Retracted Confessional Statement

Before Their Lordships

Between

AND

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 24th May, 2012 which upturned the decision of S. O. Otu, J. of the High Court of Kogi State sitting at Okene delivered on 13/11/2009.

The facts that led to this appeal are as follows, The Respondent was arraigned on a two-count charge of criminal conspiracy and Armed Robbery contrary to Sections 97 (1) and 298 (c) respectively of the Penal Code. The Prosecution called 3 witnesses and tendered Exhibit “A”. The Respondent testified and called only one witness.

At the end of the trial, Counsel addressed the Court and in a considered judgment, the learned trial judge convicted the Respondent and sentenced him to a term of 12 years imprisonment on 13/1/2009. The Respondent being dissatisfied with the decision of the trial Court appealed to the Court of Appeal; Abuja Division by a Notice of Appeal filed on 5/1/2010. The Counsel for the respective parties filed and exchanged briefs of argument.

​The Court of Appeal in its judgment of 24/5/2012 upturned the judgment of the trial Court and in its place entered a verdict of discharge and acquittal in favour of the Respondent. The Appellant being dissatisfied with the decision of the Court below has now appealed to this Court on three 3 grounds of appeal.

The facts adduced by the Prosecution in proof of its case is to the effect that PW1 and PW2 who were Police Officers were on their way from the old Police Barracks to the new Police Barracks at Okene when they were accosted by the Respondent and one other person (hereinafter called the accomplice). The accomplice snatched the handset of the PW2 and ordered the Respondent to show the witnesses what he had with him. The Respondent then opened his shirt and the witnesses saw a pump action gun in his possession. The accomplice also snatched the sum of N25,000.00 from the PW2.

The PW2 later slapped the Respondent and the “pump action” gun fell from him. The PW1 then took the gun and hit the accomplice on the head and the accomplice fell down. The PW1 helped PW2 to overpower and subdue the Respondent. The accomplice who had been on the ground all these while stood up and bolted away. The Respondent who had been overpowered was arrested and taken to the Police Station.

The Respondent on the other hand stated on Oath that on the very day of the incident, he went to the bush to get some herbs on account of the fact that he was sick. While there in the bush some boys accosted and robbed him of N25,000. On his way back home through the Police Barracks, he encountered the Prosecution witnesses who alleged that he had robbed them. He denied being a robber and informed them that he too was also a victim of the robbery incident. The Prosecution witnesses slapped him, arrested him and took him to the Police Station at Okene.

There the Respondent made Exhibit ‘A’ before his case was transferred to the Criminal Investigation Department at Lokoja.

​The trial Court held that the Respondent by his extra judicial statement Exhibit “A” already admitted that he was in possession of a gun and it was unbelievable that the robbers gave him the gun. The Court found that the Respondent’s boss who gave evidence as DW1 did not have any knowledge of what transpired at the time material to the case. Based on the evidence of PW1 and PW2, the Court held that their testimony showed how the Defendant with the accomplice conspired to commit the offence.

The Respondent who had pretended to be sick had stayed back at work till 6.00pm in furtherance of the common and agreed criminal plan. The trial Court convicted the Respondent for the reasons given above. The Respondent being dissatisfied appealed to the Court below.

The Court of Appeal adopted the Respondent’s issues. The Court of Appeal held that PW1 did not include in his statement that his handset and N25,000.00 were stolen until at trial stage and that where a victim fails to state at the earliest opportunity to the Police vital information regarding the property stolen or the name of the assailant, the Court should be careful in accepting the story. The Court held further that there were contradictions in the story of the prosecution witnesses regarding how the money was stolen.

The Court of Appeal expunged Exh. ‘A’ the statement of the Respondent and held that since the trial Court did not make a specific finding on whether or not the Respondent made Exh. ‘A,’ the exhibit was inadmissible in evidence. The Court below also held that the evidence of the two Prosecution witnesses was unreliable since they could not give account of the stolen items and the exhibits i.e. gun used to rob them.

Notice of appeal to the Supreme Court was filed on 22nd August, 2013 with two grounds of appeal. The issues distilled by both parties are similar. In my view, the sole issue for determination here is as follows:- Whether upon a careful perusal of the totality of the evidence of the Prosecution, the Court below was right to have acquitted and discharged the Respondent.

In the Appellant’s brief settled by J. A. Akubo Esq., learned Counsel argued that since the Respondent admitted on oath that he was at the venue of the incident with someone who robbed him at the time of the incident and that he encountered PW1 and PW2, coupled with the fact that the evidence of both witnesses was not discredited during evaluation by the trial Court in its evaluation of the evidence before it.

Counsel cited Akeem Agboola v. The State (2013) 11 NWLR Pt. 1366 Pg. 619 at 641; Adeniyi Adekoya v. The State (2012) 9 NWLR Pt. 1306 Pg.539 at 582.

Counsel also contended that there are no substantial contradictions in the evidence of PW1 and PW2 to render same unreliable and unworthy of belief as the said examples of contradictions are minor, immaterial and inconsequential. Counsel submitted that only material contradictions would affect the case of the prosecution adversely. Counsel cited ISIBOR v. The State (2002) SCNJ 162 at 167; ENAHORO v THE STATE (1965) NSCC (Vol.4) Pg.98 at 113.

Learned Appellant’s Counsel argued that the substance of the evidence against the Respondent to wit that he held a gun while his accomplice robbed PW2 of his money and handset is not in issue. The specific denomination of Naira notes carried by the victim is irrelevant. Counsel also submitted that the finding of the Court below that it had to expunge Exh. A from the evidence of the prosecution is perverse.

​Counsel argued that the conclusion of the Court below that in the absence of a specific finding by the trial Court on the issue of whether or not Exh, ‘A’ was made by the Respondent, makes Exh. ‘A’ inadmissible is erroneous. Counsel argued that the trial Court gave a considered Bench ruling on Exh. ‘A’, the final address of Respondent’s Counsel at trial did not mention Exh. ‘A’, so no live issue was raised on Exh. ‘A’ regarding its admissibility before the trial Court or the Court of Appeal to warrant any pronouncement on it. Counsel cited FEDERAL MINISTRY OF HEALTH & ANOR V.

COMET SHIPPING (2009) 9 NWLR Pt.1145 Pg.193 at 220-221, WILSON v. OSHIN (2000) 9NWLR Pt.673 Pg.442, ODUNAYO v. THE STATE (1972) 8-9 SC.290. Counsel urged this Court to hold that the acquittal and discharge of the Respondent was perverse and unreasonable.

In the Respondent’s brief settled by K.C. WISDOM ESQ., Counsel argued that the Respondent during the trial had stated that Exhibit “A” was not the statement that he volunteered to the Police as he could not sign but thumb printed the document made by him. The Respondent under cross-examination affirmed this fact on page 32 lines 4 of the record. It follows therefore that the Respondent had retracted the statement allegedly made by him.

Counsel submitted that where a Defendant retracts an extra-judicial statement allegedly made by him, the Court should admit the statement and determine, in its judgment, whether the statement was actually made by the defendant or not. Counsel cited IKPASA v. Bendel State (1982) NCLR 152 AT 162.

​Counsel further argued that the learned trial judge did not at any stage in the consideration of this case advert his mind to the question of whether the Respondent made the statement tendered or not. There was therefore a straight issue of fact which should have been determined by the trial Court. The trial Court in this case did not determine the issue. Counsel argued that in the absence of a specific finding by a trial Court on an essential fact, an appellate Court cannot choose between the two versions in order to make a finding of fact which the trial Court did not make.

Rather, the only conclusion an appellate Court can draw from the conflicting evidence in that situation is the one most favourable to the Respondent. Counsel cited EJUREN v. POLICE (1961) ALL NLR 498 AT 501.

​Counsel further argued that the failure of PW1 to state categorically in his statement to the Police that he lost his handset and N25,000.00 in the course of the robbery is fatal to the case of the Prosecution. Counsel submitted that where a victim or eye-witness to a crime fails at the earliest opportunity to mention to the Police vital information such as the name of the Defendant or the property stolen by the Defendant, the Court should be careful in accepting his story.

Counsel cited ABDULLAHI v. STATE (2008) 17 NWLR Pt. 1115 Pg.203 AT PG. 216. Counsel argued that the identity of the person who took the handset and the money is very material in this case and in the absence of contradictory evidence regarding that fact, any doubt was rightly resolved in favour of the Respondent by the Court below.

OPINION My Lords, I would not go as far as to call Exhibit “A” “a confessional statement” as the two lower Courts and the parties have done, I must say that Exhibit A is not a truly confessional statement in that as improbable as it is, it is not a direct and positive confession to the crime of conspiracy and armed robbery by the Respondent. In Exhibit A, the maker states that he was robbed and the robber gave him the gun and he pursued the robber into the Police Barracks to return the gun and encountered the victims who arrested him. He denied the robbery.

It is apt to set out the contents of Exhibits A; I wish to state that I finished my primary school education from NA Primary School, Okene in the year 2002 and I have been learning Welding since then. My father is in Ogaminana while my mother Is in Idogido. Throughout this week we have been very busy at the shop welding some windows and doors and I was getting sick so I did not go to work yesterday. At about 1830 hours I came to the back of Otutu Secondary school so that I can cut mango tree back so that I can use it for herbs as one woman advised me.

I did not carry cutlass to cut the tree back. When I got to the mango tree two boys whom I did not know but can recognize ambushed me and collected the sum of two hundred and fifty naira from me. One of them was with a gun. He gave it to me to hold and was walking into the Police Barracks. I told him that I can’t hold the gun so I was pursuing him to give it back to him. The other one remained in bush. When I followed the other one into the Barracks, I was hiding gun under my shirt. I saw that he collected handset from one person inside the Barracks.

The person was struggling with him that was when I got there and asked him to collect the gun. He did not collect it. Then the gun fell on the ground. I began to go because I know that trouble must come. That was when one short officer held my shirt and hit my face. I fell on the ground and they arrested me. Then I was brought to the station by some people who were around. The other boy ran away. I don’t know the two boys before. I am not a thief. I don’t belong to any gang. I am a welder. Everybody knows me at Inike where I work. This is all my statement.

In any event, at the point of tendering the statement, the Respondent’s Counsel objected to its admissibility on the basis that the Respondent did not sign the statement he made to the Police but thumb printed whereas the statement sought to be tendered was signed. This Court had reiterated the settled position of the law on several occasions. There are two ways of retracting an extra judicial statement in a criminal trial whether confessional or not.

The first is by the Defendant and/or his Counsel admitting at the point of the statement being tendered by the prosecution that indeed the Defendant made the statement BUT was forced by threats, violence to his person, inducement etc. to make same by the Police. At that point, Defence Counsel must state categorically according to his brief whether it was by threats, violence or inducement of any gain etc. that the Defendant was made to confess.

The onus being on the Prosecution at all times to prove the guilt of the Defendant, the prosecution must discharge the onus of proof that indeed the Defendant volunteered the statement since an involuntary statement extracted by threats, inducement etc. from a Defendant contravenes Section 29 of the Evidence Act, and would be inadmissible for all purposes in evidence. To prove the voluntariness of the statement, the Court calls for and conducts a trial within trial to determine whether or not the statement sought to be admitted by the Prosecution was voluntarily made.

The second instance of retraction of a confessional statement is where the confession is wholly retracted, that is where the Defendant denies making the statement at all, denies the signature on the statement, claims he was forced to sign a statement he never made at all, or as in this case agreed he made a statement but says the statement sought to be tendered is not the one he made at all, etc. The possibilities of a full retraction are endless. In such an instance, there is no question whether or not the statement/confession is admissible.

The law is that it is admissible as evidence of an event which had occurred in the course of Police investigation into the charge and the Court is entitled to decide as a matter of fact whether in the circumstances, the Defendant actually made the statement or not. It is my view, that there need be no formal statement of the finding so long as the circumstances in which the offence was committed and the contents of the statement are considered to enable the Court make a just finding on its credibility.

Also, whether the statement is true in so far as it can be ascertained by other undisputed evidence. That is the probability test or credibility test. The Court then decides what weight to be attached to such a statement. See: BASIL AKPA v. THE STATE (2008) 14 NWLR Pt. 1106 Pg.72 at Pg. 98-99. The trial Court held thus, on Pg. 42 of the record:- “Even though the accused denied robbing the victims or belonging to a gang, a careful scrutiny of exhibit A shows its confirmation of the evidence of PW1 and PW2.

It is beyond comprehension that a victim of robbery will be given a gun by the robber who has just robbed him and walk away calmly to the Barracks. It is even more weird that the victim, the accused in this instance, will hold onto the gun, put it under his shirt and go after the robber with intention of giving the gun back to that robber. I have no doubt in my mind that while attempting to deny the allegation against him, the accused person has merely enmeshed himself more into the culpability net.

I have no doubt therefore that the accused himself has admitted being in possession of a gun on the day of incident when he was arrested and so the non-tendering of the gun cannot be fatal to the case of the prosecution.”

The Court below held as follows on page 109 of the record: In the instant case, the learned trial judge did not at any stage during the consideration of this case advert his mind to the question of whether the Appellant made the statement under consideration. It is therefore my view that in absence of a specific finding on the issue stated above on the issue whether or not exhibit “A” was made by the Appellant, this Court as an Appellate Court cannot choose between the two versions in order to make finding of fact which the trial Court failed to make.

In the circumstance, it is my view that the Appellant did not make the statement and it is hereby expunged from the Record.

I cannot bring myself to agree with the finding of the Court below to the effect that the trial Court made no specific finding on whether or not the Respondent made Exh. A. I cannot also bring myself to agree that the trial Court made no specific finding on the credibility and the probative value to be attached to Exhibit A. I am of the view that it is very clear on the record that the trial Court found the story of the Respondent in Exhibit A improbable and that its improbability supports the case of the Prosecution in all material particulars.

That much was made clear in the judgement of the trial Court. I am of the view that the Court below was wrong to expunge Exhibit A from the evidence of the Prosecution as it was properly admitted, and a finding was made on it by the trial Court. There is no doubt that the onus is on the Prosecution throughout to prove the case beyond reasonable doubt as required by Section 135 (1) of the Evidence Act. See: ANI v. THE STATE (2009) 16 NWLR (Pt.1068) 443 AT 457; STATE v. AIBANGBEE (1988) 7 SC (Pt.1) 96 AT 132-133; AMINU TANKO v. THE STATE (2009) 16 NWLR (Pt.1114) 597 AT 636.

I agree with the contention of the Appellant’s Counsel that the function of evaluation of evidence is essentially that of the trial judge. When he satisfactorily performs this duty, an appellate Court should not interfere. Ordinarily, an appellate Court will not interfere with the decision of a trial Court where so much of it turns on the credibility or reliability of the witnesses on the rational that ascription of probative value to such evidence is the primary function of the trial Court which saw, heard and assessed the witnesses.

The Appellate Court will not interfere merely for substituting its view for the view of the trial Court where the trial Court has properly evaluated the evidence and made findings of fact. See: ALHASSAN MAIYAKI v. THE STATE (2008) 15 NWLR (Pt.1109) 173 AT 202 & 211; OCHUKO TEGWONOR v. THE STATE (2008) 1 NWLR (Pt.1069)630 AT 654-655; DOKUBO-ASARI v. FRN (2009) 37 NSCOR (Pt.11) 1146 AT 1173)19; JOSEPH OYEWOLE v. KARIMU AKANDE & ANOR (2009) 15 NWLR (Pt. 1163) 119 at 143.

To prove armed robbery the Prosecution must adduce evidence that: a) That there was robbery;

b) That the robbery was committed while the accused person was armed with offensive weapons; c) That the accused person participated in the robbery.

My Lords, in this appeal, the victims who were Policemen stated their encounter with the Respondent on that day. The Respondent in his own evidence on Oath admitted that on that day he actually, encountered the Policemen while he was on the road – Barracks Road where the Policemen were robbed. The only difference is that he claimed to have also been robbed by two boys prior to his encounter with the policemen and denied robbing the Policemen. In my view this boils down to a case of Oath against Oath.

The strenuous point made by the Respondent relates to when precisely the handset and N25,000.00 of PW2 were stolen. Heavy weather was made by the Respondent on the issue of fact of whether the money was taken by the accomplice from PW2 or PW2 gave up the money after he was threatened with the gun being held by the Respondent.

​It is pertinent to note that PW1 and PW2 are ad idem in their evidence without contradictions that it was the Respondent herein who was in possession of the gun that was used by him to threaten the victims while the accomplice was the one who collected the handset and money of PW2 and ran away with them. The trial Court which saw and heard them believed their evidence in that regard.

The fact that PW1 and PW2 were able to establish in their uncontroverted evidence that they met two boys of whom the Respondent is one and the 2nd one at large shows that a case of criminal conspiracy and armed robbery had been proved by the Appellant against the Respondent herein.

I do not agree with the lower Court that in this case it is material whether PW1 gave the accomplice the money before or after he was threatened with a gun or whether or not the one victim knew the denomination of the money taken from the other victim. The record at the trial Court does not show that these issues were contested and that they constituted material contradictions. In ISIBOR v. THE STATE (2002) 2 SCNJ 162 at 167, this Court held that: It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant.

The contradictions must be shown to amount to a substantial disparagement of the witness or witness or witnesses.”

The most important issue raised against the credibility of the Prosecution witnesses was the failure of PW1 to state at the earliest opportunity that he lost his handset and the sum of N25,000.00 was taken from him by the Respondent’s accomplice. My Lords, the case of ABDULLAHI v. THE STATE (2008) 17 NWLR Pt.115 Pg.203 and cases in like ilk relied upon are not really relevant in the circumstances of this case. In ABDULLAHI v. THE STATE; relied on by the Respondent, the Defendant was not arrested at the scene of crime and the identity of the armed robbers was a live issue at trial.

Also in that case, the victims of the armed robbery said in their evidence that they knew the armed robbers before the date of the armed robbery incident but failed to mention their names at the earliest opportunity when they reported the case to their neighbors and the community leader as well as in their statements to the Police. The law on this point by this Court is as stated by KATSINA-ALU JSC (as he then was) inABDULLAHI v. STATE SUPRA as follows: The position of the law is this.

Where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the Police at the earliest opportunity, that would detract from what-ever credibility the trial Court may wish to ascribe to his evidence. In addition, he should describe the clothes the accused wore at the scene of crime. Surely this is common sense and failure to adopt this commonsense approach would inevitably result in the acquittal of the accused”.

However, in the instant case, the Respondent was arrested at the scene of crime or caught in the course of committing the offence of armed robbery. The items stolen are known in the instant case. The handset and money were stolen by the accomplice of the Respondent, while the gun was found in possession of the Respondent who used it to threaten PW1 and PW2.

Finally, the failure of the Police to tender the gun is not fatal to the Prosecution’s case. The witnesses (victims) stated that the case was later transferred to the CID Lokoja. No issue was made at the trial of the absence of the gun. The circumstances when the failure to tender the gun would adversely affect the case of the prosecution is absent here. There was no controversy about the existence of a gun. There was no controversy about the type of gun used.

There was no issue of ballistic report in contention to warrant absolute certainty about the model of the gun or the type of bullets used. The Respondent said on oath that he was also robbed by some boys carrying a gun.

There is no reason to interfere with the findings of the trial Court relating to the credibility of the prosecution witnesses, the proper probative value to be placed on Exhibit ‘A’ which I agree lent credence to the evidence of the Prosecution witnesses which proved the charge against the Respondent beyond reasonable doubt.

In the circumstances, this appeal succeeds. The Judgment of the Court of Appeal delivered on 24/5/2012 is hereby set aside. I restore the conviction and sentence of the Respondent for conspiracy and armed robbery. Appeal Allowed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC just delivered. I am in complete agreement with the reasoning and conclusion advanced in the lead judgment which I hereby imbibe in allowing the meritorious appeal. I abide by the consequential orders contained in the lead judgment.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal deserves to be allowed.

On issue one, it is a general principle of criminal law that, contradictions in evidence which do not affect the substance of the issue is irrelevant. The contradiction that would make an appellate Court disbelieve the prosecution witnesses must be on a material point in the case, capable of upturning the decision of the trial Court.

Minor or miniature contradictions which do not touch on any of the ingredients of the offence charged will not be of any moment, Jimmy v The State (2013) 18 NWLR (Pt 1386) 229; Enahoro v The State (1965) NSCC (vol. 4) 98 at 113; Isibor v The State (2002) 4 NWLR (Pt. 758) 741; Sele v The State (1993) 1 NWLR (Pt. 269) 276.

Furthermore, when the issue involves the credibility of witnesses, an appellate Court is handicapped to intervene. This is because the trial Court, being the master of facts and evidence, has the sacred duty of seeing and hearing witnesses. Therefore, having properly evaluated the evidence before it, an appellate Court is not allowed to intervene, Fatai v The State (2013) 10 NWLR (Pt. 1361) 1; Babatunde v The State (2014) 2 NWLR (Pt 1391) 298; Jibrin v F.R.N (2018) 13 NWLR (Pt.1635) 20.

I am of the firm view that the Court below was in error when it held that PW1 failed to give account of the items stolen at the earliest opportunity which had occasioned a miscarriage of justice, in effect challenging the credibility of PW1. Having the advantage of seeing and hearing the witnesses testify and having observed the demeanor of the witnesses, it is only the trial Court that is best suited to decide on the credibility of witnesses.

An appellate Court cannot substitute its own views for the views of the trial Court,Efe v The State (1976) 11 SC 75 at 81; Sanyaolu v The State (1976) 5 SC 37 at 44; Okonofua v The State (1981) 6-7 SC 1.

As regards issue two, my learned brother found that “Exhibit A” is not a confessional statement. I am also inclined to agree with His Lordship. A confessional statement is one in which the accused person admits to the commission of the offence for which he is charged, Solola v The State ​(2005) 11 NWLR (Pt 937) 460.

In the instant case, the accused person in his statement already reproduced in the leading judgment did not admit to the commission of the offence of armed robbery to which he is charged. Such statement may at best be referred to as an “extra-judicial statement”. The law is trite that an extra- judicial statement is an admissible evidence, Sadau v The State (1965) 1 All NLR 124. The effect being that the Court can legally rely on it.

Where an objection is raised to its admissibility, it is within the competence of the trial Court to act on it by determining the evidential value to be placed on it in determining the guilt of the maker, Balogun v FRN (2021) 11 NWLR (Pt.1787) 353.

Learned Counsel for the respondent objected to the admissibility of the so-called confessional statement at the trial Court, on the ground that the Respondent did not sign the statement but rather thumb-printed on it and that the statement sought to be tendered was signed.

Assuming, though not conceding that this was a confessional statement, this Court has held in a plethora of cases that a valid mode of retraction of confessional statement is where the accused person, though admits to making a confessional statement but goes on to explain to the Court that the confessional statement being tendered was not the one made by him; Onwumere v The State (1991) 4 NWLR (Pt. 186) 428 at 440.

The law is settled that the retraction of a confessional statement, especially one retracted in the manner done by the Respondent, does not render the confessional statement inadmissible. It therefore does not preclude the Court from relying on it, Alao v The State (2019) 17 NWLR (Pt.1702) 501; State v Ibrahim (2019) 9 NWLR (Pt. 1676) 137; Ikemson v The State (1989) 1 CLRN 1; Sule v The State (2009) 17 NWLR (Pt.1169) 33; Busari v The State (2015) 5 NWLR (Pt.1452) 343; Bisi v The State (2021) 12 NWLR (Pt 1790) 205; Iorapuu v The state (2020) 1 NWLR (Pt. 1706) 391.

It is however desirable at this stage, that the Court should, outside the confessional statement, look for some corroborative evidence. No matter how slight. State v Masiga (2018) 8 NWLR (Pt. 1622) 383; Hassan v The State (2001) 15 NWLR (Pt. 735)184.

Having established that “Exhibit A” was an admissible evidence, it is my view that the Court below was in error when it chose to expunge the evidence from the Record of Proceedings. Any evidence which is admissible in law, remains so and should not be excluded. It is for this and the more detailed reasons in the leading judgment that I too shall enter an order allowing this appeal.

UWANI MUSA ABBA AJI, J.S.C.: My learned brother, Helen Moronkeji Ogunwumiju, JSC, advanced to me the draft copy of the lead judgment just delivered. I have read through and agree that the appeal be allowed.

The issue couched in the lead judgment is hereby adopted thus: Whether upon a careful perusal of the totality of the evidence of the prosecution, the Court below was right to have acquitted and discharged the Respondent.

​In the present appeal, the Respondent was arrested at the scene of the crime by PW1 and PW1, who happened to be police officers that the Respondent with his accomplice while armed, robbed of handset and money with a gun brandished by the Respondent. The Respondent’s case that, while sick, he went to the bush for herbs where some boys robbed him of N25.00 and on his way back home, he met PW1 and PW2, who arrested him and took him to the Okene police station; is obviously the most concocted and improvised defence to put up in any criminal case of this magnitude.

The failure to tender the gun cannot be a ground for the discharge and acquittal of the Respondent.

Once the prosecution proves the ingredients of armed robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person. This is because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility. Nothing stops an accused person from throwing away or hiding the offensive weapon completely outside the investigative eyes of the Police.

If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, in the circumstances, cannot therefore be basis of acquittal. Per TOBI, JSC, in FATAI OLAYINKA V. THE STATE (2007) LPELR-2580(SC) (PP. 21-22 PARAS. G).

​In this while therefore, I agree with the decision of my learned brother, Helen Moronkeji Ogunwumiju, JSC, setting aside the judgment of the lower Court. I consider the lower Court’s judgment as perverse and fit for setting aside. The appeal hereby succeeds and is allowed.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JSC. I am in agreement with the reasoning and conclusion contained therein, to the effect that there is merit in the appeal.

It is trite law that the prosecution is duty bound to establish the following essential elements beyond reasonable doubt to secure a conviction for the offence of armed robbery: a. That there was a robbery incident or series of robberies. b. That the robbery or each of the robberies was an armed robbery. c. That the accused was the armed robber or one of the armed robbers. See JOHN V. STATE (2019) LPELR – 46936 (SC); STATE V. SANI (2018) LPELR – 43598 (SC); AMEH V. STATE (2018) LPELR – 44463 (SC).

In the instant case, the evidence of PW1 and PW2 takes it beyond doubt that there was a robbery as they described how they were accosted by the Respondent and his accomplice and how they were robbed of a phone and the sum of N25,000.00.

The witnesses also proved the second ingredient of the offence beyond reasonable doubt. Their evidence that Respondent was in possession of a gun which was used to threaten and rob them of their possessions was not controverted at trial. From the foregoing, there is no gainsaying that the Appellant also proved that the Respondent was one of the robbers who attacked them.

​The Appellant having proved the elements of the offence beyond reasonable doubt, I see no basis for the lower Court’s setting aside of the conviction and sentence of the Respondent by the trial Court. For the above reasons and the more elaborate ones enunciated in the lead judgment, I too allow this appeal. I abide by the consequential orders made. Appeal allowed.

Judgment

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Katsina State High Court delivered on 5th of October, 2017 in Suit No: KTH/27C/2016. The appellant along with three other accused persons were arraigned before the High Court of Justice Katsina State for the offence of armed robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R 11LFN 2004. They were found guilty and sentenced to 21 years imprisonment.

The case of the respondent against the appellant and the three other convicts was that on 5th of September, 2016 one Gambo Mallam Ya’u (PW1) was robbed by four men armed with sticks, machetes and horns while they were masked. At the trial seven (7) witnesses testified for the respondent and several exhibits were tendered and admitted in evidence, including the statements of the appellant, Exhibits C, D, C1 and D1. The appellant and the three other co-accused persons testified in their own defence.

After hearing the learned trial Judge found them guilty as charged, convicted them and sentenced them to 21 years imprisonment. Being aggrieved by the decision the appellant appealed to this Court vide the original notice of appeal filed on the 5th of March, 2020. On the 24th of February, 2020, the appellant was granted 14 days extension of time to appeal. The appellant filed an amended notice of appeal on 16th of June, 2021 and same was deemed on 27th of September, 2021. The amended notice of appeal contain two (2) grounds of appeal.

At the hearing of this appeal on the 14th of February, 2022, Olujoke Aliyu of counsel adopted the appellant’s brief of argument filed on 16th of June 2021 and deemed on 27th of September 2021. And the reply brief filed on 29th of October, 2021 and deemed on 2nd of November, 2021. Having adopted the two briefs the appellant’s counsel urged the Court to allow the appeal. The respondent’s brief was settled by Omosanya Popoola and it was filed on 27th of September, 2021 and deemed on same date 27th September, 2021.

After adopting the said brief the learned counsel urged the Court to dismiss the appeal.

The appellant distilled a sole issue for determination from the two grounds of appeal, thus: “Whether having regard to the evidence led at the trial, there was reasonable doubt as to the alleged robbery and the appellant’s participation in the same.” The respondent equally distilled a sole issue for determination thus: “Having regard to the facts and circumstances of this case, whether the trial Court did not properly evaluate the material evidence adduced before it when it convicted and sentenced the appellant for the offence of armed robbery.” However an appellate Court is not bound by the issues formulated by the appellant or the respondent.

An appellate Court has the powers to reframe any issue formulated by the parties. Essentially an issue, for determination brings into clear focus and precision the main points involved in the appeal. In this regard I hereby reframe the issue to read thus: “Whether in view of the totality of the evidence before the Court, the prosecution/respondent had proved the offence of armed robbery against the appellant beyond reasonable doubt.” The appellant’s counsel submitted that an accused is presumed innocent until his guilt is proved beyond reasonable doubt.

The prosecution has a burden to establish all the elements of the offence beyond reasonable doubt. The learned counsel relied on the Supreme Court decision in the case of State v. Sani (2018) 9 NWLR (Pt. 1624) 278 at 294 paras G – H where the essential elements for the offence of armed robbery were stated thus: (a) that there was a robbery or series of robberies. (b) that the robbery was carried out with offensive weapons; and (c) that the accused person participated in the robbery.

The learned counsel submitted that the evidence of the prosecution is such that creates reasonable doubt as to the robbery and the participation of the appellant in the robbery. In convicting the appellant the lower Court relied on the retracted confessional statement of the appellant and other defendants. The lower Court sought for evidence outside the confessional statement to corroborate the confession.

The lower Court relied on the exhibits tendered in Court by PW7 the exhibit keeper, which are the weapons allegedly found in the homes of the defendants and which were used in the commission of the crime. The lower Court held thus: “It is on record that PW7 informed the Court how Exhibit A – F2 and M to M2 were recovered from the house and premises of the 1st accused person by means of a search warrant. The discovery of the items especially Exhibits A, C, E1, M1 and M2 go to (strengthen) the evidence of PW1 and PW2 and even the confessional statements of all the accused persons”.

In the light of the above finding that I strongly hold the view that the retraction of DW1 – DW2 are just an afterthought which will not avail them an escape route.” See page 72 of the record. Learned counsel submitted that PW1 and PW2 testified that two men came into their home and robbed PW1. They also testified that they could not identify the said robbers. The identity of the said robbers is crucial to the fact that the defendants charged were the ones that carried out or participated in the said robbery. In the case of Ani v.

State (2009) 16 NWLR (Pt. 1168) 443 at 460, the Supreme Court held that identification of an accused person in the commission of crime is a most serious exercise in the administration of Criminal Justice, as it creates the link between the accused person and the offence. Accordingly, a Court of law cannot speculate that a complainant might have or must have disclosed the person or persons who committed the offence when there is no evidence to draw such a conclusion. Further in Ogbaga v.

The State (2016) LPELR – 40950 (CA), the Court held: “In a criminal charge, the act of the accused person must be tied to the commission of the crime. There must be a nexus between the accused person and the crime purportedly and indeed allegedly committed.” The learned counsel submitted that neither the appellant nor any of the other defendants were arrested at the scene of the crime and the prosecution gave no evidence of where the appellant was arrested.

In attempting to connect the appellant to the alleged robbery the prosecution relied on the alleged confessional statement and the exhibits tendered by PW7, the Exhibit Keeper which were allegedly used by the appellant and the other defendants during the robbery. The exhibits are: 1. 6 Sticks 2. 4 Knives 3. 2 Swords 4. 1 Cutlass with cure head 5. 1 Mask 6. 2 Turbans 7. 2 dark glasses 8. Some charms 9. 1 animal horn 10. Some amount of money (Cash) which was later released to the owner on bond.

The learned counsel submitted that the charge stated that the robbery was committed on the 5th of September, 2016. PW1 and PW2 testified that the armed robbery occurred on 5th of September, 2016. But PW7 the Exhibit Keeper who tendered the exhibits on 1st of February, 2017 he stated as follows: “On 14/8/2016, one Inspector Adamu Musa attached to Anti – Robbery Section of SCID Katsina brought some exhibits in connection with this case against one Abdullahi Ibrahim and 3 Ors for registration.

I registered them and gave them numbers, they are as follows …” From the evidence of PW7 the exhibits were registered on 14/8/2016, it raises a question as to how exhibits that were allegedly used during an armed robbery on 5th September, 2016 could have been registered with the exhibit keeper in August, 2016 about three weeks before the alleged robbery. The exhibits were not connected to the robbery that occurred on 5th September, 2016 yet the trial Court found that the said exhibits strengthened the case of the prosecution and supported the confessional statements.

