Mohammed V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Sokoto Division hereinafter referred to as the Court below Coram: Hussein Mukhtar, (JCA), Muhammed L. Shuaibu (JCA) and Frederick O. Oho (JCA), delivered on 30th of November, 2017 affirming the judgment of the trial High Court of Sokoto State, sitting in Sokoto presided over by Hon. Justice D. B. Sambo delivered on the 24th day of June, 2014.
Dissatisfied with the said decision of the Court below, the Appellant filed a notice of appeal dated 27th day of December, 2017 containing 3 grounds of appeal urging this Court to set aside the decision of the Court below and to discharge and acquit the Appellant.
The facts found and affirmed by both lower Courts are that:
On the 26/12/2009, the Grand Khadi of Sokoto State, His Lordship Alhaji Abdulkadir Saeed in the company of some friends and/or close associates travelled in a Toyota Sienna minivan or space bus from Sokoto, Sokoto State to Kaura Namoda in Zamfara State for a wedding ceremony. They were robbed on their journey back to Sokoto by the Appellant and others now at large. In the course of the robbery, the robbers shot and killed the Grand Khadi’s Police Orderly, Sergeant Gambo Danga and one Alhaji Abubakar Zaki Tambuwal, a friend of the Grand Khadi.
Following Police intervention and investigation, the Appellant and four other persons were arrested in connection with the robbery. They were charged with three counts before the trial Court for the offence of committing an Illegal act by means of armed robbery under Section 97 of the Penal Code, the offence of armed robbery punishable under Section 298 (C) of the Penal Code, as well as the offence of Culpable Homicide punishable with death under the provisions of Section 221 (b) of the Penal Code.
The Appellant pleaded not guilty to the various counts of the charge on 23rd July, 2013. In proof of its case, the prosecution called nine (9) witnesses. They are Ahmed Abubakar (PW1), Sgt. Uma Tahir (PW2), Sgt. Mohammed Usam (PW3), Cpl. Abdullahi Shuaibu (PW4), ASP Mohammed Sambo (PW5), Cpl. Sheidu Illiyas (PW6), DSP Gali Na Kambo (PW7), Inspt. Bakiru Usman (PW8) and Inspt. Mode Abubakar (PW9).
In the course of the trial, the Appellant resiled from his extra-judicial statement made to the Police and challenged the admissibility of same. The trial Court however, admitted same in evidence on the basis that it was not its voluntariness that was challenged and the issue raised concerning the statement goes to weight and not admissibility.
Judgment was delivered by the trial Court on 24th of June, 2014 wherein the Court found the Appellant guilty and sentenced him to death by hanging. While the other two (2) surviving Defendants who stood trial with the Appellant were acquitted & discharged, only the Appellant was convicted on all the 3 counts of conspiracy, armed robbery and culpable homicide punishable with death. The defendant who was identified as the leader of the gang died in prison custody awaiting trial.
Dissatisfied by the decision of the trial Court, the Appellant appealed to the Court of Appeal. By an amended Notice of Appeal, the Appellant raised three (3) additional Grounds of Appeal, contending that the learned trial Judge erred in law in admitting certain Exhibits and holding that the case against the Appellant was proved beyond reasonable doubt and thereby convicted and sentenced the Appellant to death.
At the Court of Appeal, the Court decided that the mere fact that the Appellant retracted Exhibits P4 and P4A, did not mean that the learned trial Court could not have acted on the statements especially having successfully tested the truth of the confessions against the guidelines issued by the Court in R v. Skyes and further held that three constituents of the offence of armed robbery were proved to the hilt against the Appellant. The Court below thereafter affirmed the conviction and sentence of the trial Court.
Dissatisfied with the judgment of the Court below, the Appellant has filed an appeal to this Court on 27/12/2017.
In the brief settled by Dr. Ehiogie WEST-Idahosa for the Appellant, Learned Counsel distilled two issues for determination to wit:
- Whether from the totality of evidence adduced before the trial Court, the lower Court was right in affirming the judgment of the trial Court that the prosecution proved the offences charged against the Appellant upon credible and legally admissible evidence as to warrant his conviction and death sentence, (Distilled from Ground 1)
- Whether the lower Court was right in affirming the nature of identification of the Appellant by PW1 when the said identification process did not comply with the essential proper identification laid down in Ikemson v. State (1989) 3 NWLR (Pt. 110) Pg. 455 @ 475 (SC). (Distilled from Ground 2)
The learned Counsel for the Respondent, Mr. Paul Kasim is of the view that the only sustainable issue for determination is the 2nd issue as couched by the Appellant’s Counsel. Be that as it may, there is no doubt that issue two can be subsumed in issue one and a thorough consideration of same will explore all the complaints by the Appellant against the judgment of the Court below. I have couched the sole issue for determination in the following terms.
