(2015) LPELR-25961(CA)

Transcription

1 ABUBAKAR v. STATE CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna ISAIAH OLUFEMI AKEJU ON WEDNESDAY, 15TH JULY, 2015 Suit No: CA/K/436/C/2014 Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU OLUDOTUN ADEBOLA ADEFOPE-OKOJIE LAWAL ABUBAKAR (Dan Lawal) Between And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s)

2 1. APPEAL - FRESH POINT(S) ON APPEAL: Effect of raising an issue for the first time on appeal without leave of Court where so required "The law is that a party who seeks to file and argue a fresh issue not canvassed in the lower Court, whether the issue pertains to law or procedure, must seek and obtain the leave of Court first, else such issue must be struck out - Corporate Ideal Insurance Ltd v Ajaokuta Steel Co Ltd (2014) 7 NWLR Part 1405 Page 165 Page 165 at 188 Para G-H per Okoro JSC."Per ADEFOPE- OKOJIE, J.C.A. (P. 10, Paras. D-F) - read in context 2. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: Effect of failure to obtain leave of Court to appeal where same is required "Where an Appellant has failed to appeal within the period of time so stimulated, he must, to have a competent appeal, obtain leave to appeal out of time against the interlocutory ruling. Having not done so, the appeal by the Appellant against this ruling is incompetent, I hold. See Abiola v. Olawoye (2006) 13 NWLR Part 996 Page 1; Onwe v Oke (2001) 3 NWLR Part , Owoniboys Technical Services Ltd v. U.B.N. Ltd (2003) 15 NWLR Part 844 Page 545 at "Per ADEFOPE-OKOJIE, J.C.A. (P. 12, Paras. A- C) - read in context

3 3. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "The law is that the guilt of an accused person can be proved by: - a. The confessional statement of the accused person. b. Circumstantial evidence. c. Evidence of eye witness account of the crime. See Stephen Haruna v The Attorney General of Federation (2012) 9 NWLR Part 1306 Page 419; Emeka v State (2001) 14 NWLR Part 734 Page 666 at 683."Per ADEFOPE-OKOJIE, J.C.A. (P. 14, Paras. A-C) - read in context 4. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery "To sustain a conviction under the Robbery and Firearms (Special Provisions) Act R11 Laws of the Federation of Nigeria 2004 the prosecution must prove that there was a robbery incident, that the robbers were armed with dangerous weapons and that the accused was one of the robbers or the robber. See Busari v State Supra at Page 378 Para E-F per Okoro JSC and Eke V The State supra at Page 606 Para A-B per Fabiyi JSC."Per ADEFOPE-OKOJIE, J.C.A. (P. 15, Paras. B-D) - read in context

4 5. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE: Ingredients the prosecution must prove to establish the offence of culpable homicide "For the offence of culpable homicide punishable with death under Section 221, of the Penal Code to be constituted, the following must be proved: "(a) That the death of a human being actually took place; (b)that such death was caused by the accused; (c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act." All these ingredients must be proved or co-exist before a conviction can be secured. Failure to establish any of the ingredients would result in an acquittal. See: Adava v The State (2006) 9 NWLR Part 894) Page 152 at 167; Akpan v The State (2007) 2 NWLR Part 1019 Page 500."Per ADEFOPE-OKOJIE, J.C.A. (Pp , Paras. D-A) - read in context

5 6. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Meaning and ingredients of the offence of armed robbery "Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990 states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person. The Courts have held that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers - Osetola Vs State (2012) 17 NWLR (Pt.1329) 251, Osuagwu Vs State supra, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138, Ajayi Vs State supra."per ABIRU, J.C.A. (P. 22, Paras. A-E) - read in context

6 7. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: Ingredients the prosecution must prove to establish the offence of culpable homicide punishable with death "It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence - Sabi Vs State (2011) 14 NWLR (pt 1268) 421, Obi vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde vs State (2014) 2 NWLR (Pt 1391) 298. The prosecution must meet the above stated ingredients for both offences through credible evidence. All the ingredients for each offence must coexist and where one of them is either absent or tainted with any doubt, then the offence is said not to be proved - Sabi Vs State supra."per ABIRU, J.C.A. (Pp , Paras. E-C) - read in context