The trial Court proceeded to convict the appellant on the basis of the same. There was no evidence outside the alleged confessional statement linking the appellant to the robbery. The evidence of PW1 and PW2 did not provide any linkage as both witnesses stated that they were unable to identify the assailants. The learned counsel submitted that where an accused person retracts his confessional statement a trial Court must be wary of convicting on the same without some other compelling corroborative evidence and also subjecting the confessional statement to intense and detailed scrutiny.

See Nwaebonyi v. State (1994) NWLR (Pt. 343) 138. Appellants counsel submitted that the learned trial Judge failed to evaluate the evidence placed before it and thereby falling into error by placing so much weight on the Confessional Statement to convict the appellant. The learned counsel urged the Court to exercise its powers to re-evaluate the evidence. See Ali v. State (2015) LPELR 24711 (SC) and Abraham v.

State (2017) LPELR 42873 (CA). ​ The respondent’s counsel submitted that the respondent led credible evidence to prove the offence of armed robbery against the appellant beyond reasonable doubt as required by Section 138 of the Evidence Act. And, the trial Court dispassionately and properly evaluated the evidence in arriving at the conviction and sentence of the appellant. He submitted that the requirement of proved is beyond reasonable doubt and not proof beyond every and all shadow of doubt. See Esene v. State (2017) 8 NWLR (Pt. 1568) 337, Rabiu v.

State (2005) 7 NWLR (Pt. 925) 491 and Moses Jua v. The State (2010) 4 NWLR (Pt. 1184) 217. Learned counsel submitted that there are three ways of proving a crime. These are: 1. Direct evidence 2. Confessional Statement made by the accused person and 3. Circumstantial evidence See Akibu v. State (2019) 11 NWLR (Pt. 1588) 177. The learned counsel concede to the elements of the offence of armed robbery earlier listed by the appellant’s counsel. And he further cited the following cases to buttress his submission. Musa v. State (2017) 5 NWLR (Pt. 1557) 43, FRN v. Barminas (supra), Dairo v.

State (2018) 7 NWLR (Pt. 1619) 399, Saminu v. State (2019) 11 NWLR (Pt. 1683) 254 and Obade v. State (1991) 6 NWLR (Pt. 198) 430. The learned counsel submitted that the appellant is not contesting the first two elements of the offence of armed robbery to wit that there was a robbery or series of robberies and that the robbery was an armed robbery. The evidence of PW1 to PW7 and Exhibits A – M clearly reveals that there was a robbery and it was an armed robbery. The only question left to be answered is thus: Whether or not the appellant participated in the armed robbery for which he was charged.

The learned counsel submitted that the respondent has also proven this fact beyond reasonable doubt through the confessional statement of the appellant and other exhibits. A free and voluntary confession of guilt by an accused person if it is direct positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt as confession alone is sufficient without further corroboration to warrant a conviction. SeeIkpo v. State (2016) 10 NWLR (Pt. 1521) 501, Rex v. Ajayi Omokaro (1941) 7 WACA 146, Ogoala v.

The State (1991) 2 NWLR (Pt. 175) 509, Queen v. Obiasa (1962) 2 SCNLR 402 and Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 433. Learned counsel submitted that in Exhibits C, D, C1 and D1 the appellant confessed to having committed the crime of armed robbery together with the other accused persons. But at the point of tendering the said confessional statements the appellant did not object to the admissibility of same on ground of involuntariness rather the appellant retracted the confessional statement.

And the evidence of PW4 clearly shows that there was full compliance with the provisions of the extant law when the extra-judicial statements were taken. And that the trial Court can convict on the confessional statement of the appellant whether (retracted or not) alone without any recourse to any other evidence. See Adisa v. State (2019) 3 NWLR (Pt. 1660) 488. Therefore, the trial Court’s decision to look outside the appellant’s confessional statement Exhibits C and D and C1 and D1 was made in the abundance of caution.

The voluntariness or otherwise of the confessional statement of the appellant was not in issue at the trial Court. And where an accused person retracts his confessional statement at the point of tendering it in evidence, he will not be allowed to summersault at the point of giving evidence in chief that the confessional statement was made involuntarily. It is too late in the day as it is considered an afterthought. See Dairo v. State (supra) and FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141.

The learned counsel further submitted that in testing the truthfulness of a retracted confessional statement the Court would be expected to consider whether the confession was consistent with other facts which have been ascertained and proved at the trial no matter how slight. See State v. Ibrahim (2019) 9 NWLR (1676) 137 and Ameh v. State (2018) 12 NWLR (Pt.1632) 99.

Learned counsel submitted that the combined evidential value of the appellant’s written confessional statement corroborated by the unchallenged and uncontradicted evidence of PW1 – PW7 was more than adequate in providing the perfect legal backing for the trial Court to rely on in convicting and sentencing the appellant.

Learned counsel submitted that the evidence adduced by the entire respondent’s witnesses reveals that PW7 misstatement of the date the weapons were deposited with him as exhibit keeper is nothing more than a mere minor slip which did not affect the totality of his evidence or the reliability or evidential value of the exhibits tendered in evidence by PW7 as the weapons used in the armed robbery. And the appellant did not cross-examine PW7 on this supposed crucial point. The misstatement of the date of receipt of the exhibits by PW7 becomes insignificant and is of no moment.

The position of the law is that an error in stating the date in a criminal matter is an immaterial or inconsequential error which has no effect on the trial or on the judgment of the trial Court. See State v. Ahmed (2020) 14 NWLR (Pt. 1743) 1. And Sagiru Attahiru v. The State (2020) LPELR 51092 (CA). Relying on the case of Adeleke v. State (2014) All FWLR (Pt. 722) 1652 and Asimi v. State (2016) 12 NWLR (Pt. 1527) 414, the learned counsel submitted that the trial Court was right to rely on the confessional statement of other co-accused person as corroborative evidence of each other.

See also State v. Buhari (2019) 10 NWLR (Pt. 1681) 583. The respondent counsel submitted that without conceding that there are few contradictions and inconsistencies, such contradictions must be material and fundamental. They must create doubt in the mind of the Court to such a degree that the Court believes that the doubt must be resolved in favour of the accused. See Awopejo v. State (2001) 92 LRCN 3187, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Nwosisi v. State (1976) 6 SC 109, Ayo Gabriel v. State (1989) 5 NWLR (Pt. 122) 457 and Princent & Anor. v. State (2002) 12 SC (Pt. 1) 137.

Learned counsel submitted that the law is that the burden is on the party who alleges contradictions to discharge the burden by showing quite glaringly that the inconsistency is material in order to succeed. See Brilla v. FRN (2018) 16 NWLR (Pt. 1645) 305. Learned counsel submitted that the appellant failed to discharge that burden having argued that the number of armed robbers that PW1 and PW2 testified that they saw whether 2 or 4. The name of the nominal complaint whether Gambo or Gambo Mallam Yau. Where the appellant lives, whether Dankama or Dankaba village.

How much money was taken the nature of the weapons used by the robbers. The name Musa Nashehu which was provided by the appellant in Court and Musa Shaaibu Nashehu written on the appellant’s confessional statement. All never detracted from the fact that the Appellant did participated in the armed robbery. The appellant’s reply brief is a mere re-argument of the appellants brief. It does not conform with Order 19 Rule 5(1) of the Court of Appeal Rules 2021. A reply brief is or should be a response to any new issue or point raised in the respondent’s brief.

It is not a repair kit and should not be a reargument or a repetition of the appellant’s brief. See N.P.A v. Aminu Ibrahim & Co., (2018) 12 NWLR (Pt. 1632) 62 (SC). Accordingly therefore the reply brief is discountenanced. The law is firmly settled that in criminal trial the burden of proof rest on the prosecution to prove its case beyond reasonable doubt. Section 135(1) of the Evidence Act 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt.

See Section 36(5) of the 1999 Constitution (as amended) which provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. However proof beyond reasonable doubt is only required to attain a high degree of probability and not the degree of absolute certainty. In other words, it is not prove beyond all doubts or shadow of doubt. See Rabiu v. State (2005) 7 NWLR (Pt. 925) 491 and Esene v. State (2017) 8 NWLR (Pt. 1568) 337. The prosecution can discharge its burden in three ways.

These are through direct evidence of an eye witness, through confessional statement of the accused and through circumstantial evidence. See Akibu v. State (Supra) and F.R.N. v. Barminas (supra).

Both the appellant and the respondent are adidem on the three essential elements to be established in a charge of armed robbery. These are: 1. That there was a robbery or series of robberies 2. The robbery was an armed robbery and 3. The accused participated in the robbery. See Musa v. State (supra) FRN v. Dairo (supra) and Saminu v. State (supra). The prosecution must lead cogent and positive evidence that leaves no room whatsoever for any other conclusion other than that it was the appellant who committed the offence.

Where there is any slightest doubt on the case of the prosecution, the benefit of doubt must be resolved in favour of the accused person. In other words, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133 and Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87 Para 10-20. In this instant case, seven witnesses testified for the prosecution, PW1 to PW7. And several exhibits were tendered and admitted in evidence as Exhibits A-M.

These includes the extra-judicial statement of the appellant with other co-accused persons and the weapons used to commit the robbery. While reviewing the evidence before the Court, the learned trial judge stated thus: “PW1 was the alleged victim, one Gambo Mallam Ya’u aged 32 years lives at Dankaba in Kaita Local Government Area. A livestock trader. He told the Court that on 5th September, 2016 which was a Monday around 3:00am.

He was suddenly woken up from his sleep by a sound of beating with a stick on his leg and he noticed two (2) people standing in front of him, their faces covered with turbans. They were holding matchet sticks, and horns and torch light. He was engulfed with fear. It was then the Robbers told him that. They were sent to kill him. They requested for money which he gave them N203,000.00 and 25 pounds of sefa which he had kept in his trouser. Gambo said he was pursued with a knife when he attempted to pursue them….

Under cross-examination, PW1 replied that he could not challenge the robbers because it was dark and they were carrying dangerous weapons…… The wife of PW1 was PW2 she affirmed and informed the Court that it was around 3:00am when she was coming out of the toilet she notice two (2) people who covered their faces with mask.

They hit her husband (PW1) with a stick while he was sleeping and told him that they were send to kill him and when he replied it was o.k (sic) they asked PW1 if he was not afraid of death and that the Armed Robbers later demanded for money which he brought out and gave them.” From the evidence of PW1 and PW2, it has been established that there was a robbery on the 5th of September, 2016 at Dankaba and the robbery was an armed robbery.

The next crucial question is whether the appellant participated in the robbery? PW1 and PW2 who were victims of the robbery they both stated in their evidence that the robbers covered their face with turbans and mask, and that it was dark. During cross-examination, they both said they could not identify the robbers. Therefore, the issue of identification becomes a sine qua non. But in this instant case, although identification parade is desirable, it is unnecessary in this circumstance.

Reason being that the victims of the robbery stated clearly that they could not identify the robbers because it was dark and the robbers covered their face. Therefore, unless the accused persons were promptly arrested at the scene of the crime before they have the chance to escape, identification of the accused persons taking part in the crime becomes very difficult. And that is not the case in this situation that is to say that the appellant and other co-accused persons were not arrested at the scene of the crime.

As a matter of fact, there is no evidence led as to how, when and where the appellant was arrested. Where an accused person is not properly and clearly identified as the one who actually took part in the commission of the crime but merely arrested by the police on suspicion and charged to Court, there is doubt as to the guilt of the accused person. However, the trial Court relied on the retracted confessional statement of the appellant and the weapons used in committing the robbery to ground a conviction.

Further reviewing the evidence the learned trial judge held thus; “… Both recorded statements were identified by PW4 and were sought to be tendered in evidence. The move was objected by the defence counsel on the ground that the 3rd accused person has made a retracted of his confessional statement. The Court overruled the reason for the objection and admitted the statement in evidence as Exhibits C and D and C1 and D1 for the additional statements both in Hausa and English versions…” The learned trial judge rightly admitted the confessional statements in evidence.

It is settled law that a voluntary confession which is admissible against an accused person does not become inadmissible merely because the accused person who made it has retracted. See Ikemson v. The State (1989) 6 SC (Pt. 1) 114 at 130-131. In other words, the retraction of a confessional statement does not render the said statement inadmissible in evidence. The trial Court has a duty to admit the said confessional statement in evidence and then decide on the weight to attach to it at the end of the trial.

In determining the weight to be attached to a retracted confessional statement the Court is expected to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. This is done by considering the following: 1. Whether there is anything outside it to show that it is true 2. Whether it is corroborated 3. Whether the accused had the opportunity of committing the offence 4. Whether the facts stated in it are true as far as can be tested 5. Whether the accused persons confession is possible 6.

Whether the confession is consisted with the other facts ascertained and proved at the trial. See Osetola v. State (2012)17 NWLR (Pt. 1329) 251, Akpan v. State (2000) 12 NWLR (Pt. 682) 607 and Kareem v. FRN (2002) 8 NWLR (Pt. 770) 664. Before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See Okoh v. State (2014) 57 (Pt. 2) NSCQR 732 and Bassey v. State (1993) 7 NWLR (Pt. 306) 409.

In this instant case the learned trial judge relied on the evidence of PW7 along with the exhibits tendered through him to strengthen the case of the prosecution with regards to the confessional statement. PW7 testified in Court and he stated thus: “My name is Insp Idris Abdullahi No. 130811 attached to SCID Katsina as exhibit Keeper. I am 46 years old. I have been an exhibit keeper for 2 years now, I know why I am in Court.

On the 14/8/2016 one Insp Adamu Musa attached to Anti Robbery section of SCID Katsina brought some exhibit in connection with this case against one Abdullahi Ibrahim and 3 Ors for registration. I registered them and gave them number, they are as follows: 1. 6 sticks 2. 4 Knives 3. 2 sword 4. 1 cutlass with curve head 5. 1 mask 6. 2 turbans 7. 2 dark glasses 8. some charms 9. 1 animal horn 10. some amount of money (cash) which was later released to the owner on bond. All the exhibits were tied together and marked as 223/2016 except the motorcycle which was kept outside the Court.

All the exhibits is with the prosecution counsel.” It is crystal clear that from the evidence of PW7, the exhibits were brought to the SCID on 14/8/2016 by Insp Adamu Musa and they were registered on that date. It is instructive to note that the alleged robbery took place on the 5th September, 2016 as per the evidence of PW1 and PW2. And Insp Adamu Musa who took the exhibits to PW7, is the PW4. In his evidence PW4 Insp Adamu Musa stated thus: “… yes I know why I am in Court. I investigate cases and compile the case diaries. Yes I know the accused persons.

I can recall on 7/9/2016, a case of criminal conspiracy and armed robbery was referred from Keita divisional police station to the state CID for investigation and I happened to be one of the IPOs. Our team is 4 in number I am the 1st one there is Abey Sunday Insp (3) Armaya’u Magaji PW3 and (4) CPL Yahaya Abdullahi.” I am on the same page with the submission of the learned respondent counsel that on the evidence of PW7 the exhibits were registered on 14/8/2016.

This raises a critical question as to how exhibits that were allegedly used during an armed robbery operation on 5th September, 2016 could have been registered with an exhibit keeper in August 2016 about three weeks before the alleged robbery.

In his own response to this critical question, the respondent’s counsel submitted that a calm perusal of the entire evidence adduced by the respondent’s witnesses will reveal that PW7 misstatement of the date the weapons were deposited with him as exhibits keeper is nothing more than a mere minor slip, which did not affect the totality of his evidence and indeed the reliability or evidential value of the exhibits including the exhibits tendered in evidence by PW7 as the weapons used in the armed robbery.

It is trite law that however well presented arguments by counsel cannot take the place of evidence. It is also trite that Courts of law do not act on speculation but on proved facts. See NNPC v. FAMFA Oil Ltd (2003) FWLR (Pt. 154) 812, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Nigeria Arab Bank Ltd v. Felly Keme (Nig) Ltd (1995) 6 NWLR (Pt. 387)100 Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 636.

The arguments of the respondent’s counsel is not borne from the records. The learned trial judge did not make such a finding before placing reliance on the exhibits. The effect is that there was no evidence to corroborate the retracted confessional statement. In the recent case of Gbadamosi v.

The State (2019) 4 NWLR (Pt. 1661) 29, the Supreme Court held thus: “In the case of an accused person, the Court will take the view that the accused has retracted from the confession and apply the veracity test to see if the confession is true and where it comes to the conclusion that the confession is true and there is evidence to corroborate the confession, the Court could proceed to convict the accused based on the confession.” In line with the decision of the Apex Court, I hold that where an accused person retracts his confession, the trial Court has a duty to apply the veracity test to ensure that the confession is true and to also look for corroborative evidence before convicting the accused person.

See Adamu Saliu v. The State (2014) 12 NWLR (Pt. 1420) 65 at 84-85, Nwaebonyi v. The State (1994) 4 NWLR (Pt. 343) 138 at 157, Adisa v. State (2019) 3 NWLR (Pt. 1660) 488, Karimyu Sunday v. The State (2017) LPELR-42259 (SC). In this instant case, the learned trial judge should have exercised caution in convicting the appellant based on the confessional statement without applying the veracity test.

This is because the appellant in his evidence in chief, he stated thus: “I told them that I just came into the town, they searched me and I was beaten, two of my handset, drivers license and the sum of N4000 were all seized from me. After my denial they took me to Kaita DPS where I was beaten again and tear gas was sprayed on me which made me fall asleep.. They woke me up around 12am and took me upstairs and asked me whether I was once killed and came to live. I said no. They showed me a dead person laying on the floor who they told me was accused of committing a similar offence.

They brought out metal and hit me, they asked me to tell them what I know regarding the offence but I insisted I know nothing about it. They asked me to go back to the cell but could not walk until one of them robbed tiger on my legs and helped took me down stairs..” See pages 33-34 of the record. In confirmation of what the appellant told the Court that he was beaten, PW1 during examination in chief, he told the Court that: “… later I heard the news that the people who went and robbed me had been arrested.

On hearing this, I immediately rushed to the police station and I met them being beaten.” See page 11 of the record. This pieces of evidence should have agitated the mind of the learned trial judge to subject the confessional statement to veracity test and look for corroborative evidence outside the confession.

The learned trial judge was in error to have convicted the appellant on the retracted confessional statements Exhibits C, C1, D and D1 without applying the veracity test and without any corroborative evidence except the weapons which were registered three weeks before the commission of the offence as exhibits used in the armed robbery. Consequently, I resolve the sole issue in favour of the appellant. ​ The appeal is indeed meritorious and it is allowed.

Therefore, the conviction and sentence of the appellant for the offence of armed robbery contrary to and punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004, in Charge No: KTH/27C/2016 are hereby set aside. Accordingly, I enter a verdict of acquittal and discharge for the Appellant Musa Nashehu.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Abubakar Mahmud Talba, JCA. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal is meritorious and ought to be allowed. I abide with the consequential orders.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court; Coram: Modupe Fashanmi, Nonyerem Okoronkwo and Haruna Simon Tsammani JJCA, who delivered the judgment on the 16th February, 2018 affirming the decision of the High Court of Ogun State delivered on the 17th April, 2014 convicting the appellant of conspiracy to commit armed robbery and armed robbery, per A.J. Lamina J.

BACKGROUND FACTS The Appellant was charged with a one (1) count offence of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap.R.11, Laws of the Federation of Nigeria and four (4) counts of 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.

Count 4 was struck out by the learned trial Judge consequent upon a no-case submission application by the defence, while the Appellant opened his defence at the trial Court with respect to counts 1, 2, 3 and 5. The ruling on the no case submission is at pages 101-107 of the record of appeal.

The particulars of the offences charged per pages 3-4 of the record of appeal are that the Appellant along with others now at large purportedly conspired on the 16th November, 2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State while armed with an offensive weapon to wit: gun robbed one Idowu Adebayo of the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira) (Count II).

Another count is in respect of the robbing of Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) (Count III). Yet another count is the robbing of Joseph Bankole of a Mazda 626 car with registration No. AJ 319 AKM and the sum of N50,000.00 (Count V).

​The prosecution listed nine (9) witnesses but only four (4) witnesses gave evidence for the prosecution to wit: PW1 – Mr. Raheem Adegbite, cashier at “P” Sunny Enterprises, PW2 – Mr. Joseph Bankole, a retired soldier, PW3 – Idowu Adebayo, a Salesman and the PW4 – Sgt Lawal Lukman, Police Officer. The Appellant (accused person at the trial Court) gave evidence on his behalf.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The evidence of PW1 is at pages 53 – 57 of the record of appeal. The evidence of the PW2 is at pages 57 – 73 of the record of appeal. The evidence of the PW3 is at page 74 of the record of appeal. The evidence of the PW4 is at pages 76 – 78 of the record of appeal. The evidence of the Accused (Appellant) is at pages 107a – 107d of the record of appeal. The final written address of the Accused (Appellant) is at pages 108 – 110 of the record of appeal while the final written address of the prosecution is at pages 111 – 113 of the record of appeal.

At the conclusion of the trial, the learned trial Judge in his judgment depicted at pages 114 – 140 of the record of appeal found the Appellant guilty as charged for conspiracy to commit armed robbery and armed robbery in respect of grounds 1, 2, 3 and 5 whereupon the Appellant was sentenced to death by hanging consequent upon the Appellant filing an initial appeal to the Court of Appeal, Ibadan Division upon being dissatisfied with the aforesaid judgment of the trial Court.

​The Appellant was granted extension of time to appeal by the Court of Appeal, Ibadan. The subsequent notice and grounds of appeal are depicted at pages 114 – 140 of the record of appeal. The Judgment of the Court of Appeal, Ibadan Division is at pages 190 – 222 of the record of appeal. The appellant being dissatisfied with the judgment of the Court of Appeal, Ibadan Division filed a Notice and Grounds of Appeal to the Supreme Court. He nominated the following issues for determination, viz:- 1.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the Court. (Grounds 1, 2, 3 and 6) 2.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s purported statements – exhibits “B & C- C2” as exhibits and treated same as confessional statement in spite of the fact that same were retracted by the Appellant. (Grounds 4 and 5).

Learned counsel for the respondent Eko Ejembi Eko Esq adopted the brief of argument filed on 11/7/2018 and deemed filed on 5/11/2020 and in it were formulated three issues for determination, viz:- 1. Whether the learned Justices of the Court of Appeal Ibadan division were right to have affirmed the decision of the learned trial Judge, that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of evidence before the Court. 2.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s statement – Exhibits B, C & C2 as evidence and treated same as confessional statements in spite of the fact that same were retracted by the Appellant. 3. Whether the Appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

The No.3 issue of the respondent is comprehensive and sufficient in the determination of this appeal and I shall use it as a single issue.

LONE ISSUE Whether the appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

Advancing the position of the appellant, learned counsel stated that the prosecution did not prove its case beyond reasonable doubt against the appellant as to warrant the lower Court affirming the appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the trial Court. That there is no substantiated evidence of the participation of the appellant in the purported robbery incident. He cited Nigerian Airforce v Obiosa (2003) 4 NWLR (pt. 810) 333 at 253; Obiakor v The State (2002) 10 NWLR (pt. 776) 612 at 616.

For the appellant, it was contended that the ingredients of armed robbery were not made out. He cited Lukmon Osetola & Anor v The State (2012) All FWLR (pt. 649) 1020 at 1037; Usman Maigari v The State (2010) All FWLR (pt. 546) 405 at 427.

​That the evidence proffered by the appellant was discountenanced by the trial Court who chose to believe that of the PW1, PW2 and PW3 as to whether there was a robbery incident on the 16/11/2007.

That the common purpose necessary in an offence of conspiracy was not made out and also that the agreement between the parties was not proved beyond reasonable doubt. He cited Smart v The State (2016) LPELR – 40827; Njovens v The State (1973) 5 SC P. 7.

That the prosecution did not lead any evidence from which the trial Court can draw inferences of the offence of conspiracy to commit armed robbery from the acts of the appellant in order to justify its affirmation of the conviction of the appellant by the lower Court.

Learned counsel for the appellant further submitted that there are contradictions in the evidence of the prosecution witnesses which should be resolved in favour of the appellant. He cited Agbo v The State (2006) All FWLR (pt. 309) 1380 at 1399 etc.

Chief Omu of counsel for the appellant contended that the learned trial judge wrongly admitted the extra-judicial confessional statement of the appellant, Exhibits “B & C- C2” as the appellant had retracted the said statements and the Court below was wrong to affirm the reliance of the trial Court on the said statements to convict the appellant. He cited Folorunsho Kazeem v The State (2009) FWLR (pt. 465) 1749 at 1773.

That the trial Court had not determined the truth or otherwise of the confessional statement before admitting and relying on them to convict.

For the appellant, it was contended that the Supreme Court should interfere with the concurrent findings of the two Courts below as they appear perverse, occasioned a miscarriage of justice against the evidence adduced and in violation of some principles of law and procedure. He relied on Ajayi v Adesuyi (2012) All FWLR (pt. 634) 1 etc.

Learned counsel for the appellant concluded that if the Court is not minded to allowing the appeal and acquitting the appellant, the Court should reduce the sentence. He cited Semiu Afolabi v The State (2013) All FWLR (pt. 702) 1690.

Mr. E.E. Eko of counsel for the respondent submitted that the uncontroverted and unchallenged testimonies of the prosecution witnesses show clearly that the appellant in the company of others armed with guns, robbed P. Sunny Enterprises Ltd on 16/11/2007. That the evidence showed that the appellant in conjunction with others within the same vicinity also armed with guns robbed PW2 of his car and valuables on the same day, and then when the appellant was apprehended, he shot PW2 in an attempt to escape.

He went on to contend that the confessional statement of the appellant confirming he was a member of the gang of armed robbers and that he had joined them for the particular robbery that took place on 16/11/2007 which is the date of incident under discourse. That there was enough evidence with which the conspiracy would be inferred. He cited Bouwor v State (2016) LPELR-26054 (SC) pp. 13 – 14.

Learned counsel for the respondent submitted further that the Court could still utilise the retracted confessional statement if there exist other independent corroborative evidence to give credence to the statement. He cited Ejinima V State (1991) LPELR – 1067 (SC).

That the concurrent findings of the two Courts below ought not to be disturbed as the appellant has not put forward any perverse route in the course of the findings and no violation of law or procedure nor a travesty of justice. He cited Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

The stance of the appellant in brief is captured in his assertion that there was no evidence linking the appellant to the purported robbery and that the confessional statement of the appellant were wrongly relied on by the trial Court and upheld by the Court below and the weight of evidence implored the Court to allow the appeal and set aside the conviction and sentence of the appellant.

The respondent on its part rejected the position of the appellant on all fronts stating that the offences of conspiracy to commit armed robbery and armed robbery were proved by the prosecution beyond reasonable doubt.

The offences of conspiracy to commit armed robbery and armed robbery which are contrary to Sections 6(b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.R.11 LFN.

In the offence of conspiracy to commit armed robbery, in order to secure a conviction the prosecution must prove the following facts: a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the armed robbery or series of robbery; c. That the robbery or each of the robberies was an armed robbery.

To ground a conviction for the offence of armed robbery, the prosecution has the duty of proving beyond reasonable doubt that; a. That there was a robbery; b. That the robbers were armed with offensive weapons as at the time of the robbery; and c. That the accused person participated in the robbery. The above three elements must be established beyond reasonable doubt before the Court can convict for each of the respective offences. It is to be noted that if any one of these elements is not proved beyond reasonable doubt, the conviction will be quashed on appeal.

See the case of THOMAS V STATE (2017) LPELR-41735 (SC). See also Yusuf v State (2018) All FWLR (pt. 405) 1731.

The concept of proof beyond reasonable doubt in criminal trials was orchestrated by the Supreme Court as that reasonable doubt which will justify an acquittal. It is a doubt based on reason arising from evidence or lack of it. That doubt which a reasonable man or woman might entertain and is neither fanciful nor an imaginary doubt. It is such a doubt as would cause an otherwise prudent person to hesitate before acting in a matter of importance concerning themselves. See Jua v State (2010) LPELR-1673 SC per Tobi JSC.

Another way of stating it is that, it is doubt which is logical, rational and lucid and so before a Court can convict for a capital offence such as the offence under review, it must ensure that the evidence before it is credible, coherent, leaving no hesitation that the accused committed the offences.

In the case at hand, the appellant was charged with a one count of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act which ingredients that must be proved to convict for the said offence to be as follows:- a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the robbery or series of robberies; c. That the robbery or each of the robberies was an armed robbery.

Going back in time to the trial Court, PW1 and PW2 gave evidence that appellant was in the company of other persons, armed with offensive weapons when they robbed PW1, PW2 and PW3 on the 16/11/2007 at P. sunny Enterprises Ltd and the immediate environs. In fact PW1 stated that he was in the office at P. Sunny Enterprises Ltd when some people wielding guns ordered him to open the safe in the cash office and the people took the money and rushed out. PW1 later identified appellant firstly at Adigbe Police Station and later at State C.I.D. Eleweran as one of the robbers that robbed him.

These pieces of evidence were not challenged or controverted therefore the evidence must be accepted as the correct version of what PW1 said. See Elegushi & Ors v Oseni & Ors (2005) LPELR-1111(SC).

PW3 testified that he was in the company of PW1 when he was also robbed of the sum of N88,435.00 at the same venue on the same date. That it was when he (PW3) entered the office that he met the two boys who were armed with guns and they ordered him to lie down and subsequently dispossessed him of the sum of N88,435.00. Of note is that there was no cross-examination which gives the implication that appellant accepted the narration as the truth of the matter. See Ighalo v State (2016) LPELR – 40840 (SC) per Akaahs JSC.

PW2 testified that he was robbed of his MAZDA car and the sum of N50,000.00 by two people when he tried to assist them after their car fell into a ditch in the vicinity of P. Sunny Enterprises Ltd on the said 16/11/2007. The appellant was subsequently apprehended inside the said car that had fallen into the ditch and when searched by PW2 who recovered a gun and 9 cartridges from him before appellant shot him.

I shall quote excerpts from the testimony of PW2 for more clarity, thus:- “On the 16/11/2007, around 10.30am, I wanted to go to the bank… as I entered the Street (Ayorinde Street) being a major road, I looked at my left and my right I saw two vehicles pursuing themselves. I just saw a Toyota Camry car entered the gutter that day, I was moved and I came out of my vehicle to rescue them. I thought they had an accident so that I can give a helping hand and take them to hospital if they are (sic were) injured. They pointed a gun at me and asked me to give them my key.

I shouted and they took the key of my car and drove my car away.” PW2 stated further that: “…The Toyota Camry was still inside the gutter and somebody among the crowd entered the Toyota Camry and off the engine. This person now shouted that somebody is inside the car. The Accused person was inside the car at the side where the Toyota Camry entered the gutter and there was no escape for him and thus he could not to follow his colleagues. He was pulled out of the car and the crowd started beating him.

I stopped them that if he was wounded now I will not be able to report to the Police and it may be impossible for me to recover my car that has just been stolen, I held him and started searching him and I brought out nine(9) cartridges from his body. Because I did not allow the crowd to beat him, they started shouting that his colleagues are coming and the crowd disappeared leaving only myself and the Accused. He started to struggle with me and I refused to let leave him. He put/dipped his hand into his pant and brought out a gun.

He wanted to shoot me and eventually shot me and I discovered blood on my clothes, so I left him.

The gun shot attracted the people out again as they thought he has killed me and I asked them to pursue him as he had dispersed with the only cartridge inside the gun…” (See pp. 57 – 73 of the records of appeal) The Appellant on the 16/11/2007 made a statement to the police wherein he stated that he was in the company of some other people who committed the alleged robberies on the day in question but he didn’t have anything to do with the robberies as he was only in the car; he admitted to having been apprehended in the car and he went on to state further thus: “…on our way going one BMW car hit our car and he started pursuing us, we got to one street our car got accident with the BMW, Segun and two other came down and escape.

I don’t know what they take to escape I was still in the car, when people came around and started beating me. Nobody pursuing me, I was caught inside the car where the car got accident. Inside the car with me they found one locally single barrel gun and one …shot double barrel gun in the black bag, they did not find the gun inside my pocket. The ten life cartridges is inside the black bag. I am not the owner of it. Segun is a student of Moshood Abiola Polytechnic Abeokuta, I don’t know his a robber and I have not followed them to any operation before.” (See pp. 10-12 of the records of appeal)

In a subsequent statement made to the police on the 22/11/2007 the same Appellant stated that he was a member of gang of armed robbers and that he had joined them for the particular robbery that took place on the 16/11/2007 and he had narrated thus:- “…when I get there, I met them inside Toyota Corolla car black I entered with them.

