Basiru Nalado V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The appellant and two other accused persons, Sirajo Muhammad (Dandos) and Nura Sabo were tried on a two count charge of robbery under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 as amended. They were convicted and sentenced to death based on their confessional statements which were admitted as Exhibits “A, “B” and “C”. Nine witnesses testified in the trial. All the accused testified.
The appellant gave evidence as DW4 and called Nalado Adamu (DW 9) who testified on his behalf. Nura Sabo (3rd accused) testified as DW2 while Garba Ibrahim (DW1) and Shamsu Namadi (DW 6) testified in his favour and Sirajo Muhammad Dandos (2nd accused) testified as DW3 while Umaru Abdussamad (DW 5) Sarkin Aska (DW 8) testified on his behalf.
In his judgement delivered on 26/11/2006, S. A. Mahuta CJ Katsina State did not find any corroborative evidence in support of Exhibits “A, “B”, “C” but inspite of this held as follows: –
“it is also my candid opinion that based on the confessional statements of the accused
1
persons as contained in Exhibits “A”, “B” and “C” the Court is left in no doubt that the accused persons committed the robberies of 29th January, 2002 and the one in April of the same year.”
The appeal to the Court below was dismissed, hence the further appeal to this Court. The appellant filed his Notice of Appeal containing 8 grounds from which he distilled the following two issues for determination:-
- Whether in the face of the appellant’s unchallenged evidence of how his confessional statement was extracted from him the Court below was in error in affirming the learned trial Judge reliance on the confessional statement alone to convict and sentence the appellant for armed robbery. Grounds 1, 2, 3, 6 and 7.
- Whether the Court below was in error in holding that the learned trial Judge properly evaluated the evidence before him in convicting the appellant and sentencing him to death for armed robbery. Grounds 4, 5 and 8.
On issue 1, the appellant submitted that the appellant was not cross-examined in the trial within trial over his claim that he was beaten, shot at and shown a dead body before he was forced to thumbprint Exhibit “A”.
2
While conceding that the inadmissibility of Exhibit “A” may no longer be open to the appellant, he argued that since there was unchallenged evidence that his thumbprint on Exhibit A was preceded by gruesome torture, it imposed a duty on the two Courts below to look for corroboration, no matter how slight showing that Exhibit A was true.
Learned counsel for the respondent submitted that a confessional statement which is found to be direct, positive and unequivocal as to the admission of guilt by an accused person is enough to ground conviction even without any form of corroborative evidence. He said that the confessional statement contained in Exhibit A is quite enough to ground conviction of the appellant because it satisfied all the requirements of the law as it was subjected to trial within trial on the claim by the appellant that he was tortured, beaten and shot with a gun before thumb printing the statement. The statement was carefully scrutinized before the learned trial Chief Judge relied on the contents to convict the appellant. He further submitted that Exhibit A passed the test prescribed under Section 27 of the Evidence Act which defines a
3
confession and in view of the lack of evidence of shooting by the appellant, the learned trial Chief Judge had to rule in favour of the prosecution.
The appellant testified as DWC in the trial within trial and said: –
“I did not give any statement to the Police. All I know a paper was brought and I thumb printed on it. It was also 3-4 days after my arrest. A corpse was shown to me and I was asked if I know who it was. I said no. I was also shown 3rd accused and I was asked whether I know him and I said no. I was beaten and shot to make me to admit knowing the 3rd accused and the corpse. A paper was brought and was forced to thumbprint same.”
When he was shown the statement and asked if it was the paper he was asked to thumbprint he said: –
“I do not know this paper. A white paper with writing was just brought to me.”
