STATE  V YAHAYA

STATE  V YAHAYA


The Supreme Court 

On Friday, the 10th day of May, 2019


APPEAL NO: SC.493/2016

CITATION NO:


BEFORE THEIR LORDSHIPS

IBRAHIM TANKO MUHAMMAD    JSC

MARY UKAEGO PETER-ODILI    JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    JSC

AMIRU SANUSI    JSC

EJEMBI EKO    JSC


Between

THE STATE 

(Appellant)

AND

IBRAHIM YAHAYA 

(Respondent)


PRONOUNCEMENTS

A. CRIMINAL LAW

  1. Burden of proof– On whom lies the burden of proving facts in criminal cases

“It is a well established principle of criminal law that in all criminal cases, the onus of proving that any person committed a crime or wrongful act squarely lies on the prosecution generally, except of course in some special cases or circumstance which do not apply to the instant case. The burden of proof does not shift and the standard of proof is certainly proof beyond reasonable doubt. See Ogundiya v The State  (1991)3 NWLR (pt.181)519.” Per Sanusi  JSC

  1. Burden of proof– Methods of establishing the burden of proof in criminal cases

“To establish the burden of proof as required by law, the prosecution can adopt any of the three methods set out hereunder:-

(a) Through evidence of eye witness who witnessed the commission of the offence, or

(b) Through voluntary confessional statement of the accused person or persons; or

(c) By circumstantial evidence.

See Akeem Agboola v The State (2013)LPELR 20652.” Per Sanusi  JSC

  1. Confessional statement– Effect of a voluntary confession alone in the conviction of an accused

“The law is well settled that a voluntary confession alone, is sufficient to ground conviction once it is proved to be direct, positive and unequivocal and amounts to admission of guilt of the offence, even if the accused resiles from making it at the trial. See Usman v The State  (2011) 7 SCNJ 102 at 127/128; Okanlawon v The State (2015)17 NWLR (pt.1489)445 at 478; Alarape v The State (2001) 5 NWLR (pt.705)75 at 98.” Per Sanusi  JSC

  1. Confessional statement– Effect of a retracted confessional statement

“The law is trite however, that where an accused person later retracts his confession at the trial, the Courts have evolved a practice that the trial Court must look for some evidence no matter how slight, outside the confession which would makes the confession probable. See Kopa v State (1971) 1 ALL NLR 151; Onochie v The Republic(1966)NMLR 307. This is however a rule of practice meant to discern which of the two versions of the events is likely to be correct for the trial Court to rely on with regard to the commission of the said crime. See Peter Azabada v The State (2014)LPELR 23 101 7(SC).

Where an accused person retracts his confessional statement, that statement still remains voluntary even though it is desirable that the Court looks for corroborative evidence outside the confession to ascertain the truth of such statement. A confessional statement does not become inadmissible or inapplicable simply because it was retracted by the maker since a trial Court can even convict the maker of it even based on it alone once it is satisfied that it was made voluntarily. As I stated earlier, it is desirable for the Court to look for corroborative evidence independent of or outside the said confessional statement. See Kareem v FRN (No.2) (2002)8 NWLR (pt.770)205.” Per Sanusi  JSC

  1. Identification evidence– Duty of the trial court when faced with identification evidence

“When a trial Court is faced with identification evidence, it must be satisfied that the evidence of identification has duly established the guilt of the accused/appellant or respondent as in this instant case, beyond reasonable doubt. Admittedly, in a situation where the identification is weak, the trial Court must give the accused person the benefit of doubt and acquit and discharge him of the offence charged. See Ukpabi v State (2004) 11 NWLR (pt.884)439.” Per Sanusi  JSC

  1. Identification evidence– Some guiding principles for the trial Court to follow in resolving the evidence of identification

“Some of the guiding principles for the trial Court to follow in resolving the evidence of identification includes the followings:-

(i). Circumstance in which the eye witness saw the suspect or defendant.

(ii). The length of time the witness saw the defendant/accused.

(iii). The lighting condition

(iv). The opportunity of close observation.

See Ndidi v The State(2007)5 SCNJ 286/287.” Per Sanusi  JSC

B. WORDS AND PHRASES

  1. Definition– Meaning of Identification evidence

“It is instructive to stress here, that identification evidence is evidence which tends to show that the person charged with an offence is the same person who committed the offence.Per Sanusi  JSC


  1. Corroboration– Test to be applied to determine the nature and extent of corroboration

“The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission. See State v Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626; Edhigere v The State (1998) 8 NWLR (Pt.464) 1 at 8; Durugo v State (1992) 7 NWLR (Pt.255) 525 at 541.” Per Peter-Odili JSC

  1. Confessional statement– Attitude of the Court would be, faced with a retraction of a confessional statement.

“The fact of the retraction of a confessional statement does not mean the end of the road of it or that the Court cannot act upon it and rely on it to convict him even if the only evidence. This Court had at numerous occasions stated what the attitude of the Court would be, faced with a retraction of a confessional statement. The Court states that when the retraction takes place at the trial whereby the accused resiles from an earlier extra-judicial statement that the duty is then cast on the accused who is the maker of the statement and then a subsequent duty on the trial judge who is to test the veracity or otherwise of such a statement by passing through the crucible or tests to see if such a statement is correct. That is to say that the statement is 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. See State v Gwangwan (supra) 624 per Okoro JSC; Chiokwe v State (2015) 5 NWLR (Pt.1347) 205; Hassan v State (2001) LPELR -1358 SC at PP 12-13; (2001) 15 NWLR (Pt.735) 174; Mbenu v State (1988) 7 SC (Pt.111) 71 at 82; Busari v The State (2015) 5 NWLR (Pt.1452) 343 at 367; Iliyasu v State (2015) 1 NWLR (Pt.1469) 26 at 56, 66.” Per Peter-Odili JSC

  1. Confessional statement– Nature of a retracted confessional statement

“The above confessional statement of the respondent was retracted by him in the course of the trial and in such a situation the statement does not become inadmissible and though admissible the weight to be attached to it in utilisation for conviction depends on the confession passing though certain tests which have been encrusted in a plethora of authorities. I shall make reference to the case of Kareem v FRN (NO.2) (2002) 8 NWLR (Pt.770) 664 at P.683 thus:- “Where an accused person resiles from a confessional statement made by him, the statement may still remain voluntary. His conviction upon the statement will depend on:-

  1. a) Whether there is anything outside it to show the statement is true;
  2. b) Whether it is corroborated;
  3. c) Whether the statements made in it of fact so far as they can be tested are true;
  4. d) Whether the accused had the opportunity of committing the offence;
  5. e) Whether it is consistent with other facts which have been ascertained and have been proved”.              Per Peter-Odili JSC
  1. Identification evidence– What is expected of the trial court when confronted with identification evidence

“I agree with the learned counsel for the appellant that identification evidence is evidence tending to show that the person charged with the offence is the same as the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence with which he is charged. I refer this Court to the cases of Ajayi v The State (2014) 14 NWLR (pt.14236) 1 at P.15, paras F-H; Agboola v The State (2013) 11 NWLR (Pt.1366) 619 at p.642, paras B-C; Okanlawon v The State (2015) 17 NWLR (Pt.1489) 445 at pp.472-473, paras H-B; Alufohai v State (2015) 3 NWLR (pt.1445) 172 pp.191-192, paras H-A.