They share the gun which I was given one local made double barrel pistol and all of us were with gun with enough cartridges we got to a place they stopped the car, Segun, Alabi and Abiwere came down of the car and enter one store and they came back with one travelling bag containing money and then enter the car we drove away on our way going one BMW hit our car and started pursuing us until we got to a place, I don’t know the name of the place when the BMW overtake us and the car run into drainage which the car cannot move again, Segun Alabi, Abiwere came down of the car and run away and left me inside the car when I try to escape people around the place pursue me and I was caught with gun in my hand, I hold double barrel pistol locally made …”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In yet another statement made by the same Appellant to the police on the 23/11/2007 the Appellant narrated details of how he joined the armed robbery gang, the names of his gang members and how much he realised from other earlier successful armed robbery operations and stated regarding the specific robbery operation of the 16/11/2007 thus: “…The place we robbed is one beer depot at Oke Sokori. When Segun and others came back they held one medium sized bag and entered the vehicle.

As we were going our vehicle hit one other vehicle in front of us, from there the owner of the vehicle we hit started pursing our vehicle. He pursued our vehicle to it eko where he made our vehicle entered gutter. At that place my other gang members came down from our vehicle because my eyes were turning as a result of the accident. From there my colleagues left me inside the vehicle while they quickly snatched another vehicle with gun to escape from the scene, While I was inside the car, some people came around me up there and beating me …” (See Pages 20-23 of the record of appeal)

The confessional statement of the appellant, exhibits B, C-C2 gave details of the planning, participation of appellant and the others in the robbery which was an armed robbery.

On the matter of conspiracy, it is now well settled that conspiracy to commit an offence is such that it is inferred or deducible from the criminal acts of the accused person done in conjunction with others. Conspiracy in this case is inferred from the common commission of the offence by the accused in company of others as was done by the appellant.

The inference deducible upon which the offence of conspiracy is proved stems from the fact the elements of the offence are embedded in the agreement or plot among the parties which is rarely capable of direct proof hence it is deduced from the acts of the parties towards the realisation of the common criminal purpose. The various acts of the accused and his cohorts including appellant’s extra-judicial statement have given ground to the establishment of the offence of conspiracy to commit armed robbery.

See Bouwor v State (2016) LPELR-26054 (SC); Njovens & Ors v The State (1973) 5 SC 17; Haruna & Ors v The State (1972) All NLR 738 at 754.

​The defence pushed by the appellant that he was in a vehicle close to the scene of the robbery and was not one of the robbers, is a story that would have rendered some comic relief except that a serious incident such as armed robbery cannot be a laughable happening. The story he told the Court is not supportable in the light of the overwhelming evidence adduced by the prosecution including the identification of the appellant as participating in the acts and the corroborative confessional statements he proffered.

On the question whether the Court below was right to have affirmed the decision of the learned trial judge admitting the appellant’s statements, Exhibits B, C & C2 as evidence and treating same as confessional statements despite the appellant retracting them. In answer to that poser, I would humbly state that it is now beyond debate as to whether a retracted confessional statement can be used to convict an accused as happened in this instance if there exist other independent corroborative evidence giving credence to the truth of the resiled confessional statement as in this case.

See Ejinima v State (1991) LPELR – 1067 (SC) per Nnaemeka-Agu JSC. The mere assertion by the appellant that he did not make the confessional statements did not render them inadmissible nor reduce the weight the trial Court would attach to such evidence. This is because the issue of admissibility or not of extra-judicial statements comes up when the voluntary status of the making is questioned, which is not the case here. See Sunday v State (2017) LPELR – 42259 (SC) per Bage JSC.

Clearly, the circumstances prevailing at the trial Court did not hamper the learned trial judge admitting the retracted or denied confessional statements and going on to rely on them in convicting the appellant on the charges of conspiracy to convict armed robbery and armed robbery itself.

Now comes the final point of the appeal before the Court being based on concurrent findings of fact of the two Courts below. The appellant is asking this Court to reverse those findings and the question thereby thrown up is if the appellant has shown a miscarriage of justice or wrong application of law or procedure for which this Court would go against the policy of Court which is usually loathe to interfere with concurrent findings of facts of lower Courts.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

From what is before me, there is nothing persuading a departure from the norm concerning concurrent findings of fact of the two Courts below as what led to those findings are clearly borne out of the record and there was proper application of the law, substantive and procedural and no miscarriage of justice had taken place. Therefore the push to upset those findings are propelled by empty air. See Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

Indeed, there is a surfeit of material on which the trial Court found the essential elements of the offence of conspiracy to commit armed robbery and armed robbery proved beyond reasonable doubt. The Court below rightly affirmed those findings and conclusion and I see nothing on which I can upset what those two lower Courts did.

There is no merit in this appeal and I dismiss it as I affirm the judgment of the Court of Appeal which upheld the conviction and sentences of the appellant. Appeal Dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is no merit in the appeal and should be dismissed. I too will dismiss it. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement delivered now. I agree with His Lordship that there is no merit in this appeal. It therefore deserves to be dismissed.

Much like a drowning person, the appellant canvassed all kinds of arguments in the vain belief that they could save him. For instance, he entreated this Court to upturn the concurrent findings of the lower Courts. The answer to this submission is not far to seek. As it is well-settled, an appellant who desires that this Court should upset the concurrent findings of lower Courts has a big burden. It is his duty to show, in a clear and positive way, that such findings violate some principles of law or procedure.

Against that background, they therefore deserve to be overturned, Ibanga v Usanga [1982] 5 SC 103; Kuforiji v V.Y.B. Ltd [1981] 6-7 SC 40; Awoyale v Ogunbiyi [1986] 2 NWLR (pt 24) 626; Olaloye v Balogun [1990] 5 NWLR (pt 148) 24, 38; UBA Ltd v Achoru [1990] 6 NWLR (pt 156) 254; Motunwase v Sorungbe [1988] 4 NWLR (pt 92) 90; Olatunde and Anor v Afolabi (2001) LPELR – 2576 (SC).

The appellant failed to donate any material to warrant any interference with the said concurrent findings of the lower Courts. I shall therefore decline his invitation to do violence to settled principles. This appeal has no redeeming feature. I therefore, enter an order dismissing it. Appeal dismissed. I abide by the consequential orders in the leading judgment.

EJEMBI EKO, J.S.C.: The appellant herein is complaining about concurrent findings of fact against him by the two Courts below. The appeal is essentially against concurrent findings of fact. It is against this background that the counsel for the respondent submits, correctly in law, that the concurrent findings of fact by the Courts below ought not be disturbed unless the appellant has been able to establish that those concurrent findings are perverse, or that there had been a violation of some law or procedure, which has occasioned a miscarriage (or travesty) of justice: CHUKWUEMEKA AGUGUA v.

THE STATE (2017) LPELR – 42021 (SC). That is the extant state of the law which this Court, in its appellate practice, has consistently stuck to.

The mere fact that the appellant retracted his confessional statement which was massively self-incriminating does not amount to special circumstance warranting this Court to interfere with the adverse concurrent findings of fact.

A retracted confession is not ipso facto an inadmissible piece of evidence. It is still a legal piece of evidence available to the trial Court for purposes of evaluation of the totality of the evidence. The trial Court could act on it, if it was satisfied that the appellant made the statement voluntarily, or when other pieces of evidence outside the disputed confession corroborated the confession in materia paticular, as in the instant case.

Exhibits B & C, C2 were the extra judicial statements of the appellant, They were recorded by the PW.4. They were confessional. At the effort made by the appellant to retract and indict them, on grounds of their involuntary making, the trial Court subjected them to trial-within-trial, and found them to have been voluntarily made by the appellant. That finding affirmed by the intermediate Court had thus resolved the issue – whether the appellant infact made the confessions. It was an appealable decision (by dint of Section 318 of the Constitution). It was not appealed.

It therefore persists and subsists against the appellant, and/or between the parties.

On the confession alone, a confession being the best evidence, the trial Court could have sustained the appellant’s conviction for the alleged offences.

In any case, the purported retraction was half-heartedly made post facto. In one breath the appellant admitted making his extra-judicial statement in Yoruba Language. It was not a total plea of non est factum. No miscarriage of justice exists, nor has any been established, to warrant interference. In any case this is not the core issue in this appeal.

​This same issue was argued as issue 4 at the lower Court. It was dismissed. The repetition of the same issue in this further appeal is, in my view, an abuse of Court process. The process of appeal is for review of the decision complained of, and not for repetition of an issue resolved or determined. The appellant therefore in his appeal must show how wrong the resolution of an issue by the lower Court was, and not to re-present the same issue to the higher Court for a second try at the bite.

It should be clear to the appellant’s counsel, by dint of Section 233(1) of the Constitution, that the jurisdiction enuring to this Court is only “to and determine appeals from the Court of Appeal”, and not from the trial Court and that closes against the appellant the right to re-present an issue presented and resolved against him at the intermediate Court in the appeal against the trial Court’s decision.

Coming, as I do, to the conclusion that the appellant has not been able to establish any special circumstance warranting this Court interfering with, or disturbing, the concurrent findings of fact against him; I have no cause to disturb them. I agree with my learned brother, MARY UKAEGO PETER-ODILI, JSC, that there is no substance in this appeal. I hereby join my learned brother in dismissing the appeal in its entirety. The decision appealed is hereby affirmed. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, Mary Peter-Odili, JSC, just delivered and I agree that this appeal be dismissed on the reasons and conclusion advanced by him.

The Appellant with others now at large allegedly conspired on 16/11/2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State, while armed with offensive weapons, robbed one Idowu Adebayo the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira). It was also alleged that they separately robbed one Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) and one Joseph Bankole was robbed by them of a Mazda 626 car with registration No.

AJ 319 AKM and the sum of N50,000 (Fifty Thousand Naira). They were arraigned for conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, LFN, and armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, LFN. Count 1 was on conspiracy while the other four (4) counts were on armed robbery. On a no case submission, count 4 was struck out while the Appellant entered his defence on counts 1, 2, 3 and 5. Four (4) witnesses gave evidence for the prosecution while the Appellant testified alone.

The trial Court convicted the Appellant on counts 1, 2, 3 and 5, and sentenced him to death by hanging.

Dissatisfied, the Appellant appealed to the lower Court but lost, hence this appeal. From the diverging issues formulated by both the Appellant and Respondent’s Counsel, this issue shall cover all the issues formulated: Whether the Appellant has shown special grounds to warrant this Court to set aside the concurrent decisions based on findings of facts of both the appellate and trial Courts.

PW1 and PW2 were eye witnesses to the commission of the armed robbery which the Appellant was charged with, and they gave cogent and uncontroverted evidence that proved the ingredients of armed robbery against the Appellant. His confessional statement, Exhibits B, C-C2, though retracted, confirmed this.

​Although the eye witness account is not conclusive to convict on armed robbery where other doubts exist, there is no law which says a conviction for the offence of armed robbery cannot be sustained solely on the evidence of a victim’s eye witness to the commission of the crime. Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence. See Per RHODES-VIVOUR, JSC in UDO V. STATE (2018) LPELR-43707(SC) (P.22, PARAS. A-B).

Although the Appellant has contended the reliance of the Court to convict him on his retracted confessional statement, where an accused person resiles/retracts from a confessional statement made by him, his conviction upon the said statement will depend on the following conditions: 1. Whether there is anything outside the confession to show that the statement is true. 2. Whether it is corroborated. 3. Whether the statement made in it of fact are true as far as they can be tested. 4. Whether the accused had the opportunity to commit the offence. 5.

Whether it is consistent with other facts which have been ascertained and have been proved. See Per OKORO, JSC in STATE V. SA’IDU (2019) LPELR-47397(SC) (PP. 11-17, PARAS. C-D).

​Although the lower Court did not only base the conviction of the Appellant on the retracted confessional statement, the above conditions were considered to ascertain the voluntariness of the confessional statement. Again, being a concurrent decision by the 2 Courts below, and having not spotted any miscarriage of justice or perverseness in the decision, I shall affirm the judgment of the lower Court. This appeal therefore fails and is dismissed.

Judgment

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment) : At the High Court of Ondo State, Akure Judicial Division, (hereinafter simply referred to as “the trial Court”), the appellant, (as an accused person), was arraigned upon a two-count charge of kidnapping and murder contrary to and punishable under Sections 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law, 2010, and 319 of the Criminal Code, Cap. 30, Vol. 11, Laws of Ondo State of Nigeria, 1978, respectively.

On arraignment, he (the appellant), pleaded not guilty. The trial commenced with two other accused persons. The prosecution called only one witness, the investigating police officer as PW1. On his part, the appellant testified for himself and called no other witness. Exhibits A – A3; B; C – D and E – E2 were tendered and admitted in evidence.

​It was the prosecution’s case that the appellant, with the two accused persons, left their village, Messe, and went to Ikoriho in the same Ilaje Local Government of Ondo State in the middle of the night. They allegedly kidnapped one Dada Akinboye who slept beside his mother on June 17, 2011. The victim was later discovered dead with his body mutilated.

In his extra judicial statement, which formed the basis of his conviction and sentence on the two offences, the appellant allegedly admitted going inside the house to carry the victim. He handed over the said deceased person’s body to the third accused person. He and the third accused person disposed of the body of the victim. On his part, the second accused person stood outside keeping watch.

During the trial, he, the first accused person, in his evidence vehemently denied any involvement in the crime. Under cross examination, he said inter alia, “it is not what I told the Police that they wrote down,” thereby retracting the extra judicial statement. Notwithstanding this retraction, the Court of Appeal (hereinafter simply referred to as “the lower Court”), affirmed the finding of the trial Court to the effect that: Thus, the confessional statements of the first and second accused persons have satisfied this Court about the involvement of each of the accused persons.

The lower Court thus affirmed the guilt of the appellant on the two-count charge of kidnapping and murder. On further appeal to this Court, the appellant formulated a sole issue for determination: Whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two-count charge of kidnapping and murder?

On his part, the respondent concreted a sole issue for the determination of the appeal: Whether the prosecution proved beyond reasonable doubt the offence of kidnapping and murder to warrant the conviction of the appellant?

Arguments of counsel on the sole issue At the hearing of the appeal on February 11, 2021, learned counsel for the appellant adopted the brief filed on July 30, 2015. Arguing the sole issue, he submitted that by virtue of the provision of Section 135 of the Evidence Act, 2011, the prosecution has the burden of proving the guilt of the appellant beyond reasonable doubt.

In his submission, proof beyond reasonable doubt does not mean proof to mathematical certainty, Anekwe v. State (2014) 5 SC (Pt. 11) 35, 71, (2014) 10 NWLR (Pt. 1415) 353; Ali v. State (2015) 10 NWLR (Pt.1466) 1, 42; A – C; Nwosu v. State (1986) 7 SC (Pt. 11) 1, (1986) 4 NWLR (Pt. 35) 348. He further submitted that the prosecution’s failure to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, renders it (the confessional statement), inadmissible, Olalekan v. The State (2001) 18 NWLR (Pt. 746) 793, 810 – 811; B – G.

He canvassed the view that on the authority of Olalekan v. State (supra) 809, the question of the inadmissibility of the said confessional statement could be raised at any stage, even at the Supreme Court, as a ground of law that it is hearsay evidence since the prosecution failed to call the interpreter as witness. He maintained that apart from the extra judicial statement of the appellant, “exhibit B”, there was no other available evidence to sustain the guilt of the appellant on the two offences.

Although conceding that exhibit D was the co-accused person’s confessional statement which incriminated the appellant, he contended that it (the said exhibit D), cannot be used to sustain the appellant’s conviction since he (the appellant), did not in any way, adopt the said statement, Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157, 175 – 176; H – C. He prayed the Court to set aside the conviction and sentence of the appellant and discharge and acquit him on both charges.

On his part, the learned counsel of the respondent submitted that the appellant’s contention that the failure of the prosecution to call the interpreter renders “exhibit B,” (confessional statement), inadmissible and the further submission that the appellant could raise this for the first time in this Court were misconceived.

He explained that one Inspector Odebimtan Dickson was the person who recorded “exhibit B.” Inspector Isah Momoh only acted as an interpreter. He maintained that the said “exhibit B” was recorded by Inspector Odebimtan Dickson, who was the PW1 at the trial, without any interpreter whatsoever. He submitted that the appellant was under the mistaken illusion that the statement dated June 26, 2011, was recorded and was interpreted by the same person. He explained that this was not the case.

He pointed out that the case of Olalekan v. State (supra) was inapplicable to this instant appeal. This is because “exhibit B”, in the instant appeal, was recorded by one individual without the assistance of any interpreter whereas in Olalekan v. State (supra), “exhibit A” was recorded by Sgt Linus Patricks (P.W.6) who acted as interpreter. This, in his view, is distinguishable from the instant appeal. He prayed the Court to dismiss the appeal.

Resolution of the Sole Issue My Lords, the crux of this appeal can be found in the submission of the appellant’s counsel that, since the prosecution failed to call the interpreter, who recorded the confessional statement which led to the appellant’s conviction, it (the confessional statement), was inadmissible.

The issue of the admissibility of the statement of an accused person, through an interpreter, has generated a wholesome thread of case law. The cases are indeed legion. They date back to R v. Gidado (1940) 6 WACA 60, 62; R v. Ogbuewu (1949) 12 WACA 483; Queen v. Sapele and Ors (1957) SCNLR 307; R. v. Attard (1958) 48 Cr App R 90, R. v. Zakwakwa (1960) 5 F.S.C. 12, (1960) SCNLR 36; Shivero v. The State (1976) 10 NSCC 197; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1, 20; Ahmed v. State (1999) 7 NWLR (Pt. 612) 641; F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, (2012) 8 NWLR (Pt.1301) 141; Popoola v.

State (2018) 10 NWLR (Pt. 1628) 485; Eyop v. State (2018) All FWLR (Pt. 962) 1698, 1715, (2018) 6 NWLR (Pt.1615) 273; Bello v. C.O.P. (2018) 2 NWLR (Pt. 1603) 267; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18, 43; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457 and so on. As shown above, it was the contention of the appellant’s counsel that, since the prosecution failed to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, it (the confessional statement), was inadmissible.

He explained that one Inspector Odebimtan Dickson was the person who recorded “exhibit B.” Inspector Isah Momoh only acted as an interpreter. He maintained that the said “exhibit B” was recorded by Inspector Odebimtan Dickson, who was the PW1 at the trial without any interpreter whatsoever. Although learned counsel for the appellant did not cite Nwaeze v. State (supra), his submission enjoys the cherished company of the eloquent position of the distinguished Justices of this Court. In Nwaeze v.

State (supra), Iguh, JSC had this to say: The point cannot be overemphasised that where an interpreter is used in the recording of the statement of an accused person, such a statement is in law inadmissible unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same.

Accordingly, failure on the part of a trial Court to appreciate the inadmissibility, as evidence, of an alleged statement by an accused person when such statement is not confirmed and established by the person who acted as interpreter when it was being recorded in a different language can be fatal to a conviction which is based on such a statement in that the Court would have misdirected itself in accepting the statement as having been proved….. (at page 20; italics supplied for emphasis) What is now clear is that, once an interpreter is provided for the accused person, especially in police custody, the prosecution has a duty to call him (the interpreter) who recorded the statement, as a witness and subject him to cross-examination in order to determine the correctness of the extra-judicial statement.

This must be so for, whenever an interpreter is used in obtaining the statement of an accused person, such a statement would be inadmissible unless the interpreter is called as a witness in the tendering of the statement. This should be the case where an accused person’s statement is recorded through an interpreter and the accused person makes his statement in his mother tongue which is recorded and later translated into English.

In such a situation, before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into the English language must be called to testify. Michael Oloye v. The State (2018) LPELR 44775 (SC), (2018) 14 NWLR (Pt.1640) 509; The Queen v. Zakwakwa of Yorro (1960) LCN/0877 (SC), (1960) SCNLR 36.

Learned counsel of the respondent had submitted that one Inspector Odebimtan Dickson was the person who recorded “exhibit B,” (confessional statement), and Inspector Isah Momoh only acted as an interpreter to him in the statement and furthermore, that “exhibit B” was recorded by only Inspector Odebimtan Dickson, who was the PW1 at the trial. This was without any interpreter whatsoever.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

With respect, it would seem that learned counsel lost sight of the evidence adduced at the trial. From page 23 of the record, it is crystal clear that “exhibit B,” attached to the record, dated June 22, 2011 was interpreted and signed by one Inspector Isah Momoh. He was not called as a witness at the trial Court. What is more, the learned respondent’s counsel’s notion that Inspector Isah Momoh only acted as an interpreter, while PW1 Inspector Odebimtan Dickson recorded the statement, is a total misreading of the evidence in Court.

Now, the question which both parties posed in their sole issue for determination, is whether the prosecution’s failure to call the interpreter of the statement, as well as the person who recorded the statement as witness, renders the confessional statement inadmissible in Court. From the position of Hubbard, F.J in The Queen v. Zakwakwa of Yorro (supra) through the approach of Ogundare, JSC, in Olalekan vs The State (2004) 12 SCNJ 94 109 and 110 (2001) 18 NWLR (Pt 746) 195 to Kalgo, JSC in Ahmed v. State (1999) 7 NWLR (Pt 612) 641, 685; the disposition of Rhodes-Vivour, JSC, in F.R.N. v.

Usman (2012) 3 SC (Pt. 1) 128, 152, 1652, (2012) 8 NWLR (Pt.1301) 141 and the posture of Nweze, JCA (as he then was) in Woru v. State (2011) All FWLR (Pt. 602) 1644, 1672 – which posture I adopt in this judgement – it is crystal clear that where an interpreter of an accused person’s statement, as well as the person who recorded the said statement are not called as witnesses and subjected to cross-examination, the two versions of the accused person’s statement, (the vernacular and the English versions) would be regarded as pieces of hearsay evidence, see also R. v. Gidado (1940) 6 WACA 60; R. v.

Ogbuewu (1949) 12 WACA 483. The rationale for this attitude was summed up by Ogundare, JSC in Olalekan v. The State (supra) thus: Without this evidence, the prosecution would not have proved that the statement sought to be tendered by the interviewing police officer was more than just hearsay. It is not for the defence to establish what went on between the accused (person) and the interpreter. The burden of proving that fact is on the prosecution and not on the defence.

It is for this reason that, in my respectful view, the interpreter must be called to testify and to elicit from him, in evidence, what the accused (person) told him that he interpreted to the interviewing police officer. (page 109 of the report; italics supplied for emphasis) That is not all. Before such a statement could be admitted in evidence, it is not just enough to call the interpreter. I most respectfully invite Ogundare JSC, to re-state the position of the law. According to His Lordship: In the case at hand, P.W.3, the interpreter testified.

But other than to say he acted as the interpreter between the appellant and P.W.6, he was silent on the questions he put to the appellant and in what language, and the latter’s answers… In my respectful view, more details are required to P.W.3’s evidence to make exhibit A admissible in law. The conclusion I reach is that the statement ought not to have been admitted in evidence. I reject it in evidence and expunge it from the record. (Olalekan v.

The State (supra); page 110 of the report; italics supplied for emphasis) ​This was just two years after Kalgo, JSC, “outlined the best and acceptable way of recording a statement made in vernacular to the police,” S. T. Hon’s Law of Evidence in Nigeria (Third Edition) (Port Harcourt: Pearl Publishers International Ltd, 2019) 263. According to Kalgo, JSC.: P.W.7. testified that the appellant volunteered a statement in Hausa, but he recorded the statement in English instead of taking it verbatim in Hausa and translating it later to English.

Not only that if one examines the statement, one finds that he started writing what the appellant was saying (in) the first-person singular pronoun, then he changed to reported speech in the third person pronoun … This was improper and should not have been done in a criminal case of this magnitude. In my humble view, a caution statement to be reliable must be recorded in the language of the accused (person) and then translated into the language of the Court.

If it becomes necessary to record it into English by automatic or direct translation from the language spoken by the accused (person), then it must be done in the first person singular and not in the form of a reported speech (Ahmed v. State (1999) 7 NWLR (Pt. 612) 641, 685; italics supplied for emphasis); also,  R  v. Sapele and Ors (1957) 10 NSCC 197. Applying the same principle in this appeal, the prosecution’s failure to call Inspector Isah Momoh as a witness and subject him to cross-examination, the Yoruba and the English versions are pieces of hearsay evidence, Ahmed v.

State (supra); R v. Sapele and Ors (supra); Olalekan v. The State (supra); The Queen v. Zakwakwa of Yorro (supra); F.R.N. v. Usman (supra); Woru v. State (supra) – my Court of Appeal judgment which I adopt in this judgment.

My Lords, before I round off this judgment, permit me to make an observation about the attitude and disposition of A. A. Oladunmiye, Chief Legal Officer, Ministry of Justice, Ondo State, counsel for the respondent. His disgusting comportment in Court at the hearing of this appeal was thoroughly scandalous to say the least.

Oladunmiye, Esq., who announced himself as a Chief Legal Officer in the Ondo State Ministry of Justice, betrayed the trust of Ondo State which relied on his touted knowledge, expertise and experience to represent the interest of the taxpayers of the State in this appeal. He half-heartedly, approached his assignment, worse still, his cavalier proclivity for fripperies was most shocking.

Indeed, it was as if he didn’t know the weight of the issues at stake. I pity the Attorney General of Ondo State if that is the sort of legal services he gets from a “whole” Chief Legal Officer. I even wonder how he was promoted to the rank of Chief Legal Officer in the Ministry of Justice.

In all, having regard to all I have said above, I have no hesitation in setting aside the conviction of and sentence on the appellant. In lieu, thereof, I hereby enter an order for his acquittal and discharge. Appeal allowed.

MUSA DATTIJO

MUHAMMAD, J.S.C.: My Lord Chima Centus Nweze JSC had obliged me a preview of his lead judgment on the instant appeal just delivered. I entirely agree with the reasoning and conclusion expressed in the said judgment as to the merit of the appeal. By way of emphasis, I shall dwell on the crucial issue the appeal raises in support of his lordship’s position that the appeal be allowed.

Appellant was arraigned at and convicted by the Ondo State High Court sitting in Akure for kidnapping and murder punishable under Section 3 of the Ondo State Anti-Kidnapping Law 2010  ​ and Section 319(1) of Criminal Code, Cap. 30, Laws of Ondo State 1978 respectively.

Further aggrieved by the lower Court’s affirmation of his conviction, he appealed to this Court distilling a lone issue thus: “Whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two Court charge of kidnapping and murder.” Respondent’s issue is similarly crafted.

Learned appellant counsel contends that his conviction by the trial Court for the two offences which does not rest on any evidence on record is wrongly affirmed by the lower Court. He submits that Section 135 of the Evidence Act 2011 requires that appellant’s guilt be proved beyond reasonable doubt. The respondent, it is argued, relied on a lone witness, PW1, who recorded appellant’s extra judicial statement to prove its case. PW1, it is further submitted, had to use an interpreter to record the statement that was proffered in a language the witness does not understand.

In the absence of exhibit B, it is argued, the two Courts’ concurrent finding of appellant’s guilt rests on no other evidence.

The trial Court’s reliance on exhibit ‘D’, the extra judicial statement of appellant’s co-accused, which the lower Court affirmed in sustaining the conviction, learned appellant’s counsel further contends, is not supported by law. Inter alia relying on Olalekan v. State (2001) 18 NWLR (Pt. 746) 793 and Ali v. State (2015) 10 NWLR (Pt. 1466) 1 at 42 and Oyakhire v. State (2006) 15 NWLR (Pt.1001) 157, learned counsel concluded that appellant’s concurrent conviction and sentence by the two lower Courts be set-aside.

Learned respondent counsel’s response is evidently most feeble. His effort at distinguishing the facts of the instant case from those in the cases learned appellant’s counsel cited and relied upon to support his submissions does not carry him far.

My Lords, an appeal succeeds if the judgment appealed against is shown not to have evolved from the evidence on record and/on where the Court has taken irrelevant matters into account or still, relevant matters are ignored in arriving at the decision appealed against. In any of these instances, the appellate Court will be duty bound to interfere and make the appropriate findings the lower Court should have otherwise made. See Atolagbe v. Shorun (1985) LPELR – 592 (SC), (1985) 1 NWLR (Pt. 2) 360 and Prof. Theophilus Adelodun Okin & Anor v.

Mrs Agnes Iyeba Okin (2019) LPELR – 47620 (SC), (2019) 11 NWLR (Pt. 1682) 138.

Learned appellant’s counsel rightly insists that in the case at hand concurrent as the decisions of both Courts are, there is no evidence to sustain appellant’s conviction. It is evident from the record of appeal that the case of the prosecution is built on the testimony of PW1, the police officer who recorded exhibit B, the appellant’s extra judicial statement alone. It is also evident that exhibit B is recorded in English language rather than the language the appellant spoke in and which PW1 appears not to understand.

​On the authorities, PW1’s evidence on the content of exhibit B, without the testimony of the interpreter on same, being hearsay and inadmissible does not in any way prove any fact against the appellant. Learned appellant’s counsel is on very solid ground that exhibit B being appellant’s statement obtained through an interpreter whom the prosecution did not call to testify, cannot be relied upon by both Courts to convict the appellant. See Bashiru Popoola v. State (2018) LPELR – 43853 (SC), (2018) 10 NWLR (Pt. 1628) 485; Dajo v. State (2018) LPELR – 45299 (SC), (2019) 2 NWLR (Pt.1656) 281.

Besides, learned appellant’s counsel cannot also be faulted that were exhibit B to be admissible and availing to connect the appellant with the offences he is charged with, it is not open to the Courts, the appellant having retracted from the said confession, to base appellant’s conviction solely on the confessional statement he has resiled from. In such an instance, it is the practice that evidence outside the retracted confessional statement be sought to justify a finding of guilt. See Azabada v. State (2014) LPELR – 23017 (SC), (2014) 12 NWLR (Pt.1420) 40 and State v.

Gwangwan (2015) LPELR – 24837 (SC), (2015) 13 NWLR (Pt.1477) 600.

Certainly exhibit D, the extra judicial statement of a co-accused which appears to implicate him cannot provide the corroboration exhibit B requires to ground a safe conviction of the appellant when the latter is not shown to have adopted the content of exhibit D. See Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 SC, Dairo v. State (2017) LPELR – 43724 (SC), (2018) 7 NWLR (Pt.1619) 399 and Uche Nwodo v. The State (2018) LPELR – 46335 (SC), (2019) 3 NWLR ( Pt. 1659) 228.

In sum, there is completely no evidence on which both Courts made their concurrent findings of appellant’s guilt. There cannot be a more perverse finding than one that has so evolved.

It is for the foregoing and more so the fuller reasoning in the lead judgment that I find merit in the appeal and allow it. I abide by the consequential orders made in the lead judgment.

​HELEN

MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege to read in draft the judgment just delivered by my learned brother Hon Justice Chima Centus Nweze, JSC. I agree that this appeal be allowed.

I have read the briefs and the records in this appeal.

In this case there are concurrent findings of fact by the High Court and the Court of Appeal that indeed the appellant and two others were responsible for the death of the deceased, in sum the three defendants at trial were found guilty of murder and sentenced to death by hanging. ​The case of the prosecution is that the appellant and one Jonah Lase kidnapped one Dada Akinboye, who was sleeping with her mother at Ikoriho on 17th June, 2011, and handed her over to one Theophilus Friday, who subsequently murdered her by removing her body parts.

The sole issue raised by the appellant and respondent is whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two count charge of kidnapping and murder.

The appellant argued that a close perusal of the record of appeal clearly reveals that an interpreter, Inspector Isah Momoh took and recorded the statement of the appellant which was the confessional statement upon which the conviction of the appellant was based. However, the prosecution failed to call the interpreter, Inspector Isah Momoh as a witness, even though listed as one of the witnesses, and the statement tendered should be regarded as hearsay.

​In the two and half page brief settled by Mrs Adeyemi Tuki DPP, Ondo State and then adopted as the respondent’s argument in this Court by Mr. Oladunmiye Chief Legal Officer who argued the appeal, it was submitted that it was Inspector Odebimtan Dickson who recorded exhibit B while Inspector Isah Momoh acted as an interpreter to him in respect of the same statement. The respondent’s counsel submitted that exhibit B was recorded by only Inspector Odebimtan Dickson who was the PW1 at the trial Court without any interpreter whatsoever.

Counsel submitted that exhibit B was taken/recorded at the police station Igbokoda by the PW1 (Inspector Odebimtan Dickson) who was serving at Igbokoda Police Station at that time on the 20-6-2011 while the one referred to by the appellant in paragraph 4.4 of his brief is dated 22- 6-2011 and was recorded and interpreted by one and same person, Inspector Isah Momoh at the State CID Akure.

My Lords, permit me to take the liberty to go through the case law on the issue of the need for an interpreter of a confessional statement to be on hand to tender same.

​In the first instance, where the interpreter who interpreted a confessional statement was not called to give evidence, the statement is documentary hearsay and is inadmissible. This is not a novel issue, and there are a number of authorities from the days of the West African Court of Appeal (WACA) to the present day by this Court, from which we can find answers. See Rex v. Gidado of Bororo (1940) 6 WACA 60, R. v. Ogbuewu (1949) 12 WACA 483; R. v. Zakwakwa (1960) FSC 12; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1; and F.R.N. v.

Usman (2012) LPELR – 7818 (SC), (2012) 8 NWLR (Pt.1301) 141 cited by the appellant, to name a few.

