D observed that the judge has no duty to hunt for non-existent defence for an accused person in the following words:
“The adjudication process in this our adversarial system of administration of justice demands that every defence available to the accused on the evidence and facts before the Court must be considered by the Court. To refrain from a consideration of the defence because it is considered weak, far-fetched, foolish, conflicting, unfounded and false is to err seriously in the discharge of one’s duty as a judge. Where there is no evidence to warrant consideration of the defence, the trial judge has no duty to consider the defence, it is not the duty of the judge to scout round for defence where there are none and where the evidence does not suggest one.”PER MUKHTAR, J.C.A.

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Justice Katsina State delivered by Hon. Justice Baraka I. Wali, J on 12th October 2018 in case No. KTH/37C/2016.

The appellant was arraigned along with three others on a charge of abetment and armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11 Laws of The Federation of Nigeria (LFN) 2004 vide charge sheet dated 12th December 2016.

After commencement of the trial on 9th January 2017, two out of the four accused persons died in prison custody and the charges against them were struck out. The two surviving accused persons including the appellant herein were tried and convicted, in the judgment delivered on 12th October 2018, each for the offence of armed robbery and sentenced to death.

Dissatisfied with the conviction and sentence, the appellant has appealed to this Court on 3-Grounds as contained in the Notice of Appeal dated 9th January 2019. The Appellant further distilled the following lone issue for determination:
Whether the prosecution proved the charge of armed

robbery against the appellant beyond reasonable doubt in view of the evidence led at the trial to have resulted in his conviction and sentence.

APPELLANT’S ARGUMENTS:
The learned counsel for appellant Ehi Uwaifoh, Esq. argued that the prosecution did not prove the charge of armed robbery against the appellant beyond reasonable doubt as required by law as there was no eye witness to the alleged armed robberies at the Global Resources Petroleum Filing Station and A.D Nasara Aluminium. The exhibits were also not recovered from the appellant or his co-accused. It was further argued that there was no evidence showing that the appellant took part in any of the alleged robberies.

It was submitted that the learned trial judge wrongly convicted and sentenced the appellant for the offence of armed robbery. Reliance was placed on the cases of Ankpegher v. State (2018) LPELR-43906 (SC); Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170; State v. Onyeukwu (2004) 14 NWLR (Pt.813)

The legal burden is on the prosecution to prove a criminal charge against an accused person beyond reasonable doubt. See Section 135 of the Evidence Act, 2011, which

provides as follows:
S.135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

In the case of Nwavu v. Okoye (2009) ALL FWLR (Pt. 451) 815, the Supreme Court held thus;
…that the term “legal burden” means the burden of proof which remains constant throughout a trial. And that is the burden of establishing the facts and contentions which will support a party’s case. That if at the end of trial such party fails to establish those facts, and contentions to the appropriate standard, he will lose in the legal tussle. Sani v State (2016) ALL FWLR (Pt 848) 675.

It was further submitted for the appellant that the mandatory duty of proof beyond reasonable doubt is imposed on the prosecution pursuant to the constitutional prescription in

Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, which presumes an accused person innocent until he is proven guilty beyond reasonable doubt. Ogakwu JCA construing the said constitutional provision in Sani v The State, (Supra) at page 675 paras C-E, observed thus;
By the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 135 of the Evidence Act, 2011 the constitutional presumption of innocence inures in favour of the appellant. The prosecution has the onus of proving the commission of the crime … beyond reasonable doubt.

The learned counsel for the appellant referred to the evidence adduced in Court at the trial to submit that it did not meet the standard of proof beyond reasonable doubt. See Segun Ajibade v The State, Nweke v State (Supra)

The Court was urged to resolve the lone issue in favour of the appellant, allow the appeal and quash the conviction and sentence and instead discharge and acquit the appellant.

RESPONDENT’S ARGUMENTS:
The learned counsel for the respondent Fatima Sada, Esq. (Senior State Counsel M.O.J Katsina State), however, argued that proof beyond reasonable

doubt simply means that the prosecution has established the guilt of an accused person with compelling evidence and high degree of probability but it does not mean proof beyond every shadow of doubt. See the case of Oseni Vs. State (2012) 5 NWLR (PT.1293) 351 at P. 588 Paras. F – G and Nwaturuocha Vs. The State (2011) 3 SCNJ 148 at p. 165.