7 8. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Meaning of proof beyond reasonable doubt "The standard of proof required of the prosecution is beyond reasonable doubt, which has been held by the Supreme Court in the case of BUHARI V. OBASANJO (2005) 12 NWRL Part 941 Page 79 at 295 Para B-E per Pats Acholonu JSC to be: "... proof that precludes every reasonable hypothesis except that which it tends to support and verify. It is proof that is consistent with the guilt of the accused person or against whom the allegation has been made. Therefore, it can be said that for evidence, to attain the height that could bring about conviction, it must exclude beyond reasonable doubt every other hypotheses or conjecture or proposition or presumption except that of the guilt of the accused. If the evidence is wobbly, thematic or vague or is compatible with both innocence and guilt then it cannot be described as being beyond reasonable doubt."per ADEFOPE-OKOJIE, J.C.A. (P. 16, Paras. B-F) - read in context 9. EVIDENCE - TRIAL WITHIN TRIAL: At what instance will a trial within trial be conducted "The law advocates that where it is contended that the statement was not made voluntarily, a trial within trial should be held. In other words, an accused person must admit making the confessional statement before he could raise the circumstances in which the confessional statement was made by him. See the case of Lasisi v State (2013) 9 NWLR Part 1358 Page 74 at 97 Para B-D, per Onnoghen JSC." Per ADEFOPE- OKOJIE, J.C.A. (P. 11, Paras. A-C) - read in context

8 10. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person "It was held in the case of Emeka v State Supra per Onu JSC at Page 684 Para G-H, quoting from Achabua v. The State (1976) 12 SC 63 at 68 that: "... the secrecy with which criminals perpetuate crime has tended to deprive the prosecution in some cases of eye-witnesses, hence confession alone even without corroboration can support a conviction as long as the Court is satisfied of the truth." In his judgment, Ogbuagu JSC in the said case, at Page 682 Para E held that: "There is a long line of judicial authorities which establish that in Nigeria a free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, is sufficient to ground a conviction. It is however, desirable to have outside the appellant's confession to the police some evidence however slight, of the circumstances which made it probable that the confession was true." Per ADEFOPE- OKOJIE, J.C.A. (Pp , Paras. C-A) - read in context 11. EVIDENCE - EVIDENCE OF CO-ACCUSED PERSON: Whether a confessional statement made by one accused person which is against his co-accused will constitute evidence against that co-accused "The law is that allegations in a statement made by one accused person against a co-accused will not constitute evidence against the co-accused unless the said co-accused has adopted the statement. See STATE v. ONYEUKWU (2004) 14 NWLR Part 893 page 378 para H per Pats Acholonu JSC; AIKHADUEKI v. STATE (2013) LPELR per Galadima JSC. This has not been shown to have been done in the instant case."per ADEFOPE-OKOJIE, J.C.A. (P. 19, Paras. B-D) - read in context

9 12. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof on the prosecution to establish its case against the accused person beyond reasonable doubt; whether the burden shifts to the accused "It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act fests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal - Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Iwunze vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1324) 119, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360, Ajayi Vs State (2013) 9 NWLR (Pt 1360) 589."Per ABIRU, J.C.A. (Pp , Paras. A-A) - read in context

10 13. EVIDENCE - PROOF: Ways of proving the commission of a crime "It is settled law that a case can be proved beyond reasonable doubt either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes - Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Oguno Vs State (2013) 15 NWLR (Pt 1376) 1 and Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298,Umar Vs State (2014) 13 NWLR (Pt.1425) 497." Per ABIRU, J.C.A. (Pp , Paras. D-A) - read in context

11 14. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same "It is settled law that where an accused person retracts his confessional statement, as the Appellant did in this case, what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests: i. whether there is anything outside the confession which shows that it may be true; ii. whether it is corroborated in any way; iii. whether the relevant statements of facts made in it are mostly true as fact as they can be tested; iv. whether the defendant had the opportunity of committing the offence; v. whether the confession is possible; and vi. whether the alleged confession is consistent with other facts that have been ascertained and established. See the cases of Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1 and Galadima Vs State (2012) 18 NWLR (Pt 1333) 610."Per ABIRU, J.C.A. (P. 25, Paras. A-F) - read in context

12 15. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: Nature and meaning of corroboration "Now, corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission - Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person - Omisade Vs The Queen (1964) NSCC 170, Okabichi Vs State (1975) 3 SC 96, Ogugu Vs State (1994) 9 NWLR (Pt 366) 1, Ogunbayo Vs The State (2007) 8 NWLR (Pt 1035) 157. Thus, to amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question - Ezigbo Vs The State (2012) LPELR-7855 (SC)."Per ABIRU, J.C.A. (Pp , Paras. F-E) - read in context