In Gidado’s Case (supra), the interpreter was not called, and in allowing the appeal, WACA very aptly held as follows: “It seemed to us that this failure on the part of the trial Judge to appreciate the inadmissibility in evidence of alleged statements by the appellant, when such statements were not confirmed and established by the persons acting as interpreters was fatal to the conviction herein in that the learned trial Judge misdirected himself in accepting such statements as having been proved.” In R. v Zakwakwa of Yorro (supra) the defendant had made his statement in Mumuye.

Two police witnesses said it was L/CPL Umoru who translated it into Hausa, but the said statement showed PC Musa as the interpreter into Hausa and he was not called. The statement was the only direct evidence of the assault admitted by the appellant who was charged with murder. In allowing the appeal, the Federal Supreme Court held that if it was PC Musa, who did the interpretation and not Umaru then since Musa was not called as a witness and subject to cross-examination, both the Hausa and the English version were hearsay. In Ifaramoye v.

State (2017) LPELR-42031 (SC), (2017) 8 NWLR (Pt.1568) 457 the Supreme Court Per Augie, J.S.C held as follows: “… In Nwaeze v. State (supra) the statement was tendered and admitted in evidence through the interpreter, who could not testify at the trial because he was sick. This Court held that- The Court below was perfectly right in holding that the statement exhibit “A” was admissible as the interpreter of the statement made by the appellant from Igbo to English to the investigating Police Officer who recorded it in English, was not called to testify on the point.

The legal position is that if the statement of an accused is made in a language other than English and it is interpreted into English by an interpreter to the recorder, the interpreter must be called to give evidence, on the point, at the trial of the accused otherwise the contents of the statement will be hearsay and the statement will be inadmissible”.

In this appeal, the confessional statement exh. B is the only evidence against the appellant. Only the IPO gave evidence that after the child got missing the “Community swung into action” whatever that means. There is no actual evidence linking the appellant to the crime apart from the confessional statement. The Nigerian Police did nothing to investigate this heinous crime. The State made only a halfhearted and perfunctory attempt to defend the judgment of the lower Courts.

It was a shameful outing by the office of the Attorney General of Ondo State whereby senior legal officers in the DPP came to defend a conviction of death sentence with a brief of two pages and a half containing no iota of substance.

My Lords, this case is very pathetic indeed. The life of a young child was wasted by unknown persons. The only thing the I.P.O who gave evidence said was that after the alarm over the missing child was raised, “the Community swung into action”. How and why and on what evidence the appellant and other convicts were arrested remains a mystery shielded from the Courts.

It is very sad that the Police saddled with investigating serious crimes are most of the time unwilling or unable to carry out meaningful investigation that points conclusively to a culprit who can be successfully tried and prosecuted. In the circumstances, this appeal succeeds as the prosecution armed with nothing but an inadmissible confessional statement was unwilling or unable to do its job. In view of the fuller reasons given by my erudite brother in the lead judgment, I agree that the judgment of the Court of Appeal in CA/AK/98C/2014 delivered on 9/7/2015 should be set aside.

The conviction and sentence of the appellant is hereby set aside and an order of discharge and acquittal is entered for the appellant. Appeal allowed.

​ABDU ABOKI, J.S.C.: My Lord Chima Centus Nweze, JSC had graciously obliged me with a draft of the lead judgment just delivered. I agree with the reasoning and conclusion marshalled out in the said judgment that this appeal is wholly meritorious and ought to be allowed.

​This appeal is against the judgment of the Court of Appeal, holden at Akure Division, (hereafter called the Court below), delivered on the 9th of July 2015.

The appellant was arraigned before the High Court of Ondo State, Akure upon a two-count charge of kidnapping and murder, contrary to and punishable under Section 3 of the Ondo State Anti-kidnapping and Anti-Abduction Law 2010, and Section 319 of the Criminal Code, Cap. 30, Vol. II of the Laws of Ondo State of Nigeria 1978, respectively. He pleaded not guilty to the charges and the matter proceeded to trial.

The case of the prosecution is that the appellant and one Jonah Lase kidnapped one Dada Akinboye, who was sleeping with her mother at Ikoriho on the 17th June 2011 and handed her over to one Theophilus Friday, who subsequently murdered her by removing her body parts. In proof of its case, the prosecution called a lone witness and tendered some exhibits.

The appellant testified in his defence, and called no other witness. He also retracted his extra judicial statement (exhibit B), made to the Police. At the close of trial, the trial Judge found the appellant guilty as charged and sentenced him to death.

​Dissatisfied with his conviction and sentence, the appellant filed a notice of appeal containing two grounds, at the Court below.

After hearing arguments on both sides, the Court below in its judgment dismissed the appeal of the appellant and affirmed the judgment of the trial Court.

Still aggrieved, the appellant appealed to this Court. His notice of appeal, which was filed on the 13th of June 2015, contains a lone ground of appeal, from which a lone issue was also formulated for determination by the appellant, and adopted by the respondent. The lone issue reads thus: “Whether the prosecution proved beyond reasonable doubt, the guilt of the appellant on the two count charge of kidnapping and murder?”

My learned brother has dealt exhaustively with the issue raised in this appeal and I adopt his judgment as mine.

However, and just for the purpose of emphasis, I will put in one or two words of mine on the onerous duty on the Court to test the veracity or otherwise of a retracted extra-judicial statement made by an accused person. In State v. Gwangwan (2015) LPELR 24837 (SC), (2015) 13 NWLR (Pt.1477) 600, this Court per Okoro JSC, had this to say: “However, it is very usual 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 arraignment 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 comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm 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 test its truthfulness or otherwise in line with other available evidence and circumstances of the case.”

The extra judicial statement of the appellant, though retracted, was admitted in evidence as exhibit B; an excerpt of which states as follows: “I knew one Bassey Akingboye and Yemisi Okunnwa the two parents of the deceased, one Dada Rachael Akingboye, age one and a half years old girl. That, I knew one Friday Theophilus. We were playing together at seaside Awoye via Igbokoda. He was selling cloth, shoes and jewelries. On the 16/06/2011, the said Friday Theophilus called myself, and my second Lase Jona that we should followed him to a certain place without mentioning the place for me.

But on that fateful day, he called us to met at Ikoriho. We did not followed him down, we use our wooden boat and waited for him at Express hotel Odonla seaside. Later he met us in that hotel. That we should now went to his sister house … along the line, he used his hand cover with ring, hacken my chest. I could not get myself again. He commanded me to move forward which we did. We starten followen him behind. On getting to that place, he sent me to enter and bring small girl for her, which I did. I met her mother sleeping.

Because Theophilus Friday firstly went to the house that house before we followed him down. When entered I carry the girl out and handover to Theophilus Friday and left. I did not know when he removed some of her body part away. He promises myself and my second N100,000.00 but up till this point of writing he did not given or pay that money for us. When I entered room and carried this small baby out, my friend Lase Jona was outside watching up and down as security or guard. The community people that arrested me and handed over to the policemen…”

There is no evidence on record which corroborated this statement. The testimony of PW1 upon which the prosecution built its case, was at best hearsay. I am therefore in agreement with learned counsel for the appellant that exhibit B, being the appellant’s statement obtained through an interpreter whom the prosecution did not call to testify, cannot be relied upon by the two Courts below to convict the appellant, more so, in the absence of any corroboration.

It is on account of this and the more detailed reasoning in the lead judgment of my learned brother, Chima Centus Nweze, JSC, that I find this appeal to be meritorious. It is hereby allowed by me. I also abide by the consequential orders, if any, contained in the lead judgment.

TIJJANI ​ABUBAKAR, J.S.C.: My Lord and learned brother, Nweze, JSC granted me the privilege of reading in draft the comprehensive leading judgment prepared and rendered in this appeal. I am in full agreement with the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add. I abide by all consequential orders. Appeal allowed.

Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant, who was arraigned before the Kwara State High Court, on a two-count charge of conspiracy and armed robbery, was alleged to have conspired with “two others at large” and robbed “Abdulrasaq Abubakar”, while armed with firearms and other dangerous weapons.

At the trial, the said “Abdulrasaq Abubakar” testified as PW3 and the other witnesses called by the Prosecution included his brother, Bakare Muideen LPW2J, who was also a victim; a Vigilante member, Edungbola Adeniyi (PW41 who narrated how the Appellant was caught after the said robbery, and a mask, 3 handsets and money (new notes) were found on him and Saka Adetoro (PW51, who is PW3’s neighbour.

PW1 Corporal Opaluwa, a Police Officer and an Exhibit-Keeper, identified the sum of N23, 150 in fifty Naira denomination, iron cutter, a black knitted mask cap, and a Techno GSM handset, as the items he registered in connection with the case against the Appellant, and the said items were admitted in evidence as Exhibits P1, P2, P3 and P4.

​The Investigating Police Officer, Bunmi Abdulrasheed Adegoye, attached to ‘F’ Division, Tanke, Ilorin, who testified as PW6 identified Exhibits P3 P2 and P4 and he also testified that a Photographer took pictures of the scene, and that he recorded the Appellant’s Statement.

The Defence Counsel objected to the admissibility of the photographs and the said Statement of the Appellant recorded by PW6 in evidence, and in its ruling on the objection, the trial Court concluded as follows: “Mere retraction of the Statement – – does not ipso facto render the Statement inadmissible – – – The accused, apart from thumb printing, also signed the Statement.

The Court will, however, concede to trial within trial to test the voluntariness of the Statement – – The tendering of the photographs without notifying the defence amounts to taking the defence by surprise and amounts to denial of fair hearing – – For this reason, the photographs and negatives sought to be tendered are hereby rejected in evidence.”

After the trial within trial in which two Police Officers, including PW6 as T.P.W1 testified, the trial Court held in its Ruling of 25/3/2013 that: “In the absence of voluntariness in the Statement allegedly made by the accused due to some doubts created in the mind of the Court as a result of discrepancies in the statement and accused’s evidence in trial within trial which doubt must and is resolved in favour of the Accused, coupled with (his) assertion that he was made to sign an already prepared Statement, Statement sought to be tendered by the Prosecution is hereby rejected and shall be marked tendered but rejected.”

The main trial continued with PW6 then PW7 Sgt. Monday Ogidiagba, of the Special Anti-Robbery Squad ISARSJ, Kwara Police Command, testified that as Investigating Police Officer at SARS he recorded the Appellant’s Statement after the case was transferred from F Division.

Once again, the Defence Counsel objected to the admissibility of the Statement recorded by PW7 “on the ground of involuntariness”, and the trial Court conducted another trial within trial wherein PW7 and two other Police Officers testified. The Appellant also testified, and in its Ruling of 14/10/2013, the trial Court concluded as follows: I believe the Prosecution as against the accused person. I am satisfied that the Statement sought to be tendered was made voluntarily by the Accused. There was no application of threat, apprehension or promise.

The objection is overruled, and the Statement is admitted in evidence. It is marked Exhibit P5.

After the Prosecution closed its case, the Appellant opted to make a No-Case Submission, and in overruling same, the trial Court stated – “I have carefully and with rapt attention studied the submissions of the Prosecution and that of the defence as contained in their respective Written Addresses. I already read in between the lines the available evidence before this Court with respect to the Prosecution’s case and considered the Exhibits admitted.

I am on the strong view that a prima facie case has been established against the Accused Person, Olanrewaju Olawoye, which necessitated his entering a defence. The Submission on No-Case to answer by the Accused Person is hereby overruled. Olanrewaju Olawoye is accordingly called upon to enter his defence.”

The Appellant testified as DW1 and did not call any other witnesses. He denied the allegations and said that he was arrested by the Police while he was going to “Ahmadiyya Mosque along Tanke Road around 8.40pmon 22/8/2011” and was taken to the Police Station ‘F Division’.

In his judgment delivered on 30/4/2014, the learned trial Judge, Saleeman, J., found the Appellant guilty as charged for conspiracy and armed robbery and convicted and sentenced him to death by hanging. The Appellant appealed to the Court of Appeal.

But, in its judgment delivered on 16/11/2017, the Court of Appeal resolved the four Issues for Determination canvassed in the appeal against him, and held that: (i) Identification parade is not the only way of establishing the identification of an Accused Person, and where, as in this case, “the Accused Person, by his confession, has identified himself, there would be no need for any further identification parade”. (ii) The learned trial Judge was right when after rejecting the Appellant’s Statement taken at “F” Division Tanke, in evidence, “still proceeded to rely on Exhibit P5 to convict the Appellant”. (iii) The evidence of PW2 and PW3 and contents of Exhibit P5 was that Appellant as well as Wole and Ayo entered the compound, that Appellant wore a mask supplied by Ayo and Wole.

Both Ayo and Wole were each carrying guns with which they threatened the occupants to bring their money at gun point. Furthermore, “the Appellant in Exhibit P5 admitted that some of the pack of N50 notes stolen at the scene were collected by Ayo and given to him for keep – – From the above, the learned trial Judge came to a right conclusion that Appellant was guilty of conspiracy.” (iv) Exhibit P5 was robustly corroborated by the evidence of PW2 and PW3 to fix the Appellant squarely to the scene of crime and “that he committed the offence with others now at large”.

The Court of Appeal dismissed the appeal and affirmed the judgment, conviction and sentence passed on the Appellant by the trial Court.

Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, and he has distilled the following Issues for Determination therefrom in his Brief of Argument: 1.

Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R. 11 Laws of the Federation of Nigeria, 2004 without an identification parade as required by law. 2. Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and thereafter sentenced the Appellant to death for the offence of Criminal Conspiracy. 3.

Whether the lower Court was right when they affirmed the decision of the trial Court that the Appellant is a member of the Armed Robbers and he fully and actively participated in the crime.

The Respondent, on the other hand, submitted in its Brief of Argument that the two Issues for Determination in this Appeal are as follows – (1) Whether by the combined effect of the evidence of PW3, PW5 and Exhibit P, the lower Court was right in affirming the decision of the trial Court that identification parade is not necessary in the course of the conviction of the Appellant. (2) Whether the lower Court was right when it affirmed the decision of the trial Court convicting the Appellant of the offences of Criminal Conspiracy and Armed Robbery.

But under issue 1, the Respondent contended that this appeal does not qualify as an appeal because a review of that issue will reveal that it does not attack the ratio of the Court of Appeal’s decision and that: Paragraphs 5.0.1.1 – 1.1.18 of issue 1 in the Appellant’s brief in this appeal is a repetition of paragraphs 5.1-5.1.16 of issue 1 in the Appellant’s brief before the Court below.

It cited CPC V. Ombugadu (2013) All FWLR (Pt. 706) 406, Odum V. Chibueze (2016) All FWLR (Pt. 848) 714, and Eyigebe V. Iyaji (2013) All FWLR (Pt. 703) 1901, and submitted that this appeal can be likened to an appeal from the trial Court to this Court and it was argued against the well settled procedure of appeals, therefore, it is doomed ab initio and hearing it further, would amount to nothing, but a waste of time.

Simply stated, it is challenging the competency of this appeal on the ground that the Appellant’s submissions in his Brief of Argument on the issue of identification parade is a repetition of his submissions on the same issue in his Brief of Argument filed at the Court of Appeal.

The Appellant did not file a Reply Brief or react to the objection. But this Court cannot close its eyes to the objection raised. Besides, appellate Courts are enjoined to examine the record in relation to the grounds of appeal filed and issues for determination; and “thereafter determine whether such issues were properly decided having regard to the evidence adduced by the Parties and the applicable laws” - see Ndike V. State (1994) 8 NWLR (Pt. 360) 33 and Eyigebe V.

Iyaji (supra), cited by the Respondent, wherein the Court aptly observed as follows: “To be useful in an appeal, an issue for determination canvassed must relate to the facts or law as decided by the Court, whose decision is appealed against and must attack the ratio decidendi.”

In this case, I have scrutinized the record and it is clear from the Final Written Addresses of the parties and the judgment of the trial Court that the issue of identification parade was not raised at the trial Court, and the trial Court never made any pronouncement on the said issue. The Defence Counsel argued in the Appellant’s Written Address that: “PW2 never saw the accused, as the person that robbed him was masked. The Accused was only identified to him by the Police.

On the authority of the Supreme Court, which is binding on this Court, we urge the Court to discountenance the identification done by PW2 as same is unreliable and thus worthless – – – PW3 could not have reasonably identified the person, who robbed him, as he was masked until he removed his mask while backing him on the way out for a fleeting moment before he stepped out. The Accused was then showed to them by the Police as the robber.”

In its judgment, the trial Court considered the totality of the evidence vis-a-vis the ingredients of the offences charged, and held as follows: “The shabby and shallow defence of the Accused that he was going to Ahmadiyya Mosque in Tanke when he ran into a waiting vehicle on the invitation of its occupants, who turned out to be Police Officers, and proclaimed his arrest on the basis of being a suspect of an event that concluded and from which he was taken to State CID, cannot be believed in the face of the overwhelming and unchallenged evidence of the Prosecution, who has proved the case against (him) beyond reasonable doubt.

He is accordingly convicted for the offence of armed robbery – – – There is surfeit of evidence directly linking the Accused Person with others at large,which evidence is a direct result of a well-orchestrated plan and role played by the Accused and two others at large – – Based on the findings by this Court, (he) is also guilty of the offence of conspiracy contrary to S. 6B of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria, 2004. He is accordingly convicted.”

As I said, there is nowhere in its judgment where the trial Court made any reference to the said issue of identification parade.

Nonetheless, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing six Grounds of Appeal and his complaint in Ground I is that: “The learned trial Judge erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when it (sic) convicted and sentenced him to death by hanging for the offences of conspiracy and armed robbery contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R. 11 LFN 2004 without an identification parade as required by law.”

In his Brief of Argument filed at the Court of Appeal, he formulated four Issues forDetermination, and issue 1 distilled from Ground 1 is: Whether the learned trial Judge was right when it (sic) convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R.II Laws of the Federation of Nigeria, 2004 without an identification parade as required by law.

In resolving the said issue against him, the Court of Appeal held that – “In Usung V. State (2009) All FWLR (Pt. 462) 1203 at 1236-1367, it was held that an identification parade may be dispensed with where: – 1. There is good and cogent evidence linking the Accused Person to the crime on the day of the incident. 2. By the Accused Person’s confessional statement, he identified himself.

In the instant case, apart from the evidence of the Prosecution Witnesses linking the Appellant to the alleged offence, there is Exhibit P (sic), the Appellant’s confessional statement, which is also adequately corroborated by other items recovered in the possession of the Appellant such as Exhibits PW2 (sic) – Techno handset, PW3 (sic) dark green mask and P4 – big iron cutter.

In this circumstance, one is obliged to declare the truism that it is not in every case that identification parade is necessary, and that identification parade is not the only way of establishing the identification of an accused in relation to the offence charged – – In particular that where, as in (this) case, the Accused, by his confession has identified himself, there would be no need for any further identification parade. Issue One is resolved against the Appellant.”

The Notice of Appeal that the Appellant filed in this Court contains four Grounds of Appeal, and he complained as follows in Ground : “The Court of Appeal erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when they affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of criminal conspiracy and armed robbery contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R. 11 LFN 2004 without an identification parade as required by law.”

In his Brief of Argument filed in this Court, he distilled issue 1 from the said ground 1 of the grounds of appeal, and I will reproduce it again: “Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R.II LFN 2004 without an identification parade as required by law.”

In addition to making the same complaints in the said Ground 1 of the Grounds of Appeal that he raised at the Court of Appeal and this Court and distilling the same issue 1 from the said Ground 1 the Appellant also canvassed the same arguments in respect of the said issue 1 in his Brief of Argument that he filed at the Court of Appeal and in this Court.

But that is neither here nor there; the law says that the ground(s) of appeal encapsulate reasons why a decision is considered wrong by the Appellant – Ehinlanwo V. Oke (2008) 6-7 SC (Pt. Il) 123. Therefore, the ground of appeal consists of an error of law or fact alleged by the Appellant as the defect in the judgment he is appealing against – Metal Constr. Ltd. V. D. A. Migliore & Ors (1990) 1 NWLR (Pt. 126) 229 SC.

The Appellant herein is appealing against the judgment of the Court of Appeal, where in he raised the issue of identification parade, therefore, the Respondent’s argument that this appeal can be likened to an appeal from the trial Court to this Court, is completely baseless.

As the Respondent submitted, an appeal is an invitation to a higher Court to review a lower Court’s decision to find out whether, on a proper consideration of facts of the case, and the applicable law, the lower Court arrived at a right decision.

Obviously, the Appellant is asking this Court to review the decision of the Court of Appeal on the issue of identification parade, therefore, the Respondent’s argument that this appeal does not qualify as an appeal and is doomed ab initio, is a misconception of what is at stake in this appeal. This is an appeal, and the said objection thereto lacks merit, and it is hereby overruled.

The Respondent formulated two Issues for Determination in the appeal itself, which I set out earlier, and it is clear to me that its issues are more concise and capture the Appellant’s grievance in this appeal, and so, I will adopt the Respondent’s issues in dealing with the appeal.

On issue 1, the Appellant contends that since PW2 and PW3 did not know him and did not see his face during the commission of the offence, a proper identification parade ought to have been conducted.

He cited Archibong V. State (2004) 1 NWLR (Pt. 855) 488, Ehot V. State (1993) 4 NWLR (PT 290) 675, Adamu V. State (1991) 4 NWLR (Pt. 187) 530, Ani V.

State (2009) 16 NWLR (Pt. 1168) 443, and submitted that proper identification is very important in the trial of an accused, especially where circumstances exist to cast doubt on his identity; that the fact that the robbery took place at PW2 and PW3’s residence does not mean he committed it; that the mode of identification adopted by the Police is irregular, and unacceptable in law; and the lower Court was wrong to have affirmed the reliance of the trial Court on such an improper mode of identification to convict and sentence him to death.

​He further argued that it is trite law that in armed robbery cases, proper identification parade ought to be conducted, and in this case, his identification is “blurred and fuzzy”; that he was not apprehended at the scene of the crime or at the time the offence took place, and a formal identification parade ought to have been conducted to identify him as one of the robbers. He cited Martins V. State (1997) 1 NWLR (Pt. 481) 355 and urged this Court to resolve this issue in his favour.

The Respondent, on its part, argued that the Court of Appeal was right to dismiss the appeal on the ground that the evidence of PW3, PW4 and Exhibit P sufficiently identified the Appellant and, as a result, an identification parade was no longer required; that an identification parade is only needed when the suspect’s identity is in doubt, citing Ikemson V. State (1989) 3 NWLR (Pt. 110) 455 and Alufohai V.

State (2015) ALL FWLR (Pt. 765) 198 and that in this case, an identification parade was not necessary as the Accused Person was linked to where the offence was committed and the recovery of stolen items from the Accused Person was enough to dispense with an identification parade.

Furthermore, that it is a trite law that when a suspect is arrested or caught at the scene of the crime or at a place so closely connected with the scene of the crime, as in this case, an identification parade should never be conducted for purely cosmetic reasons, citing Ogoala V. State (1991) 2 NWLR (Pt. 175) 509 and that the testimonies of PW3 and PW5 successfully fixed the Appellant to the scene of the crime.

It further submitted that the Appellant, through his confessional statement, implicated himself as one of the perpetrators of the crime; that there was no mistaken identity in this case at all as there was no break in transmission of event between the commission of the crime and the arrest of the Appellant and that the authority ofArchibong V. State (supra), Ehot V. State (supra), Ani V. State (supra) and Martins V. State (supra), cited by the Appellant, are not relevant to this case; and it, therefore, urged this Court to resolve this Issue in its favour.

This issue is easily resolved, and I will say without hesitation that it must be resolved against the Appellant. First off, the Court of Appeal stated the correct position of the law, an identification parade is not a necessity for identification in all cases where there is other evidence leading conclusively to the identity of perpetrators of an offence – see Ikemson V.

State (1989) 3 NWLR (Pt. 110) 455, wherein this Court held that identification parade is only essential in the following situations: – Where the victim of the crime did not know the Accused before; – where the victim was confronted by the offender for a very short time; and – where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person. So, the essence of an identification parade is to enable an eyewitness, who never knew the person accused of the crime before, to pick him out from amongst other people – see Alufohai V.

State (2014) LPELR-24215(SC), wherein this Court per Ariwoola, JSC, aptly explained that: “Identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused is in dispute.

But where there is certainty or no dispute as to the identity of the perpetrator of a crime,there will be no need for an identification parade to further identify the offender.” So, there are cases where an identification parade is of no use at all, such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or the witness and when evidence adduced is sufficient to establish that he is, indeed, the person that committed the crime – see Jua V. State (2010) 4 NWLR (Pt. 1184) 217, Archibong V.

State (2006) 14 NWLR (Pt. 1000) 349, Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors. V. State (2000) 15 NWLR (Pt. 691) 555.

In this case, PW2 and PW3 who were the victims of the crime, testified that the Appellant was wearing a mask when he came into their house with another man, and when they demanded for money, PW2 said he gave them “5 packs of N50 notes of N5, 000 in each pack” PW3 who identified a mask worn by the Appellant, also testified that: The Accused Persons collected N150,000 from my brother – – They also collected N50 notes from my brother. When the 2 Accused Persons were about to go out, this Accused (the Appellant) before the Court in the dock removed his mask from his face.

He was also wearing a white Jalabia. PW4 a Vigilante, and the key Witness in this case, testified as follows: On 22/8/11 – – I received from Alhaji IPW31 that armed robbers were in his house – On getting there, I saw the gate of his house wide open. I saw a vehicle reversing at the gate attempting to came out of the gate – Somebody, who came to open the gate for the motor that was reversing challenged me and asked of who I am. I told him I’m a security and he shot at me but fortunately, it missed me. When he realized this, he ran, and I ran after him.

He escaped, when I was coming back with the two vigilantes to nail the remaining robbers in the house, we met the Accused wearing a long white Jalabia without shoe or slippers on. He was walking barefooted. When we questioned him of his whereabout, he ran, and we also pursued him. When he got to a main road, he jumped a fence attempting to enter another person’s yard and I captured his legs. We met a face mask in his pocket and 3 handsets and parcel of N50 notes (N25,000) new notes. We handed over the Accused to the Policemen at Tanke, who were at the checking point.

The Policemen and we,vigilante, went back to the house with the Accused. From there, we went to the Police Station. From the Police station, we went back to our duty. I can identify the mask and handset found on the Accused. The mask shown to me is the mask worn by the Accused on that day. This is one of the handsets recovered from the Accused – – The handset remains two.

PW5 also said the Appellant “was wearing a white Jalabia”, and when his pocket was searched by the Policemen, who arrived at the scene, “they found in his possession a mask, a phone belonging to Funsho Abdulkareem, and N50 notes”. He also identified Exhibits P3 and P4.

In Exhibit P5, his confessional statement, the Appellant narrated how he met one Ayo, who called him on 22/8/2011 at about 1800hrs, and asked him to meet him at the Post Office, Ilorin. He further stated: “On getting to Post Office, Ilorin, I call Ayo and he came with one boy, whom he introduced to me as Wole – – He then told me that three of us are going somewhere together. When I asked him where, he told me Tanke area to go and see somebody. Ayo was holding a black polybag containing some items unknown to me – – Three of us then took taxi – – to Tanke, Ilorin.

Ayo took me and Wole to one building that is well fenced with barbwire on top of the fence. On getting there, Ayo then told me that the house is where we want to carry out armed robbery operation. I told him I will not participate. He then told me that all money he has given to me that do I think he picked them on the ground? So, he dipped his hand into the polybag and brought out gun and he gave me one wool mask to wear. He later brought out one big iron cutter from the polybag, which he used to cut the barbwire. Ayo also gave Wole one cut to size barrel gun like the one he was holding.

He then said that immediately he climbed and enter, I should follow him. So, as he climbed the fence and jumped into the compound, I followed him with the assistance of Wole and jumped inside – Wole also followed me almost immediately. While in the compound, Ayo removed one of the burglary windows and entered the house through the window and opened the main door for me and Wole to enter. While in the house, we threatened the occupants to bring all their money at gun point. Ayo then collected some packets of new N50 notes and gave to me to hold.

When I asked Ayo that we should go, he said he wants to collect the car keys. So, Ayo went inside and collected the two car keys and asked me to open the gate. I refused. So, he went to open the gate while Wole was already inside one of the cars – – As Ayo opened the gate, he took to his heels and fire the gun once. Wole also came out of the car and escaped. While I was walking away, I was arrested by a group of vigilantes. A Police Patrol team later came to meet me while with the vigilantes. The vigilante already collected all the money from me before the arrival of the Patrol team.

I do not know the exact amount of the mint N50 bundles. But the Police later told me that it was N23,150.00. The wool mask, three handsets and the iron cutter were recovered from me and handed over to the Police. To be sincere, the wool mask, three handsets collected from the victim was recovered from my pocket while the iron cutter was recovered from the scene where Ayo abandoned it.

The evidence speaks for itself, and what it says loud and clearly is that apart from the testimonies of PW2, PW3, PW4 and PW5, which placed the Appellant at the scene of the robbery, and Exhibits P1, P3 and P4 that were found in his pocket almost immediately after the robbery, the Appellant identified himself in Exhibit P5 therefore, the question of conducting an identification parade to identify him does not arise – see Ikemson V. State (supra), wherein this Court per Oputa, JSC, held: The 3rd Accused – the 2nd Appellant in this Court needed no further identification.

By his confession, he identified himself. In his case, there was thus no need for any further identification parade. See also Ogoala V. State (supra), wherein Nnaemeka-Agu, JSC, said: “I cannot see how it could be urged in favour of the Appellant either that the identity and connection with the crime were in dispute or that there was any need for a formal identification parade. An identification parade is not required where one is caught at the scene of crime or at a place so closely connected with the scene of crime, as in this case.

An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an Accused Person or his connection with the offence charged.

To insist that it must be conducted in cases like the instant in which the visual evidence of identity is clear and corroborated by other evidence and the Accused Person confesses to his complicity in the crime is to make a mockery of criminal justice.” The Appellant has argued that his identification is “blurred and fuzzy”, but to the contrary, the visual evidence of his identity is crystal clear, and it is corroborated by other evidence adduced by the Prosecution.

Even more compelling, the Appellant identified himself in Exhibit P5 thus, the Court below is right that an identification parade is ruled out. This Issue totally lacks merit and it is resolved against the Appellant.

Issue 2 is whether the Court of Appeal was right to affirm the trial Court’s decision to convict the Appellant for the offences charged. The trial Court held that there was armed robbery and on the question of whether the Appellant was one of the armed robbers, it stated that: “The evidence of PW2 is that this accused came to the room wearing a mask while the other two robbers, who came with him, were holding gun but unmasked. It is the evidence of PW2 that the gang (Accused inclusive) demanded and took from him 5 packs of new N50 notes.

When (they) were through with PW2, they went to PW3’s room, it was the Accused, according to PW3 that collected the keys to the 2 Honda vehicles and removed his mask when they were about going out of his room to the open yard.

PW3 even described the clothes worn by the Accused as a white long sleeve robe or Jalabia, as it is commonly called. (There) is also the direct link of PW4, who met the Accused wearing a torn rough white long sleeve Jalabia walking barefooted in the street alone at night when PW4 was returning to the scene of crime after his failed pursuit of one of the armed robbers that attempted to shoot him.

A mask, packs of new N50 notes made up of N23, 050, Exhibit P1 and 3 handsets were found on him immediately after his arrest – – – The Accused himself in his statement confessed that some packets of N50 notes were collected by Ayo and given to him to hold. Accused in his Statement even said that he asked Ayo to let them leave but Ayo insisted on wanting to collect the keys to cars packed by the victims inside their compound. It is therefore not an overstatement that the Accused is a member of the armed robbers and he fully and actively participated in the crime – – In State V.

Usman & Ors (2012) 7 SC (Pt. 111) 83, Rhodes-Vivour, JSC, specified vital Witnesses that must testify for the Prosecution in a charge of armed robbery. These are: 1. The victim of the armed robbery if still alive (i.e., PW3 and PW2). 2. The Police Officers, who arrested the Accused (i.e., PW4 and PW6). 3. Evidence of the circumstances in which the accused persons were arrested (Evidence of PW3, PW4, PW5 and PW6). 4. The Witness or any Witness, who should give credible evidence of the armed robbery (PW4 and PW5 in this case). 5.

If reliance is placed on circumstantial evidence, it must be compelling and lead to only one conclusion – Accused Persons were responsible for the armed robbery. All the above are present in this case.

In affirming the decision of the trial Court, the Court of Appeal held: “I agree with learned counsel for the Respondent that the Appellant’s extra-judicial Statement, Exhibit P5, was robustly corroborated by the evidence of PW2 and PW3 to fix Appellant squarely to the scene of crime and that he committed the offence with others now at large.

It only remains to add that the learned trial Judge came to a just conclusion when she held at page 116 of the Record thus – “It is, therefore, not an overstatement that the Accused is a member of the armed robbers and he fully and actively participated in the crime. Though he might be inexperienced as he claimed to be a first timer. Thus, in the case of The State V. Isah Usman & 2 Ors (2012) 7 SC (Pt. Ill) 83, Rhodes-Vivour, JSC, specified vital Witnesses that must testify for the Prosecution in a charge of armed robbery. These are: 1.