SOLE ISSUE
Whether from the totality of evidence, the lower Court was right in affirming the judgment of the trial Court that the prosecution proved with credible and admissible evidence the charges levelled against the Appellant for which he was convicted and death sentence imposed on him.
Learned Appellant’s Counsel argued that from the evidence adduced by the prosecution, there exists a doubt, such doubt must be resolved in favour of the defendant as re-affirmed in Orji v. State (2008) 10 NWLR Pt. 1094 Pg. 31; Omoyele v. State (2014) 3 NWLR Pt. 1394 Pg. 232 @ 236.
Counsel argued that there is doubt regarding the identification of the Appellant because it would be unreasonable to believe the star witness — PW1 actually saw what happened during the robbery operations in view of some discrepancies in his testimony regarding when the robbers left the scene of crime and the identity of the Appellant.
Secondly, learned Appellant’s Counsel argued that Exhibits P4 & P4A, the confessional statements of the Appellant should never have been given any weight by the trial Court. Counsel argued that the evidence of PW4 and PW5 conflict in the circumstances under which the statements were obtained from the Appellant. The complaint of the Appellant is that there is conflict regarding which senior Police officer between PW4 or PW5 endorsed Exhibits P4 & P4A, after the Appellant made the statement to PW4. Counsel argued that both versions go to the root of Exhibits P4 & P4A which were challenged by the Appellant during trial as incorrect. The contradiction lends support to the challenge of the correctness of the Exhibits by the Appellant during trial. Learned Appellant’s Counsel argued that the proper thing for the trial Court to have done in the circumstances was to reject the Exhibits as improperly obtained or where it admits them, it should have placed no probative value whatsoever on them being manifestly unreliable due to the most questionable circumstances under which they were obtained.
Counsel also submitted that the failure of the State to comply with Rule 7 of the Criminal Procedure (Statement to Police officers) Rules — made pursuant to Section 373 (1) (f) of the Criminal Procedure Code, Cap 491 Laws of the Federation Nigeria (applicable to Northern Nigeria). Counsel submitted that in taking the statement, Rule 7 (2) of the said Rules was contravened, since it is applicable to Sokoto State. Counsel submitted that in spite of the use of the word “may” in the rule, this Court should interpret the rule strictly in favour of the Appellant to hold that Exhibits P4 & P4A are legally inadmissible in the circumstances and should be expunged from the record. Counsel cited Omoyele v. State (2014) 3 NWLR Pt. 1394 Pg. 232 @ 249; S. A. & Ind. Co. Ltd v. Ministry of Finance Incorp (2014) 10 NWLR Pt. 1416 Pg. 515 @ 522; Ude v. Nwara & Anor (1993) 2 NWLR Pt. 278 Pg. 638.
Learned Appellant’s Counsel also submitted that even though during Police investigation, a proper identification parade was conducted, the Appellant was not identified as one of the robbers by PW1, the prosecution’s star witness. However, the acceptance by the Court of the identification in open Court of the Appellant was erroneous and has led to a miscarriage of justice. Learned counsel submitted that the evidence of PW1 on the identity of the Appellant created doubt to be resolved in favour of the Appellant.
Learned counsel argued that the failure of PW1 to identify the Appellant at the identification parade and the subsequent dock identification of Appellant in open Court by PW1 did not conform with the essentials of proper identification known to law and therefore entitles the Appellant to be discharged and acquitted.