13 16. EVIDENCE - CONFESSIONAL STATEMENT: Whether a confessional statement of an accused person can be evidence against other accused person "It is trite that that a confession is admissible as against the person who makes it only and against nobody else - Suberu Vs State (2010) 1 NWLR (Pt 1176) 494 and Shurumo Vs State (2010) 19 NWLR (Pt 1226) 73. The contents of the confessional statements of the second and third accused persona are thus admissible against them alone and not against the Appellant. By the provisions of Section 29 (3) of the Evidence Act, 2011, a confessional statement made by one of a number of persons charged jointly with a similar offence to the Police in the presence of one or more of the other persons shall not be taken into consideration as against any such other persons in whose presence it was made unless that such other person adopted the statement by words or conduct - Suberu Vs State supra."per ABIRU, J.C.A. (Pp , Paras. F-D) - read in context

14 17. LEGISLATION - ILLITERATE PROTECTION ACT/LAW: Purpose of the Illiterate Protection Law "Now, the object of the Illiterates Protection Law is to protect illiterates from fraud. Strict compliance thereto becomes obligatory as regard such a document. See the case of Itauma v Akpe-Ime (2000) 12 NWLR part 680 page 156 at 175 Para E-F per Ogwuegbu JSC; Ezeigwe v. Awudu (2008) 11 NWLR Part 1097 Page 158 per Onnoghen JSC. The purpose of the jurat is also to trace the whereabouts of the maker. It is to ensure that what is stated in the document reflects what the illiterate intended to be correctly put in such a document. The protection singularly enures only to the illiterate. See Fatunbi v Olanloye (2004) 6-7 SC Page 68 at 80 Lines per pats Acholonu JSC. It is provided by Section 2 (a) (b) of the Illiterates Protection Law of Katsina State Supra that: "Any person who shall write any letter or document at the request; on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address. By virtue of this section, the person who writes any letter document at the request of an illiterate shall also write his own name and address on the document and the same shall be equivalent to a statement that he had the instruction of the illiterate to write the document and if the document purports to be signed or marked by the illiterate, that he read the same and explained same to the illiterate before the thumbprint or signature. It was so held in the case of UBN PLC v Idirisu (1999) 7 NWLR part 609 page 105 at 121 Para F-H per Oduyemi JCA."Per ADEFOPE-OKOJIE, J.C.A. (Pp. 8-9, Paras. A-C) - read in context

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16 OLUDOTUN ADEBOLA ADEFOPE-OKOJIE J.C.A. (Delivering the Leading Judgment): The Appellant, along with four other accused persons, was arraigned before the High Court of Katsina State on two charges of armed robbery and culpable homicide punishable under Section 1 (2) (b) of the Robbery and Firearms (special Provisions) Act cap R11 LFN 2004 and Section 221 of the Penal code cap 95 Laws of Katsina State The allegation was that they, on or about the 11th day of October 2012, in the company of others at large, while armed with sticks and matchets attacked and wounded two security guards at Mangal Plaza, Yahaya Madaki Way, Kofar Kaura Katsina and burgled the shop of one Alhaji Babangida Ali, removing GSM sets valued at about Three Million Naira and the sum of N352,000 (Three Hundred and Fifty Two Thousand Naira). One of the guards attacked, unfortunately died. The prosecution called 10 witnesses. All the accused persons testified in their defence. Upon conclusion of trial, all accused persons were convicted under both charges and sentenced to death by hanging by the trial judge, Hon. Justice Abdullahi Yusuf. This appeal by the 4th accused, 1

17 containing 9 grounds, is against his conviction and sentence. Parties, in compliance with the rules of Court, filed their respective briefs of argument. At the hearing of the appeal, no counsel appeared for the parties. Their Briefs of Arguments were accordingly deemed duly argued pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules The Appellant's Brief, settled by J.J Usman Esq. of Yunus Ustaz Usman (SAN) & Co, filed on 1lth November 2014, raised 5 issues for the Court's determination, which issues were also adopted by the Respondent's Counsel, Murtala Aliyu Kankia, the Assistant Director of Public Prosecutions, Ministry of Justice Katsina State in the Respondent's Brief filed on 12th March The issues formulated are the following: 1. Whether the Learned Trial Judge was right when His Lordship admitted and relied on Exhibit D and D1 in holding that the Appellant committed the offence of armed robbery and culpable homicide punishable with death and thereby convicted him and sentenced him to death. 2. Whether the Learned Trial chief Judge was right when His Lordship held 2

