ZAKARI SHUAIBU ADAMU v. ALHAJI DAUDA ADAMU
April 1, 2025MR. KAYODE AKINTOLA SAMSON Vs THE FEDERAL REPUBLIC OF NIGERIA
April 1, 2025Legalpedia Citation: (2020) Legalpedia (CA) 86191
In the Court of Appeal
HOLDEN AT ENUGU
Thu May 28, 2020
Suit Number: CA/IB/368C/2016
CORAM
JOSEPH SHAGBOR IKYEGH
P.NNAEMEKA-AGU – JUSTICE, SUPREME COURT
JOSEPH SHAGBOR IKYEGH
JOSEPH SHAGBOR IKYEGH
PARTIES
IBRAHIM ANIMASHAUN
THE STATE
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Appellant (then third Accused person) together with two other accused were arraigned before the High Court of Oyo State sitting in Ibadan, on a six-count charge of conspiracy and armed robbery. After trial and address of counsel, the lower court in its judgment found the 2nd Accused person guilty of receiving the proceeds of armed robbery and sentenced him to 3years imprisonment with hard labour, while the 1st Accused person and the Appellant were found guilty of conspiracy and armed robbery and sentenced to death by hanging. Dissatisfied with the judgment of the lower court, the Appellant has filed this appeal. The Appellant in this appeal is challenging his conviction for the offence of Conspiracy to commit Armed Robbery and the substantive offence of Armed Robbery.
HELD
Appeal Allowed
ISSUES
Whether having regard to the facts and circumstances of this case, the Prosecution could be said to have proved its case against the Appellant beyond reasonable doubt.
RATIONES DECIDENDI
LEGAL BURDEN OF PROOF- WHETHER THE LEGAL BURDEN OF PROOF ON A PROSECUTION IN CRIMINAL PROCEEDINGS SHIFTS
“The law is trite and of general application in all criminal proceedings such as this that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden is squarely on the shoulders of the prosecution and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the apex court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
STANDARD OF PROOF – STANDARD OF PROOF REQUIRED TO DISCHARGE THE BURDEN OF PROOF IN CRIMINAL PROCEEDINGS
“The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entitles. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts, which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or disbelief. The learned trial judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
PROOF BEYOND REASONABLE DOUBT – DUTY OF THE PROSECUTION IN PROVING BEYOND REASONABLE DOUBT
“The prosecution in proving beyond reasonable must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion, which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower court by direct evidence, circumstantial evidence and confessional statement.”
PROOF BEYOND REASONABLE DOUBT – NATURE OF EVIDENCE THAT AMOUNTS TO PROOF BEYOND REASONABLE DOUBT
“For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the facts that if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt that will have such effect must be material doubt that is doubt that relates to the ingredient of the offence the accused is charged with. See FRN vs. Abubakar (2019) LPELR-46533 (SC); Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530. This is based on the premise that it is better for 10 guilty people to go free than for 1 innocent person to be conviction and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78.”
OFFENCE OF ARMED ROBBERY -ESSENTIAL INGREDIENTS A PROSECUTION MUST PROVE IN AN OFFENCE OF ARMED ROBBERY
“The Appellant was charged along with other two accused person who is not part of this appeal for Conspiracy and armed robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The ingredients of the offences are stated therein in the law under which the Appellant is charged and in a line of cases. For the offence of armed robbery, the Respondent in the lower court must prove the three ingredients of the offence. These are:
(i)That there was a robbery
(ii)That the robbery was armed robbery
(iii)That the accused (Appellant) was the robber or one of the robbers.
See Kareem Olatinwo vs. The State (2013) 8 NWLR (Pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (Pt. 1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (Pt. 923) 123.
OFFENCE OF CONSPIRACY-ESSENTIAL INGREDIENT A PROSECUTION MUST PROVE IN AN OFFENCE OF CONSPIRACY
“For the offence of Conspiracy, there must be an agreement, that is, the meeting of mind between two or more people to do an unlawful act or a lawful act by unlawful means. For this offence to be proved, the Respondent needs to prove that there was an agreement between the Appellant and the other accused persons charged along with him or any other person to carry out the armed robbery. See Usman Kaza vs. The State (2008) 7 NWLR (Pt. 1085) 125; Abullahi vs. The State (2008) 4 FWLR (Pt. 443) 6531. In Kayode vs. The State (2016) 7 NWLR (Pt. 1511) 199, Ariwoola, JSC held :
“It is settled law that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether or not the accused persons had knowledge of its unlawfulness. See; Ikechukwu Okon Vs The State (2014), Clark Vs The State (1986) 4 NWLR (Pt.35) 381.”