This Court in the case of Archibong v The State (2006) 5 SC (Part.iii) 1 at 8 thus:-

“…Identification in this connection means a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offences charged. It may consist of or include evidence in the form of finger prints, handwriting, voice, identification parades, photographs, identification, or the recollection of the features of the culprit by a witness who saw him in the act of commission of a crime or a combination of two or more of these”. Per Peter-Odili JSC

C. WORDS AND PHRASES

  1. Definition– Meaning of corroboration

“On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic.” Per Peter-Odili JSC


D. CRIMINAL LAW

  1. Alibi– When the defence of alibi crumbles

“It is also trite that once an accused person is fixed at the scene of crime, a defence of alibi will crumble. See: Ehimiyein Vs The State (2016) LPELR  40841 (SC) @ 18-19 B-A; Idiok Vs The State (2008) 13 NWLR (Pt.104) 225; Amaefula Vs The State (2012) LPELR  7943 (CA) @ 64-65 B-D; Ochemaje Vs The State (2008) 15 NWLR (Pt. 1109) 57. Per Kekere-Ekun JSC

  1. Cross examination– Nature of evidence elicited under cross-examination

“The law is quite well settled that evidence elicited under cross-examination is just as potent as evidence given during evidence in chief, if believed by the Court. See: Pius Vs The State (2015) LPELR  2446 (SC) @ 16 A-C; Gaji Vs Paye (2003) 8 NWLR (Pt.823) 583, Akomolafe & Anor. Vs Guardian Press Ltd. (Printers) & Ors. (2010) 3 NWLR (Pt. 1181) 338.” Per Kekere-Ekun JSC

  1. Duty of prosecution– Duty of prosecution in a criminal trial

“It is important to note that in order to establish its case against an accused person beyond reasonable doubt as required by Section 139 of the Evidence Act, the prosecution must prove that the accused person was one of those who committed the offence. Per Kekere-Ekun JSC


  1. Identification Evidence– Example of a guiding principle

“For purposes of identification the established guiding principles included whether in the circumstance of the lighting condition the eye witness was in a good position to see or observe the suspect or Defendant: NDIDI v. THE STATE (2007) 5 SCNJ 286.” Per Eko JSC

  1. Cross examination—Effect of evidence elicited under cross-examination

“There is no principle of the law of Evidence to support this implicit outrageous suggestion that evidence extracted, under cross-examination, from a prosecution witness, which evidence incriminates the accused person or defendant, is irrelevant and inadmissible in evidence. On the contrary, as Tobi JCA (as he then was) puts it poignantly in: OKPOKPO v. UKO (1997) 11 NWLR (pt. 527) 94 at 113; evidence before a Court of law can be procured “from a witness under examination-in-chief, cross-examination and re-examination,” and further Once the Court is satisfied with the veracity of the evidence and the truthfulness of the witness, it will attach probative and evidential value (to the evidence). I know of no law, which attaches more probative or evidential value to evidence procured from examination-in-chief than to the evidence procured from cross-examination. An accused person or his counsel who had procured an inculpatory evidence from cross-examination, a witness is estopped from insisting that such inculpatory evidence does not bind him. It is always advisable to cross-examiners to avoid one-question-too- many that gives the witness an opportunity to come out with incriminating or damaging answers.” Per Eko JSC

  1. Confessional statement—Burden placed on an accused and the court in the event of a retraction

“A retraction, according to Okoro, JSC, in THE STATE v. JAMES GWANGWAN (2015) LPELR  24837 (SC), means saying “that something you have said earlier is not true or correct or that you did not mean it”. Whenever an accused person attempts to retract or resile from his previous statement, that is incriminating, the law casts dual burdens on the accused and the Court. The first, it is incumbent on the said accused person who made the subsequent statement to impeach the earlier statement. The Appellant failed to discharge that burden. The other burden is on the Court to test the veracity or otherwise of both statements, by process of evaluation, to see if the previous statement was in fact and truth made: HASSAN v. THE STATE (2001) LPELR  1358 (SC); (2001) 15 NWLR (pt. 735) 184.” Per Eko JSC


LEAD JUDGMENT DELIVERED BY SANUSI, J.S.C. 


This is an appeal against the judgment of the Court of Appeal Kaduna Division (the lower or Court below) delivered on the 19th of February, 2016 which set aside the judgment of the High Court of Justice, Katsina State (“the trial Court” for short).

FACTS OF THE CASE

The respondent with five other co-accused persons 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. The victim was thereafter shot with a gun which led to his death.

At the trial, the appellant called eight(8) witnesses and tendered several exhibits, while the respondent who was the sixth accused person, testified for himself. At the conclusion of the trial, the learned trial judge found the respondent and the other five co-accused persons guilty as charged and sentenced them accordingly.

Dissatisfied with the judgment of the trial Court, the respondent as the 6th accused person, appealed to the Court below successfully, wherein he was discharged and acquitted. The present appellant not satisfied with this judgment of the Court below, has now appealed to the Supreme Court

In arguing this appeal, the learned counsel for the appellant distilled two issues for determination from the three grounds of appeal contained in the Notice of Appeal. The two issues for determination are set out hereunder:-

  1. Whether there are cogent evidence outside the retracted confessional statement of the respondent (Exhibit 10A and 108) corroborating the said confessional statement warranting him to be convicted for the offence (sic)charged, taking into cognizance the testimonies of prosecution witnesses 1, 2 and 6 and whether his confessional statement would pass the acceptable tests warranting him to be convicted solely on it without a doubt being created in the mind of the Court(Distilled from Grounds 1 and 3).
  2. Whether the lower Court misdirected itself when it held that the quality of the identification evidence by PW6 cannot be said to be credible, positive and direct, but manifestly weak and calls for caution and it is trite that the evidence of PW6 which is deficient weak and insufficient and which must be treated with caution, cannot corroborate the respondent’s retracted confession which requires corroboration (Distilled from Ground 2).

On his part, the respondent’s learned counsel simply adopted the first issue for determination raised by the appellant as reproduced above, which needs not be set out again.

SUBMISSIONS BY LEARNED COUNSEL ON THE ISSUES FOR DETERMINATION

ISSUE NO.1

This issue deals with whether there are cogent evidence outside the retracted confessional statement warranting him to be convicted, taking into cognizance the testimonies of the prosecution witnesses Nos. 2 & 6. The learned counsel to the appellant submitted that going by the testimonies of the prosecution witnesses i.e PW1, PW2, PW5 & PW6, it is apparent that the retracted confessional statement of the respondent is consistent with other facts which have been ascertained and proved. He submitted further, that the fact that an accused person retracts his confessional statement does not mean that the Court cannot act and rely upon same to convict the accused person. He argued that the retracted confessional statement of the respondent can still be used to secure conviction provided there are other conditions that make the said statement probable. He cited the case of KAREEM V FRN (NO.2) (2002)8 NWLR (pt.770)664 at 683. He also submitted that a statement does not become inadmissible merely because there is a subsequent retraction of same by its maker and that a Court can convict even on the retracted statement alone, if it is satisfied that it was made voluntarily. He submitted further, that where there is independent evidence corroborating a retracted confessional statement, the trial judge will be right to infer that the confessional statement was in fact made by the accused and that the attempt to retract same is an afterthought. He submitted further that the decision of the lower Court was perverse and not supported by evidence. He then urged the Court to resolve this issue in favour of the appellant.