18 that the Prosecution has proved its case beyond reasonable doubt against the Appellant. 3. Whether the Learned Trial Chief Judge was right when His Lordship held that the Appellant actually intended to cause the deceased's death thereby convicted the Appellant for the offence of culpable homicide punishable with death and sentenced him to death. 4. Whether the Learned Trial chief Judge was right when His Lordship held that failure of the Prosecution to tender all the confessional statements of the Appellant was not fatal to the Prosecution's case. 5. Whether the trial Judge was right when he held that PW8 was not a tainted witness. I shall subsume these issues under two issues, namely: 1. Whether the Learned Trial Judge was right to admit and rely on Exhibit D and D1, the confessional statement of the Appellant. 2. Whether there was sufficient evidence before the trial Court to justify the conviction and sentence of the Appellant. Issue 1 Whether the Learned Trial Judge was right to admit and rely on Exhibit D and D1, the 3

19 confessional statement of the Appellant. The learned Silk argued this issue on several fronts. He argued firstly that Exhibit D is legally inadmissible as it contravenes Section 29 (2) (a) of the Evidence Act, Exhibit D was made involuntarily. The Appellant's Counsel during the trial objected to the admissibility of Exhibit D on the ground of involuntariness, as the Appellant was coerced by the Police into making the statement by being handcuffed. He submitted that the reason given by the trial Court for admitting Exhibit D was erroneous, as the Appellant's witnesses at the trial within trial all gave graphic illustrations of how the Appellant was tortured and could not walk and had to be taken to go to the toilet. It was thus wrong for the trial Court to hold as it did that because they did not tell the Court whether the Appellant was taken to hospital or not, the Appellant's confessional statement was made voluntarily. Exhibit D did not meet the requirements of law for it to be admissible. Learned counsel referred this Court to Sections 29 (2) and (5) of the Evidence Act 2004 and the case of LASISI v. STATE (2013) 9 NWLR (PT. 4

20 1358) 74 AT 90 PARAGRAPHS C-F submitting that handcuffing a person into making a confessional statement amounts to oppression, torture, inhuman and degrading treatment, rendering Exhibit D involuntary and inadmissible in law. Without Exhibit D and D1, there is nothing left for the trial Court to rely on to arrive at its decision, as it did. When an exhibit is wrongly admitted, the same Court, he said, has the power to expunge the same while writing its judgment or should place no probative value on it. Appellant's Counsel also contended that being an illiterate, the statement purportedly made by the Appellant ought to have contained an illiterate jurat. Failure to comply renders the statement inadmissible. He cited EZEIGWE v. AWUDU (2008) 11 NWLR (Pt.1097) 157 AT 178 PARA E (SC); EZERA v. NDUKWU (1961) 1 ALL NLR 564. Exhibit A being a purported confessional statement made by the Appellant but written by PW 4 for the Appellant, he said, has no illiterate jurat. Thus, it did not comply with Section 2 (a) (b) of Illiterate Protection Law of Katsina State CAP 67 and Section 119 of the Evidence Act, 2011 and is thus inadmissible. The lower Court, he said, 5

21 was wrong to have admitted it. The Assistant Director of Public Prosecutions, for the Respondent, in response, submits that the statement was properly admitted, having passed the test of being cogent and credible by the trial within trial and is thus in compliance with Section 29 (2)(b) of the Evidence Act It is trite, he said, that once an accused person makes a statement under caution admitting the charge or creating the impression that he committed the offence, the statement becomes confessional. He cited Kareem vs FRN (No. 1) (2002) 8 NWLR part 770 p.636. The evidence adduced at the trial within trial that the Appellant was tortured and oppressed before giving the statement, was not true, he having failed to produce evidence in support of that claim. It therefore remains a mere allegation. The argument of the Appellant must therefore go to no issue. He urged the Court to so hold He submitted further that the content of Exhibits D & D1, being a confession made by the Appellant freely, is the strongest evidence of his guilt, stronger than the evidence of the eye witness because it comes from the "horse's mouth", the accused himself and 6

22 therefore needs no corroboration. Once an accused person makes a statement under word of caution, admitting the charge or creating the impression that he committed the offence, the statement becomes confessional, with no need for corroboration. He cited KAREEM vs FRN (NO. 1) (2002) 8 NWLR (PT 770) 636, GIRA VS THE SATE (1996) 6 NWLR (Pt.443) 375. On the question of whether the statement complied with the Illiterates Protection Law, the Assistant D.P.P submitted that the introductory part of the Statement contained the cautionary word, followed by the endorsement of both the "so called" Illiterate and the recorder of the statement. At the bottom, the name, designation, address, and signature of the recorder were entered. He pointed out that it was what the Appellant said in his native language, the Hausa language, that was recorded by PW4. The statement in Hausa thus needs no jurat. He urged this Court to so hold. In addition, illiteracy cannot be presumed and the burden is placed on a person claiming to be an illiterate to prove the same. It was his further contention that this issue is an afterthought and, having not been raised in the lower Court, 7