CRIMINAL LIABILITY – MODE OF PROVING CRIMINAL LIABILITY
“It must be stated from the onset that criminal liability can be established by direct evidence, circumstantial evidence, or by confessional statement. See Okeke vs. State (2019) LPELR-48507 (CA); Umar vs. State (2014) 6-7 S.C (Pt. III) 1. The prosecution can prove the criminal liability of an accused by any of those methods or a combination of the methods”.
CONFESSIONAL STATEMENT- MEANING OF CONFESSIONAL STATEMENT
“The law on confessional statement is clear. A confessional statement is an admission made by a person charged with an offence stating and suggesting that he committed the offence. See Yunusa vs. State (2017) LPELR-4301 (CA); Daropale vs. State (2013) LPELR-20676 (CA). In Adekoya vs. State (2012) 3 S.C (Pt. III) 36, the apex court per Adekeye, JSC held:
“By virtue of Section 27 (1) and (2) of the Evidence Act, a confessional statement is a statement is a statement by an accused person charged with an offence stating that he committed the offence. The position of the law is that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without ant corroborative evidence so long as the court is satisfied wit the truth. There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the Court.
Queen v. Itule (1961) 2 SCNLR pg. 183. Solola v.State (2005) 11NWLR (Pt. 937) pg. 460, Nwaeze v. State (1996) 2 NWLR (Pt. 428) pg. 1. Akinmoju v. State 4 SC (Pt. 1) pg. 64.”
FINDING OF FACTS OF LOWER COURT – ATTITUDE OF AN APPELLATE COURT TO THE FINDING OF FACT BY A LOWER COURT
“Let me start in the examination of the exhibits by cautioning myself that as an Appellate court, I am not to interfere with the finding of facts of the lower court except if the finding of fact does not correspond with the evidence before the court. In such a circumstance, the finding is said to be perverse and once it leads to miscarriage of justice, I can at that stage interfere with the finding of fact of the lower court. See Omomeji & Ors vs. Kolawole & Ors (2008) 4-5 S.C (Pt. II) 158; Odom & Ors vs. PDP & Ors (2015) ALL FWLR (Pt. 773) 1962.
ADMISSIBILITY OF DOCUMENT – WHETHER AN APPELLANT IS FORECLOSED FROM RAISING AN ARGUMENT ON THE WEIGHT TO BE ATTACHED TO A DOCUMENT WHERE HE FAILS TO RAISE AN OBJECTION TO THE ADMISSIBILITY OF SAME TIMEOUSLY
“From the record of appeal, as earlier mentioned, the Appellant did not object to the admissibility of the statements when they were tendered. This does not mean that the Appellant is foreclosed from raising any argument as to the weight to be attached to them as the law is trite that the admissibility of a document is one thing and the weight to be attached is another. See Iwowari-Gold & Anor vs. INEC & Ors (2019) LPELR-49205 (CA); N.O. Motanya & Ors vs. Elijah Elinwa & Ors (1994) 7 NWLR (Pt. 356) 252; Maku vs. Alhaji Tanko Al-Makura (2016) 5 NWLR (Pt. 1505) 201.
WRONGLY ADMITTED DOCUMENT – WHETHER A COURT HAS THE POWER TO EXPUNGE ANY EVIDENCE OR EXHIBIT WRONGLY ADMITTED
“It is worthy of note that even at the stage of judgment a court has the power to expunge any evidence or exhibit which was admitted during the trial if by law such a piece of evidence or such a document should not have been admitted in the first. See Magaji vs. Ogele (2012) LPELR-9476 (CA); Justus Nwabuoku & Ors vs. Francis Onwordi (2006) 5 S.C (Pt. III) 103.”
UNCHALLENGED EVIDENCE – ATTITUDE OF THE COURT TO UNCHALLENGED EVIDENCE
“Before I examine Exhibits D and D1 in some details, suffice to say that while I agree that a statement taken by a member of the investigating police team can be tendered by any member of the team who is familiar with the signature of the recorder but when such a statement is challenged and the recorder is not in court to join issues with the challenger, the evidence challenging the circumstance in which the document or exhibit was made will be taken by the court as unchallenged evidence and the attendant attitude of the court to unchallenged evidence will apply. The law is that such evidence will be deemed admitted and acted upon by a court. See Kayili vs. Yilbuk & Ors (2015) 1-2 S.C 124; Mabamije vs. Otto (2016) LPELR-26058 (SC).”