The victim of the armed robbery if still alive (i.e., PW3 and PW2). 2. The Police Officers, who arrested the Accused (i.e., PW4 and PW6). 3. Evidence of the circumstances in which the Accused persons were arrested (Evidence of PW3, PW4 PW5 and PW6). 4. The Witness or any Witness, who should give credible evidence of the armed robbery (PW4 and PW5 in this case).” Issue four is also resolved against the Appellant.

But the Appellant contends that the Court of Appeal wrongly affirmed the decision of the trial Court, who believed the Respondent’s story, even before considering his case and that from the evidence of PW4 the Respondent did not discharge the burden on it since he was not picked up at the crime scene. He cited the following authorities on the ingredients of the offence: Ibrahim V. State (2015) 11 NWLR (Pt. 1464) 188, Oseni V. State (2012) 5 NWLR (PT 1293) 351, Olayinka V. State (2007) 9 NWLR (Pt. 1040) 561, Okosi V. A.G Bendel State (1989) 1 NWLR (Pt. 1043) 542, Bello V.

State (2007) 10 NWLR (PT. 1043) 564, and argued that he was not found at the scene and denied the alleged offences, and so, the lower Court wrongly affirmed the said decision. Citing Section 138 of the Evidence Act, Section 36(5) of the 1999 Constitution, Ajayi V. State (2013) 9 NWLR (Pt. 1360) 589, Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 316, Al-Mustapha V.

State (2013) 17 NWLR (Pt. 1383) 350, Omoleye V State (2014) 3 NWLR (Pt. 1394) 232, Ubani V State (2001) 4 NWLR (Pt. 807) 51, on standard of proof, he urged this Court to hold that the Respondent’s evidence fell short of the requirement in criminal cases and it failed to prove the alleged offence against him beyond reasonable doubt;and that the lower Court wrongly substituted its own views and descended into the arena of conflict by supplying a missing link to the case of the Respondent.

The Respondent countered that the lower Court rightly affirmed the decision of the trial Court, “who extensively considered the testimonies of witness and the evidence tendered before giving a well-considered Judgment”. It argued that the evidence of its Witnesses, not only fixed the Appellant to the scene of the crime, but also pointed at him as one, who committed the crime. It cited the following cases on ingredients of the offence – Ogudo V State (2011) 12 SC (Pt. 1) 71, Eke V. State (2011) 1 – 2 SC (Pt. 11) 219, John & Anor V. State (2011) 12SC (Pt. 1) 130 and Adelani V.

State (2018) 5 NWLR (Pt. 1611) 18, and submitted that from the evidence led and testimonies of PWI – PW7 the Appellant has been successfully fixed to the scene of the crime; that there were consistencies in the testimonies of all the Witnesses; for instance, that the evidence of PW2 that the Appellant was wearing a white Jalabia, was corroborated by PW4 in his evidence in chief.

Now, from all that has been said so far in this Judgment, it is clear that the key piece of evidence that has the Appellant tied up in knots, and which links him inextricably to the commission of the said crime, is his confession in Exhibit P5 wherein he boxed himself into a corner.

As Tobi, JSC, said in Solola V. State (2005) 11 NWLR (Pt. 937) 460, once a confessional statement is admitted, “the Prosecution need not prove the case against the Accused Person beyond reasonable doubt, as the confessional statement ends the need to prove (his) guilt”. See Oseni V.

State (2012) 5 NWLR (Pt. 1293) 357, wherein this Court held: “In Nigeria, a free and voluntary confession of guilt by (an Accused), if it is direct and positive and is duly made and satisfactorily proved, it is sufficient to warrant conviction without corroborative evidence, as long as the Court is satisfied as to the truth of the Confession.”

In this case, the Appellant’s confession in Exhibit P5 is implicatory and it is corroborated in all material particulars by the testimonies of PW2 PW3 PW4 and PW5, and Exhibits P1, P3 and P4 which were found in possession of the Appellant just a few minutes after the said robbery.

This is the same with his conviction for the offence of conspiracy. In affirming the trial Court’s decision, the Court of Appeal held that: “The evidence of PW2 and PW3 and contents of Exhibit P5 was that the Appellant with Wole and Ayo entered the compound of PW2 and PW3. That the Appellant wore a mask supplied by Ayo and Wole. Ayo and Wole were each carrying gun with which they threatened the occupants to bring their money at gunpoint – – The Appellant in Exhibit P5 admitted that some of the pack of the N50 notes stolen at the scene of robbery were collected by Ayo and given to him for keep.

The above summary of the facts – – settled the requirements of the offence of conspiracy because Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts – – The learned trial Judge came to a right conclusion that the Appellant was guilty of conspiracy.”

The Appellant has argued in this appeal that the Respondent did not show the specific role or part he and the others at large played in the alleged conspiracy to commit armed robbery throughout the trial; that he denied the alleged offence let alone conspiring with anyone and he also categorically denied such involvement; and that the lower Court’s affirmation of the findings of the trial Court “were wrongly inferred”.

Apparently, the Appellant is just mouthing empty words because the two lower Courts found overwhelming evidence to corroborate his confessional Statement, which is part of the Prosecution’s case, and which the law says must be considered for its probative value - see Akpa V. State (2007) 2 NWLR (Pt. 1019) 500, Ikpa V. State (2017) LPELR-42590(SC), and Egboghonome V.

State (1993) 7 NWLR (Pt. 306) 383 wherein this Court Belgore, JSC (as he then was), explained that – “Such a statement, once legally admitted in evidence, will be juxtaposed with all the evidence in Court, including the defence, so as to decide the general merit of the case. But such a Statement is always part of the case for the Prosecution.”

In this case, I see no reason to fault the concurrent findings of the trial Court and the Court of Appeal because the Appellant’s confession in Exhibit P5 is so detailed that no one can be left in doubt as to its truth. His narration of events when juxtaposed with other evidence adduced by the Prosecution shows in no uncertain terms, the prominent role played by the Appellant in the planning and execution of the robbery, wherein Ayo and Wole, “two others at large” were armed with guns, therefore, his arguments to the contrary are worthless and baseless.

As it happens, this Court is always reluctant to interfere with the concurrent findings of the two lower Courts, and this is even more so, when an Appeal turns on the issue of credibility - see Ogundiyan V. State (1991) 3 NWLR (Pt. 181) 519 SC, wherein Obaseki, JSC, observed: “Without any clear errors in law or fact leading to or occasioning miscarriage of justice, this Court will not interfere with the concurrent findings.

It is settled law that there must be clear proof of error either of law or of fact on record, which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings.”

In this case, the Appellant’s confession in Exhibit P5 solidified the case for the Prosecution, therefore, there is sufficient evidence to support the concurrent findings of fact by trial Court and the Court of Appeal,and since the Appellant has not presented this Court with any reason at all to interfere with the concurrent findings of the two lower Courts, there is nothing this Court can do about it, and the said findings stand.

Consequently, this appeal lacks merit and it is hereby dismissed. The decision of the Court of Appeal to uphold the judgment of the trial Court, including conviction and sentence of death, is hereby affirmed.

CHIMA CENTUS NWEZE, J.S.C.: I have had the privilege of reading in advance the lead judgment of my learned brother, Augie, JSC, just delivered and agree with His Lordship that this appeal should be dismissed.

On acceptance of what I consider to be this Court’s current position on concurrent findings of the two lower Court’s, I concur with the leading judgment that the Supreme Court is always reluctant to interfere with the concurrent findings of the two lower Courts unless in the following exceptional circumstances such as: (a). when the findings are perverse; (b). when the findings are not supported by the available evidence; and (c) when the concurrent findings have occasioned a miscarriageof justice to the appellant.

See Lanre v State [2019] 3 NWLR (pt. 1660) 506, Samaila v State 5 NWLR (pt. 1770) 562, Lawali v State (2019) 4 NWLR (pt.1663) 457, Mbang v The State (2013) 7 NWLR (pt. 1352) 48, Ike v Ugboaja (1993) 6 NWLR (pt. 301) 569, Ejinima v State (1991) 6 NWLR (pt.200) 627; Mbenu v State (1988) 3 NWLR (pt.84) 615; Kale v Coker (1982) 12 SC 252, Woluchem v Gudi (1981)5 SC 291, 326.

The appellant herein has not shown this Court how the findings of both lower Courts were perverse or have offended any known principle of law, given that there is sufficient evidence to support these concurrent findings.

It is for these, and the fuller and more elaborate reasons in the leading judgment that I too, shall enter an order dismissing this appeal for being unmeritorious. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read hitherto the judgment just delivered by my learned brother, AMINA ADAMU AUGIE JSC. I agree with the reasoning and conclusion that the appeal is devoid of merit and should be dismissed. This is an open and shut criminal case in which the Appellant was caught practically red handed at the scene of crime with some of the stolen money taken by armed robbery still on his person. The argument by the Appellant that an identification parade should have been conducted by the Police is completely misconceived. See Ogoala v.

State (1991) 2 NWLR Pt. 175 Pg. 509. In this case, apart from being caught on the spot, the Appellant made a statement which was a direct and positive confession of guilt which is admissible and sufficient to ground his conviction. The confession fulfilled the probability tests and it is credible and proper weight was attached to it by the two lower Courts to sustain the conviction of the Appellant. There is no reason to interfere with the concurrent findings of fact of the two lower Courts.

The decision of the Court of Appeal affirming the decision of the High Court including the conviction and sentence of death is hereby affirmed. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had a preview of the judgment prepared by my learned brother, AMINA ADAMU AUGIE, JSC, just delivered. I agree with the reasons therein advanced to arrive at the conclusion that the appeal is devoid of merit and should be dismissed. In support of my stance, I wish to add a few words.

This appeal is against the judgment of the Court of Appeal, Ilorin Division, delivered on the 16th of November, 2017.

The facts leading to the appeal, are that the Appellant, on the 21st day of September, 2012, was arraigned before the trial High Court of Kwara State, for the offence of Criminal Conspiracy and Armed Robbery punishable under Sections 6(b) and 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap RI 1 LFN 2004 respectively. He pleaded not guilty to the charges.

At the trial, the Respondent, as Prosecution called seven (7) witnesses and tendered seven exhibits, including the Appellant’s extra judicial statement admitted in evidence as Exhibit P5. The Appellant testified in his defence and called no other witness.

At the end of trial, the trial Court convicted the Appellant as charged, and he was sentenced to death by hanging. ​ Aggrieved by the decision of the trial Court, the Appellant appealed to the Court below. In its judgment, the Court below dismissed the appeal and affirmed the judgment of the trial Court. It held inter alia that the extra-judicial statement of the Appellant, Exhibit P5 was robustly corroborated by the evidence of PW2 and PW3 to fix the Appellant squarely at the scene of the crime and therefore, there was no need for an identification parade.

The Appellant is piqued with the judgment of the Court below, and has lodged an appeal at the Registry of this Court, vide his Notice of Appeal filed on the 5th of February, 2018.

In his Appellant’s brief of argument filed on the 6th of April, 2018, the Appellant raised three issues for determination. They are: 1. Whether the lower Court was right when they(sic) affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6b and 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11 LFN 2004, without an identification parade as required by law? 2.

Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and thereafter sentenced the Appellant to death for the offence of Criminal Conspiracy? 3. Whether the lower Court was right whenthey affirmed the decision of the trial Court that the Appellant is a member of the Armed Robbers and he fully participated in the crime?

For the Respondent, two issue were formulated for determination as follows: 1. Whether by the combined effect of the evidence of PW3, PW5 and Exhibit P5, the lower Court was right in affirming the decision of the trial Court that identification parade is not necessary in the course of the conviction of the Appellant? 2. Whether the lower Court was right when it affirmed the decision of the trial Court convicting the Appellant of the offences of Criminal Conspiracy and Armed Robbery?

I will limit my support to the lead judgment of my learned brother, to the 1st issue raised by the Appellant herein, which questioned: “Whether the lower Court was right when they(sic) affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6b and 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap RI 1 LFN 2004, without an identification parade as required by law?”

As rightly submitted by Counsel on both sides, an identification parade, or the need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade may be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction.

In Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619, this Court opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.

In the instant appeal, the Appellant was not arrested at the scene of the crime, but was arrested shortly after, with the proceeds of the robbery and he was also identified by PW3. ​ At page 61 of the Record, PW3, one of the victims of the crime, stated thus:”When the two accused persons were about to go out this accused before the Court in the dock, remove the mask from his face. He was also wearing a white jalabia (Long rope with long hand). Then they went out of the room and closed our door.

Shortly after, about five minutes that the accused persons left, I heard the sound of our gate and the sound of the motor vehicle. I also heard sound of gunshot.” At page 65, PW5 said: “The accused person pocket was searched, and we found in his possession, a mask, a phone belonging to Funsho Abdulkareem and 50 Naira new note.”

From the above, I am in agreement with the Court below that Exhibit P5 was well corroborated and that the Prosecution had adduced enough evidence linking the Appellant with the crime, more so, as the stolen items were recovered from him.

The law is settled that once a confessional statement has been made voluntarily, and it is direct, positive, and unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled there-from or retracted same completely at the trial. See Ubierho v. The State (2005) 5 NWLR (pt. 919) 644 SC, where this Court held that there is nothing sacrosanct about a confession, thus, the fact that an accused has retracted an confessional statement does not mean that the Court cannot act upon it.

However, it is desirable to have some evidence outside the retracted confession before a conviction is based on the retracted confession.

In the instant appeal, there was ample evidence to support the Appellant’s confessional statement and the Court below was right to so hold. The concurrent findings of facts by the two Courts below, are factually and legally sound and do not merit any interference by this Court. Without any clear evidence of errors in law or fact leading to or occasioning miscarriage of justice, this Court will not interfere with the concurrent findings.

It is trite law that there must be clear proof of error either of law or of fact on the record which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings of fact. See: The Admin. & Exec. of the Estate of Abacha v. Eke-Spiff &Ors (2009) LPELR-3152(SC); Ekweozor & Ors v. Reg. Trustees of the Saviours Apostolic Church of Nig. ​(2020) LPELR-49568(SC).

It is for this reason, and the fuller reasons set out in the lead judgment of my learned brother, AMINA ADAMU AUGIE, JSC, that I also affirm the conviction and sentence of death passed on the Appellant by the lower Court. Appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the Judgment of my learned brother, Lord Justice, AMINA ADAMU AUGIE, JSC. I completely agree with the reasoning, conclusions and decisions therein.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an Appeal against the judgment of the Court of Appeal, Lagos Division delivered on 5/4/2017 which affirmed the judgment of Hon. Justice S. A Onigbanjo delivered on 18/6/2013 in charge No ID/47C/2011 wherein the Appellant was found guilty of the lesser offence of manslaughter and sentenced to life imprisonment whereas he was charged initially for murder.

The facts that led to this appeal are as follows: On 14th February 2010 at about 4:00pm, one Adeogun Kayode, a resident of No. 20, Alade Street, Oshodi, Lagos, now deceased, went to the Appellant’s barbing salon to shave. The deceased after being initially attended to, at the Appellant’s barbing salon returned back and inquired about the where about of his mobile phone, alleging that he left his mobile phone in the Appellant’s barbing salon. In response to the inquiry, the Appellant informed the said Adeogun Kayode that he did not know the where about of the mobile phone.

​Consequently, an argument ensued and the said Adeogun Kayode proceeded to the generator which powered the Appellant’s barbing salon and abruptly switched it off which resulted in a fight between the Appellant and the said Adeogun Kayode which led to the latter’s death after he suffered fatal injuries to his forehead and chest.

The Appellant was subsequently apprehended on the day of the incident by officers of the Nigerian Police and was taken to Akinpelu Police station.

At the trial, the prosecution called three witnesses while the Appellant gave evidence on his own behalf. P.W.1 Alli Shuarbu was a co-tenant of the deceased who did not witness the incident but was the one who reported the matter to the police after rushing to the scene where he found the body of the deceased in the gutter in a pool of blood. The deceased died at the General Hospital. P.W.2 was Vivian Taiwo (Sunday) the initial I.P.O at Akinpelu Police Station who took the confessional statement of the Appellant marked Exh C.

The witness also tendered the post mortem/medical report signed by one Dr. O. Williams dated 14/2/10 as Exh. B. The D.C.O at Akinpelu Police Station had endorsed Exh C after the appellant signed it. She later transferred the case to Panti CID.

​P.W.3 was Inspector E. Enwereji who at the material time was at the Homicide Department at Panti. He recorded the statement of the Appellant which was retracted but nevertheless admitted as Exh G.

In his defence on oath at the trial, the Appellant stated that the deceased precipitated a fight in his barber shop during which he pushed the deceased and another person into the gutter. The statement of the Appellant in Exh. C & G showed clearly the defence of provocation.

My Lords, in this appeal, the only question for determination is whether on the evidence before it, the lower Court was right to have affirmed the conviction of the Appellant for manslaughter not murder.

The trial Court found that Exh. C which was tendered without objection showed the defence of provocation which was an excuse to reduce the charge from murder to manslaughter.

My Lords, before this Court, learned Appellant’s counsel in the brief settled by F. Ajibola Dalley, complained first against the findings of facts by the two lower Courts. His grouse is that the lower Court jumped to the conclusion that the deceased died and that the Appellant caused his death. Counsel argued that the lower Court’s failure to review the evidence and set aside the trial Court’s conclusions on those two findings of fact occasioned injustice to the Appellant.

My lord, the brief of argument of the learned Appellant’s counsel is replete with references to the fact that the Appellant was charged with murder. There was hardly any reference to the conviction of manslaughter. There was no attempt to argue an absolute defence in favour of the Appellant. At trial, the offence of murder was found not proved and the Appellant was instead convicted of the lesser offence of manslaughter.

Either learned counsel did not read the concurrent judgments of the lower Courts before writing the brief or he did not understand their import. ​ Be that as it may, the complaint of learned Appellant’s counsel is that it was wrong of the Court of Appeal to agree with the learned trial Judge that the evidence revealed that the deceased died and that the Appellant killed the deceased.

Counsel submitted contrary to the evidence on record that there was no proof of the death of the deceased whereas P.W.1 saw him in a pool of blood and P.W.2 saw him in the mortuary after a post mortem was performed on him.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned Appellant’s counsel apparently made no effort as I said earlier to read the record of proceedings wherein the Appellant on oath in his own defence admitted that there was a fight between himself and the deceased and he pushed the deceased into the gutter where P.W.1 later found said deceased in a pool of his own blood with injuries on his chest and forehead. The learned trial judge found that indeed the deceased died and the Appellant’s action was the cause of his death but concluded that in the circumstances the defence of provocation could avail the Appellant.

The lower Court agreed with the findings of the trial Court.

I am of the view that the issues raised by the Appellant at the Court of Appeal was adequately addressed by the lower Court.

My Lords, in Olakunle v. State (2018) 6 NWLR Pt. 1614 Pg.91 this Court held that it is the primary duty of the trial Court to evaluate the testimony adduced at the trial and ascribe probative value thereto. This is because it was that Court which was privileged to see and hear the witnesses and it was in a position to pronounce on their credibility. Where therefore, a trial Court has satisfactorily carried out this duty, the appellate Court has no reason to interfere with the findings of the trial Court.

Where however, the trial judge has abdicated the primary duty, or has failed to properly utilize the advantage of seeing and hearing the witnesses testify, the appellate Court is in a good position to evaluate the evidence, provided it does not involve the credibility of witnesses. See Fagbenro v. Arobadi (2006) All FWLR (Pt. 310) 1575, (2006) 7 NWLR (Pt. 978) 172; Saleh v. Bank of the North (2006) All FWLR (Pt. 310) 1600, (2006) 6 NWLR (Pt. 976) 316. See also Abiodun v. State (2013) All FWLR (Pt. 700) 1257, (2013) 9 NWLR (Pt. 1358) 138, (2013) vol. 3 -4 MJ S. C (Pt. 1) 163.

I am of the view that the lower Court correctly evaluated the evidence to arrive at the same conclusion as the trial Court.

The findings of the two lower Courts are not perverse and in my view has not caused miscarriage of justice to warrant them to be set aside by this Court. ​ The learned Appellant’s counsel also complained that the lower Court was wrong to have agreed that the confessional statement made at Panti CID- Exh G constituted admissible evidence against the Appellant.

The law is settled that where a defendant standing trial before the Court retracts the earlier statement/confession made to the police, the statement does not become inadmissible but the Court is required to look for corroborating evidence outside the confession that makes the confession probable. A trial Court faced with the obstacle of a recanted confession is by law admonished to subject the confession to the six probability tests established as far back as R v. Skyes (1913) 8 CAR at 236 and a plethora of authorities in our criminal jurisprudence. See Queen v.

Itule (1961) 2SCLR 183; Edhigere v. State (1996) 1 NWLR Pt. 464 Pg. 1 at Pg. 13-14; Uzim v. State (2019) LPELR 48983 (SC); Alarape v. The State (2001) 5 NWLR Pt.705. Pg.79; Uwagboe v. State (2007) 6 NWLR Pt. 1031 Pg.606 at 623; Karimu Sunday v. The State (2017) LPELR-42259 (SC). ​ It is clear from the record, that there is abundant evidence establishing the circumstances confessed to by the Appellant. The deceased died in a gutter opposite the barber shop of the Appellant after a fight with the Appellant who had an opportunity to have committed the offence.

In any event, the earlier confessional statement made at the earliest opportunity by the Appellant at Akinpelu Police Station which is Exh C was never retracted while it was being tendered on oath by the Appellant when he claimed that he merely pushed the deceased who fell into the gutter. Appellant also made a partial admission on oath to the crime. There is no doubt that the confessional statement was consistent with other un-contradicted evidence adduced by the prosecution.

I find no merit in the argument of Appellant’s counsel on this point. See Amos v. The State (2019) NWLR Pt. 1653 Pg. 206 at 233.

​My Lords, the two lower Courts correctly attached probative value to the retracted confessional statement. It was really an open and shut case. The appeal could have been on reducing the sentence to a specific term rather than the elastic life imprisonment as there are no parole hearings in Nigeria that would make it easier for the Appellant to have a chance of release within seven years counting the years of incarceration before the conviction. Although an appeal against an elastic life sentence may be risky, it may have availed the Appellant.

Be that as it may, there is no merit in this appeal. The deceased lost his life in the hands of the Appellant in circumstances that amounted to provocation and reduced finding of manslaughter. He was justly convicted of manslaughter. The judgment of the Court of Appeal in CA/L/1092C/2013 delivered on 5/4/17 is hereby affirmed. Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: As reasoned in the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU JSC just delivered, this appeal lacks merit.

I adopt the judgment as mine in dismissing the unmeritorious appeal and affirming the lower Court’s judgment.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit. It, therefore, deserves to be dismissed.

As His Lordship observed in the leading judgment, a trial Court faced with the obstacle of a retracted confession is by Law, admonished to subject the confession to the six probability tests. This is true for a retraction or denial of a confessional statement does not affect its admissibility.

This has long been settled in the very old cases of R. v Sapele and Anor (1952) 2 FSC 74; R v. Itule (1961) All NLR 462; the relatively old decisions of Ikpasa v The State [1981] 9 SC 7; Akpan v. State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nwangbomu v. The State [1994] 2 NWLR (pt 327) 380; Bature v. State [1994] 1 NWLR (pt 320) 267; Eragua and Ors v. The AG, Bendel(1994) LPELR–(SC) 30; Idowu v. State [1998] 11 NWLR (pt 574) 354; as well as the more recent decisions of Silas Sule v. State (2009) LPELR-3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR -9350 (SC) 53; Oseni v.

The State (2012) LPELR -7833 (SC) 22-23. I find clear evidence of the lower Court’s application and consideration of the principles which should be considered in determining whether or not to believe and act on a confession or confessions which an accused person resiled from as enunciated in R. v. Sykes (1913) 8 C. A. R. 233, 236; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v. The State (1965) NMLR 129. Others include: Onochie and Ors v. The Republic (1966) NMLR 307; Jafiya Kopa v.

The State (1971) 1 All NLR 150 Dawa v The State[1980] 8 -11 SC 236; Ejinima v. The State [1991] 5 LRCN 1640, 1671; Arthur Onyejekwe v. The State [1992] 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State [2004] 3 NWLR (pt 860) 367; [2004] 1 SCNJ 65; [2004] 1 SC (pt.1) 65.

These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v. The State (2012) LPELR -9348 (SC) 32-33, G-D; Kareem v. FRN [2002] 7 SCM 73; Akpan v. The State [2001] 11 SCM 66.

It is for these, and the more detailed, reasons in the leading judgement that I, too, shall affirm the judgment of the lower Court. I, accordingly, affirm his conviction and the sentence for manslaughter. Appeal dismissed.

ABDU ABOKI, J.S.C.: I have read before now, a draft of the lead judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC. I agree with His Lordship’s conclusions that the appeal lacks merit and ought to be dismissed. Same is dismissed by me.

This appeal is against the judgment of the Court of Appeal, sitting at Lagos, (hereafter called the Court below), delivered on the 5th of April, 2017, wherein the Court below affirmed the judgment of the Trial Court, which convicted the Appellant for the offence of manslaughter and sentenced him to life imprisonment, pursuant to Section 325 of the Criminal Code Law Cap C17, Laws of Lagos State.

The brief statement of facts culminating to this appeal is that on February 14, 2010, one Adeogun Kayode was found injured in a gutter in front of the barbing salon of the Appellant. Upon being taken to the hospital, he died from injuries sustained on his head and chest.

Acting on the report of one Alli Shuaibu, (PW2), men of the Nigerian Police arrested the Appellant on the suspicion that he inflicted the injuries that led to the death of the said Adeogun Kayode, with a broken bottle. ​ Consequently, the Respondent filed an Information dated 27th September, 2010 charging the Appellant with the offence of murder contrary to Section 326 of the Criminal Code Law Cap C17 Laws of Lagos State 2003.

Upon arraignment, the Appellant pleaded not guilty and the matter proceeded to trial. In an attempt to discharge the burden placed on it by law, the Respondent called three witnesses and tendered the extra judicial statements of the Appellant. The Appellant testified in his own defence and called no other witness.

In its judgment delivered on the 18th of June 2013, the trial Court found the Appellant guilty of manslaughter and sentenced him to life imprisonment. ​ Piqued by his conviction and sentence, the Appellant appealed unsuccessfully to the Court below. In further appeal to this Court, the Appellant, on the 20th of June 2018, filed a Notice of Appeal containing two grounds of appeal, from which he formulated two issues for this Court’s determination as follows: 1.

Whether the eminent Justices of the Court of Appeal erred in law and therefore occasioned a miscarriage of justice when they failed to review and properly determine the issues raised by the Appellant? 2. Whether the eminent Justices of the Court of Appeal were right in holding that the trial Court rightly attached probative value to the purported retracted confessional statements (Exhibits C and G) of the Appellant.

The Respondent, in its brief of argument adopted these issues as distilled by the Appellant. ​ Exhibit C was the extra judicial statement of the Appellant. It was admitted without objection from the defence, and the relevant portion reads thus: “Today 14/2/10, at about 4 pm, the deceased… came to my shop to shave and after shaving he left. Few minutes later, he came into the barbing salon again and was asking about his GSM phone, which I told him that we did not see it, because we were two in the salon who is (sic) barbing.

He went to meet my second in the shop and also asked him about his phone that he forgot it, so my second Taiwo told him that he did not see the phone, so Kayode went out and switched the generator that was on. I asked him why he put the generator off. Kayode told me that he was looking for his GSM phone while I was busy barbing somebody’s hair. As I wanted to switch on the generator again, Kayode gave me a fist blow on my face while I also punched him too with fist blows and he ran away while I ran after him. Kayode carried stick and wanted to hit me with it.

I overpowered him and collected the stick, he picked up a bottle, broke it and wanted to stab me with it. I also overpowered him and collected the broken bottle from him and stabbed him under his left breast. He fell inside gutter and I stabbed him on his forehead, right inside the gutter. It was in the process that the other person who came along with him to the salon drew me out from the gutter while the boy was also brought out from the gutter and was taken to the hospital. Few minutes later, the some Policemen came in their vehicle and I was taken to the Police station.

People were telling me to let the said Kayode go but I refuses (sic)… Taiwo my co-barber called me and told me to leave him alone but I refused. It is the work of the devil. I know what I did was painful but I am sorry.”

​This excerpt of Exhibit C, is in tandem with the evidence on record. In its judgment, the Court below held inter alia thus: “In view of the foregoing, and the defence of provocation enuring to the benefit of the defendant, the Defendant cannot legally be convicted of the offence of murder despite the fact that I am convinced that he intentionally and recklessly stabbed the deceased on the chest with a broken bottle with the intention, maybe not to kill the victim, but certainly to do the deceased grievous bodily harm.

He certainly can be convicted of the offence of manslaughter pursuant to the provisions of Section 317 and 318 of the Criminal Code.” I agree with this decision of the Court below. ​In Kolade v. State (2017) LPELR 42362 SC, this Court held that: “The law is well pronounced on the character of the defence of provocation. In other words, where it succeeds, it has the effect of whittling down the punishment stipulated from the offence of murder to manslaughter. See Edoho v. The State (2010) All FWLR (Pt. 530) 1262 at 1287 and Uluebeka V. The State (2000) FWLR (Pt 11) 1827 at 1850.

However, for provocation to constitute a defence in murder cases, it must consist of three elements which must co-exist, namely: (a) That the act of provocation was done in the heat of passion. (b) That the loss of self-control was both actual and reasonable, that is to say, the act was done before there was time for cooling down. (c) That the retaliation is proportionate to the provocation.

In the final analysis, I am of the view that the Court below correctly evaluated the evidence adduced at the trial to arrive at the same conclusion with the trial Court. For these, and the fuller reasons in the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC, that I, too dismiss the appeal and affirm the judgment of the Court of Appeal.

TIJJANI ABUBAKAR, J.S.C.: My learned brother Ogunwumiju JSC, granted me the privilege of having a preview of the comprehensive leading Judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field. I have nothing more to add, the reasoning and conclusion in the leading judgment are in accord with my own, I therefore adopt them as mine and endorse the entire judgment affirming the judgment of the lower Court, and abide by all consequential orders including the order on costs.

Judgment

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the Judgment of the High Court of Bayelsa State sitting at Yenagoa delivered on the 24th day of January, 2017 in Charge No: OHC/3C/2013 by Honourable Justice M.A. Ayemieye.

The Appellant and two other accused persons were arraigned before the High Court of Bayelsa State on two counts charge of Conspiracy and Armed robbery. The two counts charge read: COUNT ONE Conspiracy to commit felony contrary to Section 444(a) of Criminal Code Law, Bayelsa State, 2006. PARTICULARS OF OFFENCE Timi Okpo, Tombra Tiemo and Oyibo Phillip on the 9th day of December, 2012 at Agobiri Creek in Oporoma Judicial Division of Bayelsa State, conspired together to commit felony to wit: armed robbery.

COUNT TWO Armed robbery (sea piracy) contrary to Section 329(2) of the Criminal Code Law, Laws of Bayelsa State, 2006. PARTICULARS OF OFFENCE Timi Okpo, Tombra Tiemo and Oyibo Phillip on the 9th day of December, 2012 at Agobiri Creek in  Oporoma Judicial Division of Bayelsa State, robbed Solomon Eriye of a speed boat and its 75 horse power Yamaha engine, a Samsung phone valued at fifteen thousand Naira (15,000.00) and the sum of N20,000.00, while being armed with a gun.

They pleaded not guilty to the counts of charge. The 2nd accused person before the lower Court, Tombra Tiemo is the Appellant in this appeal.

The Prosecution/Respondent in proof of their case before the lower Court called three witnesses and tendered exhibits, while the Accused/Appellant and co-accuseds testified in their defence. Trial commenced. At the conclusion of trial, the learned trial Judge found the Accused/Appellant and co-accused persons guilty of the offences charged against them and convicted and sentenced them to five years and fifteen years respectively, the sentence to run concurrently.

Aggrieved with the Judgment, the Appellant appealed to this Court, vide an Amended Notice of Appeal filed on the 14th of February, 2020 but deemed properly filed on the 30th of April, 2020. The Amended Notice of Appeal contained six grounds with their particulars.

​The Appellant’s brief dated and filed the 4th day of May, 2020 was settled by Chief Kingsley Chukwu. In it, three issues were distilled for determination thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

1. “Whether the Judgment of the Lower Court is not against the weight of evidence in this case?” (Grounds 1, 2, 3 and 4). 2. “Whether the prosecution proved the charges of conspiracy and armed robbery against the Appellant beyond reasonable doubt taking cognizance of the ingredients of the offences?” (Ground 5). 3. “Whether the conviction of the Appellant is proper in law based on his alleged confessional statement which was not made pursuant to Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015” (Ground 6)

The Appellant’s reply brief dated 15th day of October, 2020 was filed on the 20th October, 2020 but deemed properly filed on the 30th of November, 2020. Learned counsel for the Appellant adopted the briefs and urged the Court to allow the appeal.