23 cannot be raised in this Court, without the leave of the Court. I shall address firstly the submission on non compliance of the statement with the Illiterates Protection Law. Now, the object of the Illiterates Protection Law is to protect illiterates from fraud. Strict compliance thereto becomes obligatory as regard such a document. See the case of Itauma v Akpe-Ime (2000) 12 NWLR part 680 page 156 at 175 Para E-F per Ogwuegbu JSC; Ezeigwe v. Awudu (2008) 11 NWLR Part 1097 Page 158 per Onnoghen JSC. The purpose of the jurat is also to trace the whereabouts of the maker. It is to ensure that what is stated in the document reflects what the illiterate intended to be correctly put in such a document. The protection singularly enures only to the illiterate. See Fatunbi v Olanloye (2004) 6-7 SC Page 68 at 80 Lines per pats Acholonu JSC. It is provided by Section 2 (a) (b) of the Illiterates Protection Law of Katsina State Supra that: "Any person who shall write any letter or document at the request; on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer 8

24 thereof and his address. By virtue of this section, the person who writes any letter document at the request of an illiterate shall also write his own name and address on the document and the same shall be equivalent to a statement that he had the instruction of the illiterate to write the document and if the document purports to be signed or marked by the illiterate, that he read the same and explained same to the illiterate before the thumbprint or signature. It was so held in the case of UBN PLC v Idirisu (1999) 7 NWLR part 609 page 105 at 121 Para F-H per Oduyemi JCA. In the instant case, the Statement of the Appellant in Hausa language is Exhibit D, while the English translation is Exhibit D1. Exhibit D, in Hausa, is stated to have been recorded by PW4, Inspector Garba Mohammed. It is dated 20/11/2012, The statement was endorsed by ASP Magaji Adamu who wrote that the suspect was brought to him by Inspector Garba Mohammed and that the confessional statement was read over to him and confirmed to have been voluntarily made by him. The Appellant's signature was appended after the cautionary words. The Appellant's' signature was also appended after 9

25 the body of the statement, and again after the endorsement of ASP Magaji Adamu. The translation into English was by PW4 who wrote and signed his name as the interpreter and the recorder. As pointed out by the Assistant Director of Public Prosecutions, and which submission I agree with, since the statement was recorded in Hausa, the language of the Appellant, and it was PW4 who recorded the statement that tendered same, the statement, I hold, required no jurat. It has not been suggested by the Appellant's counsel, that the English translation of this statement was inaccurate. I accordingly overrule the Appellant's objection. Furthermore, and as submitted by the Respondent, this issue was not raised by the Appellant in the lower Court. The law is that a party who seeks to file and argue a fresh issue not canvassed in the lower Court, whether the issue pertains to law or procedure, must seek and obtain the leave of Court first, else such issue must be struck out - Corporate Ideal Insurance Ltd v Ajaokuta Steel Co Ltd (2014) 7 NWLR Part 1405 Page 165 Page 165 at 188 Para G-H per Okoro JSC. The next contention is whether the confessional statement 10

26 of the Appellant was rightly admitted on the ground that it was not made voluntarily. The law advocates that where it is contended that the statement was not made voluntarily, a trial within trial should be held. In other words, an accused person must admit making the confessional statement before he could raise the circumstances in which the confessional statement was made by him. See the case of Lasisi v State (2013) 9 NWLR Part 1358 Page 74 at 97 Para B-D, per Onnoghen JSC. In the instant case, following the objection by the Appellant's Counsel to the tendering of the statement by PW4, the trial Judge held a trial within a trial (TWT) to determine its voluntariness. At the TWT, the prosecution called two witnesses, PW4 who recorded the statement of the Appellant and PW2, Sgt Ahmed who said he witnessed the voluntary statement being taken. The Appellant testified and called two of his co accused persons as witnesses. Upon conclusion, the trial Judge, in a Ruling delivered, held the statement of the Appellant to be voluntary and admitted it, together with its English translation, as Exhibits D and D1 respectively. The Appellant's Counsel did 11