ISSUE NO.2

Issue No.2 deals with whether the quality of identification by the evidence of PW6 is weak.

He submitted that it is not envisaged that identification parade must always be held to determine the identity of the persons who commits a crime. He argued that it will not be necessary to conduct identification parade where by his confession as in the instant case, the accused person has identified himself or where there are circumstantial evidence showing his involvement in the commission of the offence. He cited the case of BABARINDE V THE STATE  (2014)3 NWLR (pt.1395). He urged the Court to also resolve this issue in favour of the appellant and to allow the appeal.

As I posited above, the learned counsel to the respondent adopted the 1st issue formulated by the appellant’s learned counsel as his sole issue for determination. The learned counsel for the respondent argued that the appellant has not established any connection, links or nexus with any of or all the exhibits tendered in Court, save for Exhibits 10A & 10B which the respondent had retracted or resiled from making same. He also argued that the respondent was only charged to Court because Idris Abdullahi wrote his name in the list of 16 names said to be the robbers operating in Katsina and Kaduna States and the said Idris was never called to testify as a witness. He argued that the testimony of the said Idris would have helped the trial Court to ascertain the truth of the confessional statement. He argued that Exhibit 10B was not signed by the respondent and as such could not have been used to convict him and that the evidence of PW6 who stated under cross examination, that he recognised the respondent, was not credible or cogent enough to corroborate the said confessional statement.

He also contended that the document can only bind the respondent if he had signed same. He argued that the respondent’s testimony was not challenged during cross examination. He argued that even if the respondent was arrested as alleged, it is clear that the police did not recover the Golf car or Ford bus or any ammunition from him. He submitted that the arrest, prosecution and conviction of the respondent was based on mere suspicion which cannot ground a conviction, more especially when it arose from circumstantial evidence. The learned counsel submitted that the purported confessional statement of the respondent was not corroborated. He cited the case of NGUMA V AG IMO (2014) 7 NWLR (pt.1405)13-14.

On the issue of identification, he argued that identification parade is recommended in the following circumstances:

(a) where the accused was not arrested at the scene of the crime.

(b) where the victim did not know the accused before the offence was committed.

(c) where the offence was committed in the dark

(d) when it is clear that when the offence was committed, the victim or eye witness was traumatised.

(e) when the eye witness or victim fails at the earliest opportunity to name the person to whom he claimed committed the offence.

He therefore submitted that from the evidence of the prosecution witnesses, there is no circumstantial evidence that is cogent, compelling and irresistible to show that the respondent really committed the offence of armed robbery. He argued that apart from the retracted confessional statement, it cannot be objectively said from the totality of evidence before the Court, that the facts stated therein are true that he had the opportunity to commit the offence or that the facts are consistent with other facts established before the Court. He then urged this Court to affirm the decision of the Court below and dismiss the appeal.

It is a well established principle of criminal law that in all criminal cases, the onus of proving that any person committed a crime or wrongful act squarely lies on the prosecution generally, except of course in some special cases or circumstance which do not apply to the instant case. The burden of proof does not shift and the standard of proof is certainly proof beyond reasonable doubt. See Ogundiya v The State  (1991)3 NWLR (pt.181)519.

To establish the burden of proof as required by law, the prosecution can adopt any of the three methods set out hereunder:-

(a) Through evidence of eye witness who witnessed the commission of the offence, or

(b) Through voluntary confessional statement of the accused person or persons; or

(c) By circumstantial evidence.

See Akeem Agboola v The State (2013)LPELR 20652.

In this instant case, it would seem to me that the appellant as prosecutor, relied heavily on the confessional statement made by the appellant i.e Exhibits 10A and 10B in proof of its case.

On the veracity of the confessional statement of the appellant which the trial Court relied upon to convict the appellant, the lower Court stated at pages 303-310 lines 10-15 as follows:-

“Thus, contrary to the finding and conclusion arrived at by the trial Court, I am unable to find any cogent evidence outside Exhibits 10A and 108 corroborating the confession. The trial judge was therefore wrong in finding and conclusion at pages 208-209 of the record that Exhibit 10A and 108 (sic) were corroborated, taking into cognisance, the evidence of PWs 1, 2 and 6. This finding and conclusion is (sic) not supported by the evidence on record the evidence of PW6 which failed to properly establish the identity of the appellant can not corroborated (sic) exhibits 10A and 108”.

In its finding however, the learned trial judge after duly considering the confessional statements of the appellant and the co-accused person, he found as below:-

“The confession of all the accused persons is quite direct and positive and there is ample evidence outside their confessional statement (sic) which is quite credible and corroborative which make it probable that the confession is true and correct taking cognisance of the testimony (sic) of PW1, 2 & 6. Thus this has also satisfied the requirements in the decision of lkpo v State(1995) NWLR (pt.421)540 at 555″.

I am not unmindful of the fact that in this instant case, the respondent had retracted his confessional statement when he testified for his defence. The law is well settled that a voluntary confession alone, is sufficient to ground conviction once it is proved to be direct, positive and unequivocal and amounts to admission of guilt of the offence, even if the accused resiles from making it at the trial. See Usman v The State  (2011) 7 SCNJ 102 at 127/128; Okanlawon v The State (2015)17 NWLR (pt.1489)445 at 478; Alarape v The State (2001) 5 NWLR (pt.705)75 at 98. Perhaps it will be apt at this stage to reflect on the part of the contents of the confessional statement of the respondent (Exhibit 10A) wherein at pages 11 to 13 of the printed record, he stated as below:-

“I joined the gang of Armed Robbery because I knew Mohammed Tukur alias Binga because he was my brother. I knew the people through Abdullahi Idris the time I use to go to Kaduna, he introduced them to me. They are (1) Bello Haro alias Danbuzu (2) Ali Saidu (3) Husani Ibrahim (4)Yusuf Usman (5) all I met with them in Kaduna. …l could remember at the time we are going to Robbery at Gozaki and Sabuwar Kasi in Kafur LGA, I was inside Ford bus which Yusuf Usman was driving, the person driving the red motor I dont know him, but I knew him to be Hausa man. Oga Danbuzu was inside his motor vehicle I dont have arms, but I was holding sword and stick while the rest were holding sticks. We went to the village about sixteen of us the people in the village pursued us where we run and entered our vehicles and drove to D/ma when we reached D/ma, police at D/ma pursued us when we abandoned the red vehicle and escaped with the Ford bus. From then I left my own village called Diba where I was arrested. I was given N20,000 as my share. All the arms were kept inside the red vehicle which was owned by Danbuzu. That is all I can say.”

By the provisions of Section 27(10) of the Evidence Act, confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime. It follows therefore, that once an accused person makes a statement under caution stating or admitting the offence charged, then that statement becomes confessional. See Kasa v The State(1994)5 NWLR (pt.344)209.