Since the appellant did not identify the statement as the one he signed under duress the fact that he was not cross-examined before the statement was admitted could not therefore affect the admissibility of Exhibit “A”. The prosecution called four witnesses in the trial within trial and the learned trial Chief Judge made a
4
finding that the appellant could not puncture the evidence of the prosecution. He found that the statements of the accused were voluntarily made and proceeded to admit them. If the appellant had identified the statement as the one he was asked to thumbprint under duress, the failure by the prosecution to cross-examine him on his claim would have called to question the voluntariness of Exhibit A and so Section 28 Evidence Act will come into play in the weight to be attached to the statement. The section provides as follows: –
“28 A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused persons, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”It is settled law that a Court can convict on the retracted confessional statement of an accused person, but before this is
5
properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions: –
(a) Is there anything outside the confession to show that it is true
(b) Is it corroborated
(c) Are the relevant statements made in it of facts true as far as they can be tested
(d) Did the accused person have the opportunity of committing the offence charged
(e) Is the confession possible
(f) Is the confession consistent with other facts which have been ascertained and have been proved See: R v. Sykes (1913) 8 CAR 233 which was approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30; Jonah Dawa v. State (1980) 8-11 SC 236; Stephen v. State (1986) 5 NWLR (Pt. 46) 978; Mbenu v. State (1988) 3 NWLR (Pt. 84) 615; Kasa v. State (1994) 5 NWLR (Pt. 344) 269 at 285; Nsofor v. State (2004) 18 NWLR (Pt. 905) 292; Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1.
6
But if a confessional statement is found to be direct, positive and equivocal as to the admission of guilt by an accused person, this will be sufficient to ground a conviction even where there is no corroborative evidence. See: Federal Republic of Nigeria v. Iweka (2013] 3 NWLR (Pt. 1341) 285.
The Court below at page 175 had stated as follows: –
“A free and voluntary confession of guilt, direct and positive, if duly made and satisfactorily proved as in the instant case, is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the statement.”
PW1 in his evidence stated at page 12 of the records: –
“I was in the office on 30 January, 2002 when a case of robbery was transferred from Kankiya to the State C.I.D. for further investigation. No arrest was made at that time. So I was detailed with my team to investigate. Sometime in April 2002 another robbery case was transferred from Kankiya again to the C.I.D. for further investigation. I was also detailed to investigate. No arrest here also. In the course of investigation, we arrested the 1st accused on 16 June, 2002. I brought him inside our investigation office
7
and explained the nature of the allegation against him in Hausa language. I also cautioned him in Hausa language. He voluntarily made a statement in Hausa language which I recorded. I read it over to him and he signed it. I translated the statement into English language. I then took the 1st accused to a Superior Police Officer who endorsed the statement. His name is Mr. Adamu A. Chibok DSP.”
In his judgement, the learned trial Chief Judge while not finding any evidence of corroboration of Exhibits A, B and C went further to say that:
“based on the confessional statements of the accused persons as contained in Exhibits “A”, “B” and “C” the Court is left in no doubt that the accused persons committed the robberies on 29 January, 2002 and the one in April of the same year.”
There is a lingering doubt regarding the statement which was admitted as Exhibit “A”. In the trial within trial Mr. Adamu A. Chibok testified as PWC and he stated that the IPO Sergeant Aminu Isa took the appellant to him on 2nd July, 2002 with a voluntary statement which was recorded in Hausa. He read over the statement to the hearing and understanding of the appellant.
8
The appellant signed the statement and he (PWC) countersigned. He was able to identify the statement through his signature. The Court however remarked as follows: –
“Court:- Witness has identified the statement of the 1st accused but the statement was not the one described by the witness as what was shown to the witness was an additional statement. Statement not properly identified.” (See page 19 of the records).
The prosecution applied to tender the statement but learned counsel for the accused/appellant objected while learned counsel for the prosecution argued that the case was investigated by a team and other IPOs recorded statements from the accused which were tendered. I reproduce the arguments of counsel as follows:-
“Ahmed:- We object to the statement of the 1st accused in evidence. In his testimony PW1 said he could identify the statement by his writing, his signature and the name of the accused person. He did not mention the signature of the accused in identifying the statement. The witness did not identify the statement by the endorsement of Mr. Chibok. The statement was recorded on 2nd July, 2002 while he testified that he by the
9
endorsement of Mr. Chibok. The statement was recorded on 2nd July, 2002 while he testified that he recorded the statement in June immediately after the arrest of the accused. Even if the statement sought to be tendered is that of the 1st accused, it was not voluntarily obtained. The 1st accused was cautiously tortured from the day he was arrested to the day he made the statement. That was why the statement was not recorded on the day of arrest. I pray the Court to reject the statement.