27 not appeal against this ruling. Where an Appellant has failed to appeal within the period of time so stimulated, he must, to have a competent appeal, obtain leave to appeal out of time against the interlocutory ruling. Having not done so, the appeal by the Appellant against this ruling is incompetent, I hold. See Abiola v. Olawoye (2006) 13 NWLR Part 996 Page 1; Onwe v Oke (2001) 3 NWLR Part , Owoniboys Technical Services Ltd v. U.B.N. Ltd (2003) 15 NWLR Part 844 Page 545 at I accordingly resolve the 1st issue for determination against the Appellant and in favour of the Respondent. The 2nd issue for determination is: Whether there was sufficient evidence before the trial Court to justify the conviction and sentence of the Appellant. The statement of the Appellant, Exhibit D1, is that on the day in question, he, together with Bala alias Achilumbe, Shola, Abu Akodi, Sanildris alia Shamiloke, Abdulhadi, Baba Reza and Nafire, went to Mangal Plaza, Kofar Kaura, Katsina, with the intention of stealing. "Bala" was equipped with a digger and "pinches" which they used to break the door of the GSM shop. They entered and stole a large 12

28 amount of money and some handsets. When challenged, they beat the guards, leaving them unconscious. The money was taken to Bala's house. The stolen handsets are with the said Bala and Abu Akode. He gave the names of the persons to whom the phones and other property disposed of were given. The learned Silk has contended that there is nothing outside the confessional statement of the Appellant that establishes his guilt. Apart from the fact that the Appellant was present at the locus criminis at the time of the commission of culpable homicide, there is no iota of evidence, he said, of his participation in the killing of the deceased or that any circumstance existed that shows the Appellant's approval of the killing of the deceased. He urged this Court to find and hold that the mere presence of the Appellant at the scene of the crime is not sufficient to render him guilty of the offence of culpable homicide. The Court should set aside the decision of the lower Court by discharging and acquitting the Appellant on this count. The Respondent's counsel replies that while the case at hand does not require corroboration in view of the credible, direct and 13

29 positive nature of the confessional statement, a graphic picture of the involvement of the Appellant in the case at hand amounts to corroboration. The law is that the guilt of an accused person can be proved by: - a. The confessional statement of the accused person. b. Circumstantial evidence. c. Evidence of eye witness account of the crime. See Stephen Haruna v The Attorney General of Federation (2012) 9 NWLR Part 1306 Page 419; Emeka v State (2001) 14 NWLR Part 734 Page 666 at 683. It was held in the case of Emeka v State Supra per Onu JSC at Page 684 Para G-H, quoting from Achabua v. The State (1976) 12 SC 63 at 68 that: "... the secrecy with which criminals perpetuate crime has tended to deprive the prosecution in some cases of eyewitnesses, hence confession alone even without corroboration can support a conviction as long as the Court is satisfied of the truth." In his judgment, Ogbuagu JSC in the said case, at Page 682 Para E held that: "There is a long line of judicial authorities which establish that in Nigeria a free and voluntary confession by a person if direct and positive, duly made and 14

30 satisfactorily proved, is sufficient to ground a conviction. It is however, desirable to have outside the appellant's confession to the police some evidence however slight, of the circumstances which made it probable that the confession was true." To sustain a conviction under the Robbery and Firearms (Special Provisions) Act R11 Laws of the Federation of Nigeria 2004 the prosecution must prove that there was a robbery incident, that the robbers were armed with dangerous weapons and that the accused was one of the robbers or the robber. See Busari v State Supra at Page 378 Para E-F per Okoro JSC and Eke V The State supra at Page 606 Para A-B per Fabiyi JSC. For the offence of culpable homicide punishable with death under Section 221, of the Penal Code to be constituted, the following must be proved: "(a) That the death of a human being actually took place; (b)that such death was caused by the accused; (c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act." All these ingredients must be proved or 15

31 co-exist before a conviction can be secured. Failure to establish any of the ingredients would result in an acquittal. See: Adava v The State (2006) 9 NWLR Part 894) Page 152 at 167; Akpan v The State (2007) 2 NWLR Part 1019 Page 500. The standard of proof required of the prosecution is beyond reasonable doubt, which has been held by the Supreme Court in the case of BUHARI V. OBASANJO (2005) 12 NWRL Part 941 Page 79 at 295 Para B-E per Pats Acholonu JSC to be: "... proof that precludes every reasonable hypothesis except that which it tends to support and verify. It is proof that is consistent with the guilt of the accused person or against whom the allegation has been made. Therefore, it can be said that for evidence, to attain the height that could bring about conviction, it must exclude beyond reasonable doubt every other hypotheses or conjecture or proposition or presumption except that of the guilt of the accused. If the evidence is wobbly, thematic or vague or is compatible with both innocence and guilt then it cannot be described as being beyond reasonable doubt." In the instant case, the trial Judge, following a review of the evidence 16