The Respondent in the brief settled by Paul Kasim, Esq. urged this Court to strike out Ground 1 of the Notice of Appeal. Counsel submitted that it is wrongly couched in that instead of the acceptable criminal omnibus ground of appeal from which no specific issue of law or fact should be extracted, the Appellant framed a civil omnibus ground of appeal, thus that ground of appeal is incompetent and issue one which flows from it should be struck out. Counsel cited Wankey v. the State (1993) 5 NWLR Pt. 295 Pg. 542 at 551 & 552; Pwajok v. Nyam (1994) 2 NWLR Pt. 324 Pg. 81 at 91; Calabar East Co-op. v. Ikot (1999) 14 NWLR Pt. 638 Pg. 225; Henkel Chemicals Ltd. v. A. G. Ferrero & Co. (2003) 4 NWLR Pt. 810 Pg. 306 at 317-318, 327; Ndiwe v. Okocha (1992) 7 NWLR Pt. 252 Pg. 129 at 139-140; Ahmed Abdullahi v. Alfa Oba (1998) 6 NWLR Pt. 554 Pg. 420 at 428; Akinlagun v. Oshoboja (2006) 5 SC Pt. 11 Pg. 100; and Osolu v. Osolu (2003) 6 SC Pt. 1 Pg. 1.
Learned Respondent’s Counsel further argued that the extra-judicial statement of PW1 was never tendered as evidence to prove that PW1 never identified the Appellant to the Police when the issue was fresh. Counsel argued that the extra-judicial statement of the PW1 should have been tendered by the Appellant. Having failed to tender same to proof that PW1 did not mention his name ab initio, the Appellant cannot complain now about that situation.
Learned Respondent’s Counsel conceded that it is the duty of the prosecution to prove that the Appellant conspired to, committed armed robbed and caused the death of two persons during the robbery. Learned Counsel submitted that the inconsistency in the evidence in chief of PW1 at the trial was clarified under cross-examination and the issue of incompetent or unlawful identification does not arise. From the evidence of PW1, it is clear that the witness insisted that he saw the Appellant at the identification parade but did not identify him as the Police asked him to identify only the person who killed the deceased persons.
Counsel submitted that the Appellant had the opportunity to cross-examine PW4 and the other Police investigators on whether the PW1 lied by saying he was only asked to identify the shooter. However, the Appellant failed to do this. He is therefore deemed to have accepted the truth of PW1’s evidence.
The Respondent’s counsel submitted that the identification of the Appellant in open Court in the dock where it is definite and positive by an eye witness as in this case is better than a formal identification parade organized and put in place by the Police. Counsel cited Bolanle v. The State (2005) INCC 342; Adamu v. The State (1991) 4 NWLR Pt. 187 Pg. 530.
Learned counsel argued that the confessional statement of the Appellant which was a direct & positive admission of guilt was enough to ground his conviction. Counsel cited Solola v. The State (2005) 3 QCCR 160 at Pg. 188; Bature v. The State (1994) 1 NWLR Pt. 320 Pg. 267 at 285-286; Edhigere v. The State (1996) 8 NWLR Pt. 464 Pg. 1 at 13.
Counsel argued that in the instant case, corroboration for the contents of Exhibit P4A was provided by the evidence of PW1 which lent credence to the confessional statement and is consistent with the other facts already ascertained in the evidence of PW1. Also, Exhibits P7 and P8 which were medical reports on cause of death of Alhaji Zaki Amali Tambuwal and Sergeant Danga, clearly showed that they died of gunshot wounds, a fact corroborating the use of a gun at the scene of the crime. All these pieces of evidence proved beyond reasonable doubt that the Appellant was one of the robbers who committed the offences charged in this case and shows that PW1 could not have been under any mistake in identifying him.
OPINION ON SOLE ISSUE
My Lords, I will resolve the issue of the validity of ground 1 first. An omnibus ground of appeal is a general ground of appeal in either a civil or a criminal appeal. On appeal, the ground postulates that there was no evidence which if accepted would support the findings of the trial Court or the inference which is made. It always has to do with evaluation of evidence by the trial Court. It is usually not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error of law. In couching an omnibus ground of appeal in criminal appeals, the words used are traditional “the judgment or decision is unwarranted or unreasonable and cannot be supported having regard to the evidence adduced.” This is because in a criminal appeal, the relevant consideration is not the preponderance of evidence on one side which outweighs the evidence on the other side. On the other hand, in civil appeals, the omnibus ground is couched as follows: “the judgment or decision is wrong having regard to the weight of evidence.” see Shehu v. The State (2010) LPELR-3041 (SC), (2010) 8 NWLR Pt. 1195 Pg. 112; Sparkling Breweries Ltd & Ors v. Union Bank (2001) LPELR-3109 (SC), (2001) 15 NWLR Pt. 737 Pg. 539; Ali v. The State (1988) 1 NWLR Pt. 68 Pg. 1; Akinlagun v. Oshoboja (2006) LPELR-348 (SC), (2006) 12 NWLR Pt. 993 Pg. 60; Ogunleye Sanmi v. The State (2019) LPELR-47418 (SC).