Liadi: – I submit that the non identification of the signature of the accused and that of the endorsing officer is not a ground for the rejection of the statement. On the issue of not recording the statement of the accused immediately he was arrested it is my submission that the case was investigated by a team led by PW1. There are other statements tendered by the other IPOs which were earlier recorded. On the voluntariness of the statement I pray the Court to conduct a trial within trial to determine the voluntariness of the statement or not.”
The minitrial was then conducted before the learned trial chief Judge overruled the objection but made the following
10
observation which ought to have affected the weight to attach to the exhibits especially Exhibit A: –
“It should be noted that none of the prosecution witnesses testified that the accused were subjected to torture and beating before the statement of the accused persons. This is not unexpected because the Police are unlikely to come out and say that they tortured or beat an accused person. We all know and are daily bombarded by various acts of brutality and unwanton behaviour bordering on cruelty by the Police. This however has no bearing in a situation where there is no evidence to back such allegation and the Court is not and cannot be in a position to speculate. The defence, put all the three accused persons as DWA, B and C respectively on the stand as witness (sic). They all recounted how they were allegedly tortured and forced to sign the confessional statement. In fact DWB and C told the Court that they were shot at by the Police during interrogation. DWB even said he was shot in the leg and another co-suspect by the name Manir was shot dead by the Police, specifically by one Muntari
AlhassanLearned counsel to the accused
11
also urged the Court to reject the evidence of PWC, Mr. Chibok the Senior Police Officer before who all the accused persons were taken and who endorsed their statements. He said the evidence was also contradictory and inconsistent. He said PWC admitted that Mannir was among those arrested and who died during an exchange of gun fire at the scene of the robberyNow PWC Mr. Chibok was Senior Police Officerin his testimony. he told the Court that Mannir was shot at the scene of the incident. How he got this information and who told him is not clear from the evidence. What is clear is that he was not part of the team which investigated the incident though he testified that he was head of the robbery division at C.I.D headquarters here in Katsina.”
Learned counsel for the prosecution’s submission that other statements tendered were recorded by other IPOs is not borne out by the record. It is only PW1 who recorded the statements of the accused including that of the appellant and he did not testify that the appellant made more than one statement. What he testified to was that the appellant was arrested on 16 June, 2002 and he took him into
12
the investigation office and cautioned him. It can be reasonably inferred that the appellant made his statement on the 16th June, 2002. If the date on which he took the appellant with the statement to PWC was on a different date, he should have stated so. Since the trial Chief Judge observed that the statement the appellant made was not properly identified by PWC coupled with the fact that the appellant was not cross-examined on his claim of being tortured before the statement was extracted from him these cast serious doubts on the learned trial Chief Judge’s conclusion that there was no evidence to back the allegation of torture made by the appellant. It is doubtful if Exhibit “A” was a free and voluntary confession of guilt by the appellant which was the fulcrum on which the lower Court affirmed the conviction of the appellant by the learned trial Chief Judge. It was therefore necessary to test the truthfulness of Exhibit “A before convicting the appellant on it. Since Exhibit “A” was not tested to ascertain if it was true and there was no corroborative evidence, it was unsafe for the trial Chief Judge to convict the appellant based on the alleged
13
confessional statement. On this premise, it was wrong for the Court below to affirm the conviction and sentence. The evidence of PW5 which could have provided the necessary corroboration is suspect since PW5 who claimed that the appellant lived within the vicinity where the robbery took place and who was a victim of the robbery never identified the appellant either by name or description when the incident was reported to the Police. Yet she claimed that he was one of those who ransacked her room on 29 January, 2002 and made away with N400,000.00 I am afraid that the conviction cannot stand. This Court must perforce interfere with the concurrent findings of the trial Court and the Court below that the appellant was guilty of the offence of armed robbery based on his admission of guilt.
The appeal is therefore allowed. The conviction and sentence of the appellant to death are hereby set aside and in its stead the appellant is acquitted and discharged.
SC.827/2014