The Respondent’s brief dated the 20th day of May, 2020 was filed on the 8th of July, 2020 but deemed properly filed on the 30th of November, 2020. Gladys Ikiere, Esq., settled the brief. She formulated two issues for determination as follows: 1. “Whether there is competent appeal before this Court?” 2. Whether the Judgment of the Lower Court is not against the weight of evidence?”

Counsel adopted the brief and urged the Court to dismiss the appeal. I adopt the Appellant’s issues to resolve the appeal and issues one and two will be taken together.

ISSUE ONE 1. “Whether the Judgment of the Lower Court is not against the weight of evidence in this case.” 2. “Whether the prosecution proved the charges of conspiracy and armed robbery against the Appellant beyond reasonable doubt taking cognizance of the ingredients of the offence?”

On issue one, learned counsel for the Appellant argued that the trial Judge erred in law when he held that the prosecution has proved the guilt of the Appellant beyond reasonable doubt despite the manifest flaws in the evidence of the prosecution. He referred to the evidence of PW1 which said the alleged incident took place on the 10th of December, 2012 while PW2 said it was on the 9th of December, 2012.

​That further to the contradictions on the actual day the offences were committed, the evidence of the whereabout of the instrument (gun) used in the alleged robbery contradicts one another, as the first lap of evidence said the Appellant threw it in the river and the second lap said the Appellant returned it to Daniel. Counsel submitted that the contradictions are fundamental as against the decision of learned trial Judge that the contradiction is trivial and minor.

Submitting further that the contradictions in the evidence of the prosecution which raised doubts, the trial Court ought to have resolved the case in favour of the Appellant and the trial Court’s failure do so, caused grave miscarriage of Justice and we are urged to so hold.

Referring to Section 27(1) and (2) of the Evidence Act, 2011, it is submitted that a confessional statement of an accused person is not admissible if it is not obtained voluntarily. The Court was referred to Musa Vs State (2018) 13 NWLR (Pt.1636) 310, on factors listed by the Supreme Court to be considered to determine the veracity and correctness of a confessional statement. Also referred is the case of Kazeem Vs State (2009) All FWLR (Pt.465) 1749.

​The contention of the learned counsel for the Appellant is that the confessional statement of the Appellant which was adjudged free and voluntary by the trial Court was not corroborated by the testimonies of PW1, PW2 and PW3, which shows that the confession was not true. That the trial Court did not abide by the decision of the Supreme Court on the need to test the veracity of the confessional statement using the six factors in Musa Vs State (supra) having regard to the retraction of the confessional statement by the Appellant during trial.

Counsel also argued that the lower Court erred in law when it observed that the Appellant does not understand English language but the Police (PW3) stated that the Appellant made his confessional statement in English without an interpreter and still convicted him based on the confessional statement. He referred to Nwocha Vs State (2012) 9 NWLR (Pt.1306) 571 and State Vs Jibrin (2018) 5 NWLR (Pt. 1611)3.

That the confessional statement of the Appellant is incompetent as it was not voluntarily made which caused grave miscarriage of justice to the Appellant for being convicted for conspiracy and armed robbery.

On issue two, relying on Section 131(1) and (2) of the Evidence Act, and the case of INEC Vs Asuquo (2018) 9 NWLR (Pt. 1624) 317, learned counsel for the Appellant submitted that the burden of proof lies on the prosecution and the burden must be proved beyond reasonable doubt. It is his submission that the prosecution did not prove the offence of conspiracy and armed robbery charged against the Appellant beyond reasonable Court.

That before the prosecution can be said to have proved the guilt of the accused beyond reasonable doubt, the ingredients of the offence must be established by the prosecution. He referred to Balogun Vs State (2018) 13 NWLR (Pt.1636 323 and Orisa Vs State (2018) 11 NWLR (Pt. 1631) 436 on the ingredients of conspiracy and armed robbery that must be established by the prosecution to sustain the charge against the Accused/Appellant.

Learned counsel argued that the evidence adduced by the prosecution did not prove that there was robbery at all as PW1 said he was robbed on the 10th of December, 2012 while PW2 stated in his evidence that he received information through phone that PW1 was robbed on the 9th of December, 2012. That PW1 could not properly identify the Appellant as he could not say the type or colour of cloth the Appellant was wearing on the day of the alleged robbery and there was no identification parade conducted.

It is submitted that with the contradictions in the evidence of the prosecution which created doubt, the benefits of the doubt must be given to the Appellant. The Court was referred to Mohammed Vs State (supra).

It is finally submitted that the trial Judge was wrong when he held that the prosecution has proved the guilt of the Appellant for the offences of conspiracy and armed robbery beyond reasonable doubt. We are urged to so hold and set aside the Judgment of the trial Court.

Learned counsel for the Respondent submitted in response that the prosecution proved its case beyond reasonable doubt as required by law. With regard to the contradiction on the date of incident as given by PW1 and PW2, counsel argued that there was no contradiction because PW1 gave a narration of what happened on the 9th of December, 2012 with regard to the armed robbery committed by the Appellant and co-accuseds.

That assuming but not conceding there were contradictions in the evidence of PW1 and PW2, the contradiction is not material as their evidence when read holistically, there is no doubt that an offence of armed robbery took place on the 9th of December, 2012. The case of Egwumi Vs State (2013) FWLR (Pt.678) 824 at 846 paragraph F – G was referred to.

Relying on the case of Musa Vs State (supra) and Okoh Vs State (2014) All FWLR (Pt. 736) 443, learned counsel for the Respondent submitted that the prosecution met the conditions i, ii, iii and v and the evidence of PW1 that he saw the Appellant and co-accused together at a burial ceremony in Opuma was corroborated by PW3. That the trial Court was right in convicting the Appellant and the Court is urged to dismiss the appeal.

The contention of the Appellant’s counsel on issue one is that the Judgment of the trial Court is against the weight of evidence, impliedly the complaint is on the improper evaluation of evidence placed before the trial Court. The issue couched as an omnibus ground connotes that the decision of the trial Court cannot be supported by evidence adduced by the successful party which the Court either wrongly accepted or that the inference it drew on conclusion it reached based on the accepted evidence is unjustifiable in law.

It denotes that when the evidence adduced by the complaining Appellant if weighed against that given by the Respondent, the Judgment rendered to the Respondent is against the totality of the evidence placed before the trial Court.

In ascertaining the weight of evidence the trial Court is enjoined by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party. See Mogaji Vs Odofin (1978) 4 SC91; Military Governor Lagos State Vs Adeyiga (2012) 5 NWLR (Pt.1293) 291; Agala Vs Okusin (2010) 10 NWLR (pt. 1202) 412 and Impact solutions Ltd Vs Int’l Breweries Plc (2018) 16 NWLR (Pt. 1645) 377.

​The law is settled that evaluation of evidence is the primary duty of the trial Court who heard and watched the demeanour of witnesses at trial. To discharge that burden, the trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on two different pans of scale to determine which is heavier, not in terms of quantity but quality of the testimonies.

See Ayuya Vs Yonrin (2011) 10 NWLR (Pt.1254) 135; Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311 and Odutola Vs Mabogunje (2013) 7 NWLR (Pt.1356) 522.

The Appellant’s grouse is against the evidence of PW1 and PW2 with regard to the date of the alleged commission of the offence which he branded as contradictory. That while PW1 said the incident happened on the 10th of December, 2012, PW2 said it was on the 9th of December, 2012. He also complained that the whereabout of the gun used in committing the alleged robbery was contradictory. The contradictions he said are fundamental but that the trial Court convicted the Appellant.

The law does not insist that there cannot be contradictions in the evidence of witnesses called by a party on any issue in contention, but the contradiction should not be material in such a way that they cast serious doubt on the case presented as a whole by that party. See State Vs Odomo (2019) 4 NWLR (Pt.1662) 191 at 197; Bassey Vs State (2012) 12 NWLR (Pt.1314) 209; Sani Vs State (2015) 15 NWLR (Pt.1483) 522 and Chukwu Vs State (1996) 7 NWLR (Pt.463) 686. ​It is not every contradiction in the case of the prosecution that would adversely affect the case of the prosecution.

It is only material contradiction that can negatively affect or vitiate the case of the prosecution. See Abusu Vs State (2017) 7 NWLR (Pt. 1564) 171; Deriba Vs State (2016) LPELR-40345 and Joshua Vs State (2019) 12 NWLR (Pt. 1685) 131.

In the instant case, the contradiction highlighted in the testimonies of PW1 and PW2 as to the date of the commission of the offence and the whereabout of the gun used in committing the armed robbery are not material. The factor eliminating the materiality of the contradictions in the evidence of PW1 and PW2 is the established fact in the evidence of the prosecution witnesses that the Appellant conspired with others and committed the armed robbery.

Counsel also argued that the confessional statement of the Accused/Appellant is not admissible as it was not obtained voluntarily, and it was not corroborated by the evidence of the prosecution witnesses PW1, PW2 and PW3.

A confessional statement does not become inadmissible merely because the accused denies making it even though when such a retraction takes place, the Court is cautioned to seek evidence, no matter how slight, outside the confessional statement to show that the confession was probable. See Olude Vs State (2014) 7 NWLR (Pt. 1405) 89; Udo Vs State (2016) 12 NWLR (Pt. 1525) and Egbogbonome Vs State (1993) 7 NWLR (Pt.782) 543.

Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict, even if retracted at the trial. See Igbinovia Vs State (1981) 2 SC 5; Adebayo Vs State (2014) 12 NWLR (Pt.1422) 613 and State Vs Musa (2020) 2 NWLR (Pt. 1709) 499 at 507.

Exhibit “PR16” is the confessional statement of the Accused/Appellant where he gave a narration of what happened in respect of this case. It is stated therein: “On the 9th of December, 2012, I was at Okaka Junction when Timi Okpo and his friend whom I do not know his name but Timi knows him better called me on phone, that I should come and meet them at town Yenagoa on business. When I got there, I actually met Timi and his friend.

They brief me that they had a deal and they want me to part take, that they have the money to hire a speed boat, if the driver taken us to our destination, on the way we will threaten the driver and collect the boat for a buyer to buy it. And Timi friend said he will provide gun to carry out the operation if possible. After our discussion, on the same day Timi went and hired a speed boat and engine at such water side. Timi deceived the driver that he will take us to Agobiri Community for a ceremony.

After the arrangement, three of us entered the speed boat at swah water side and we left for the journey. We drove up to thirty minutes and very close to Agobiri community of Southern Ijaw local government area in Bayelsa State. At a point we ordered the driver to stop and he immediately obeyed. Timi friend brought out a locally made pistol we previously arranged. We threatened the speed boat driver and he jumped into the river, he swum across to the bank of the river. Timi take over the steering and we drove straight to Delta State Bomadi town in Bomdi Local Government Area.”

Section 28 of the Evidence Act, 2011 defines “confession” as “an admission made at any time by the person charged with a crime, stating or suggesting the inference that he committed the crime.” Exhibit “PR16” reproduced above, constitutes a direct, positive and unequivocal admission of the part the Appellant played in the commission of the crime. He however retracted the statement at the trial and alleged that he did not make a statement.

A trial within trial was conducted, the learned trial Judge, being satisfied that the statement was voluntarily made, admitted the statement as exhibit “PR16”. The argument of the Appellant’s counsel that the confessional statement of the Accused/Appellant relied on by the trial Court to convict the Appellant was involuntarily made is of no moment, and the Appellant did not appeal against the admissibility of the document on the ruling of the trial Court on the trial within trial.

Most importantly, it is trite that where an accused person denied making a statement, trial within trial is unnecessary.

It is also the contention of the Appellant’s counsel that the confessional statement of the Appellant, Exhibit “PR16” was not corroborated. This is not correct. PW1 who is the victim of the armed robbery told the Court that the accused persons hired his boat on the 9th of December, 2012 and embarked on the journey to Agobiri the following day which was the 10th of December, 2012. He narrated to the Court how he was approached by a young man if he could take him to Agobiri which he answered yes, and has told him to pay N20,000.00 (Twenty Thousand Naira) which he agreed.

PW1 said the young man collected his phone number and called him around five o’clock in the evening and he told him he cannot go again. He said the young man gave him N3,000.00 to pay for a room in the hotel and the following day at 11:00 am he called him that they should start the journey and he carried them and started the journey. PW1 said as they were going, one of them said he wanted to ease himself and he slowed down the boat, removed the engine from the gear when the 3rd person stood up and pointed a gun at him.

While the man that negotiated with him to charter the boat removed the key from the engine of the boat. They started searching his pocket and collected the money they paid him and his phone which he bought at Twenty Thousand naira. When he wanted to disconnect the supply of fuel to the engine, one of them saw him and hit him on the neck with his hands, that was when he fell inside the river and they drove off the boat.

The law is settled beyond peradventure that a Court may convict an accused person solely on the basis of his confession even when he retracted or resiled from the confession. It is also the law that where an accused person outrightly denies making a confessional statement, the trial Court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. See Ikemson Vs State (1989) 3 NWLR (Pt.110)455.

The Court should evaluate the confessional statement, the testimony of the accused and the other pieces of evidence adduced at trial to decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it.

See Onyegbu Vs State (1994)1 NWLR (Pt. 320) 328; Dele Vs State (2011) 1 NWLR (Pt.1229) 508; Adisa Vs State (2019)3 NWLR (Pt.1660) 488 and Sale Vs State (2020) 1 NWLR (Pt.1705) page 205. ​To rely on a retracted confessional statement to convict an accused person, the Court would consider the following factors: (a) Whether there is anything outside the confession which shows that it may be true; (b) Whether the confession is in fact corroborated; (c) Whether the relevant statements of fact made in it are most likely true as far as they can be tested; (d) Whether the accused had the opportunity of committing the offence. (e) Whether the confession is possible; and (f) Whether the confession is consistent with other facts that have been ascertained and established- State Vs Musa (2020) 2 NWLR (Pt.1709) 499.

See also Fabiyi Vs State (2015) 18 NWLR (Pt.1490) 80; Okoh Vs State (2014) 8 NWLR (Pt.1410) 502 and Olude Vs State (2014) 7 NWLR (Pt.1405)89. In the instant case the corroborative evidence of PW1 confirmed in some material particulars, not only that the crime had been committed, but it was the Appellant who committed it. Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict even if retracted at the trial – Igbinovia Vs State (1981) 2 SC 5.

A confessional statement is properly regarded as the strongest evidence of guilt of an accused person charged with an offence and so when as in the instant case, the confession is free and positive, it is enough to secure conviction by the prosecution. See Ogudo Vs State (2011) 18 NWLR (Pt.1278)1 and Igri Vs State (2012) 16 NWLR (Pt.1327 522.

The argument of the Appellant’s counsel that the Accused/ Appellant is an illiterate and the statement was recorded in English language without an interpreter is of no moment, because the Accused/Appellant gave his educational background in the statement, and he cannot be said to be an illiterate, as he even signed the statement.

The issue is resolved in favour of the Respondent and against the Appellant.

On issue two, learned counsel for the Appellant submitted that the Prosecution/Respondent did not prove the offences of conspiracy and armed robbery charged against the Appellant beyond reasonable doubt. Learned counsel for the Respondent on the other hand submitted that the prosecution discharged the burden of proof beyond reasonable doubt against the Accused/Appellant by establishing the ingredients of the offences charged.

By virtue of Section 135(1) and (2) of the Evidence Act, 2011, the burden of proving that any person has been guilty of a crime of wrongful act is on the person who asserts it- Sanmi Vs State (2019) 13 NWLR (Pt.1690) 551 at 557; Akpan Vs State (1990) 7 NWLR (Pt.160) 101; Amala Vs State(2004) 12 NWLR (Pt. 888) 520 and State Vs Musa (2020) 2 NWLR (Pt.1709) 499 at 504.

Conspiracy is an agreement between two or more persons, acting in concert or in combination, to accomplish or commit an unlawful/illegal act or to do or to commit an act which is legal/lawful through an illegal/unlawful means. The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act by unlawful means.

See Peter Vs State (2018) 13 NWLR (Pt.1635)1 at 4 – 5; Danjuma Vs State (2019) 10 NWLR (Pt.1679) 184; Okanlawon Vs State (2015)17 NWLR (Pt.1489); Babarinde Vs State (2014) 3 NWLR (Pt. 1395) 568 and Martins Vs State (2020) 5 NWLR (Pt.1716) 58 at 65. The nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain acts. All that is required by way of proof is either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the offence.

There is a finding by the trial Court that from the evidence of PW1 and the confessional statement of the Accused/Appellant, it is not in doubt that the Accused/Appellant and co-accuseds conspired among themselves in tandem to pursue a common purpose to commit the crime, which is correct as shown by the evidence on the record. I fail to see any extenuating circumstances, as the learned counsel for the Appellant would want this Court to believe.

To make the picture clearer it was in evidence that Appellant and co-accuseds have agreed to hire a speed boat to Agobiri, and on the way to attack the driver and rob him of the speed boat. This operation was carried out from the evidence of PW1 and the confessional statement of the Accused/Appellant exhibit PR16. The trial Court found the confessional statement corroborating the oral testimony of PW1. I am therefore in complete agreement with the trial Court that the offence of conspiracy was well established against the Appellant.

For the offence of armed robbery to be sustained, the prosecution must establish beyond reasonable doubt the essential elements of the offence which must be proved directly, circumstantially or by the accused’s confessional statement. They are: a. That there was robbery or series of robberies; b. The robbery was armed robbery; c. The accused was the robber or one of robbers.

See Opeyemi Vs State (2019) 17 NWLR (Pt.1702) 403 at 409; Sanmi Vs State (2019) 13 NWLR (Pt.1690) 551 at 556; John Vs State (2019) 9 NWLR (Pt.1676) 160 at 162; Danjuma Vs State (2019) 10 NWLR (Pt.1679) 184 at 188 and State Vs Musa (2020) 2 NWLR (Pt. 1709) 499 at 503.

In the instant case, the trial Court was right in finding that the ingredients of armed robbery were established beyond reasonable doubt against the Appellant.

Taken in context, PW1 testified to have been robbed of his speedboat, engine, money and phone on their way to Agobiri with the Appellant and co-accuseds. The robbery was armed as one the robbers pointed a gun at him. He identified the Appellant and one of the robbers at a burial ceremony as having participated in the robbery. Also PW2, a Police officer testified on the information he received on the robbery and the items lost.

So what else can be more vivid in informing this Court that the Appellant and co-accused persons were in agreement to commit armed robbery? Certainly none.

Proof beyond reasonable doubt is not proof to the hilt. Where, as in the instant case, all the ingredients of the offences charged have been established, then the case has been proved beyond reasonable doubt. See Ismail Vs F.R.N. (2020) 2 NWLR (Pt. 1707) 85 at 93; Adeyemo Vs State (2015) 16 NWLR (Pt.1485) 311; Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360 and State Vs Fadezi (2018)18 NWLR (Pt.1650)1. Issue two is also resolved in favour of the Respondent and against the Appellant.

ISSUE THREE “Whether the conviction of the Appellant is proper in law based on his alleged confessional statement which was not made pursuant to Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015.”

​Arguing on this issue, learned counsel for the Appellant submitted that Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015 which provided for statement of the accused to be taken in the presence of a legal practitioner of his choice or legal aid council of Nigeria or an official of a civil society organization or Justice people or any other person of his choice was not complied with.

Secondly, that there is no where it is recorded that the Appellant was cautioned before making the alleged Exhibits PR”16”.

Relying on the case of Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025)418, it is submitted that where a statute stipulated a particular method of performing an act, that method and no other must be followed. Also referred are System Applications Products (Nig.) Ltd Vs C.B.N. (2004) 15 NWLR (Pt.897) 655; Abubakar Vs A.G. Federation (2002) 3 NWLR (Pt. 1022) 515 at 643 – 644 and Nnajiofor Vs F.R.N. (2018) LPELR -43925 CA, among others.

It is submitted that failure of the Police to follow due process in recording exhibit “PR16”, the confessional statement of the Appellant is impotent and inadmissible. The Court is urged to discharge and acquit the Appellant.

​Responding, learned counsel for the Respondent submitted that the Administration of Criminal Justice Act, 2015 is not applicable to exhibit “PR16” which was made in 2013 before the ACJA of 2015. Secondly, that ACJA 2015 is not applicable to Bayelsa State as the applicable law in Bayelsa State is the Administration of Criminal Justice Law Bayelsa State, 2019. That a statute cannot apply retrospectively except when it was to do so by clear and express terms. The Court was referred to Obiuweubi Vs C.B.N (2011) 7 NWLR (Pt.1247) 465 R.16. We are urged to dismiss the appeal.

The contention of the Appellant’s Counsel is on non-compliance with the provision of Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015. The Section reads: 1. “Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken if he so wishes to make a statement; 2.

Such statement may be taken in the presence of a legal practitioner of his choice, in the presence of an officer of Legal Aid Council of Nigeria or an official of a civil society organization or Justice people or any other person of his choice.” ​The Administration of Criminal Justice Act, 2015 came into effect in 2015. Exhibit “PR16” was made on the 22nd day of February, 2013. It goes without saying, when Exhibit “PR16” was made there was no ACJA in force. Therefore it is inapplicable to exhibit “PR16” as it cannot take a retrospective effect.

Most importantly, Administration of Criminal Justice Act, 2015 is not applicable in Bayelsa State so it will have no effect on Exhibit “PR16”. On the submission of the Appellant’s counsel on Exhibit “PR16”, that there was no cautionary words stated therein, is not correct. The cautionary words are glaringly stated therein which the Appellant signed as having understood before he made the statement. The law applicable in this case is the law in force at the time the statement was recorded and not the law existing at the time the jurisdiction of the Court is invoked. See N.U.R.T.W.

Vs R.T.E.A.N. (2012) 10 NWLR (Pt. 1307) 170 and Zubair Vs Kolawole (2019) 11 NWLR (Pt. 1682) 66.

​The Appellant’s counsel is economical with the truth as the cautionary words are clearly stated therein in Exhibit “PR16”. Even if ACJA 2015 is applicable in Bayelsa State, the contents therein are not mandatory but optional. There is no substance in the submission of the Appellant’s counsel on this issue. The Appellant’s reply brief is discountenanced for being repetitive of the main brief.

Issue three is resolved in favour of the Respondent and against the Appellant. All the issues having been resolved in favour of the Respondent, the result is that the appeal is grossly unmeritorious and it is accordingly dismissed.

The Judgment of the Bayelsa State High Court in suit No. OHC/3C/2013 is hereby affirmed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, TANI YUSUF HASSAN, JCA has availed me the opportunity to read in draft copy, the lead judgment just delivered by him.

I subscribed to the reasoning and conclusion arrived at by my noble lord and concurred with nothing useful to add thereto.

All the three (3) issues distilled by the Appellant, which encompassed the two (2) issues formulated by the Respondent in this criminal appeal, having been resolved in favour of the Respondent and against the Appellant, this appeal fails and it is accordingly dismissed as decided by my noble lord in the lead judgment

Consequently, the judgment of the lower Court delivered by Hon. Justice M.A. Ayemieye on the 24th of January, 2017 in Charge No. OHC/3C/2013 is hereby affirmed.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in draft, the leading Judgment just delivered by my learned brother, the Hon. Justice T.Y. Hassan, JCA in which he found an instant appeal as lacking in merit and was dismissed.

I agree with the resolution of the three (3) issues raised and canvassed by the Appellant, and I really do not have any useful addition to make. The appeal is totally unmeritorious and I too dismiss the appeal for the same reason ably canvassed in the leading Judgment of my learned brother.

​The appeal is dismissed by me too.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the decision of the Court of appeal (lower Court) sitting in the Kaduna Division of the Court of appeal (Coram: Isaiah O. Akeju, H.A.O. Abiru and O. A. Adefope-Okojie, JJCA.,) delivered on the 4th December, 2015 affirming the conviction and sentence of the Respondent passed by the High Court of Justice, Katsina State presided over by Hon. Justice Sanusi Tukur delivered on the 30th May, 2014 in suit No. KTH/8C/2012.

The facts that led to this appeal are as follows: The Appellant was charged vide an amended CHARGE NO: KTH/8C/2012 dated 9th April, 2014. The Appellant was accused of causing the death of his wife Rukayya Zaharaddeen by hitting her on the chest with an axe with the knowledge that death would be the probable consequences of his act. He was charged with committing the offence under Section 221 of the Penal Code Law, Cap. 96, Laws of Katsina State, 1991.

The trial commenced before Hon. Justice Sanusi Tukur. The plea of the Appellant was taken and the Appellant pleaded Not Guilty to the Charge.

​In the course of the trial, the

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Prosecution called four (4) witnesses and tendered three (3) Exhibits which were all admitted in evidence. The Exhibits were Exhs. 1(An Axe), 2A and 2B- Appellant’s Hausa Statement and its English translated version recorded by PW 4 at Katsina State CID).

The Appellant on the other hand, testified for himself and did not call any other witness. No Exhibit was tendered by the Appellant in the course of the trial. At the end of the trial, the trial Court found the Respondent guilty, convicted him as charged and sentenced him to death accordingly on the 30th of May, 2014.

Dissatisfied with the judgment of the trial Court, the Appellant had appealed to the lower Court which affirmed the decision of trial Court. The Appellant being dissatisfied with the decision of the lower Court has now appealed to this Court. In the Appellant’s brief filed on 30/8/2016 settled by Esene Emmanuel Esq., the Appellant identified two issues for determination as follows: 1. Whether from the facts and circumstances of this case, the prosecution has proved its case beyond reasonable doubt against the Appellant. (distilled from grounds 1, 3 and 4). 2. Whether

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the respondent’s failure to present P.W.4 for cross-examination did not amount to lack of fair hearing and thereby nullifying the conviction (distilled from ground 2).

The Respondent’s counsel, Mr. Abu Umar, Esq., adopted the issues settled for determination by the Appellant which I will also consider in the determination of this appeal.

ISSUE ONE The standard of proof required of the prosecution in criminal cases is a heavy one as the State must adduce proof beyond reasonable doubt.

In a charge of culpable homicide punishable with death, under Section 221 of the Penal Code Law of Katsina State, the essential ingredients which the prosecution must prove to secure a conviction are as follows: (a) That the deceased died (b) That the death of the deceased person resulted from the acts of the Defendant. (c) That the Defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was the probable consequence of his action.

The prosecution must prove that the death of the deceased person resulted from the act of the Defendant by direct eye witness account, circumstantial

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evidence from which the guilt of the Defendant can be inferred or by free and voluntary confessional statement of guilt which is direct and positive. See Iliyasu v. State (2014) 15 NWLR (Part 1430) 245.

In this case, there was no eye witness who saw the Appellant kill the deceased. The only evidence relied upon by both lower Courts is the confessional statement of the Appellant and circumstantial evidence from which both Courts arrived at the conclusion that the Appellant killed his wife. When the prosecution sought to tender the confessional statement, the Defendant opposed the voluntariness of the statement on the one hand that he did not make the statement at all and on the other hand that he was forced to make a statement.

Nevertheless, a trial within trial was conducted at the end of which the Court admitted the statement of the Appellant as Exhibit 2A, the Hausa version taken in the language of the Appellant and the English translation, as Exhibit 2B. In effect, the confessional statement of the Appellant was retracted and he needs some other evidence for it to be solely used to convict the Appellant.

​It is trite that the mere retraction

4

of a confessional statement by the Defendant will not render it inadmissible. It will only affect the weight to be attached to it where the Defendant denies making it at the earliest opportunity. Counsel cited Abdullahi vs. The State (2013) 11 NWLR Pt. 1366 Pg.435, Itule vs. Queen (1961) 2SCNLR 183, Nwachukwu vs. The State (2007)17 NWLR (Pt. 1062) 31.

The argument of the learned Appellant’s counsel is that apart from the confessional statement, there is no other evidence linking the Appellant to the offence. Counsel insists that the evidence of PW1 and PW2 did not link the Appellant to the offence as charged. The evidence of PW1 is to the effect that he was alone when the Appellant came to inform him that a door had fallen on his wife. He swore that he went to the house and did not see the fallen door. He also stated that he did not see the Appellant kill the deceased person.

PW2’s evidence was that the deceased was his daughter and that on the 4th day of September, 2011, he was informed that his daughter was dead. He said he saw the deceased with blood all over her body prepared for burial. He stated that he did not witness the crime. PW3 gave

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evidence as the Exhibit keeper and tendered an axe which had been admitted through the IPO as exhibit 1. PW4 gave evidence as the Investigating Police Officer and the Appellant’s Confessional statement was admitted as Exhibits 2A and 2B through him. The PW4 was not cross-examined because the prosecution closed it case after stating that the IPO had gone on assignment to another State.

The argument of the Appellant is that PW1, PW2 and PW3 did not witness the incident and their evidence did not corroborate the Appellants confessional statement in any way and manner, thus, the confessional statement cannot be the basis of his conviction.

The case of the Appellant, my Lords, is that Exh. 2A and 2B the confessional statement was not corroborated and cannot be a basis for his conviction as it is not consistent with other facts established during the trial. Counsel also argued that it is only a post mortem examination that could determine the cause of death and without it, the cause of death had not been established by the prosecution.

​I entirely agree with the contention of the Respondent’s counsel that the nature of the corroborative evidence

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required does not need to be direct evidence linking the Defendant to the commission of the offence. Circumstantial evidence is sufficient, particularly where it leads to no other conclusion than the guilt of the Defendant.

I agree with the Respondent’s counsel that a confessional statement is the best evidence in Nigerian criminal jurisprudence as it is direct evidence by the perpetrator giving the reasons for and how the offence was committed. So long as it is voluntary and it is a direct and positive admission of guilt, it can be used to convict even where it has been retracted. See Okanlawon vs. The State (2015) 17 NWLR (Pt. 1489) 445 at P. 478 paras. A-E.; Kareem vs. F.R.N (NO. 2) (2002) 8 NWLR (Pt.770) 664 at P.683 Paras. B -D

I however cannot subscribe to the learned Respondent counsel’s argument that once a confessional statement is admitted, the prosecution need not prove the case against the Defendant beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused. That is definitely not the law and not the ratio inSolola vs. State (2005) 2 NWLR Pt.937 Pg.460 cited by the learned Respondent’s

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counsel.

My Lords, the confessional statement of the Appellant was retracted by him in the course of the trial and the position of the law as reiterated by this Court in several cases is that the statement must meet the probability test set out in R. v.

Sykes (1913) 18 CR All Pg. 233: a) Whether there is anything outside it to show the statement is true, b) Whether it is corroborated, c) Whether the statement made in it of fact so far as they can be tested are true, d) Whether the accused had the opportunity of committing the offence, e) Whether it is consistent with other facts which have been ascertained and have been proved See…

In this case, there is no doubt that the deceased died of wounds to her upper body. The evidence of the Appellant’s neighbor P.W.1 and the deceased father P.W.2 who saw the body is unequivocal and not in doubt on this point. There was no need for a post mortem examination in the circumstances of this case. The deceased died on the spot with obvious grievous wounds on her body. The issue at stake is who caused the injuries and the circumstances under which they were caused.

​My

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Lords, the evidence here is very clear. The Appellant rushed to his neighbor P.W.1 to report that a door fell on his wife and she was wounded and he needed assistance to take her to the hospital. P.W.1 on oath stated that when he got to the scene, the deceased was near death with a big gash on her chest. He also noted that there was no fallen door on her body or anywhere in the house to which her wound could be attributed. P.W.2, the father of the deceased stated on oath that the Appellant was in the habit of beating the deceased.

That he had even beat her with a cable when she was pregnant and the matter was reported to the Sharia Court. He swore that he saw the dead body of his daughter in a pool of her own blood and later buried her. This evidence was not seriously controverted under cross-examination by the Appellant during the trial. The IPO, P.W.4 tendered an axe which was found in the house. The Appellant initially denied ownership of the axe but later admitted that he owned an axe but the axe was not in the house on that day.

In his evidence on oath, the Appellant denied killing his wife and insisted that his wife had a leg injury prior to the

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incident and that she fell and wounded herself. In Exh 2A and 2B the Appellant had stated as follows: “…I could remember on Sunday 04-9-2011 at about 11.00hrs-12.00hrs I came back from work – PHCN – at Katsina. I met my wife saying that I should give her transport money to enable her go to her home town – Bafarawa. And I told her that I have no money, let her exercise patience, she just said must give her the money even by force. By that time, I was holding an axe in my hand.

And when I turned to come out of the room, she came to grip me, I raised the axe and hit her with it on her chest, the other point end. And she fall on the ground and hold the place while crying. And I saw blood rushing at the point. Then I carried her shirt with milk color and blocked the point, carried wrapper which belongs to her and tied it round her chest may be the bleeding may stop. From there I went to her mother, Agu, and told her what happened. She said nothing concern her with me.

And I came back home and met she had died… I know that my wife died as a result of the injury inflicted on her by an axe at her chest…”

​Exh 2B, the interpreted

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version of the Appellant’s brief indicated the defence of provocation. The trial Court did not consider the defence of provocation alluded to in the confessional statement, neither did the Court below. However, it is settled that in order to invoke the plea embedded in Section 221(1) of the Penal Code, the accused must lead evidence to establish the following elements of facts: 1. The act of provocation must be grave and sudden 2. The accused must have been deprived of the power of self-control actual & reasonable 3.