The law is trite however, that where an accused person later retracts his confession at the trial, the Courts have evolved a practice that the trial Court must look for some evidence no matter how slight, outside the confession which would makes the confession probable. See Kopa v State (1971) 1 ALL NLR 151; Onochie v The Republic(1966)NMLR 307. This is however a rule of practice meant to discern which of the two versions of the events is likely to be correct for the trial Court to rely on with regard to the commission of the said crime. See Peter Azabada v The State (2014)LPELR 23 101 7(SC).

Where an accused person retracts his confessional statement, that statement still remains voluntary even though it is desirable that the Court looks for corroborative evidence outside the confession to ascertain the truth of such statement. A confessional statement does not become inadmissible or inapplicable simply because it was retracted by the maker since a trial Court can even convict the maker of it even based on it alone once it is satisfied that it was made voluntarily. As I stated earlier, it is desirable for the Court to look for corroborative evidence independent of or outside the said confessional statement. See Kareem v FRN (No.2) (2002)8 NWLR (pt.770)205.

In the present case, the evidence of PW1 Rahama Umar is apt when she stated that she heard shouts in the house at around 2.00AM and that she also saw one of the robbers asking her husband of some money. She again said she heard sound of gun shots and also saw when her husband was shot with gun and he fell down. Similarly, PW2 corroborated all what PW1 stated supra. Again, PW5 testified as to how his men recovered the red Golf vehicle inside which they also recovered some items such as rifle 6 G3 and Pump Action rifle. Also, the confessional statements of the other co-accused persons have duly corroborated the respondent’s confessional statement, Exhibit 10B. Thus, from all the pieces of evidence highlighted above, it can be correct to hold that the respondent’s confessional statement (Exhibit 10B) was duly and properly corroborated, contrary to the perverse finding of the lower Court. The first issue is therefore resolved in favour of the appellant.

The second issue relates to the identification of the respondent. The lower Court questioned the quality of the identification evidence led by the appellant, especially the testimony of the PW6. For instance the lower Court on page 302 lines 15 to 17 found as below:-

“It is trite that the evidence of PW6 which is deficient, weak and insufficient and which must be treated with caution can not corroborate the appellants (now respondents) retracted confession which requires corroboration.”

I have in the fore paragraphs proceeding this, highlighted some pieces of evidence which in my view, satisfied the corroboration required of Exhibit 10B as provided by rule and practice of Courts.

Before delving into the issue of identification evidence led by the appellant proper, I shall pause a little, to highlight what evidence of identification is all about in law.

It is instructive to stress here, that identification evidence is evidence which tends to show that the person charged with an offence is the same person who committed the offence. When a trial Court is faced with identification evidence, it must be satisfied that the evidence of identification has duly established the guilt of the accused/appellant or respondent as in this instant case, beyond reasonable doubt. Admittedly, in a situation where the identification is weak, the trial Court must give the accused person the benefit of doubt and acquit and discharge him of the offence charged. See Ukpabi v State (2004) 11 NWLR (pt.884)439.

Some of the guiding principles for the trial Court to follow in resolving the evidence of identification includes the followings:-

(i). Circumstance in which the eye witness saw the suspect or defendant.

(ii). The length of time the witness saw the defendant/accused.

(iii). The lighting condition

(iv). The opportunity of close observation.

See Ndidi v The State(2007)5 SCNJ 286/287.

In this instant case, evidence abound that all the accused persons were said to have come for the robbery operation with assorted torch lights. And in her testimony in Court, PW6 stated as below:-

“On 22 February 2001 around 2.00pm (sic) the accused came to our house and woke up my child Suleiman who woke up and started crying as they directed him to lead them to his fathers room. I then entered and then entered and asked what happened suddenly I saw the accused person beating the deceased my husband with a stick. And one of them demanded money from me, which I said I had none, and took me to my room and when I came back, I saw them shooting my husband with a gun and removed money. The man of my husband is Umar he is now deceased and that is all.”

She further stated thus:-

…. I can not specifically point any of the accused person that shot my husband. My husband died about 30minutes after the incidence (shooting). They were many but the only one I recognise is the last accused who is light in completion”

From the above piece of evidence that came from the mouth of PW6, she is emphatical that she saw the accused (i.e the respondent) beating her husband with stick. Then PW6 further stated that the accused persons were many but the only one she recognised was the last accused who is light in complexion

It is noted here that the 6th accused happened to be the last accused and is also the present respondent by name Ibrahim Yahaya. It is also in evidence that all the accused persons had torchlight with them during the operation, so lighting was available throughout the operation. The PW6 could therefore be said to be able to identify or recognise the respondent as it was not in darkness at all and also through his natural look when she stated that he is light in complexion. To my mind therefore, the PW6 could be said to have vividly and without any doubt or difficulty recognised the present respondent as one of the accused persons who attacked or robbed them and killed her husband on the fateful date. These pieces of evidence which were neither contradicted nor controverted, knocks the bottom out of the finding of the lower Court that there was no proper identification or that the identification was weak or deficient. Similarly, the PW6 and accused persons prior to the encounter was not obvious at all as would create some doubts in her mind regarding the identity of the respondent herein. Another pertinent point is that the respondent in his confessional statement (Exhibit10B) had adequately and unequivocally identified himself or fixed himself to be present at the scene of the crime and had fully participated in the robbery operation that took place in Sabuwar Kasa village where they shot or caused the death of PW6’s husband on the 22nd February, 2001. I therefore also resolve this second issue in favour of the appellant against the respondent herein.

Now, having resolved both issues for determination in favour of the appellant, the resultant effect of this judgment is that this appeal is adjudged meritorious. It is accordingly allowed by me. The judgment of lower Court is hereby set aside. In its stead, the judgment of the trial Court in which the respondent was convicted as charged and sentenced to death, is hereby restored. In other words, the conviction and sentence of death passed on the respondent is hereby restored.

Appeal allowed.


MUHAMMAD, Ag. C.J.N

I have had the opportunity of reading in draft copy, the judgment just delivered by my learned brother Sanusi, JSC. For the fuller reasons set out in the leading judgment, I am in agreement with his lordship that the appeal has merit and deserves to be allowed. I, too, hereby, allow the appeal. I abide by all orders made in the Ieading judgment.


PETER-ODILI, J.S.C.

I agree with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to register the support I have in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division or Lower Court or Court below, Coram: Habeeb A. O. Abiru, O. A. Adefope-Okojie and Amina A. Wambai JJCA delivered on the 19th February, 2016 discharging and acquitting the respondent from the conviction and sentence passed by the High Court, Katsina State holden at Katsina presided over by Sanusi Tukur J. on 2nd July 2012.

The appellant along with other co-accused person were charged before the trial Court for the offence of 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 fuller details of the facts have been captured in the leading judgment and so I shall not repeat them except for when the occasion warrants a reference thereto.

On the 21st day of February 2019 date of hearing learned counsel for the appellant, Abu Umar Esq. (Senior State Counsel, Ministry of Justice Katsina State) adopted the brief of argument of the appellant filed on 19/7/2016 and in which were formulated two issues for determination, viz:-

Whether there are cogent evidence outside the retracted confessional statement of the respondent (Exhibits 10A and 10B) corroborating the said Confessional Statement warranting him to be convicted for the offence charged taking into cognizance the testimonies of prosecution witnesses 1, 2 and 6 and whether his confessional statement could pass the acceptable tests warranting him to be convicted solely on it without a doubt being created in the mind of the Court. Distilled from Grounds 1 and 3.