32 before him and the submissions of both Counsel, held: "In the case before this Court all the statements of the accused were admitted in evidence. It is only one that was denied by reason of the 4th accused said he was tortured in the process (sic). However this Court having been satisfied that the statement was obtained voluntarily some was admitted in evidence and marked Exhibit D and D1, the Hausa and English translation respectively. The rest of the confessional statements for the 1st, 2nd, 3rd and 5th accused persons were all admitted in evidence without any trial within trial. It is in view of the above that I hold that the submission of counsel to the accused that there is nothing outside the confession to incriminate the accused is not right. The Court has gone through the confessional statements before it and have found same to be in favour of the prosecution's case as there are other things outside the confessional statement to show that it is true" The learned judge thence proceeded to the photographs of the deceased and the medical report, taken together with the evidence of PW1 and PW2, showing, he said, that the alleged offence was 17

33 committed and held: "With the above and the content of the confessional statements as well as the evidence of the witnesses who testified for the prosecution it cannot be said that the prosecution did not prove its case beyond reasonable doubt. On the issue of having something outside the confessional statement learned counsel for the prosecution submitted that the testimony of all the prosecution witnesses and other exhibits tendered and admitted as Exhibits E-G provided further corroboration of the confessional statements of the accused persons..." He proceeded to the evidence of the recovery of some GSM hand sets by the police witnesses, which he held was corroboration of the confessional statements of the accused persons. He thereupon held it proved that the accused persons having been at the scene of the robbery and with the common intent of robbing the shop and killing the night watchman and wounding the other, were all guilty of the offences charged and that the prosecution had proved the offences beyond reasonable doubt. While it is not in doubt that there was a robbery on the day in question and that the robbers were armed, there is 18

34 no evidence, I hold, save the confessional statement of the Appellant and the confessional statements of the co accused persons, situating the Appellant at the scene of the crime. No witness has identified him, nor were any of the handsets stated to have been found in his possession, unlike some of the other accused persons. The law is that allegations in a statement made by one accused person against a co-accused will not constitute evidence against the co-accused unless the said co-accused has adopted the statement. See STATE v. ONYEUKWU (2004) 14 NWLR Part 893 page 378 para H per Pats Acholonu JSC; AIKHADUEKI v. STATE (2013) LPELR per Galadima JSC. This has not been shown to have been done in the instant case. Thus, while the trial Court can convict on the confessional statements of the Appellant, there is nothing, I find, outside this statement to show that it is true. I can only hold that the trial Judge erred in law in finding the Appellant guilty of the offence of armed robbery based on "corroborative evidence" of the prosecution and defence witnesses. I thus resolve the 2nd issue for determination against the Respondents. 19

35 Having resolved the 1st and 2nd issues for determination against the Respondent, I hold that this appeal succeeds. I set aside the conviction and sentence of the Appellant by the Katsina State High Court delivered by Hon. Justice Abdullahi Yusuf on 20/6/14 and discharge and acquit the Appellant. ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Oludotun Adebola Adefope - Okojie JCA gave me the opportunity of reading before now the judgment just delivered. I agree with the reasoning and conclusion of my learned brother. I allow the appeal and abide by the consequential order. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I wish to add a few comments. The Appellant was charged, along with four other accused persons, with two counts of armed robbery and culpable homicide punishable with death contrary 20

36 to the provisions of 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation 2004 and section 221, of the Penal Code Law of Katsina State respectively. The Appellant was the fourth accused person. It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act fests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal - Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Iwunze vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1324) 119, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360, 21

37 Ajayi Vs State (2013) 9 NWLR (Pt 1360) 589. Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990 states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person. The Courts have held that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers - Osetola Vs State (2012) 17 NWLR (Pt.1329) 251, Osuagwu Vs State supra, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138, Ajayi Vs State supra. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased 22

38 resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence - Sabi Vs State (2011) 14 NWLR (pt 1268) 421, Obi vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde vs State (2014) 2 NWLR (Pt 1391) 298. The prosecution must meet the above stated ingredients for both offences through credible evidence. All the ingredients for each offence must co-exist and where one of them is either absent or tainted with any doubt, then the offence is said not to be proved - Sabi Vs State supra. It is settled law that a case can be proved beyond reasonable doubt either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes - Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Oguno Vs State (2013) 15 NWLR (Pt 1376) 1 and Babatunde Vs State (2014) 2 NWLR 23