A criminal appeal on the facts is not quite the same as an appeal against the facts in a civil case. In criminal cases, the Court does not embark on weighing of evidence as such since the prosecution has the legal and evidential burden to prove its case beyond reasonable doubt.
In this case, the first ground of appeal complained against as stated on pg. 234 of the record is that “The decision of the lower Court affirming that of the trial High Court is against the evidence before the Court.” I can find no error in the way that omnibus ground has been couched. It has been held that the offensive word is “weight” where the word was inserted in the omnibus ground of a criminal appeal. See Shehu v. The State (Supra).
In the circumstances, the Respondent’s complaint against the omnibus ground of appeal from which Appellant’s issue one was derived is misconceived and is of no moment.
Both parties agree and are not in dispute regarding the facts as stated before in this judgment which include the fact that there was a robbery and that the robbery was armed robbery. Similarly, it is not disputed that the prosecution in this case proved that Sergeant Gambo Danga and Abubakar Zaki Tambuwal died and that whoever killed both of them caused their death intentionally by shooting them with knowledge that death or grievous bodily harm or hurt was the probable consequence of that action. What the Appellant is contesting is his identification as one of the robbers and killers.
The issue for determination here which is the basis of the complaints of the Appellant are twofold. The appeal has been fought on two fronts. The veracity or probability of Exhibits P4 & P4A and the reliability of the identification of the Appellant in the dock. The Appellant’s complaint is regarding the admissibility of Exhibits P4 & P4A in view of the contradictory evidence with regard to which Superior Police Officer had endorsed the statement. The 2nd complaint is that the identification of the Appellant in the dock (and not by identification parade) by the star eye witness — PW 1 was irregular and should have been rejected by the trial Court.
On the issue of whether or not in the circumstances of this case, an identification parade was necessary, I agree with the Appellant’s Counsel that since the Appellant was unknown to the witness prior to the incident, it was necessary that a proper identification parade should be conducted to identify the perpetrators of the crime. The arguments of the learned Respondent’s Counsel in paragraphs 4.17 and 4.18 of the brief to the effect that the law is settled that a definite and positive identification of an accused by an eye witness to the commission of the offence in the dock is the best form of identification and is better than a formal identification parade organized or put in place by Police, is completely misconceived. The two cases cited by learned Counsel did not state that proposition of law. The law is that where the Defendant is caught at the scene of crime and is immediately or so soon thereafter identified by an eye witness or the victim, there is no need for an identification parade. Also where the victim or eye witness knew the Defendant well before the incident and told the police immediately who he/she could identify as the perpetrator, there is no need for an identification parade. Where the Defendant was not arrested at the scene of crime, where he was not identified by someone who knew him before the crime was committed, but was arrested much later due to Police investigation, the Police are obliged to obey all the rules of proper identification laid down in Ikemson v. The State (1989) 3 NWLR Pt. 110 Pg. 455 at 472. In the circumstances of this case, the Police were obliged to conduct proper identification parade to enable eye witnesses to fish out the offender(s). In fact, an identification parade was conducted and the star witness — PW1 failed to pick out the Appellant as one of the assailants. However, when asked to do so in open Court while Appellant was in the dock with four (4) others, he was able to do so.
Under cross-examination on oath, PW1 stated as follows on page 43 of the record:
“I was the driver of the motor vehicle attached (sic) on that date. I saw 4 people among the armed robbers. I am a Muslim and we are on fasting presently.
It is true. I said I saw the 1st accused person on that date of armed robbery.
I did not see the 2nd accused person. I did not see the 5th accused person neither I cannot say if the time of incidence. And my giving statement at CID it was two 2 weeks interval.
The date the robbery took place, was on 26/12/2009. It is true on 13/01/2010 I gave my statement at CID, and barely 1 month, I was invited for the identification of the suspects by the time I was invited the incident was still fresh in my mind. It is true I identified only one person at CID and if I see the person who attacked us, I can identify him including one other who came near our vehicle that date.