It was submitted for the respondent that while the onus is on the prosecution throughout to establish the guilt of the accused beyond reasonable doubt, for an accused person to be entitled to the benefit of doubt, the doubt must be genuine and reasonable and arising from evidence before the Court. Reference was made to the case of The State Vs. Aibangbee (1988) 7 SC (PT.1) 96 at P.132 lines 35-41. It was further contended that it is only where the totality of the evidence creates genuine doubt that the accused person will be entitled to the benefit of the doubt. It was submitted that no reasonable doubt could be deduced from the evidence upon which the appellant was convicted.

It was further contended for the respondent that there are three ways of proving a case in Court, thus:
(a) evidence of an eye-witness;

(b) the confession of the accused; or
(c) circumstantial evidence.

Reference was made to the case of Igri Vs. State (2012) 16 NWLR (PT.1327) at P.522 at p.541 para B.

The essential ingredients of the offence of robbery as established are as follows:
(a) That there was a robbery, and
(b) That it was an armed robbery, and
(c) That the accused was the robber or one of the robbers. See the case of Adekoya Vs. State (2012) 9 NWLR (pt.1306) 539 at p.566 para. E.

It was submitted for the respondent that from the testimony of PW1, 2, 3, 4, 5 and 6, the prosecution had proved that there was robbery. This was corroborated by exhibits A0, A1, A2, A4, A5, A6, A7, A8, Z, ZA, Y and YA, (some photographs, phone handsets, weapons and the confessional statement of the Appellant) respectively at the trial Court.

It was submitted for the respondent that the prosecution must prove beyond reasonable doubt that the accused stole something and he used violence or threatened to use violence immediately before or immediately after the time of stealing. The violence could be on either a person or on property in order to obtain or

release the thing stolen or to prevent or overcome resistance to its being stolen or retained. See the case of FRN Vs. Usman (2013) 8 NWLR (Pt. 1301) 141 at p.157; paras. B-F.

It was further submitted for the Respondent that the testimony of PW1, 2 and 3 and the confessional Statements of the Appellant, have proved the ingredients of the offence of armed robbery against the appellant. An offensive weapon is defined under Section 15(c) of the Robbery and Firearms (Special Provisions) Act to include anything capable of being used to inflict injury or damage. The exhibits recovered from the accused person when they were arrested marked as exhibit A2, A4, A5, A6 and A7 are offensive weapons. It was submitted that the Respondent had proved before the Lower Court that the Robbery was an armed Robbery.

It was further argued for the respondent that the testimony of PW 2, 5 and 6 established that the Appellant was one of the Robbers. Furthermore, the Appellant in his Confessional State (Exhibit ZA) stated thus:
“…We went first to the filling station at new ring road G.R.A. at about 0200hrs, then Ibrahim jumped into the filling station, met

with the watchman and the two of them started fighting each other, I did not wait, I proceeded to the office and broke it with a bar, me and Bello took one laptop after that (incidence) we went to a near uncompleted mosque at G.R.A….”

In Hassan Vs. State (2001) 15 NWLR (PT.735) 184 AT PP. 199-202 Paras. F – C it was held thus:
“An accused person can be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial…”

It was submitted that the appellant’s confessional statement is the best evidence as it is an admission of guilt by the appellant and that the Court below had rightly admitted it in evidence. Once a confessional statement is admitted, it serves as proof beyond reasonable doubt. See the case of Solola Vs. State (2005) SC/268 L.P.E.L.R. The Court was urged to hold that the elements of the offence of armed robbery were proved against the appellant by the respondent beyond reasonable doubt and resolve the sole issue against the appellant.

RESOLUTION:
Where an extra-judicial confession has been proved to have been

voluntarily made, and it positively and unequivocally amounts to an admission of guilt, it may well suffice to ground a finding of guilt. However, the fact that the appellant has retracted the confession may not necessarily make it inadmissible in evidence but before a conviction can be properly founded on a such retracted confession, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. Thus, a free and voluntary extra-judicial confession provides the most satisfactory evidence of guilt. It attracts the highest form of credible evidence because it prompts the strongest sense of guilt. The presumption, which is generally accepted in criminology is that no one will make admissions prejudicial to his interest and safety if the facts confessed are not true.

It was in evidence that the appellant along with other cohorts on 15th December 2016 attacked one Muhammad Sule a security guard at Global filling station Katsina and robbed the station of a laptop, shoes, and mp radio and also attacked the watchman of A.D. Nasara Aluminium Ltd Katsina and robbed them of the sum of N25,000 on 18th

day of June, 2016. In the course of the trial, the Prosecution (Respondent) called six (06) witnesses and tendered Nineteen (19) exhibits which were all admitted in evidence. The Appellant testified for himself and called one other witness and retracted his extra judicial confessional statement.