39 (Pt 1391) 298,Umar Vs State (2014) 13 NWLR (Pt.1425) 497. A read through records of appeal shows that the Respondent relied on a confessional statement, the Hausa and English versions of which were tendered as Exhibits D and D1, in proving the case against the Appellant. The lower Court also placed reliance on the said confessional statement to convict and sentence the Appellant. The records of appeal show that when the Respondent made to tender the confessional statement, Counsel to the Appellant raised objection on the ground of involuntariness. The lower Court conducted a trial within trial and during which the Appellant led evidence retracting the confessional statement on the ground that it was obtained by torture. In the ruling on the trial within trial, the lower Court preferred the evidence of the voluntariness of the statement given by the Respondent and it admitted the confessional statement. The Appellant testified as the fourth defence witness and in his oral testimony in his defence, he maintained and reiterated that he thumb printed the confessional statement under severe torture and that the statement was not obtained voluntarily. The 24

40 Appellant consistently retracted the confessional statement, Exhibits D and D1. It is settled law that where an accused person retracts his confessional statement, as the Appellant did in this case, what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests: i. whether there is anything outside the confession which shows that it may be true; ii. whether it is corroborated in any way; iii. whether the relevant statements of facts made in it are mostly true as fact as they can be tested; iv. whether the defendant had the opportunity of committing the offence; v. whether the confession is possible; and vi. whether the alleged confession is consistent with other facts that have been ascertained and established. See the cases of Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1 and Galadima Vs State (2012) 18 NWLR (Pt 1333) 610. Now, corroborative evidence required to verify the contents of a confessional statement does 25

41 not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission - Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person - Omisade Vs The Queen (1964) NSCC 170, Okabichi Vs State (1975) 3 SC 96, Ogugu Vs State (1994) 9 NWLR (Pt 366) 1, Ogunbayo Vs The State (2007) 8 NWLR (Pt 1035) 157. Thus, to amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question - Ezigbo Vs The State (2012) LPELR-7855 (SC). Reading through the testimonies of all the prosecution witnesses, none of them led any independent evidence, outside the confessional statement, showing that the 26

42 Appellant committed or participated in the commission of the crime leading up to the charge against him. Many mobile telephone handsets were said to have been stolen in the crime for which the Appellant was charged and none of the stolen items was recovered from him or from his house or from any person who claimed that it was the Appellant that gave it to him. Each of the five accused persons was alleged by the Respondent to have made a confessional statement to the Police containing names of the participants in the commission of the crime and all the statements were tendered in evidence before the lower Court. Two of the accused persons, those charged as the first and the fifth accused, did not mention the name of Appellant as a participant in the crime. It was in the alleged confessional statements of the two other accused persons charged as the second and third accused, that the name of the Appellant appeared. This was the only piece of evidence outside the confessional statement of the Appellant that connected the Appellant to the commission of the crime. It is trite that that a confession is admissible as against the person who makes it only and 27

43 against nobody else - Suberu Vs State (2010) 1 NWLR (Pt 1176) 494 and Shurumo Vs State (2010) 19 NWLR (Pt 1226) 73. The contents of the confessional statements of the second and third accused persona are thus admissible against them alone and not against the Appellant. By the provisions of Section 29 (3) of the Evidence Act, 2011, a confessional statement made by one of a number of persons charged jointly with a similar offence to the Police in the presence of one or more of the other persons shall not be taken into consideration as against any such other persons in whose presence it was made unless that such other person adopted the statement by words or conduct - Suberu Vs State supra. There was no evidence before the lower Court that the second and third accused persons made their confessional statement in the presence of the Appellant and that the Appellant adopted their statements by words or conduct. The contents of the confessional statements of the second and third accused persons cannot thus be taken into consideration against the Appellant. There was nothing in the testimonies of the first and second prosecution witnesses or in the photograph of the 28

44 deceased person or in the medical report of death, which the lower Court relied on as corroborative evidence, connecting the Appellant to the commission or to participation in the commission of the crime alleged. There being no independent evidence outside the retracted confessional statement of the Appellant to verify the contents of the statement, the lower Court was wrong to have relied on it to convict and sentence the Appellant. It is for this reason that I too find merit in this appeal and hereby allow it. I hereby set aside the judgment of the High Court of Katsina State in Charge No KTH/DM/3C/2012 delivered by Honorable Justice Abdullahi Yusuf, the Chief Judge of Katsina State, on the 20th of June, 2014 and the sentence passed thereon on the Appellant. I also order the discharge and acquittal of the Appellant. 29

45 Appearances: Parties absent and unrepresented For Appellant(s) Parties absent and unrepresented For Respondent(s)