  1. Whether the Lower Court misdirected itself when it held that the quality of the identification evidence by PW6 cannot be said to be credible, positive and direct, but manifestly weak and calls for caution and it is trite that the evidence of PW6 which is defiant, weak and insufficient and which must be treated with caution cannot corroborate the respondent’s retracted confession which requires corroboration. Distilled from Ground 2.

Learned counsel for the respondent, Emmanuel Esene Esq. adopted the brief of argument filed on 4/8/16 and in it adopted the questions as raised by the appellant. I shall also use those issues as crafted for my purpose in this appeal.

ISSUE A:

Whether there are cogent evidence outside the retracted confessional statements of the respondent (Exhibits 10A and 10B) corroborating the said confessional statement warranting him to be convicted for the offence charged taking into cognizance the testimonies of prosecution witnesses 1, 2 and 6 and whether his confessional statement could pass the acceptable tests warranting him to be convicted solely on it without a doubt being created in the mind of the Court.

ISSUE B:

Whether the Lower Court misdirected itself when it held that the quality of the identification evidence by PW6 cannot be said to be credible, positive and direct, but manifestly weak and calls for caution and it is trite that the evidence of PW6 which is defiant, weak and insufficient and which must be treated with caution cannot corroborate the respondent’s retracted confession which requires corroboration.

Learned counsel for the appellant advancing the stance the appellant stated that a confession is an admission made any time by a person charged with a crime, stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confession. That it also includes an incriminating admission made that is not direct and positive and short of a full confession. It is a criminal suspect’s oral or written acknowledgement of guilt, which often includes details about the crime alleged or an acknowledgement in express words by the accused person in a criminal case of the truth of the main fact charged or of some essential part of it.

He cited Okanlawon v The State (supra) 478; Gira v The State (1996) 4 SCNJ 95 at 107-108; Ubierho v The State (supra) 655.

Learned counsel for the appellant submitted that where an extra-judicial confession has been proved and established to have been made voluntarily, and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of fact, regardless of the fact that the maker as in this case resiled therefrom or retracted it all together at the trial. He cited Okanlawon v The State (2015) 17 NWLR (Pt.1489) 478; Alarape v The State (2001) 5 NWLR (Pt.705) 75 at 98; Usman v The State (2011) 7 SCNJ 102 at 127-128 etc.

That a confessional statement if admitted and relied upon is part of the evidence adduced by the prosecution. That a confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confession. He referred to Sule v The State (2009) 17 NWLR (Pt.1169) 33 at 60; Okanlawon v The State (supra) at 478; Gira v The State (1996) 4 SCNJ 95 at 107-108; Ubierho v The State (supra) 655.

For the appellant, it was contended that the retracted confessional statement of the respondent passed the test for acceptability by the Court as restated in Kareem v FRN (NO.2) (2002) 8 NWLR (Pt.770) 664 at 683.

That to determine the nature and extent of corroboration the test is to establish that the evidence is independent testimony which affects the accused by connecting or tending to connect him with the crime and the corroborative evidence required need not be direct as it is sufficient if it is only circumstantial. He cited Edhigere v The State (1992) 7 NWLR (Pt.255) 525 at 541.

It was further stated for the appellant that a confessional statement does not become inadmissible or inapplicable merely because there is a subsequent retraction of the confession by its maker. Therefore when an accused resiles from his confessional statement, it is his function to explain to the Court as part of his evidence the reason for the inconsistency. He cited Busari v The State (2015) 5 NWLR (Pt.1452) 343 at 367; Iliyasu v State (2015) 1 NWLR (Pt.1469) 26 at 56; 66; Kareem v FRN (NO.2) (supra) 682.

That while it is true that in a criminal trial the onus is on the prosecution throughout to establish the guilt of the accused person beyond reasonable doubt but for an accused to be entitled to the benefit of doubt, that doubt must be a genuine and reasonable one arising from some evidence before the Court. The case of The State v Aibangbee (1988) 7 SC (Pt.1) 96 at 132 was cited.

On the issue of the identification of the respondent as put forward by the appellant learned counsel contended that there was enough to establish it in this instance including from the confessional statement and therefore no need for an identification parade. He citedAjayi v The State (2014) 14 NWLR (Pt.1426) 1 at 15; Agboola v The State (2013) 11 NWLR (Pt.1366) 619 at 642; Babatunde v The State (2014) 3 NWLR (Pt.1395) 568; Archibong v The State (supra); Alufohai v The State (supra) 192 and 193.

For the appellant, it was concluded that the findings and conclusion of the Court of Appeal stemmed from a wrong approach and the wrong application of the principle of substantive law or procedure. He cited Oguonzee v The State (1998) 4 SC 110.

Learned counsel for the respondent contended that the appellant has not established any connection or link with any or all the exhibits tendered in Court save Exhibits 10A and 10B to the respondent which the respondent even denied making. That the failure to produce Idris Abdullahi to testify 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 that night of incident was fatal to prosecution’s case.

Learned counsel for the respondent submitted that the confessional statement cannot bind the respondent as he did not sign it especially when he had even retracted the same. Also that there was no credible evidence linking the respondent to the commission of the offence and had been established was suspicion which cannot ground a conviction. He cited Abioye v The State (1987) 2 NWLR (Pt’58) 645 etc.

It was also stated for the respondent that there was no evidence corroborating the alleged confessional statements and no evidence of an eye witness account either linking the respondent to the offence. He cited Ajayi v State (2013) 9 NWLR (Pt.1368) 589 at 623 – 624.

In a nutshell the appellant urges for the interference of the Court to disturb the findings of the Lower Court which appellant contends arose from a wrong approach to the law or a wrong application of the principles of substantive and procedural law.

Respondent took a different position with the view that there is no basis to justify the Apex Court’s disturbance of what the Court below did.

I shall recast excerpts of the views of the Court of Appeal as shown at pages 303-310 of the Record of Appeal which are thus:-

“Thus, contrary to the finding and conclusion arrived at by learned trial judge, I am unable to find any cogent evidence outside Exhibits 10A and 10B corroborating the confession. The trial judge was therefore wrong in his finding and conclusion at pages 208-209 of the record that Exhibits 10A and 10B were corroborated; taking into cognizance, the evidence of PWs 1, 2 and 6. This finding and conclusion is not supported by the evidence on record. The evidence of PW6 which failed to properly establish the identity of the appellant cannot corroborate Exhibits 10A and 10B”.

At pages 208-209 of the Record, the Court below had this to say on the confession of the accused person thus:-

“The confession of all the accused person is quite direct and positive and there is ample evidence outside their confessional statement which is quite credible and corroborative which make it probable that the confession is true and correct taking cognizance of the testimony of PWs 1, 2 and 6. Thus, this has also satisfied the requirements in the decision of Ikpo v State (1995) 9 NWLR (Pt.421) 540 at 555”.