Pp. 127 – 128; Edamine Vs. The State (1996) 3 NWLR (PT.438) 530 at P.538, Paras. C-D; Mohammed Vs. State (2014) 12 NWLR (PT.1421) 387 at Pp. 410 Paras E-G; 426 Paras. B-D.

The PW1 to 6 informed the Lower Court how the Appellant committed the alleged offence. These testimonies affirmed the truth of the retracted confessional statement of the Appellant. Moreover, in exhibits ZA, A0, A1, A2, A4, A5, A6, A7 and A8 the Appellant admitted that he went to the scene of crime.

The appellant also had the opportunity to commit the alleged crime as there was evidence that he was physically at the scene of the crime. Thus, what the appellant confessed was not only possible but it was

corroborated by other available pieces of evidence.
In the case of State Vs. Gwangwan (2015) 13 NWLR (PT.1477) 600 at page 626 Paras. A-B corroboration was defined as follows:
“Corroboration means or entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness.”
The applicable test to determine the nature and sufficiency of corroboration is to regard the effect of each piece of evidence independently against the appellant and weigh it on the standard of proof in criminal cases to see if on the stand alone merit, it connects or tend to connect the appellant with the crime charged. See the case of Edhigere Vs. The State (1998) 8 NWLR (PT.464) 1 at page 8 paras. B-C.
It is, however, pertinent that the corroborative evidence does need not directly link the appellant to the commission of the offence. It suffices even if it is circumstantial, provided that it connects or leads to connect him with the commission of the offence. See Durugo Vs. State (1992) 7 NWLR (PT.255) P.525 at Paras. C-D; The State Vs. Gwangwan (Supra) at pp. 523-624 paras. H-A; Chokwe Vs. State (Supra) at P.233,

Paras. B-D.

NWLR PT.1532 PG 309 AT 334 PAR. B thus:
“the best evidence against an accused person is his own confession.”

In the instant case, the Appellant’s confession was very much contained in Exhibits ZA & Z and clearly corroborated by other pieces evidence as appraised above.

The Appellant’s observation of the Respondent’s failure to call some witnesses like one Mohammad Saleh listed at PW2, in no way whittles down the compelling evidence in the proof of evidence and other eyewitnesses testimonies. Thus, the appellant’s submission that failure to call one witness was capable of igniting the presumption of law that it would have been detrimental to the case of the prosecution, was misconceived.

prove the charge preferred against an accused person solely lies at the discretion of the prosecution and not the defence. The latter cannot force the prosecution to call or adduce particular witness or tender particular evidence.”

The PW1 in his testimony stated that after the security guard (PW2 listed in the proof of evidence) recovered from injuries he sustained at the scene of the crime, he went back to Niger Republic and since then he has not returned to Nigeria. This statement was not challenged during cross examination by the Appellant. This clearly explains why the PW2 could not be called to testify during the trial proceedings as he was not within reach to be called to give evidence during the trial proceedings.

The appellant himself admitted in exhibit ZA where it stated how he and his cohorts planned and committed the offence thus:
“….on Saturday one Abubakar who is my friend at Katsina called me and invite me and my group from Funtua to Katsina I came along with Ibrahim and Bello …… I proceed to the office and broke it, me and Bello….”

The appellant’s contention that the Court below did not

properly evaluate the evidence on record was as well misconceived. The learned trial judge had clearly evaluated the evidence on record before he found that the appellant participated in the robbery, (pages 73 to 109 of the record of proceedings).

The foregoing appraisal reveals reasons for the resolution of the lone issue against the appellant and the unmeritorious nature of this appeal. The issue is resolved against the appellant and in favour of the respondent. The appeal lacks merit and is hereby dismissed.

The judgment of High Court of Katsina State delivered by Justice Baraka I. Wali, J on 12th October 2018 in case No. KTH/37C/2016 is hereby affirmed. Appeal dismissed.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother, Hussein Mukhtar, JCA. I agree.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother HUSSEIN MUKHTAR JCA, where the facts and the issues in contention have been set out and distinctly determined. I agree with my learned brother’s determination of the issues, and agree that this appeal lacks merit. I also dismiss it and affirm the conviction and sentence of the Appellant by the lower Court.

Appearances:

EHI UWAIFOH, ESQ., with him, KENECHUKWU, ESQ. For Appellant(s)

FATIMA SADA, ESQ., SSC, with him, S. A. COOMASSIE, ESQ, SSC, MINISTRY OF JUSTICE, KATSINA STATE For Respondent(s)