CONFESSIONAL STATEMENT – WHETHER COURT CAN CONVICT ON A RETRACTED CONFESSIONAL STATEMENT
“The Appellant retracted the statement but that in law does not affect the admissibility of the statement but rather it affects the probative value to be attached to the statement. See Legi Mohammed vs. The State (2019) LPELR-46420; The State vs. Ibrahim (2019) 9 NWLR (Pt. 1676) 137. A court can however convict on a retracted statement if it is direct and positive which admits to the commission of the offence. See The State vs. Musa (2020) 2 NWLR (Pt. 1709) 499; Re Osakwe (1994) 2 NWLR (Pt. 326) 273. In Busari vs. The State (2015) NWLR (Pt. 1452) 343, the apex court drove home this point expressly in these words:
“A confessional statement does not become inadmissible or inapplicable merely because there is a subsequent retraction of the confession by its maker. A court can convict on the retracted confessional statement of an accused person when it is satisfied that it was voluntarily made. But it is desirable to find outside the confession some evidence, be it slight of circumstances, which make it probable that the confession was true. Thus, if a confessional statement is retracted at the trial, the Judge should examine evidence led to see if there are circumstances which tend to establish that the confessional statement is true. Where there is independent evidence corroborating a retracted confessional statement, the trial Judge would be right to infer that the confessional statement was in fact made by the appellant and his attempt to retract the said statement at trial was a belated afterthought. A conviction on a retracted confessional statement would be sustained where independent evidence makes the confessional statement appear true and reliable.”
Similarly, the Supreme Court held that conviction can be based on a retracted statement provided the court can find evidence outside the retracted statement that points to the fact that the accused committed the offence. This was decided in the case of Adebayo Ojo vs. The State (2018) LPELR-44699 (SC) where the apex court per Nweze, JSC at pages 29-30 held:
“It is not the law that by resiling from his extra judicial confessional statement the appellant is automatically entitled to an acquittal. It is long settled that he can be convicted solely on his free confessional statement that is direct, positive and unequivocal. See Nwachukwu V. State (2002) LPELR-2084 (SC)and Rabi lsma’il v. The State (2011) LPELR-9352 (SC).
Over the years, however, the practice has evolved where, beyond the confessional statement of the accused, Courts ensure that other available evidence further establish the fact that the accused person indeed perpetrated the criminal act. See R V Sykes {1913) C.A.R. 233, Akpan v. The State (1992) LPELR-381 (SC) and Federal Republic of Nigeria v. Faith Iweka (2011) LPELR-9350 (SC).”
UNCHALLENGED EVIDENCE –DUTY OF COURT TO UNCHALLENGED EVIDENCE
“The Appellant had challenged the exhibits from the perspective that the statements were made already by one Femi whom he communicated with in Yoruba but the statement he signed was written in English. This dent the credibility of the statement particularly when there is no evidence on the other side challenging the evidence of the Appellant. In this circumstance, the court ought to have deemed the evidence unchallenged and acted on same. See Goyang Ksyili vs. Esly Yilbuk & Ors (2015) LPELR-24323 (SC); Ezechukwu & Anor vs. I.O.C. Onwuka (2016) 5 NWLR (Pt. 1506) 529. In Oyibo Iriri & Ors vs. Eseroraye Erhurhobara & Anor (1991) 1 S.C I, the Supreme Court Olatawura, JSC held:
“…. Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as a true version of the case it seeks to support.”
CONFESSIONAL STATEMENT – TEST FOR DETERMINING THE VERACITY OR OTHERWISE OF A CONFESSIONAL STATEMENT
“The law is trite, and it is this, a court can convict on the confessional statement of an accused but such a statement must pass the veracity test otherwise it is advisable not to convict an accused person on the confession statement. This makes great sense because sometimes the way confessions are gotten from accused persons by the police leaves more to be desired. To make assurance double sure, the law requires that a court that wants to convict an accused based on a confessional statement must get evidence external or outside the confessional statement that suggests that the confession is true. This evidence must be independent of the confessional statement pointing to one fact that the confession is true and was actually made by the accused.
