The State V. Ibrahim Yahaya (2019)

LAWGLOBAL HUB Lead Judgment Report

AMIRU 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 eieht(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

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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

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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

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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

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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

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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 ofNGUMA 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.

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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SC.493/2016