The mode of resentment degree or extent of the relationship must bear a reasonable relationship or be proportionate to the provocation offered.

In this case the, defence was never actually given in evidence in chief to warrant a consideration and determination of it as a defence for the Appellant. The Appellant depended on the incredulous explanation that a door fell on his wife.

​There is no doubt that she suffered injury to her body before she died, there is no contention about that. The issue in contention would be whether the injury was caused by the Appellant in circumstances that would make it murder for

11

him to have caused the injury where the injury is apparently not self-inflicted. The wound on the body, the blood on the body, and the death of the deceased attest to the fact that she died of her wounds. However, the circumstantial evidence which corroborates foul play is the fact that the Appellant lied that a door fell on her. The confessional statement Exh 2 & 2A is corroborated by the state of her body and the existence of the axe Exh 1 in the house when police searched the place.

I am persuaded that the Appellant murdered his wife intentionally and was rightly found guilty by the two lower Courts.

ISSUE TWO My Lords, the right of a Defendant to cross-examine a prosecution witness is a constitutional one hinged on fair hearing. It is a matter of duty and obligation for the prosecution to present its witness for cross-examination having concluded examination in chief. Any other course of action would be unconstitutional and a violation of the rights to fair hearing of the Defendant. See Oforlete v. State (2000) LPELR-2270 (SC), Tyonex Nig. Ltd & Anor v. Pfizer Ltd (2019) LPELR 49520(SC).

From the records, particularly at page

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67, the prosecution informed the trial Court that PW4 was not in Court for cross-examination as he was away in Sokoto State on official assignment and applied to close its case. My Lords, there is no doubt that the failure of the prosecution to present its witness before the trial Court to give the Appellant the opportunity of cross-examine the witness is ostensibly violation of the right to fair hearing of the Appellant as contained in Section 36(1) of the Constitution.

I have to agree with the learned Appellant’s counsel that if the Appellant “could not complete the cross-examination” due to no fault of his, could he be said to have had “the ample opportunity of being heard”. There is no doubt that the well-settled position is that in order to be fair, “hearing” or “opportunity to be heard” must, inter alia, encompass a party’s right to cross-examine or otherwise confront or contradict all the witnesses who testified against him.

The Appellant’s counsel submitted that the confessional statement of the Appellant tendered by P.W.4 who was not cross-examined should be expunged from the record. He cited Ola v. State (2018) LPELR-44983 (SC),

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Patrick Oforlete v. The State supra. My Lords, the prosecution dispensed with further appearance for cross-examination of the witness who was the IPO who tendered Exh. 2A and 2B with the acquiescence of the Judge and the Appellant’s counsel. It is important to note that the Appellant’s counsel did not object to the wrong procedure while it was being proposed by the prosecution.

Be that as it may, the effect of the failure of the prosecution to present their witness for cross-examination is that the evidence of the witness must be expunged even where there is no clear evidence that the lapse had caused any gross miscarriage of justice. Generally, the effect of the corporate failure of all actors to ensure the cross-examination of P.W.4 is that all the evidence led in chief must be jettisoned. See Ali v State (2015) LPELR-24711.

I cannot agree with the view of the learned Respondent’s counsel that the Appellant’s counsel compromised the right of the Appellant and thus the Appellant cannot complain. The right to fair hearing cannot be waived or compromised as it is not donated but inherent for the person involved. See Arije v Arije & Ors (2018) LPELR-44193 (SC).

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My Lords, I am of the view that in the peculiar circumstances of this case, while the axe recovered by the witness may be disregarded, the confessional statement may not be disregarded. There was a trial within trial to test the admissibility of the statement and there was a ruling admitting the statement. It would have been a different matter if there was no separate trial in which that aspect of the evidence of the witness was diligently looked into by the Court and all parties given an opportunity to be heard.

I would expunge that part of the evidence not tested under cross-examination but leave the portion of the evidence already well tested in evidence. The learned Justices of the Court of Appeal held as follows at Pg. 151 of the record. “The admission of the confessional statements of the Appellant, Exhibit 2A and 2B, was not based on the evidence of the fourth prosecution witness in course of his testimony in the main trial. They were admitted after a trial within trial and in the course of which witnesses were called by both sides and they were cross-examined.

A trial within trial is described as a process that a trial Court

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undertakes when an accused in a criminal trial protests the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him and that the statement was obtained under duress or some threat of whatever nature or actual physical torture to his person.

The main trial in the Court is abated and the accused person is made to face a mini trial, within the context of the main trial, to determine the veracity of the account of the accused person on whether his statement to the police was voluntary or not, the procedure at the mini trial is similar to that of the main trial as witnesses are called to give evidence on both sides and they are subjected to cross-examination by the other side.

The trial Court writes a ruling at the conclusion of the mini trial either admitting the statement of the accused person or rejecting same and after which the main trial will resume – see the unreported decision of this Court in Appeal No CA/K/30/C/14 – Maidawa vs. The State delivered on the 7th of May, 2014. The failure of the fourth prosecution witness to return to Court to

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continue his evidence in the main trial did not affect the confessional statements admitted in the trial within trial. The lower Court in its ruling on the trial within trial made specific findings on the evidence led by the parties on the voluntariness of the confessional statement and it was on the basis of the findings that it held that the statement was made voluntarily.

The Appellant did not appeal against any of the findings of fact made by the lower Court in the ruling, even in his final notice of appeal, and no issue was formulated or argument put forward by the Counsel to the Appellant in this appeal to challenge those findings.”

I agree with the Court of appeal’s ratio on this point and could not have put the matter better myself. Even though the confessional statement has been made an issue in this Court, its admissibility has been tested and determined by the trial Court. That aspect of the trial and the admissibility of the statement would not be affected by the IPO’s absence to answer questions on some other areas of his investigation.

In this appeal, the failure to cross-examine the IPO cannot lead to an acquittal of the

17

Appellant. There is sufficient circumstantial evidence even without the confessional statement of the Appellant to prove the offence of culpable homicide beyond reasonable doubt. The half-hearted defence of provocation put up by the Appellant in his extra-judicial statement was not well articulated enough to be taken seriously. Neither was there any effort to press that defence during the trial. The story that a door fell on the deceased and caused her death was debunked by P.W.1 and P.W.2 whose evidence was not seriously controverted during the trial.

There is no doubt that in the circumstances of this case, the Appellant caused the death of the deceased intentionally by hitting her on her chest with an axe with knowledge that death or grievous bodily harm was the probable consequence of that action in view of the laid down criteria to determine knowledge of probable consequence including the lethal nature of the weapon used, the part of the body brutalized by the lethal weapon, and the proximity of the victim with the lethal weapon used by the Defendant. See Iden v. The State (1994) 8 NWLR Pt. 365 Pg. 719, Nwokearu v.

State 15 NWLR (Pt. 1215) 1,

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Njoku v. State (2013) 2 NWLR (Pt 1339) 548, Afosi v. State (2013) 13 NWLR (Pt.1371) 329.

My Lords, I find no merit in this appeal and it is hereby dismissed. The judgment of the Court of appeal delivered on 17th September, 2015 in Appeal CA/K/513/C/2014 is hereby affirmed. Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading a draft copy of the leading judgment delivered by my learned brother, OGUNWUMIJU, JSC. For the reasons given l, too find no merit in the appeal.

The Appellant struck his wife on her chest with an axe. She died from the injuries she received. In R v M. Nungu (1953) 14 WACA p. 379, the Appellant struck his brother with an axe. In striking him, he turned away the cutting edge. It was argued that he could have had no intention to kill.

Verity CJ, delivering judgment of the Court, conceded this point but continued, “but we do not think it would be reasonable to conclude therefrom that the Appellant did not believe that to strike the deceased on the head with the shaft of the axe heavily weighted as it was with an iron head and with such force as to inflict the wound described would not cause

19

grievous harm. He must in our view have intended the natural and probable consequences of his act.” He was found guilty of murder. Any person who unlawfully kills another is guilty of murder or manslaughter depending on the circumstances of the case. If the accused person intends to do to the person killed (in this case his wife) some grievous harm and death results, he would be guilty of murder.

The act of the Appellant clearly shows that he intended to cause grievous harm, which was the natural and probable consequence of striking his wife on her chest with an axe, with such force as to inflict the wound described in evidence. To my mind, this is a clear case of murder. Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft, the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, just delivered. Being in complete agreement with the reasoning and conclusion therein expressed, I adopt same as mine in dismissing the unmeritorious appeal. I abide by the consequential orders reflected in the lead judgment.

ABDU ABOKI, J.S.C.: I have had a preview of the lead judgment of my learned brother, HELEN

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MORONKEJI OGUNWUMIJU, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.

This appeal is from concurring findings of fact of the two Courts below, with the Court below; affirming the conviction and sentence of the Appellant by the trial Court for the offence of culpable homicide punishable with death, under Section 221 of the Penal Code Law, Cap. 96, Laws of Katsina State, 1991. The Appellant was accused of causing the death of his wife, Rukayya Zaharaddeen by hitting her on the chest with an axe, with the knowledge that death would be the probable consequences of his act.

The attitude of this Court to concurrent findings of fact, is that it would not usually interfere with such findings unless they are shown to be perverse, not based on the evidence before the Court or where there has been an error of law or error in procedure which has occasioned a miscarriage of justice. See: Danjuma v. State (2019) LPELR 47037 (SC); Abdulmumini v. FRN (2017) LPELR 43725 (SC) ​The rationale for this position was eloquently stated by His Lordship, Belgore, JSC (as he then was) in

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Bamgboye v. Olarewaju (1991) LPELR 745 SC as follows: “Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of appellate Courts is that the Court hearing the appeal is at a disadvantage as to the demeanour of witnesses in the lower Court as they were not seen and heard by the appellate Court.

It is not right for the appellate Court to substitute its own eyes and ears for those of the trial Court which physically saw the witnesses and heard them and thus able to form an opinion as to what weight he place on their evidence…” See also: Ikpa v. The State (2017) LPELR 42590 SC.

​In a charge of culpable homicide punishable with death, the onus is on the prosecution to prove, either through eye witness evidence; or circumstantial evidence; or by the confessional statement of the accused, the following beyond reasonable doubt: a. That the deceased died; b. That the death of the deceased resulted from the act of the accused; and c. That the act of the accused was

22

intentional with knowledge that death or grievous bodily harm was its possible consequence. See: Jimoh v. The State (2014) LPELR – 22464(SC); Sunday Udor v. The State (2014) LPELR-23064 (SC).

In the appeal under consideration, it is not in dispute that the deceased died. It is also not in dispute that whoever hit the deceased on her chest with an axe, did so with the knowledge that death or grievous bodily harm was the probably consequence. The issue in contention is whether it was the Appellant who inflicted the injury on the deceased.

The facts of the case clearly shows that the evidence relied upon by the trial Court and the Court below, was the confessional statement of the Appellant, as well as circumstantial evidence, from which both Courts arrived at the conclusion that the Appellant caused the death of the deceased.

Learned counsel for the Appellant has challenged in particular, the evidence of PW1 and PW2, insisting that they did not link the Appellant to the crime. PW1, testified to the effect that he was alone when the Appellant came to inform him that a door had fallen on his wife. He (the PW1) swore that he

23

did not see the fallen door, when he went to the Appellant’s house. He stated that he did not see the Appellant kill the deceased. PW2 testified that the deceased was his daughter and that on the 4th day of September, 2011, he was informed that his daughter was dead. He said that he saw the deceased with blood all over her body before she was prepared for burial. He stated that he did not witness the crime.

It is contended for the Appellant that the trial Court wrongly relied on Exhibits 2A & 2B (the Hausa and English versions of the Appellant’s confessional statement), which were admitted in evidence, after a trial within trial.

In opposition, learned counsel for the Respondent has argued that the evidence of PW1 and PW2 was compelling as to the identification of the Appellant as the person who hit the deceased with an axe, on her chest, leading to her death and the trial Court rightly relied on the confessional statement of the Appellant.

In Exhibits 2A & 2B, the Appellant stated inter alia: “…I could remember on Sunday 04-09-2011, at about 11.00hrs – 12.00hrs, I came back from work – PHCN – at Katsina. I met my

24

wife saying that I should give her transport money to enable her go to her home town – Bafarawa. And I told her that I have no money, let her exercise patience. She just said I must give her the money even by force. By that time, I was holding an axe in my hand. And when I turned to come out of the room, she came to grip me. I raised the axe and hit her on her chest, the other point end. And she fell on the ground and hold the place while crying. And I saw blood rushing at the point.

Then I carried her shirt with milk colour and blocked the point, carried wrapper which belongs to her and tied it round her chest, maybe, the bleeding may stop. From there, I went to her mother, Agu and told her what happened. She said nothing concern her with me. And I came back home and met she had died… l know my wife died as a result of the injury inflicted on her by an axe at her chest…”

​It is apparent, as has been said earlier, that there was no eye witness account. The confessional statement of the Appellant, was corroborated by circumstantial evidence. Also, the fact that the axe, Exhibit 1 was found in the Appellant’s house, when the men of the Police Force

25

searched the Appellant’s house, did not help the Appellant’s case.

It is settled law that to sustain a conviction by circumstantial evidence, the circumstances relied upon by the Prosecution must be direct and must lead unequivocally and indisputably to the guilt of the Appellant. For circumstantial evidence to be sufficient to support a conviction in criminal trial, especially culpable homicide, punishable with death, it must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused, and no other person, committed the crime. See:Adegbite v. The State (2017) LPELR 42585 (SC)

It must also be borne in mind that where the evidence before the Court depends mainly on the credibility of the witnesses, no Court is in as good a position as the trial Court, which had the opportunity of seeing and hearing the witnesses testify and/or observing their demeanour in the witness box, to determine the credibility of those witnesses. See: Onuoha v. The State (1989) NWLR (PT.101) 23; Busari v. The State (2015) LPELR 24279 (SC). ​The settled position of the law is that where a trial

26

Court evaluates the evidence and makes a proper appraisal thereof, it is not the business of an appellate Court to substitute its views for the views of the trial Court, which had the opportunity of watching the demeanour of the witnesses who testified before and is entitled to believe or disbelieve such witness. See:Onwugbufor vs Okoye (1996) 1 NWLR (Pt.424) 252.

After a careful and comprehensive evaluation of the evidence led on both sides, the trial Court found the evidence of the Prosecution witnesses to be credible and found the evidence of the defence unreliable. The Court below affirmed this finding.

The findings of the Court below, in my considered view, are in full accord with the evidence before the trial Court. The Appellant has failed to convince me of any special circumstance to warrant the interference of this Court with the concurrent findings of the two Courts below.

For these and the more exhaustive reasons advanced in the lead judgment, I find no merit in this appeal. It is hereby dismissed. The judgment of the Court below is affirmed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my

27

learned brother, Lord Justice Helen Moronkeji Ogunwumiju, JSC. I completely agree with the reasoning, conclusions, decisions and orders therein.

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Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This appeal is grounded on the findings of facts and the law as determined by the Lower Court. The Court charged with the duty to review the facts and evidence on appeal also needs to make specific findings of fact in order to determine whether the Lower Court’s findings were valid. Halilu Muhammed v I.G.P. (1970) NNLR 98, Stephen v. The State (1986) 5 NWLR Pt.46 Pg. 978.

The facts that led to this appeal are as follows: The Respondent along with five other co-defendants at trial were charged before the Trial Court with the offence of Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990 as amended. The Respondent was alleged to have robbed one Alh. Ummaru Masanawa (the village head of Sabuwar Kasa) at Sabuwar Kasa village in Kafur Local Government Area of Katsina State of the sum of N30, 000:00 (Thirty Thousand Naira only).

The victim died of gunshot wounds inflicted during the robbery. The Respondent and the other five (5) defendants pleaded not guilty to the charge before the Hon. Justice Sanusi Tukur at the Trial Court. At the trial, eight (8) witnesses testified for the Appellant and some Exhibits were tendered and admitted in evidence. P.W.1, P.W.2 & P.W.6 were relatives of the victim who witnessed the robbery. None of them could identify the robbers. P.W.3, 4, 5, 6, 7 and 8 were Investigating Police Officers who investigated the crime and took statements from all the six defendants.

The only evidence against the present Respondent is the statement of a non-witness that he was one of several robbers in the Kaduna Area. The Respondent as the 2nd Defendant on the other hand testified for himself and did not tender any exhibit at the Trial Court.

The Respondent and five others were thereafter found guilty and subsequently convicted and sentenced to death accordingly. Dissatisfied with the judgment of the Trial Court, the Respondent had appealed to the Court of Appeal (Lower Court) sitting at Kaduna. He was discharged and acquitted by the Lower Court on the 13th November, 2015, Coram Habeeb A.O. Abiru, JCA and Adefope-Okojie, JCA and Amina Wambai, JCA. Dissatisfied with the said decision, the Appellant- Katsina State Government, has now appealed to this Court.

In the Appellant’s brief, two issues were crystallised for determination by Abu Umar Esq Senior State Counsel. Those same issues were adopted almost verbatim by the Respondent’s Counsel in the brief settled by Emmanuel Esene Esq. I will also adopt the same issues as set out below for the determination of this appeal.

ISSUES FOR DETERMINATION a. Whether there are pieces of evidence outside the retracted confessional statement of the Respondent (Exhibit 7A) warranting him to be convicted solely on it even though he did not sign Exhibit “7B” (Translation of Exhibit 7A). Distilled from Grounds 1 and 3. b. Whether Idris Abdullahi and Danbuzu said to be mentioned by PW3 and PW5 are vital witnesses who ought to have been called by the Appellant and failure to call them is detrimental to the Appellant’s case, casting doubt in the mind of the Court. Distilled from Ground 2.

ISSUE ONE This issue can be subdivided into two. The first leg is whether the absence of the signature of the Respondent on Exh 7B, the English translation of Exh 7A (the retracted) confessional statement makes it worthless. The argument of Learned Appellant’s Counsel on this point is that Ogudo v. The State (2011) 12 SC (PT.I) Pg 71; 12 SCNJ 1 relied on by the lower Court to discountenance the substance of both Exh 7A (the Hausa version) and Exh 7B (the English Translation) of the Confessional Statement is quite distinguishable from this case because in Ogudo v.

The State (SUPRA), it was the statement recorded in the language spoken and understood by the Defendant that was unsigned, not the translated version as in this case. Counsel argued that it is the Respondent’s statement taken in the Respondent’s language that needs to be signed or thumb printed during Police investigation. On the other hand, the Respondent’s Counsel submitted that the issue at stake is the legal status of Exh 7A vis a vis Exh 7B bearing in mind that an unsigned statement is a worthless statement.

Counsel posed the question whether Exh 7A and Exh 7B must operate or be considered together or they can be considered independently of each other. Respondent’s Counsel contended that the signing of the Hausa version of the confessional statement by the Defendant and the IPO who took the statement cannot dispense with the need to ensure that both the maker and interpreter must sign the interpreted version of the statement. Counsel submitted further that the document can only bind the respondent if he had signed same.

That is to say that he cannot be said to be a maker of the document which he did not sign especially when the original had been retracted by him.

OPINION My Lords, the position of the law as it stands today is that the signed retracted confessional statement Exh. 7A taken in vernacular is admissible in evidence. What matters is the probative value to be attached to it. See: GALADIMA v. THE STATE (2012) LPELR – 15530 (SC); Montanya & Ors v. Elinwa & Ors (1994) LPELR – 1919 (SC); LSDPC & Anor v. The Nigerian Land & Sea Foods Ltd (1992) LPELR – 1744 (SC); Etajata & ORS v. Ologbo & Anor (2007) LPELR – 1171 (SC).

In the circumstances of this case, the Respondent’s statement made in the language he understood was signed by both himself and the I.P.O. The finding of the Lower Court, which I agree with is that the translated version in English Language which is the language of the Court was unsigned by the Respondent. I am of the view that the Respondent’s Statement in Exh. 7A was prima facie admissible unless successfully impugned as involuntary by a trial within trial. Also, the English translation not signed is also admissible through the writer of the said translation – that is the interpreter.

Thus, Exh. 7B, interpreted statement of the Respondent is admissible and was so properly admitted by the trial Court and the lower Court. In this case, the I.P.O who took the statement of the Respondent in Hausa Language, P.W.3, was also the officer who interpreted it into English and tendered it in Court. It is settled that the person or officer who interpreted a statement must tender it in Court so that if necessary, the interpreter can be cross examined on whether the interpreted statement is the correct interpretation of the original words as spoken by the Defendant.

Therefore, it was essential for P.W.3 to be present in Court to tender both the original statement in Hausa Language Exh.7A and the interpreted version Exh 7B. Exh. 7B would be documentary hearsay and inadmissible if it were not tendered in Court by P.W.3, see R v. Ogbuewu (1949) 12 WACA Pg. 483, Nwaeze v. The State (1996) 2 NWLR Pt. 428 Pg. 1., FRN v. Mohammed Usman Alias Yaro Yaro (2012) LPELR-7818 (SC).

In fact in Baba Haske v The Queen (1961) LPELR-2508 (SC), this Court held that the failure of the interpreter of a statement to sign same does not render the statement inadmissible though it is desirable for the statement to be signed by the interpreter. The appropriate procedure was followed by the Prosecution in that regard as PW3 tendered Exh 7B. It is my view that the interpreted version of the statement need not be signed by the Defendant.

After all, where the Defendant is the maker of the original statement in Hausa Language and he has duly signed same as had happened in this appeal, whether retracted or not, the interpreted version made by another person (the IPO) need not be signed by the Defendant who was not the maker. By the law of evidence, Exh. 7B was made by the IPO. In other words, it is only essential that the Defendant sign or thumb print the confessional statement in vernacular, to lend credence to its voluntariness, he/she need not sign or thumb print the interpreted version.

In short, the two statements are not joined at the hips.

They each stand alone. Exhibit 7A, the confessional statement made in the language of the defendant and the interpreted version made by a Police officer or interpreter as being the correct version of the original. However, the maker of the interpreted version must tender it in Court, failing which it would be regarded as mere documentary hearsay and inadmissible, see FRN v USMAN (2012) LPELR – 7818 (SC); Haske v. The Queen (1961) LPELR – 25081 (SC); Olalekan v. The State (2001) LPELR – 2261 (SC).

Thus, Exhibit 7B, the interpreted version of the statement of the Respondent was admissible and was so properly admitted by the trial Court and the lower Court.

With regard to the second leg of this issue, on Pg. 320 of the record, the Lower Court referred to Exh. 7B as the confessional statement of the Respondent which was not signed by him and held same to be a worthless statement. The Court relied on Ogudo v The State (SUPRA). In fact, Exh 7B is the interpreted statement of the Respondent which did not contain his signature, not the actual statement he made and signed which is Exh 7A. The Court referred to Exh. 7B as the statement of the Respondent.

Being in the language of the Court, the interpreted version is the version that the Court can quote or consider. I find no error and the complaints of the Appellant in this regard is misconceived. Even if there was an error in nomenclature of the Exhibits it does not go to the root of the determination of the appeal. That error in the judgment of the Lower Court is one in my view which has not led to a miscarriage of justice. It is not every minor error that would cause an otherwise sound and just judgment to be set aside.

See Corporal Livinus v The State (2013) LPELR-20177 (SC); Ali v State (2015) LPELR-24711 (SC).

In Ogudo v The State, it was the retracted unsigned statement of the Appellant which also did not meet the test of credibility as set out originally in R v. Sykes (1913) CARP 113 that was given no probative value by this Court. Granted that the Lower Court’s erroneous assumption that Exh 7B was the actual statement of the Respondent which was not signed by him, that erroneous assumption did not detract from the incisive consideration given to the impact and weight to be attached to the Respondent’s statement Exh 7A and the interpreted version Exh- 7B.

This Court had held that an Appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is contained therein. Both are forbidden areas for an Appellate Court. An Appellate Court must read the record in its exact content and interpret it. See Orugbo vs. Una (2002) 16 NWLR (Pt.792) 178 R PP.206-207 Paras H-B; Egbe v Adefarasin (1987) LPELR- 1032(SC); Usman v Garke (2003) LPELR- 3431(SC).

The Lower Court held that even if the statement were admissible, they failed to meet the criteria set down in a long line of authorities to test the veracity of a confessional statement where it was retracted by the maker. There is no doubt that a confessional statement is the best evidence to prove a crime. It is the evidence of the perpetrator describing why and how the crime was committed. It proves both the mens rea and the actus reus. However, such admission to be solely used to convict a defendant must be voluntarily made and must be a positive and direct admission of guilt.

See Adebayo v A.G Ogun State (2008)7 NWLR (PT 1055) Pg. 201; Ijoma v. The Queen (1962) LPELR-25041 (SC); Adekoya v. State (2012) LPELR-7815 (SC).

Where a statement is retracted, the Court must look for evidence outside the statement with which to evaluate the contents of the statement in order to arrive at the conclusion that the confession was both credible and probable. See R v. Sykes (1913) CA RP 113, Queen v. Itule (1961)2 SCNLR 183, Busari v. The State (2015) ALL FWLR Pt. 777 Pg. 715 at 732- 733. Okoh v. The State (2016) LPELR-40656 (SC). In other words, the retracted confession must pass the six credibility tests forming part of our criminal jurisprudence which have been established in a long fine of cases referred to above.

These are: i. Is there anything outside the confession to show that it is true? ii. Is it corroborated? iii. Are the relevant statements made in it of facts true as far as they can be tested? iv. Was the accused one who had the opportunity of committing murder? v. Is his confession possible? vi. Is it consistent with other facts which have been ascertained and have been proved?

There is no doubt from the evidence of P.W.1, P.W.2 & P.W.6 that the deceased died. They gave eye witness evidence regarding the robbery and the shooting of the deceased. All of them stated categorically that they could not recognise any of the robbers. They did not link the Respondent to the crime or scene of crime. P.W.3 the I.P.O who took the statement of the Respondent gave evidence that the case was referred to him for investigation with two vehicles (One Red Golf Saloon Reg No. AG822MKA and a Ford Bus Reg No. AE53KAR). The later vehicle had escaped with some people inside.

He led a team to Kaduna to trace the owner of the vehicle and the vehicle was traced to one Idris Abdullahi at Rigasa who introduced the buyer of the vehicle. According to P.W.3, the vehicle (it is not clear in his evidence whether the Golf or Ford) was bought by one Ado Danbuzu. Both men were arrested. P.W.3 stated that: “It was the same Idris Abdullahi who confirmed to us and gave us the names of about 16 armed robbers who were operating in Katsina and Kaduna State including the names of the accused persons.”

It was the said Idris Abdullahi that assisted the Police in tracing and arresting all those who were investigated and some of whom including the Respondent were later charged. Both P.W.4, P.W.5 and P.W.7 who were all investigating officers in this case admitted that the two vehicles were abandoned and were not in any way connected to the armed robbery. It is clear from the evidence on record that no eye witness placed the Respondent at the scene of the robbery, the Respondent was not arrested at the scene nor arrested with a vehicle identified as one used by the perpetrators of the crime.

The Police conceded under cross examination that they did not search the vehicles when they saw them nor did they suspect the vehicles were used in the commission of the offence. The Respondent was not found to have anything to do with the vehicle or any of the firearms contained therein. P.W.4 and P.W.5 stated that they recovered the vehicle on 24/08/2001 while the Respondent was arrested on 24/08/2001 and his statement was taken the same day.

Therefore, there is absolutely no scintilla of evidence linking the Respondent to the commission of any crime except the retracted confessional statement. The prosecutorial style of the Nigeria Police, in seeking conviction for serious offences armed with nothing but so called “confessional” statement of the defendant will continue to be deprecated.

In this case, the prosecution cannot fall back on any compelling piece of circumstantial evidence which is not cogent and irresistible enough to prove that the Respondent participated in the commission of the offence with which he was charged and convicted. See Omotola v. The State (2009) 2-3 SC Pg.7; Ubani v. The State (2013) 18 NWLR PT 851 Pg. 22; Sule Ahmed (Alias Eza) v. The State (2001) LPELR-262 (SC); Corporal Isah Ahmed v. The Nigerian Army (2016) LPELR-40826 (SC).

ISSUE TWO On this issue, learned Appellant’s counsel argued that the issue which the Lower Court was called upon to resolve was whether the Respondent was involved in the Armed Robbery. Counsel argued that the Lower Court’s finding that the Respondent’s oral testimony was not challenged under cross examination was erroneous. Counsel submitted that a Defendant who resiles from his confessional statement has the duty to explain the inconsistency between the statement and his evidence in Court to the satisfaction of the Court. Counsel cited Ilyasu v.

The State (2015) 1 NWLR Pt.1469 Pg. 76; Edoko v. The State (2015) 9 NWLR Pt. 1465 at Pg. 488.

Counsel further submitted that the law does not impose on the part of the prosecution the number of witnesses it should call to prove its case, as the prosecution is only obliged to call material corroborative evidence where the need arises. Counsel cited Babuga v. The State (1996) 7 NWLR Pt. 460 Pg. 279 at Pg. 300, Oguonzee v. The State (1998) 4 SC 110 at Pg. 128.

Counsel further cited the provisions of S. 237 (1) (b) of the Criminal Procedure Code Cap 37 Laws of Katsina State, 1991 to emphasise the point that a Defendant is entitled to call additional or a particular witness vital to his/her defence not called by the prosecution. He cited Aliyu v. The State (2013) 12 NWLR Pt. 1368 Pg. 403 at 420. Counsel submitted that it was wrong of the lower Court to conclude that failure to call Idris Abdullahi and Danbuzu was fatal to the case of the prosecution.

Counsel insisted that the doubt created in the mind of the Lower Court which was resolved in favour of the Respondent should have been a germane and reasonable one arising from some evidence before the Court and not merely speculative. Counsel cited State v. Aibangbee 7 SC Pt.1) Pg. 96; Udosen v. The State (2007) 4 NWLR Pt. 1023 Pg. 125.

Learned Respondent’s Counsel argued that the issue of the degree of participation of the Respondent could have been easily determined by calling Idris Abdullahi who gave the name of the Respondent as one of the armed robbers operating within their vicinity, as well as who was driving the vehicle on the night of the incident by the testimony of Ado Dambuzu. Therefore, the evidence of PW3 with respect to Ado Dambazu is hearsay and ought not to have been admitted by the trial Court.

Counsel submitted that while the prosecution need not call a host of witnesses, it is the duty of the prosecution to call any witness whose evidence would settle one way or another any issue of fact that would enhance the case of the prosecution. Since there is a presumption of innocence in favour of the Respondent, Counsel urged the Court to hold that the prosecution did not make out any case against the Respondent. He cited Mohammed vs State (2014) 10 NWLR Pt.1414 Pg. 179, Williams vs State (1992) 8 NWLR Pt.261 Pg. 515).

Counsel further urged us to hold that the testimony of the two witnesses would have helped the trial Court to ascertain the truth of the retracted confessional statement, dispel some doubts already raised and arrive at a different decision if possible, especially on the face of the allegation raised by the Respondent against Idris Abdullahi.

Learned Respondent’s Counsel submitted that, since there is a presumption of innocence in favour of the Respondent, the Court must hold that the prosecution has not made out any case against the Respondent. See - Mohammed vs State (2014) 10 NWLR (PT.1414) 179, Williams vs State (1992) 8 NWLR (Pt.261) 515.) Richard Igago v. The State (1999) LPELR-1442 (SC); Olayinka Afolalu v The State (2010) LPELR – 197 (SC).

OPINION My Lords, let me first of all address the misbegotten argument of the Appellant’s counsel on paragraph 4.29 on page 14 of the brief that it is the duty of the Defendant to explain the inconsistency between his statement to the Police and his evidence on oath. For this proposition, Learned Counsel cited Ilyasu v. The State supra.

My Lords, it is trite that the onus of proof in a criminal case is fixed on the prosecution and does not shift until the prosecution adduces cogent, credible and compelling evidence against the Defendant. The Respondent does not have any obligation to prove his innocence. To discharge the onus, the prosecution must prove all the ingredients of the offence charged. See -Yongo vs. C.O.P (1992) 8 NWLR (Pt.257) 36, Alor v. The State (1997) 4 NWLR (Pt.501) 511, Idi v. State (2017) LPELR-42587 (SC); State v. Gwangwan (2015) LPELR-24837 (SC).

To secure a conviction under Sec. 1(2) (b) of the Robbery & Firearms Act, the following essential ingredients must be proved by the prosecution: i) That there was indeed a robbery or series of robbery. ii) That the robbers were armed with dangerous weapons and iii) That the accused/Defendant was the robber or one of the robbers. See: Osetola vs State (2012) 17 NWLR (pt. 1329) 251, Osuagwu vs State (2013) 5 NWLR (Pt. 1347) 360, Abiodun vs State (2013) 9 NWLR (Pt.1358) 138, Ajayi vs State (2013) 9 NWLR (Pt.1360) 589.