The confessional statement of the respondent is majorly stated as follows:-

“…I joined the gang of Armed Robbery because I knew Mohammed Tukur alias Binga, because he was my brother. I knew the people through Abdullahi Idris the time I use to go to Kaduna, he introduced them to me. They are (1) Bello Haro alias Danbuzu (2) Ali Sa’idu (3) Husaini Ibrahim (4) Yusuf Usaman (5) all I met with them in Kaduna I could remember at the time we are going to Robbery at Gozaki and Sabuwar Kasa in Kafur LGA, I WAS INSIDE FORD BUT WHICH Yusuf Usman was driving, the person driving the red motor I don’t know him, but I knew him to be Hausa man. Oga Danbuzu was inside his motor vehicle. I don’t have arms, but I was holding sword and stick, while the rest were holding sticks. We went to the village about sixteen of us… the people in the village pursued us where we run and entered our vehicles and drove to D/ ma. When we reached D/ma, police at D/ma pursued us when we abandoned the red vehicle and escaped with the Ford bus. From there I left to my own village called Duba, where I was arrested. I was given N20,000.00 as my own share. All the arms were kept inside the red vehicle which was owned by Danbuzu. That is all I can say”.

The above confessional statement of the respondent was retracted by him in the course of the trial and in such a situation the statement does not become inadmissible and though admissible the weight to be attached to it in utilisation for conviction depends on the confession passing though certain tests which have been encrusted in a plethora of authorities. I shall make reference to the case of Kareem v FRN (NO.2) (2002) 8 NWLR (Pt.770) 664 at P.683 thus:-

“Where an accused person resiles from a confessional statement made by him, the statement may still remain voluntary. His conviction upon the statement will depend on:-

  1. a) Whether there is anything outside it to show the statement is true;
  2. b) Whether it is corroborated;
  3. c) Whether the statements made in it of fact so far as they can be tested are true;
  4. d) Whether the accused had the opportunity of committing the offence;
  5. e) Whether it is consistent with other facts which have been ascertained and have been proved”.

The question is, can the above retracted confessional statement of the respondent pass the above tests My answer is in the positive. As to the first test, (a) above, it was contended that PW1 one Rahane A. Umar informed the Trial Court that she heard unusual shout in the house around 2:00 am. She also said she saw one of the people asking her husband of money and thereafter she heard gun shots and subsequently falling down as a result of the gun shots. PW2 was Bashir Umar and he informed the Trial Court that he heard some gun shots around 2.00 am, corroborating what PW1 informed the Court. PW5 was Daniel Ado who was formerly at D/ma Divisional Police Headquarters and it was at D/ma that they discovered two vehicles parked and they thereafter pushed the red golf vehicle to their Divisional Police Headquarters; and when the vehicle was searched they discovered a rifle and a pump action rifle among others.

The second test, (b) above would refer to the testimonies of PW1, PW2, PW5 and PW6, the retracted confessional statement of the respondent and the conclusion is that the statement was corroborated. This is so because in Exhibit 108, the respondent admitted going to S/Kasa and was at the scene of crime where there were shots of rifle and knew All Sa’idu, Husaini Ibrahim and Yusuf Usman (his co-accused) and the alleged offence was committed with them. Respondent also admitted that he went to D/ma where they abandoned the red vehicle admitted as Exhibit 4 and escaped with Ford bus, Exhibit 5 which piece of evidence was corroborated by PW5 in his testimony. PW6 also corroborated the confessional statement where she stated that she saw the appellant beating her deceased husband with sticks.

On the third test, (c) above going by what was proved to be outside the said retracted confessional statement the facts stated therein can be tested to be true.

With respect to the fourth test, (d) above, it is clear that the respondent had the opportunity to commit the alleged offence.

As to the fifth, (e) above test taken along the testimonies of the prosecution witnesses, it is apparent that the confession is possible.

On the last test, (f) above, going by the testimonies of the prosecution witnesses, it is apparent that the retracted confessional statement of the respondent is consistent with other facts which had been ascertained and proved.

On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission. See State v Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626; Edhigere v The State (1998) 8 NWLR (Pt.464) 1 at 8; Durugo v State (1992) 7 NWLR (Pt.255) 525 at 541.

Back again to the resiled confessional statement which the respondent has made much of and which he needs be reminded, that the fact of the retraction of a confessional statement does not mean the end of the road of it or that the Court cannot act upon it and rely on it to convict him even if the only evidence. This Court had at numerous occasions stated what the attitude of the Court would be, faced with a retraction of a confessional statement. The Court states that when the retraction takes place at the trial whereby the accused resiles from an earlier extra-judicial statement that the duty is then cast on the accused who is the maker of the statement and then a subsequent duty on the trial judge who is to test the veracity or otherwise of such a statement by passing through the crucible or tests to see if such a statement is correct. That is to say that the statement is 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. See State v Gwangwan (supra) 624 per Okoro JSC; Chiokwe v State (2015) 5 NWLR (Pt.1347) 205; Hassan v State (2001) LPELR -1358 SC at PP 12-13; (2001) 15 NWLR (Pt.735) 174; Mbenu v State (1988) 7 SC (Pt.111) 71 at 82; Busari v The State (2015) 5 NWLR (Pt.1452) 343 at 367; Iliyasu v State (2015) 1 NWLR (Pt.1469) 26 at 56, 66.

The stand of the respondent is that the guilt of the accused person was not made out beyond reasonable doubt contrary to the position taken by the trial Court.

The Lower Court took another turn and held thus:-

“The benefit of doubt, the trial Court ought to have resolved in favour of the appellant, and having failed to do so, this Court is bound to interfere, and in line with the age long principle of law and the directive of the Apex Court in a long line of cases, this Court resolves the doubt in favour of the Appellant”.

The view of the Court below is difficult to accept since from the totality of the evidence there is no genuine doubt established to which the respondent can be given the benefit thereof. Indeed the doubts held by the lower Court are based on speculations which are not known or recognized in our own criminal administration. See State v Aibangbee (1988) 7 SC (Pt.1) 96; Udosen v The State (2007) 4 NWLR (Pt.1023) 125 at 164.

The Lower Court at P.3011, lines 26-28 reasons thus:-

“In the circumstances, the quality of the identification evidence by PW6 cannot be said to be credible, positive and direct, but manifestly weak, and calls for caution”.

The Lower Court went on to reason at page 302, lines 15-17 of the Record of Appeal thus:-

“It is trite that the evidence of PW6 which is deficient, weak and insufficient and which must be treated with caution cannot corroborate the appellant’s retracted confession which requires corroboration”.

The Lower Court went on to attack the evidence of PW6 at page 301, lines 14-25 of the Record of Appeal thus:-

“The witness did not state how she was visually able to identify the appellant at that hour of the night, 2.00 am, she did not say whether there was any lightening, or how closely and for what length of time she observed him, or was it just at a brief glance What was the appellant wearing Is it also to be stated that whatever observation or glance the witness had of the robbers was done in difficult and frightening circumstance. Furthermore, no identification parade was conducted to ascertain whether the witness could identify the appellant in the midst of other light complexioned persons. Additionally, PW1 who was the other eye witness emphatically mentioned both in examination in chief and in cross-examination that she could not identify any of the robbers”.

The answer regarding lighting was given by PW1 where she informed the trial Court under cross-examination (when asked by counsel to the 1st to 4th accused) at page 45, line 9 of the Record of Appeal thus:-

“They all came with assorted Torch lights”.