I will be surprised if I am told that what I told them in Court is not the truth. I could not identify 1st accused at CID but have done so today because at CID I was asked who shot at us and that is why I did not point at the 1st accused person there and then.
At the CID I was asked to identify the 1st person who shot at us that day that is why I identified the person.
I will not be surprised to be told that the 1st accused person was among the suspected (sic) paraded for identification at CID office.
At CID I was only asked to point out the person that shot at us and that is why I identified the person.
The 1st accused person was one of the participants.”
I have to agree with the argument of learned Respondent’s Counsel that by the foregoing evidence elicited under cross-examination, PW1 was not only certain that the Appellant as 1st Defendant at trial was one of the persons who committed the offences but that his focus at the identification parade was the person who shot at the victims as that was the person he was asked by the Police to identify. The argument of the Respondent is that PW1 had utilized the opportunity during cross-examination to clarify and explain the lacuna in the identification which was created by his evidence in Chief.
On this issue, the Court below held as follows on page 228 of the record:
“It will be recalled that in the instant appeal, the PW1 and victim of the robbery right there at the scene of crime saw and identified the 1st Accused who is the Appellant in this appeal as one of the robbers who laid siege to the public highway on that fateful day shooting, killing and robbing the road users. It will be further recalled that the PW1 also identified the Appellant in Court and which (sic) the Court below. It is important to note that the spontaneity with which the PW1 had recognized the Appellant in open Court is one that cannot be easily wished away as one of those who robbed them on the fateful day. Here was a situation in which the PW1 had clearly told the police at the earliest opportunity that he was in a position to recognize some of the robbers who attacked them at the time of making his statements and went the extra mile to give a description of the Appellant. The settled position of the law is that a spontaneous and positive identification is better than a formal identification parade by the police. The best identification therefore remains the prompt one by the victim or the people who witnessed the commission of the crime. See the case of ADAMU v. THE STATE (1991) 4 NWLR (PT. 187) 530.”
My Lords, the above is a complete misstatement of the law. The issue of spontaneity in identification can only come in where the defendant was identified by the victim who stated the name of the offender immediately to the Police after the crime was committed.
The identification of a defendant already in the dock (fettered or not) cannot be said to be spontaneous. It can be said to be spontaneous where the Appellant was arrested at the scene of crime or very soon thereafter and the victim or eyewitness was able to say with certainty that the Appellant was the offender. In this case, the incident took place on 26/12/2009, the identification parade was conducted on 28/1/2010, more than a month later. PW1 identified the Appellant in the dock on 23/7/13, more than two (2) years later. In Orimoloye v. The State (1984) 10 SC 138, which was also a case of robbery in which PW1 and PW2 recognized the Appellant at the time of the commission of the offence and gave evidence to that effect. PW1 who had received treatment after the robbery for gunshot wounds was taken by the police to the police station and as soon as he caught sight of the Appellant he pointed at him as one of the robbers who had fired at him in the early hours of the day. A spent cartridge was recovered by the police at the scene of robbery. This Court was satisfied that the Appellant was rightly convicted without a formal identification parade.
In the circumstances of this case, PW1 — the star witness who said he saw the Appellant at the scene of crime on the day in question never described the features of the Appellant as being tall and fair to the Police prior to the identification in the dock. If this had been done, it would have reinforced the case of the Respondent at trial. PW1 from his evidence at trial never met or knew the Appellant before the incident, there were several criminals involved in the robbery, the Appellant was not arrested at the scene of crime, the Appellant was not identified by PW1 during the identification parade conducted by the police. The same witness had no difficulty in identifying the 3rd Defendant during the very elaborate identification parade in which the persons arrested were reshuffled several times to ensure the credibility of the identification parade. I believe that the police conducted a credible identification parade and the Appellant was not identified by any of the victims/eye witnesses. In such a circumstance, there is no justification to validate a flawed identification of the Appellant in the dock. See Ugwu v. State (2020) LPELR-49375(SC) Pg. 25-27 paras. D; Agboola v. State (2013) LPELR-20652(SC) Pg. 27-28 paras. F, 11 NWLR Pt. 1366 Pg. 619; Adebayo v. State (2014) LPELR-22988(SC) Pg. 36-37 paras. E; Ogoala v. State (1991) LPELR-2307(SC) Pg. 13 paras. A, 2 NWLR Pt. 175 Pg. 509.