From the records in this appeal, it was the evidence of P.W.3 to the effect that it was one Idris Abdullahi who gave the Police the names of 16 armed robbers operating in Kaduna and Katsina States, which included the name of the Respondent. It was on the basis of that information that the Respondent and other co-defendants at trial were arrested.

No doubt, the prosecution is only obliged to call witnesses whose evidence is vital to the determination of the case for the prosecution and whose evidence would settle vital points of facts one way or the other to remove any element of doubt in respect of the guilt of the Defendant from the case of the prosecution. See The State V. Nnolim (1994) 5 NWLR Pt.345 Pg. 384 at 406, Onah v. The State (1985) 3 NWLR Pt.21 Pg. 236; Emmanuel Ochiba v. The State (2011) LPELR- 8245(SC); Omogodo v. State (1981)LPELR-24879 (SC).

The Respondent as arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath. Lord Horwart, C J. in the course of argument in the case Rex v. Dora Harris (1927) 2 KBD 587, at Pg. 590 observed:- “In civil case the dispute is between the parties and the judge merely keeps the ring, and the parties need not call hostile witnesses, but in criminal cases the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury.” In Rex v.

Thompson Udo Essien (1938) 4 WACA 112, the West African Court of Appeal (Kingdom, C.J. Nigeria, Carey and Grabam Paul JJ.) allowed the appellant’s appeal because relevant witnesses had not been called and the evidence available was not enough to support the conviction. In that case, the prosecution failed to call the 3 survivors of the accused’s alleged assault.

The Court held that: “it is the duty of the crown to call all known material witnesses, whether in favour of the Crown case or not, and where, as in this case, the Crown had notice of the accused’s most material allegations against those three named people, it was the clear duty of those responsible for the prosecution to call these three people if the accused’s allegation against them was to be contested”. See also Commissioner of Police v. Fred Addae (1945)11 WACA 42 at 44: Rex v.

George Kurec (1941) 7 WACA 175 at 177.” A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution s case. In other words, a witness who knows something significant about a matter is a vital witness. In Onah v. State (1985) 3 NWLR Pt. 12 Pg.236 a vital witness was described as a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. See: Lase v. The State (2017) LPELR-42468.

It is true that the prosecution is not obliged to call all listed witnesses nor is there need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced, it would work against the prosecution and favour the accused.

See Sec 167 (d) of the Evidence Act, 2011. Stated another way, is that the vital witness is that witness whose evidence is fundamental as it determines the case one way or the other and failure to call that vital witness by the prosecution is fatal to this case. See: Ogudo v. state (2011) 18 NWLR (Pt.1278) 1 at 31; State v. Azeez (2008) 14 NWLR Pt.1108 P9.439 at 475: Zubairu v. State (2015) 16 NWLR Pt.1486 Pg.504 at 525; Adamu v. State (2019) LPELR-46902 SC.

​Even if Idris Abdullahi to whom the vehicle was traced had been merely an informant of the Police, where he witnessed a scene of crime and told the police, the prosecution would have been obliged to call him to give evidence. Where he gave general information as in this case, the Police would be obliged to investigate the veracity of the information before arresting the Respondent. The Respondent was arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath.

No evidence linked the particular Ford owned by the Respondent to the Ford vehicle owned by Danbuzu (also arrested but not charged). I agree with the Lower Court that Idris Abdullahi and Danbuzu should have been called to supply the missing link between the Respondent, the Ford vehicle which appeared from nowhere and was supposedly used to commit the offence and the commission of the offence. Idris Abdullahi might have been able to supply the evidence linking the Respondent with the particular offence with which he could have been successfully charged and convicted.

Afterall, the charge of armed robbery is not at large, it must be related to a specific incident and date. I must commend the erudite and thorough lead judgment of Wambai JCA.

I agree with the Lower Court that the Prosecution could not prove the offence of armed robbery against the Appellant beyond reasonable doubt. There is no merit in this appeal. The judgment of the Lower Court delivered on 13/11/15 Coram H.A.O. Abiru, O.A. Adefope-Okojie, Amina A. Wambai JJCA is hereby affirmed. Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I read a draft copy of the leading judgment delivered by my learned brother Ogunwumiju, JSC. I agree with the reasoning and conclusion in the judgment, and I am satisfied that there is no merit in the appeal. It is also dismissed by me. The decision of the Court of Appeal is hereby affirmed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU JSC just delivered. I entirely agree with the reasoning and conclusion in the said judgment which I hereby adopt as mine to dismiss the unmeritorious appeal. I abide by the consequential order made in the lead judgment.

ABDU ABOKI, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC. I endorse and adopt the judgment, as mine. His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed. These findings and conclusions flow from the evidence adduced at the trial.

​The facts leading to this appeal are as follows: The Respondent along with five other co-defendants at the trial were charged before the Trial Court for the offence of Armed Robbery punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990, as amended. The Respondent and the other defendants, were alleged to have robbed one Alh. Ummaru Masanawa (the village head of Sabuwar Kasa at Sabuwar Kasa village in Kafur Local Government Area of Katsina State of the sum of N30,000.00 (Thirty Thousand Naira) only.

The victim died of gun-shot wounds inflicted during the robbery. The Respondent and the other five co-defendants pleaded not guilty to the charge at the Trial Court. In proof of its case, the Prosecution called eight (8) witnesses, and some exhibits were tendered and admitted in evidence. PW1, PW2 & PW6 were relatives of the victim, who witnessed the robbery, however, none of them could identify the robbers. The only evidence against the Respondent is the statement of a non-witness, that he (the Respondent), was one of the several robbers in the Kaduna area.

The Respondent testified for himself, and tendered no exhibits.

At the close of trial, the Respondent and the other co-defendants were found guilty and subsequently convicted and sentenced to death. Consequent upon his appeal to the Court below, he was discharged and acquitted. Dissatisfied with the decision of the Court below, the Appellant appealed to this Court.

​The issues for determination have been adequately marshaled out and exhaustively dealt with in the lead judgment and I need not repeat them.

However, and just for the purpose of emphasis, I will put in one or two words of mine on the need to call vital witnesses in proof of the case of the Prosecution.

The law is settled that where a defendant, who was not arrested at the scene of the crime denies the commission of the offence or retracts his confessional statement, the Prosecution must produce cogent, compelling and irresistible evidence, to secure a conviction, and failure of which will lead to the acquittal of the defendant.

While the Prosecution is not required to call a host of witnesses, it is its duty to call any witness whose evidence would settle one way or another, any issue of fact that would enhance its case. See Adegbite v. State (2017) LPELR 42585 SC. In the appeal at hand, Idris Abdullahi and Danbuzu who are supposedly eye witnesses to the crime, are vital witnesses who ought to have been called by the Prosecution to supply the missing link between the Respondent and the Ford vehicle which appeared from nowhere and was supposedly used to commit the offence and the commission of the offence.

Failure to call these witnesses to supply the missing link, has created reasonable doubt in my mind as to the guilt of the Respondent for the offence charged and this doubt enures in his favour.

Accordingly, I hereby join my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, in affirming the decision of the Court below, which set aside the Respondent’s conviction by the Trial Court. There being no substance in this appeal; it is accordingly dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice HELEN MORONKEJI OGUNWUMIJU, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This appeal is grounded on the findings of facts and the law as determined by the lower Court. The Court charged with the duty to review the facts and evidence on appeal also needs to make specific findings of fact in order to determine whether the lower Court’s findings were valid. Halilu Muhammed v I.G.P. (1970) NNLR 98, Stephen v. The State (1986) 5 NWLR Pt.46 Pg. 978.

The facts that led to this appeal are as follows. The Respondent along with five other co-defendants at trial were charged before the trial Court with the offence of Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990 as amended. The Respondent was alleged to have robbed one Alh. Ummaru Masanawa (the village head of Sabuwar Kasa) at Sabuwar Kasa village in Kafur Local Government Area of Katsina State of the sum of N30,000.00 (Thirty Thousand Naira only).

The victim died of gunshot wounds inflicted during the robbery. The Respondent and the other five (5) defendants pleaded not guilty to the charge before the Hon. Justice Sanusi Tukur at the trial Court. At the trial, Eight (8) witnesses testified for the Appellant and some Exhibits were tendered and admitted in evidence. P.W.1, P.W.2 & P.W.6 were relatives of the victim who witnessed the robbery. None of them could identify the robbers. P.W.3, 4, 5, 6, 7 and 8 were Investigating Police Officers who investigated the crime and took statements from all the six defendants.

The only evidence against the present Respondent is the statement of a non-witness that he was one of several robbers in the Kaduna Area. The Respondent as the 5th Defendant on the other hand, testified for himself and did not tender any exhibit at the trial Court.

The Respondent and five others were thereafter found guilty and subsequently convicted and sentenced to death accordingly. Dissatisfied with the judgment of the trial Court, the Respondent had appealed to the Court of Appeal (lower Court) sitting at Kaduna. He was discharged and acquitted by the lower Court on the 13th November, 2015, Coram Habeeb A.O. Abiru, JCA and Adefope-Okojie, JCA and Amina Wambai, JCA. Dissatisfied with the said decision, the Appellant- Katsina State Government, has now appealed to this Court.

In the Appellant’s brief, two issues were crystallised for determination by Abu Umar Esq. Senior State Counsel. Those same issues were adopted almost verbatim by the Respondent’s Counsel in the brief settled by Emmanuel Esene Esq. I will also adopt the same issues as set out below for the determination of this appeal.

ISSUES FOR DETERMINATION A. Whether there are pieces of evidence outside the retracted Confessional statement of the Respondent (Exhibit 9A) warranting him to be convicted solely on it even though he did not sign Exhibit “9B” (Translation of Exhibit 9A) and whether exhibit (9B was preceded by another statement to the police and failure of the Appellant to tender same renders the trial of the Respondent unfair as held by the lower Court. Distilled from Grounds 2,3 and 4. B.

Whether Idris Abdullahi and Danbuzu said to be mentioned by PW3 and the Respondent are vital witnesses who ought to have been called by the Appellant and failure to call them is detrimental to the Appellant’s case, casting doubt in the mind of the Court. Distilled from Ground 1.

ISSUE ONE This issue can be subdivided into three. The first leg is whether the absence of the signature of the Respondent on Exh 9B, the English translation of Exh 9A (the retracted) confessional statement makes it worthless. The argument of Learned Appellant’s Counsel on this point is that Ogudo v. The State (2011) 12 SC (PT.I) Pg 71; 12 SCNJ 1 relied on by the lower Court to discountenance the substance of both Exh 9A (the Hausa version) and Exh 9B (the English Translation) of the Confessional Statement is quite distinguishable from this case because in Ogudo v.

The State (SUPRA), it was the statement recorded in the language spoken and understood by the Defendant that was unsigned, not the translated version as in this case. Counsel argued that it is the Respondent’s statement taken in the Respondent’s language that needs to be signed or thumb printed during Police investigation. On the other hand, the Respondent’s Counsel submitted that the issue at stake is the legal status of Exh 9A vis-a-vis Exh 9B, bearing in mind that an unsigned statement is a ‘worthless’ statement.

Counsel posed the question whether Exh 9A and Exh 9B must operate or be considered together or they can be considered independently of each other. Respondent’s Counsel contended that the signing of the Hausa version of the confessional statement by the Defendant and the IPO who took the statement cannot dispense with the need to ensure that both the maker and interpreter must sign the interpreted version of the statement. Counsel submitted further that the document can only bind the respondent if he had signed same.

That is to say that he cannot be said to be a maker of the document which he did not sign especially when the original had been retracted by him.

OPINION My Lords, the position of the law as it stands today is that the signed retracted confessional statement, Exh. 9A, taken in vernacular is admissible in evidence. What matters is the probative value to be attached to it. See: GALADIMA v. THE STATE (2012) LPELR-15530 (SC). In the circumstances of this case, the Respondent’s statement made in the language he understood was signed by both himself and the I.P.O. The finding of the lower Court, which I agree with is that the translated version in English Language which is the language of the Court was unsigned by the Respondent.

I am of the view that the Respondent’s Statement in Exh. 9A was prima facie admissible unless successfully impugned as involuntary by a trial within trial. Also, the English translation not signed is also admissible through the writer of the said translation- That is the interpreter. Thus, Exh. 9B, interpreted statement of the Respondent is admissible and was so properly admitted by the trial Court and the lower Court. In this case, the I.P.O who took the statement of the Respondent in Hausa Language, P.W.3 was also the officer who interpreted it into English and tendered it in Court.

It is settled that the person or officer who interpreted a statement must tender it in Court so that if necessary, the interpreter can be cross-examined on whether the interpreted statement is the correct interpretation of the original words as spoken by the Defendant. Therefore, it was essential for P.W.3 to be present in Court to tender both the original statement in Hausa Language Exh.9A and the interpreted version Exh 9B. Exh. 9B would be documentary hearsay and inadmissible if it were not tendered in Court by P.W.3 See R v. Ogbuewu (1949) 12 WACA Pg. 483, Nwaeze v.

The State (1996) 2 NWLR Pt. 428 Pg. 1., FRN v. Mohammed Usman Alias Yaro Yaro (2012) LPELR-7818 (SC). In fact in Baba Haske v The Queen (1961) LPELR-2508 (SC), this Court held that the failure of the interpreter of a statement to sign same does not render the statement inadmissible though it is desirable for the statement to be signed by the interpreter. The appropriate procedure was followed by the Prosecution in that regard as PW3 tendered Exh 9B. ​It is my view that the interpreted version of the statement need not be signed by the Defendant.

After all, where the Defendant is the maker of the original statement in Hausa Language and he has duly signed same as had happened in this appeal, whether retracted or not, the interpreted version made by another person (the IPO) need not be signed by the Defendant who was not the maker. By the law of evidence, Exh. 9B was made by the IPO. In other words, it is only essential that the Defendant sign or thumb print the confessional statement in vernacular, to lend credence to its voluntariness, he/she need not sign or thumb print the interpreted version.

In short, the two statements are not joined at the hips. They each stand alone. Exhibit 9A, the confessional statement made in the language of the Defendant and the interpreted version made by a Police officer or interpreter as being the correct version of the original.

However, the maker of the interpreted version must tender it in Court, failing which it would be regarded as mere documentary hearsay and inadmissible, see Edward Nkwegu Okereke v Nweze David Umahi & Ors (2016) LPELR-40035(SC); Sylvester Utteh v The State (1992) LPELR-6239 (SC); Suleiman Olawale Arogundade v The State (2009) LPELR-559(SC) Thus, Exhibit 9B, the interpreted version of the statement of the Respondent was admissible and was so properly admitted by the trial Court and the lower Court.

With regard to the second leg of this issue, on Pg. 320 of the record, the lower Court referred to Exh. 9B as the confessional statement of the Respondent which was not signed by him and held same to be a worthless statement. The Court relied on Ogudo v The State (SUPRA). In fact, Exh 9B is the interpreted statement of the Respondent which did not contain his signature, not the actual statement he made and signed which is Exh 9A. The Court referred to Exh. 9B as the statement of the Respondent.

Being in the language of the Court, the interpreted version is the version that the Court can quote or consider. I find no error and the complaints of the Appellant in this regard is misconceived. Even if there was an error in nomenclature of the Exhibits, it does not go to the root of the determination of the appeal. That error in the judgment of the lower Court is one in my view which has not led to a miscarriage of justice. It is not every minor error that would lead to an otherwise sound and just judgment to be set aside.

See Corporal Livinus v The State (2013) LPELR-20177 (SC); Ali v State (2015) LPELR-24711 (SC).

In Ogudo v The State, it was the retracted, unsigned statement of the Appellant which also did not meet the test of credibility as set out originally in R v. Sykes (1913) CARP 113 that was given no probative value by this Court. Granted that the lower Court’s erroneous assumption that Exh 9B was the actual statement of the Respondent which was not signed by him, that erroneous assumption did not detract from the incisive consideration given to the impact and weight to be attached to the Respondent’s statement Exh 9A and the interpreted version Exh- 9B.

This Court had held that an Appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is contained therein. Both are forbidden areas for an appellate Court. An appellate Court must read the record in its exact content and interpret it. See Orugbo vs. Una (2002) 16 NWLR (Pt.792) 178 R PP.206-207 Paras H-B. Egbe v Adefarasin (1987) LPELR- 1032(SC); Usman v Garke (2003) LPELR- 3431(SC).

The lower Court held that even if the statement were admissible, they failed to meet the criteria set down in a long line of authorities to test the veracity of a confessional statement where it was retracted by the maker. There is no doubt that a confessional statement is the best evidence to prove a crime. It is the evidence of the perpetrator describing why and how the crime was committed. It proves both the mens rea and the actus reus. However, such admission to be solely used to convict a defendant must be voluntarily made and must be a positive and direct admission of guilt.

See Adebayo v A.G Ogun State (2008) 7 NWLR (PT 1055) Pg. 201; Ijoma v. The Queen (1962) LPELR-25041 (SC); Adekoya v. State (2012) LPELR-7815 (SC).

Where a statement is retracted, the Court must look for evidence outside the statement with which to evaluate the contents of the statement in order to arrive at the conclusion that the confession was both credible and probable. See R v. Sykes (1913) CA RP 113, Queen v. Itule (1961) 2 SCNLR 183, Busari v. The State (2015) ALL FWLR Pt. 777 Pg. 715 at 732-733. Okoh v. The State (2016) LPELR-40656 (SC). In other words, the retracted confession must pass the six credibility tests forming part of our criminal jurisprudence which have been established in a long line of cases referred to above.

These are: i. Is there anything outside the confession to show that it is true? ii. Is it corroborated? iii. Are the relevant statements made in it of facts true as far as they can be tested? iv. Was the accused one who had the opportunity of committing murder? v. Is his confession possible? vi. Is it consistent with other facts which have been ascertained and have been proved?

There is no doubt from the evidence of P.W.1, P.W.2 & P.W.6 that the deceased died. They gave eye witness evidence regarding the robbery and the shooting of the deceased. All of them stated categorically that they could not recognise any of the robbers. They did not link the Respondent to the crime or scene of crime. P.W,3 the I.P.O who took the statement of the Respondent gave evidence that the case was referred to him for investigation with two vehicles (one red Golf Saloon Reg No. AG822MKA and a Ford Bus Reg No. AE53KAR). The latter vehicle had escaped with some people inside.

He led a team to Kaduna to trace the owner of the vehicle and the vehicle was traced to one Idris Abdullahi at Rigasa who introduced the buyer of the vehicle. According to P.W.3, the vehicle (it is not clear in his evidence whether the Golf or Ford) was bought by one Ado Danbuzu. Both men were arrested. P.W.3 stated that: “It was the same Idris Abdullahi who confirmed to us and gave us the names of about 16 armed robbers who were operating in Katsina and Kaduna State including the names of the accused persons.”

​It was the said Idris Abdullahi that assisted the Police in tracing and arresting all those who were investigated and some of whom including the Respondent were later charged. Both P.W. 4, P.W.5 and P.W.7 who were all investigating officers in this case admitted that the two vehicles were abandoned and were not in any way connected to the armed robbery. It is clear from the evidence on record that no eye witness placed the Respondent at the scene of the robbery, the Respondent was not arrested at the scene nor arrested with a vehicle identified as one used by the perpetrators of the crime.

The Police conceded under cross-examination that they did not search the vehicles when they saw them nor did they suspect the vehicles were used in the commission of the offence. The Respondent was not found to have anything to do with the vehicle or any of the firearms contained therein. P.W.4 and P.W.5 stated that they recovered the vehicle on 24/08/2001 while the Respondent was arrested on 25/12/2001 and his statement was taken the same day.

Therefore, there is absolutely no scintilla of evidence linking the Respondent to the commission of any crime except the retracted confessional statement. The prosecutorial style of the Nigeria Police, in seeking conviction for serious offences armed with nothing but so called “confessional” statement of the defendant will continue to be deprecated.

In this case, the prosecution cannot fall back on any compelling piece of circumstantial evidence which is not cogent and irresistible enough to prove that the Respondent participated in the commission of the offence with which he was charged and convicted. See Omotola v. The State (2009) 2-3 SC Pg.7; Ubani v. The State (2003) 18 NWLR PT 851 Pg. 22; Sule Ahmed (Alias Eza) v. The State (2001) LPELR-262 (SC); Corporal Isah Ahmed v. The Nigerian Army (2016) LPELR-40826 (SC).

​On the question of the suppression of a previous statement of the Respondent by the prosecution which is the third leg of this issue, it is clear from the testimony of the Respondent during the trial within trial and his evidence at Pg. 147-149 of the Record for himself as D.W.5 during the main trial, that neither he nor his Counsel made an issue of the suppression by the Appellant of a previous statement to the police. However, clearly Exh. 9A &9B in its opening sentence shows that he was making an additional statement to one or more statements already made by him.

His evidence was that he was interrogated several times by the police. His counsel at trial did not question him on it, nor did he cross-examine the prosecution on it nor address the trial Court on it.

The question here is whether there was any evidence or whether an issue was made by the defence of the exculpating contents of a previous statement to make the conclusion of the lower Court on Pg. 321 of the record that the deliberate exclusion of the prior statement of the Respondent amounted to lack of fair trial be founded in fact or law. I am of the view that the conclusion of the lower Court is both unfounded in fact and law. The main question here however is, whether that particular conclusion of the lower Court has led to a miscarriage of justice.

I cannot so conclude given the overall circumstances and the facts of this appeal. It is not every error of law or fact, that would lead to the setting aside of an otherwise just judgment. The error must be one that has led to a gross miscarriage of justice. See Mufutau Aremu & ANOR v. The State (1991) LPELR-545 (SC) following Yaro v. The State (1972) NSCC 160 at 165; Nguma v. A.G. Imo (2014) LPELR-22252 (SC); Alhaji Muazu Ali v. The State ​(2015) LPELR-24711 (SC); Tsokwa Motors (Nig) Limited v. United Bank for Africa PLC (2008) LPELR-3266 (SC).

I cannot find miscarriage of justice in the determination of the germane facts and law in this case by the lower Court. This issue is resolved against the Appellant.

ISSUE TWO On this issue, learned Appellant’s counsel argued that the issue which the lower Court was called upon to resolve was whether the Respondent was involved in the Armed Robbery. Counsel argued that the lower Court’s finding that the Respondent’s oral testimony was not challenged under cross-examination was erroneous. Counsel submitted that a Defendant who resiles from his confessional statement has the duty to explain the inconsistency between the statement and his evidence in Court to the satisfaction of the Court. Counsel cited Iliyasu v.

The State (2015) 1 NWLR Pt.1469 Pg. 76 Edoko v. The State (2015) 9 NWLR Pt. 1465 at Pg. 488.

Counsel further submitted that the law does not impose on the part of the prosecution, the number of witnesses it should call to prove its case, as the prosecution is only obliged to call material corroborative evidence where the need arises. Counsel cited Babuga v. The State (1996) 7 NWLR Pt. 460 Pg. 279 at Pg. 300, Oguonzee v. The State (1998) 4 SC 110 at Pg. 128.

Counsel further cited the provisions of S. 237 (1) (b) of the Criminal Procedure Code Cap 37 Laws of Katsina State, 1991 to emphasise the point that a Defendant is entitled to call additional or a particular witness, vital to his/her defence not called by the prosecution. He cited Aliyu v. The State (2013) 12 NWLR Pt. 1368 Pg. 403 at 420, Counsel submitted that it was wrong of the lower Court to conclude that failure to call Idris Abdullahi and Danbuzu was fatal to the case of the prosecution.

Counsel insisted that the doubt created in the mind of the lower Court which was resolved in favour of the Respondent should have been a germane and reasonable one arising from some evidence before the Court and not merely speculative. Counsel cited State v. Aibangbee 7 SC Pt.1) Pg. 96 Udosen v. The State (2007) 4 NWLR Pt. 1023 Pg. 125.

​Learned Respondent’s Counsel argued that the issue of the degree of participation of the Respondent could have been easily determined by calling Idris Abdullahi who gave the name of the Respondent as one of the armed robbers operating within their vicinity, as well as who was driving the vehicle on the night of the incident by the testimony of Ado Dambuzu. Therefore, the evidence of PW3 with respect to Ado Dambazu is hearsay and ought not to have been admitted by the trial Court.

Counsel submitted that while the prosecution need not call a host of witnesses, it is the duty of the prosecution to call any witness whose evidence would settle one way or another any issue of fact that would enhance the case of the prosecution. Since there is a presumption of innocence in favour of the Respondent. Counsel urged the Court to hold that the prosecution did not make out any case against the Respondent. He cited Mohammed vs State (2014) 10 NWLR Pt.1414 Pg. 179, Williams vs State (1992) 8 NWLR Pt.261 (Pg. 515). Afolalu v. The State (2010) LPELR-197 (SC);

​Counsel further urged us to hold that the testimony of the two witnesses would have helped the trial Court to ascertain the truth of the retracted confessional statement, dispel some doubts already raised and arrive at a different decision if possible, especially on the face of the allegation raised by the Respondent against Idris Abdullahi. Learned Respondent’s Counsel submitted that, since there is a presumption of innocence in favour of the Respondent, the Court must hold that the prosecution has not made out any case against the Respondent.

See - Mohammed vs State (2014) 10 NWLR (PT.1414) 179, Williams vs State (1992) 8 NWLR (Pt.261) 515.)

OPINION My Lords, let me first of all, address the misbegotten argument of the Appellant’s counsel on paragraph 5.7 on page 21 of the brief that it is the duty of the Defendant to explain the inconsistency between his statement to the Police and his evidence on oath. For this proposition Learned Counsel cited Iliyasu v. The State supra.

My Lords, it is trite that the onus of proof in a criminal case if fixed on the prosecution and does not shift until the prosecution adduces cogent, credible and compelling evidence against the Defendant. The Respondent does not have any obligation to prove his innocence. To discharge the onus, the prosecution must prove all the ingredients of the offence charged. See -Yongo vs. C.O.P (1992) 8 NWLR (Pt.257) 36, Alor v. The State (1997) 4 NWLR (Pt.501) 511. Idi v. State (2017) LPELR-42587 (SC); State v. Gwangwan (2015) LPELR-24837 (SC).

To secure a conviction under Sec. 1(2) (b) of the Robbery & Firearms Act, the following essential ingredients must be proved by the prosecution: i) That there was indeed a robbery or series of robbery. ii) That the robbers were armed with dangerous weapons and iii) That the accused Defendant was the robber or one of the robbers. See: Osetola vs State (2012) 17 NWLR (pt. 1329) 251, Osuagwu vs State; (2013) 5 NWLR (Pt. 1347) 360, Abiodun vs State (2013) 9 NWLR (Pt.1358) 138, Ajayi vs State (2013) 9 NWLR (Pt.1360) 589;

​From the records in this appeal, it was the evidence of P.W. 3 to the effect that it was one Idris Abdullahi who gave the Police the names of 16 armed robbers operating in Kaduna and Katsina States, which included the name of the Respondent. It was on the basis of that information that the Respondent and other co-defendants at trial were arrested.

No doubt, the prosecution is only obliged to call witnesses whose evidence is vital to the determination of the case for the prosecution and whose evidence would settle vital points of facts one way or the other to remove any element of doubt in respect of the guilt of the Defendant from the case of the prosecution. See The State V. Nnolim (1994) 5 NWLR Pt.345 Pg. 384 at 406, Onah v. The State (1985) 3 NWLR Pt.21 Pg. 236; Emmanuel Ochiba v. The State (2011) LPELR- 8245(SC); Omogodo v. State (1981)LPELR-24879 (SC).

The Respondent was arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath. Lord Horwart, C J. in the course of argument in the case Rex v. Dora Harris (1927) 2 KBD 587, at Pg. 590 observed:- “In civil cases, the dispute is between the parties and the Judge merely keeps the ring, and the parties need not call hostile witnesses, but in criminal cases, the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury.” In Rex v.

Thompson Udo Essien (1938) 4 WACA 112, the West African Court of Appeal (Kingdom, C.J. Nigeria, Carey and Grabam Paul JJ.) allowed the Appellant’s appeal because relevant witnesses had not been called and the evidence available was not enough to support the conviction. In that case, the prosecution failed to call the 3 survivors of the accused’s alleged assault.

The Court held that: “it is the duty of the crown to call all known material witnesses, whether in favour of the crown case or not, and where, as in this case, the crown had notice of the accused’s most material allegations against those three named people it was the clear duty of those responsible for the prosecution to call these three people if the accused’s allegation against them was to be contested” see also Commissioner of Police v. Fred Addae (1945)11 WACA 42 at 44: Rex v.

George Kurec (1941) 7 WACA 175 at 177.” A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness. In Onah v. State (1985) 3 NWLR Pt. 12 Pg.236 a vital witness described as a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. See: Lase v. The State (2017) LPELR-42468.

It is true that the prosecution is not obliged to call all listed witnesses nor is there need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused, See: Sec 167 (d) of the Evidence Act, 2011.

Stated another way, is that the vital witness is that witness whose evidence is fundamental as it determines the case one way or the other and failure to call that vital witness by the prosecution is fatal to this case. See: Ogudo v. State (2011) 18 NWLR (Pt.1278) 1 at 31; State v. Azeez (2008) 14 NWLR Pt.1108 P9.439 at 475: Zubairu v. State (2008) 14 NWLR Pt.1108 Pg.439 at 475: Zubairu v. State (2015) 16 NWLR Pt. 1486 Pg. 504 at 525: Adamu v. State (2019) LPELR-46902 SC.

Even if Idris Abdullahi to whom the vehicle was traced had been merely an informant of the Police, where he witnessed a scene of crime and told the police, the prosecution would have been obliged to call him to give evidence. Where he gave general information as in this case, the Police would be obliged to investigate the veracity of the information before arresting the Respondent. The Respondent was arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath.

No evidence linked the particular Ford owned by the Respondent to the Ford vehicle owned by Danbuzu (also arrested but not charged). I agree with the lower Court that Idris Abdullahi and Danbuzu should have been called to supply the missing link between the Respondent, the Ford vehicle which appeared from nowhere and was supposedly used to commit the offence and the commission of the offence. Idris Abdullahi might have been able to supply the evidence linking the Respondent with the particular offence with which he could have been successfully charged and convicted.

Afterall, the charge of armed robbery is not at large, it must be related to a specific incident and date. I must commend the erudite and thorough lead judgment of Wambai, JCA.

I agree with the lower Court that the Prosecution could not prove the offence of armed robbery against the Appellant beyond reasonable doubt. There is no merit in this appeal.

The judgment of the lower Court delivered on 13/11/15 Coram H.A.O. Abiru, O.A. Adefope-Okojie, Amina A. Wambai JJCA is hereby affirmed. Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I read a draft copy of the leading judgment delivered by my learned brother, Ogunwumiju, JSC. The Respondent was convicted and sentenced to death by the trial Court for armed Robbery. The Court of Appeal reversed that judgment. My learned brother agrees with the Court of Appeal, and for the reasons given which I need not repeat, l, too agree that the appeal should be dismissed.

The judgment of the Court of Appeal is affirmed and the appeal is dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance, the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC just delivered. I entirely agree with the reasoning and conclusion in the said judgment which I hereby adopt as mine to dismiss the unmeritorious appeal. I abide by the consequential order made in the lead judgment.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Ogunwumiju, JSC, and I do agree with him that this appeal totally lacks merit, and must be dismissed. He dealt extensively and decisively with all the issues raised in the appeal, and I will only comment on the issue of vital witnesses.

A vital witness is a witness, whose evidence may determine the case against an accused person, one way or the other, and the failure to call such a vital witness is likely to be fatal to the Prosecution’s case – Onah V. State (1985) 3 NWLR (Pt. 12) 236. But, as the Appellant conceded, the Prosecution is not bound to call any particular number of witnesses to discharge the burden placed on it by the law to prove its case against the accused person beyond reasonable doubt.

A single credible witness, who gives cogent eye-witness account of the incident, will suffice, even if he is charged with armed robbery. ​In this case, the only evidence against the Respondent is the statement of a non-witness that he was one of the several robbers in the Kaduna area, and I have to agree with the Respondent that the degree of his participation in the alleged armed robbery, could easily have been determined by calling the “Idris Abdullahi”, who gave his name as one of the armed robbers in the area.

In this situation, where there was no evidence to link the Respondent to the offence charged, the said Idris Abdullahi, who allegedly supplied the Police with the information with which the Respondent was arrested, is a vital witness, and he ought to have been called as a witness at the trial of the Respondent.

The Prosecution has a duty to prove its case “beyond reasonable doubt”, and reasonable doubt is described as the “doubt that prevents one from being firmly convinced of a Defendant’s guilt or the belief that there is a real possibility that the Defendant is not guilty” – Black’s Law Dictionary 9th Ed. In this case, in reviewing the evidence adduced by the Prosecution, the Court of Appeal had doubts as to whether the Respondent was one of the said armed robbers and in the circumstances, it was right to resolve the doubt raised in his favour.

It is for this and other reasons in the lead judgment, which I wholly adopt that I also dismiss this appeal and affirm the judgment of the Court of Appeal.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice HELEN MORONKEJI OGUNWUMIJU, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.