One or two case laws on this well-established principle of law will not be out of place. In Ifeanya vs. FRN (2018) 11 NWLR (Pt. 1632) 164, the apex court stated the test that a confessional statement will be made to pass through before it can be relied upon to convict an accused person. The Supreme Court held:
“My lords, it has been an established practice that an accused person(defendant) in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court. Omoju v. FRN (2008)2 SCNJ 197; Kasa v.The State (2008)2 SCNJ, 375. However, where the accused person retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement doest not IPSO FACTO render it inadmissible in evidence. See R. v. Itule (1961) All NLR 462; R. v. Sapale & Anor (1957) 2 FSC 24; Egboghonome v. The State (1983) 7 NWLR (Pt.306) 383 at p.431; Bature v. The State (1994) 1 NWLR (Pt.320) 267; Alarape v. The State (2001) 5 NWLR (Pt.205) 79. Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof.
See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v. The State (1976) 6 SC 167; Obosi v. The State (1965) NMLR 119; R. v. Omokaru (1941) 7 WACA 146 . But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. Sykes (1913) 8 CAR 233; Obosi v. The State (supra); Yesufu v. The State (supra). The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
1. Whether there is anything outside the confession to show that it is true,
2. Whether the statement is corroborated, no matter how slight.
3. Whether the facts contained therein, so far as can be tested, are true.
4. Whether the accused person had the opportunity of committing the offence.
5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
6. Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: lkpasa v. Attorney General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 460.”
In Bello vs. C.O.P (2018) 2 NWLR (Pt. 1603) 267, the apex court in similar fashion held:
“The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true. The test or determinants are: Whether there is anything outside the (a) confession to show that it is true; Whether the statement is corroborated, no (b) matter how slightly; Whether the facts contained therein, so far (c) as can be tested, are true; Whether the accused person had the (d) opportunity of committing the offence; Whether the confession of the accused (e) person was possible; Whether the confession was consistent with other facts, which have been ascertained (f) and proved in the matter. In the instant case, the trial court did not apply or comply with any of the above tests or determinants. It was therefore, not safe to convict and sentence the appellant as done by the trial court and affirmed by the Court of Appeal.”
See Ogedengbe vs. State (2014) 12 NWLR (Pt. 1421) 338.
I can go on and on as this principle of law has been greeted with a lot of judicial pronouncement. I will just refer to one more case of this court. That is the case of Danladi vs. State (2019) 16 NWLR (Pt. 1698) 342, this court per Omoleye, JCA held:
“The trial court is enjoined to look outside the confessional statement of an accused person before it and not into it in order to determine its truth. In doing so, the trial court will examine other evidence to see if those other evidence corroborate the confessional statement. The court must ask itself and resolve a number of questions which are:
(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?
The trial court in resolving these questions need to fallback to the evidence of other witnesses in the case and such other documents or exhibits, if any ,admitted in the matter to find if they support the statement. The court must state in its judgment how it arrived at its conclusion regarding the truth or falsity of the statement. The test of veracity involves the examination of other or outside evidence by comparing those evidence with the confessional statement before the trial court, to determine whether the confessional statement is credible or true. The examination also entails the consideration of other outside evidence as would lend credence to the confessional statement which is in contention. Unless the test is properly carried out, an accused cannot be convicted and sentenced based on such confessional statement.”
CONFESSIONAL STATEMENT – WHETHER THE STATEMENT OF AN ACCUSED PERSON IS EVIDENCE AGAINST A CO-ACCUSED
“The law is trite and settled, which is that, the statement of an accused person to the police is the only evidence against him and not evidence against the co-accused. See Ohuka vs. State (1988) 7 S.C (Pt. II ) 25; Hassan vs. State (2017) 5 NWLR (Pt. 1557)I; Yongo vs. COP (1992) 8 NWLR (Pt. 257) 36; Iliyasu Suberu vs. The State(2010) 2 FWLR (Pt. 523) 3741. In The State vs. Onyenkwu (2004) 14 NWLR (Pt. 893) 340, the apex court held:
“The evidence of an accused person in a criminal trial cannot be received as evidence either for or against another accused person, the reason being that otherwise there would be a great danger that one accused person would be tempted to exculpate himself at the expense of his co-accused. Thus, a statement of an accused person cannot be used as evidence against a co-accused, without corroboration. The evidence when not corroborated goes to no issue. And neither the evasiveness nor the brazen lies of a co-accused would be an excuse for the prosecution to assume that the case has been proved beyond all reasonable doubt.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Act, 2006|Evidence Act, 2011|Robbery and Firearms (Special Provisions ) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004|