The two (2) lower Courts accepted the explanation of PW1 set out above that he only identified the 3rd defendant — Mainasara Adamu during the identification parade because he was the only one who shot the two deceased victims of the robbery. The fact that the matter was very serious, in which two people known to him had died does not make the statement of P.W. 1 less believeable in the circumstances. We must consider situations the way a common man would. If the Police told the witness to identify only the persons who shot at the victims, that was what he did. Most common people would feel bound to obey Police instructions. It is relevant to note that the confessional statement of the Appellant stated that he carried a cutlass not a gun on the day in question.
Heavy weather was made by the Appellant’s counsel on the admissibility of Exhibits P4 & P4A. My Lords, in admitting the documents in evidence despite the contradiction in the evidence of PW4 and PW5 regarding who actually was the Superior officer in charge on the day the Statement was taken, the learned trial Judge rightly held that since the only objection ab initio to the admissibility of the statement is that the Appellant did not make it and that PW4 was not the Senior Officer who endorsed it, the Court would admit it as relevant but consider the ultimate weight to be attached to it. At the time the statements were tendered in evidence through PW4, the Respondent did not challenge the voluntariness of the statements or deny making them. All that his counsel did was to challenge the ownership of the signature of the Superior Police officer who signed the statement. No doubt there was no objection at trial to the admissibility of the Appellant’s confessional statement on the basis of voluntariness pursuant to Section 29 of the Evidence Act.
While PW4 claimed to have taken the statement of the Appellant which was endorsed by a Superior police officer — one ASP Ibrahim Ignatus, it turned out ASP Ignatus did not do so and the statement was in fact endorsed by ASP Mohammed Sambo.
In any event, discrepancies in evidence as to which superior police officer endorsed Exhibits P4 & P4A are not enough to tarnish or diminish the case of the prosecution. The rule regarding endorsement of a confessional statement is part of the Judges’ Rules and is one of best practices rather than law. It is to ensure the voluntariness of a confessional statement obtained from the accused by the Police by the additional endorsement of a superior police officer who would have questioned the accused to find out if he volunteered the statement before endorsing same. The law is settled that it is a mere administrative practice and non-compliance will not render the statement inadmissible. See Ehimiyein v. State (2016) LPELR-40841(SC) Pg. 32 paras. B, Pg. 25 paras. A, 16 NWLR Pt. 1538 Pg. 173; Tope v. the State (2019) LPELR-47837 (SC). The most important consideration here is that the statement was never challenged for its voluntariness which would have made the issue of who interviewed the Appellant and counter-signed or endorsed his confessional statement relevant. From the word go, the statement was retracted on the basis that the Appellant never made any statement to the Police and the police gave wrong evidence regarding the superior officer who counter-signed it. That is not legal justification to reject the statement or to attach no probative value to it.
I agree with the two Courts below that the type of objection raised does not go to the admissibility of the statement but to the weight to be attached to it.
In respect of the credibility to be attached to the confessional statement of the Appellant, on this point, the Court below held as follows on pages 230—231 of the record:
“That learned Appellant’s Counsel had produced a very incisive and formidable brief of argument in challenging the lower Court’s decision is not in doubt. But the failure to have challenged and confronted material points in an opponent’s case is a major setback to the Appellant’s appeal even at this stage of this case …
In the final analysis, this appeal fails. The mere fact that the Appellant did subsequently retract the Exhibits P4 and P4A as the facts and circumstances of this case has shown, does not necessarily mean that the learned trial Court could not have acted on the statements more so when the Court successfully tested the truth in the confessions against the guidelines issued by the Court in the case of R. vs. SYKES (Supra)…
On pages 18—19 of the record, the Appellant stated in Exhibits P4A as follows:
“I am a farmer and at the same time (I am) a musician. I could remember two years ago, I started stealing domestic animals within our locality. But one year ago I engaged myself into the gang of armed robbers, I was in the gang due to the influence of my friends which include (1) Chaina (2) Mainasara Zangon Araf (3) Mai Wake Gidan Chikel (4) Sani Wanzan Gidan Cikel and (5) Tunau Zangon Araf. The first armed robbery that we do with aforementioned people is that of Sokoto — Is a road before reaching Gindimi village. On that very time, we block the road and attacked one bus which is conveying over ten passengers and we also block one car whit (sic) in colour which is conveying two police men, the driver and one other. Non (sic) of the passengers was killed in the bus but we collected cash about one hundred thousand naira (N100,000.00k) and I was given twenty thousand naira (N20,000.00k) out of it. Though I don’t know weather (sic) some of us collected handsets. While the other car that conveyed the police man we were lucky to stopped it. But when we sighted one of the police men is trying to escape Mainasara open fire and shot him with the riffle that he is handling. Mai Wake is the one that shot the other police man who is in the vehicle and the person who is seating (sic) beside the driver of the car. That time, I was holding a sharp cutlass not riffle, After we killed them. Mainasara took the two riffles of the policemen. As I demanded one of the two riffles, Chaina say I am a villager they will not give me. We used a locally made gun and pistol for the first armed robbery which we were made by one blacksmith by name Natiddi and he is the one that supplied us with ammunition, Chaina is the custodian of the arms after operation. He do keep them in the sillo. Apart from this armed robbery, I stopped following them, but l heard they are going for the robbery. We are using two Kafia Motor Cycle for operation and each motor cycle is carrying three people. On 11/1/2010 at about 1500hr I was arrested to S/Birni police station with stolen m/cycle. On reaching there, I made a statement as above. Lastly, I don’t want talk about the stolen Lancin m/cycle, I only want the issue of armed robbery because I know it is capital offence. I am pleading to the authority to have mercy on me that is all my statement.”