PW6 testified before the Lower Court as follows:-

“On 22nd February, 2001, around 2:00pm the accused came to our house and woke up my child Suleiman who woke up and started crying, as they directed to lead them to his father’s room. I then entered and asked what happened, suddenly I saw the accused person beating the deceased my husband with a stick.

And one of them demanded money from me, which I said I had none, and he took me to my room and when I came back, I saw them shooting my husband with a Gun and removed money. The name of my husband is Umar, he is now deceased and that is all”.

Under cross-examination PW6 informed the Lower Court thus:-

“Before the day of the incidence, I don’t not know any of the accused persons. Suleiman who is my child as about 16 years old. We were not in the same room with him, I was not even with my husband, I was in my room. I didn’t follow any of them into my husband’s room. I cannot specifically point any of the accused persons that shot my husband. My husband died about 30 minutes after the incidence (shooting). They were many but the only one I recognise is the last accused who is light in complexion”.

I agree with the learned counsel for the appellant that identification evidence is evidence tending to show that the person charged with the offence is the same as the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence with which he is charged. I refer this Court to the cases of Ajayi v The State (2014) 14 NWLR (pt.14236) 1 at P.15, paras F-H; Agboola v The State (2013) 11 NWLR (Pt.1366) 619 at p.642, paras B-C; Okanlawon v The State (2015) 17 NWLR (Pt.1489) 445 at pp.472-473, paras H-B; Alufohai v State (2015) 3 NWLR (pt.1445) 172 pp.191-192, paras H-A.

This Court in the case of Archibong v The State (2006) 5 SC (Part.iii) 1 at 8 thus:-

“…Identification in this connection means a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offences charged. It may consist of or include evidence in the form of finger prints, handwriting, voice, identification parades, photographs, identification, or the recollection of the features of the culprit by a witness who saw him in the act of commission of a crime or a combination of two or more of these”.

It is reiterated at this point that it is not in every case that an identification parade is necessary to determine the identity of the person who committed a crime such as this instance where PW6 was clear as to the role respondent played during the incident and was not in doubt of his presence at the scene of crime, That taken along the confessional statement wherein respondent identified himself with other surrounding circumstances showing his involvement in the commission of the offence, clearly it was the Court of Appeal that took a wrong turn as the trial Court did not miss its way on the identification and the part respondent played in the unholy drama. See Babarinde v The State (2014) 3 NWLR (Pt.1395) 568; Archibong v The State (2006) 5 SC (Pt.11) page 8; Alufohai v The State (2015) 3 NWLR (Pt.1445) 172.

Clearly the decision of the lower Court was based on findings that are perverse and not supported by evidence and the decision thereby reached as a result of this wrong application of the law, substantive and procedural calls for the unfailing intervention by this Court to disturb it. I rely on Oguonzee v The State (1998) 4 SC 110.

The bottom line is that the issues are resolved in favour of the Appellant and that the appeal has merit. Along the same lines as the leading judgment in its well articulated reasoning, I too allow the appeal, set aside the decision of the Court of Appeal as I restore the judgment, conviction and sentence of the trial High Court.

I abide by the consequential orders made. Appeal Allowed.


 KEKERE-EKUN, J.S.C.

I have had the opportunity of reading in draft the judgment of my learned brother, AMIRU SANUSI, JSC just delivered. I agree with him that there is merit in the appeal and it should be allowed.

The Court below reversed the conviction and sentence of the respondent, on the ground, inter alia that there was insufficient identification evidence fixing the appellant at the scene of the crime. It is important to note that in order to establish its case against an accused person beyond reasonable doubt as required by Section 139 of the Evidence Act, the prosecution must prove that the accused person was one of those who committed the offence.

It is also trite that once an accused person is fixed at the scene of crime, a defence of alibi will crumble. See: Ehimiyein Vs The State (2016) LPELR  40841 (SC) @ 18-19 B-A; Idiok Vs The State (2008) 13 NWLR (Pt.104) 225; Amaefula Vs The State (2012) LPELR  7943 (CA) @ 64-65 B-D; Ochemaje Vs The State (2008) 15 NWLR (Pt. 1109) 57.

In the instant case, PW6, who was an eye witness to the killing of her husband, testified that she could only identify PW6 from among those who invaded their house. She said she recognized him because there was light and that he is light in complexion.

It was contended on behalf of the respondent that her evidence ought not to have been believed because it was given under cross-examination. The law is quite well settled that evidence elicited under cross-examination is just as potent as evidence given during evidence in chief, if believed by the Court. See: Pius Vs The State (2015) LPELR  2446 (SC) @ 16 A-C; Gaji Vs Paye (2003) 8 NWLR (Pt.823) 583, Akomolafe & Anor. Vs Guardian Press Ltd. (Printers) & Ors. (2010) 3 NWLR (Pt. 1181) 338.

The trial Court which had the opportunity of seeing and hearing the witness testify, found her evidence to be credible. The respondent’s defence of alibi was therefore debunked.

Furthermore, there was other evidence before the Court which supported the fact that the respondent participated in the armed robbery that led to the death of the deceased. Although he retracted his confessional statement, Exhibit 10A (Hausa version) and 10B (English version) at the trial, there was evidence outside Exhibits 10A and 10B that showed that the facts stated therein were likely to be true. For instance, PW2 testified that on the day after the robbery, the case was transferred to Dutsin ma (D/ma) along with a red Golf vehicle with registration number AU 822 MKA (Exhibit 4) a G3 rifle with rounds of live ammunition and a pump action rifle. He also stated that at the time these items were handed over to him he was informed that the robbers escaped with a white Ford bus. The red Golf vehicle was recovered from where it was abandoned at D/ma. PW3 and PW5 testified that a white Ford bus with Registration Number AE 53 KAR was also recovered (Exhibit 5).

In Exhibit10B, the respondent not only admitted knowing the 2nd 4th and 5th accused, he admitted that he went to Sabuwar Kasa village where the offence was committed and that they were all in the red vehicle which they abandoned at D/ma when they were pursued by the villagers. He stated that after abandoning the red vehicle, they escaped in the Ford bus which was driven by the 5th accused and admitted that there were weapons inside. He stated that he did not have a gun but held a sword and stick. PW6 testified that she saw the accused persons beating her husband with sticks before shooting him.

Having satisfied itself that there was evidence outside Exhibits 10A and 10B which support the prosecution’s case, in compliance with the rule in R. Vs Sykes (1913) 8 C.A.R. 233, followed in: Mumuni Vs The State (1975) 6 SC 66; Musa Vs The State (2018) LPELR — 4346 (SC) @ 13-14 F-D, the Court was right to have relied on the said confessional statement to convict the respondent.

The Court below therefore erred when it set aside the respondent’s conviction.

For the fuller reasons set out in the lead judgment, I also allow the appeal. The judgment of the lower Court is hereby set aside. The conviction and sentence of the respondent by the trial Court are accordingly upheld.

Appeal allowed.


EKO, J.S.C

The facts of the case are set up in the judgment just delivered by my learned brother, AMIRU SANUSI, JSC. I read the judgment in draft and I hereby adopt the summary of the facts.

The Appellant was the 6th Accused at the trial Court. The Pw.6 identified only him out of the several armed robbers who violently invaded their compound in the night and shot dead her husband, Alhaji Umaru Masanawa, the Village Head of Sabuwar Kasa. She, under cross-examination at page 61 of the Record, testified that though the armed robbers were many  the only one I recognise is the last accused who is light in complexion.