It is settled that where the confession of an accused is a direct and positive admission of guilt, it can be used solely to convict him. See Solola v. The State (2005) 3 QCCR 160 at Pg. 188; see also Bature v. The State (1994) 1 NWLR Pt. 320 Pg. 267 at 285-286; Edhigere v. The State (1996) 8 NWLR Pt. 464 Pg. 1 at 13.
From the evidence adduced by the prosecution and the judgments of the Courts below, I am persuaded that the confession by the Appellant was comprehensive and it passed the credibility or probability tests. Both Courts tested the truth of the confession to ensure the probability of the details contained therein.
The quality and veracity of the confessional statement was not in doubt. Exhibits P4 & P4A was a direct and positive confession to the crimes for which the Appellant was charged. It is to be noted that the Appellant did not confess to carrying a gun but that he carried a cutlass on the day in question. The law is that his presence as a participant with others on the day of the incident shows not only that he conspired but was a participant in the commission of the offence and he is as guilty as the persons who pulled the trigger and caused the death of the deceased persons.
The two (2) lower Courts studiously avoided any reference to the implications of Section 373 (1) (f) of the Criminal Procedure Code Act Cap 491 (Laws of the Federation) for Northern Nigeria which is applicable to Sokoto State. Pursuant to Section 373 (1) (f) the said Code, the Criminal Procedure (Statements to Police Officers) Rules was enacted and is contained in Appendix C to the said Act. Rule 7 (1) states as follows:
Where the person is an illiterate, the statement may be read over or interpreted to him apart by some person other than a police officer and anything said to such reader by such person when the statement is read shall not be admissible in evidence against him.
Rule 9 provides for the significance of non-compliance thus:
Except as provided in the Evidence Act, no Statement made to a police officer by a person against whom he has decided to make a complaint shall be admissible in evidence in any Court unless such statement is made in accordance with these Rules.
The question here is whether that subsidiary legislation in the Criminal Procedure Code can stand in the face of Section 14 of the Evidence Act. Section 14 of the Evidence Act provides as follows:
- Evidence obtained
(a) Improperly or in contravention of a law; or
(b) In consequences of an impropriety or of a contravention of a law,
Shall be admissible unless the Court is of the opinion that the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.
In the circumstances, it was the discretion of the learned trial Judge to exclude or include the improperly obtained evidence in form of the confessional statement of the Appellant. The Evidence Act is the legislation specific for Evidence in Nigeria. It is superior to all other legislations on that behalf. Section 28 and 29 of the said Act deals with when a confession is relevant in criminal proceedings. The Appellant has not claimed that any of the circumstances which make the confession inadmissible was present in this case.
I am of the view that the trial Court was right to have admitted the confessional statements of the Appellant.
I am of the view that the statement of the Appellant was sufficient to ground his conviction by the trial Court and its affirmation by the Court of Appeal. In the circumstances, I affirm the judgment of the Court below which affirmed the conviction and sentence of the Appellant to death for culpable homicide punishable with death and armed robbery.
Appeal dismissed.
SC.63/2018