The PW’s 1 and 2 testified emphatically that the armed robbers came with assorted torch-lights that night. By this, no doubt, the PW.6 was enabled to see and identify the Appellant. The PW’s 1, 2 and 6, all of whom were at the scene at the material time, heard the gun shots and witnessed the brutal shooting of the deceased village Head, Alhaji Umaru Masanawa. For purposes of identification the established guiding principles included whether in the circumstance of the lighting condition the eye witness was in a good position to see or observe the suspect or Defendant: NDIDI v. THE STATE (2007) 5 SCNJ 286. Upon the emphatic testimony of the PW .6 that she recognised only the Appellant who, as she described him, was light in complexion the probing cross-examination ended abruptly. There was no further effort made to dislodge or discredit her on this piece of witness. Since she was not discredited, the PW.6 was entitled to be believed on this material evidence that fixed the Appellant, not only to the scene of crime, but also to the alleged offence he was charged with.

The evidence of the PW.6 fixing the Appellant to the alleged crime at the material time rebuts the alibi proffered by the Appellant. The PW.6’s evidence is further corroborated by the confessional statements of the Appellant, Exhibits 10A and 10B. In the circumstance l am of the firm view that the Lower Court erred when it held, at pages 300  301 of the Record.

Strikingly, (that PW.6’s) specific identification of the Appellant was not given in evidence-in-chief when the witness had opportunity to state all what she knew or had to say or the matter, but was given in cross- examination who had admitted not ever knowing the Appellant before the incident.

There is no principle of the law of Evidence to support this implicit outrageous suggestion that evidence extracted, under cross-examination, from a prosecution witness, which evidence incriminates the accused person or defendant, is irrelevant and inadmissible in evidence. On the contrary, as Tobi JCA (as he then was) puts it poignantly in: OKPOKPO v. UKO (1997) 11 NWLR (pt. 527) 94 at 113; evidence before a Court of law can be procured “from a witness under examination-in-chief, cross-examination and re-examination,” and further Once the Court is satisfied with the veracity of the evidence and the truthfulness of the witness, it will attach probative and evidential value (to the evidence). I know of no law, which attaches more probative or evidential value to evidence procured from examination-in-chief than to the evidence procured from cross-examination. An accused person or his counsel who had procured an inculpatory evidence from cross-examination, a witness is estopped from insisting that such inculpatory evidence does not bind him. It is always advisable to cross-examiners to avoid one-question-too- many that gives the witness an opportunity to come out with incriminating or damaging answers.

The alibi of the Appellant, which could have cast reasonable doubt on the evidence of the PW6 fixing the Appellant to the alleged crime, was analysed and dismissed by the lower Court (under issue 2) at pages 286  291. The Appellant has not contested that decision in this his further appeal. He therefore accepts the decision.

At the lower Court the Appellant had, unsuccessfully challenged the admissibility of his extra-judicial statements (Exhibits 10A and 10B), that were confessional in nature. At the trial Court he shifted his objection to Exhibits 10A and 10B from their alleged involuntary recording to non est factum. The lower Court found inter alia that Exhibits 10A and 10B were properly admitted in evidence. He raised all his contentions against Exhibits 10A and 10B under issue 1 canvassed at the lower Court. The issue was resolved against him; and he correctly in my view, has not bothered to further appeal on that same issue to this Court.

However, at pages 297 and 298 of the Record, the lower Court had posited that since the Appellant had retracted his making of Exhibits 10A and 10B.

It is desirable that before the Court would believe and act upon the confessional, same must be credible and there should be outside the confession, some evidence however slight to make it probable that the confession was true.

A retraction, according to Okoro, JSC, in THE STATE v. JAMES GWANGWAN (2015) LPELR  24837 (SC), means saying “that something you have said earlier is not true or correct or that you did not mean it”. Whenever an accused person attempts to retract or resile from his previous statement, that is incriminating, the law casts dual burdens on the accused and the Court. The first, it is incumbent on the said accused person who made the subsequent statement to impeach the earlier statement. The Appellant failed to discharge that burden. The other burden is on the Court to test the veracity or otherwise of both statements, by process of evaluation, to see if the previous statement was in fact and truth made: HASSAN v. THE STATE (2001) LPELR  1358 (SC); (2001) 15 NWLR (pt. 735) 184.

In the instant case, the Appellant was quite prevaricatory on his making of Exhibits 10A and 10B. At the trial-within-trial the issue was whether he made the statement voluntarily. The trial Court ruled that he made the statement voluntarily. In his defence testimony in the main trial, in relation to any extra-judicial statements he may have made, his pre-occupation was about the statement he made at Funtua or at the State C.I.D. In his examination-in-chief he maintained that the statement he “made at Funtua was not the one they brought”. Under cross-examination he insisted that the “statement (he) made the state C.I.D was not the one that was brought to Court”. In both instances: Appellant failed to give any particulars of the statements he made either in Funtua or at the State C.I.D. The conclusion of the lower Court that the Appellant retracted Exhibits 10A and 10B is premised on the aforestated imprecise, albeit equivocatory, evidence of the Appellant. Generally, trial Courts do not always, believe the witness who is ambivalent and prevaricatory on any one single issue.

Granted, the Appellant retracted Exhibits 10A and 10B, which I do not accede to; there are pieces of evidence extrinsic to Exhibits 10A and 10B that attest to the truth, not only of the making of the statement, but also the truth of their contents. In the statement he alluded to a Red Golf they used for the crime which car they later abandoned. The PW’s 3 and 5 testified, unimpeached, that an abandoned Red Golf car, wherein dangerous weapons were found, was recovered and pushed to the Police Station. That was after a report of the robbery and the killing of the village Head of Sabuwar Kasa had been made at the Police Station. Also in Exhibits 10A and 10B the Appellant alluded to the white Ford bus they used as their gate-away vehicle. The PW.3 and PW.4 testified that a white Ford bus No. AE 53 KAR, used by the suspects as their gate-away bus was apprehended and brought to the State CID Katsina. The PW. 6’s evidence had fixed the Appellant to the armed robbery and the shooting to death of the deceased. The evidence of the PW1 and PW.2 which corroborate the PW.6 on the violent invasion of the compound of the deceased, his being shot dead, and the robbery also corroborate the contents of Exhibits 10A and 10B.

On the basis of my foregoing analyses and for the fuller reasons contained in the judgment of my learned brother, AMIRU SANUSI, JSC, I cannot agree with the lower Court that some reasonable doubts existed in the prosecution’s case entitling the Accused/Respondent to the benefit of doubt and to be acquitted and discharged for the offence (s) he was charged and convicted for. Accordingly, I allow the appeal, set aside the judgment of the lower Court delivered on 19th February, 2016 in the appeal no. CA/K/281/C/2014, and restore the conviction and sentence of the Appellant by the charge No. KTH/27C/2002.

Appeal allowed.


Appearances:

Abu Umar (SSC, Katsina State Ministry of Justice) with him, Aliyu Sani (SC) For  Appellant(s)

E.I. Esere Ambrose Okhiria with him, Ijeoma Madu, Johnson Ahuruonye and Christopher Odeh For  Respondent(s)