CORAM

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Ibrahim Ali Andenyangtso Justice Court of Appeal

Peter Oyinkenimiemi Affen Justice Court of Appeal

Abiodun Azeem Akinyemi Justice of the Court of Appeal

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PARTIES

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BABAWURO JAURO SANI

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, CONSTITUTIONAL LAW, EVIDENCE LAW, APPEAL, PRACTICE AND PROCEDURE, IDENTIFICATION, CONFESSIONAL STATEMENTS, CONSPIRACY

 

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SUMMARY OF FACTS

On February 18, 2020, at about 3am, a group of persons waylaid a passenger bus traveling from Kebbi State to Maiduguri, Bornu State, just before Dambam town in Bauchi State. The robbers beat up and robbed the driver and passengers of their valuables before escaping. The case was reported at the Dambam Police Division and subsequently transferred to the State Police Criminal Investigation Department. A few days later, the appellant (who was the 2nd Defendant at the trial court) was arrested in Dambam town after his name was mentioned by one of the other suspects who had been earlier arrested. All suspects were subsequently charged with Criminal Conspiracy contrary to Section 97 of the Penal Code and Armed Robbery contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act. The appellant and all co-defendants pleaded not guilty to the charges.

At the trial, the Prosecution called 4 witnesses: the driver of the robbed vehicle, two Police Investigating Officers, and an Exhibit Keeper. The appellant was said to have made a confessional statement which he later retracted. He testified in his own defense and called no other witnesses. The High Court of Bauchi State, per MU’AZU ABUBAKAR J, convicted the appellant and three others of criminal conspiracy and robbery, and sentenced each of them to two and seven years imprisonment on the first and second counts, respectively. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

 

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HELD

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1. The appeal was allowed.

2. The court found that the prosecution failed to prove the charges of robbery and conspiracy against the appellant beyond reasonable doubt.

3. The purported confessional statement of the appellant, which was retracted, was not properly corroborated and failed the six-way test of truth established by case law.

4. The evidence of identification by PW1 (the bus driver) was weak, unreliable, and insufficient to establish that the appellant was one of the robbers.

5. The judgment of the High Court of Bauchi State delivered on July 29, 2021, convicting the appellant and sentencing him to two years and seven years imprisonment respectively on counts 1 and 2, was set aside.

6. The appellant was discharged and acquitted.

 

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ISSUES

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The Court of Appeal reformulated the issues raised by both parties into a single issue:

“Whether the learned trial judge was right in holding that the Prosecution proved its case against the appellant beyond reasonable doubt.”?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF IN CRIMINAL CASES – STANDARD REQUIRED TO SECURE CONVICTION

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“In a criminal trial, the onus is on the prosecution to prove its case against the defendant beyond reasonable doubt. See AMINU V STATE (2020) 6 NWLR (PT 10) 17297, STATE V SADIQ (2022) 5 NWLR (PT 1824) 413, AMAH V STATE (2023) 5 NWLR (PT 1871) 301. While this does not mean proof beyond every iota of doubt, it implies that the case presented by the prosecution must be so strong that it leaves only a very remote possibility if any, but no probability, that the defendant is innocent.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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REASONABLE DOUBT – MEANING AND APPLICATION IN CRIMINAL TRIALS

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“‘Reasonable doubt’ means that there is some reason not to firmly believe or be fully convinced that the defendant is guilty or that there is a reason to believe that there is a real possibility that the defendant is not guilty. It is a doubt based on reason arising from lack of evidence – a doubt which a reasonable man or woman might entertain – such as will make a Court to hesitate as to the correctness of a conclusion it arrives at after evaluating the evidence before it.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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RETRACTED CONFESSIONAL STATEMENTS – NEED FOR CORROBORATION AND TEST OF TRUTH

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“The law is settled, that a Court can convict a defendant based on his retracted confession if it is satisfied that he made it freely in circumstances that give credibility to the contents of the confession. However, it is always desirable that such retracted confession be corroborated by other evidence outside it which make it probable that the confession was true.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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SIX-WAY TEST OF TRUTH – APPLICATION TO CONFESSIONAL STATEMENTS

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“To test the truth of the confession, the Court subjects it to the crucible of what has become known as the six-way test of truth which is as follows:

1. Is there anything outside the confession to show that it is true?

2. Is the confession corroborated?

3. Are the facts stated in the confession true as far as can be tested?

4. Did the appellant have the opportunity to commit the crime?

5. Is the confession possible?

6. Is the confession consistent with other proved or ascertained facts in the case?” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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CORROBORATIVE EVIDENCE – NATURE AND REQUIREMENTS TO VALIDATE CONFESSIONS

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“By nature, corroborative evidence must be evidence that has probative value and show or tend to show that the narrative that the defendant committed the crime is true, and not just that the crime was committed. It must be evidence which has legal potency and shows without equivocation that the defendant committed the crime. It must not only be independent of the evidence it is intended to corroborate but must also support the main evidence by rendering the story of the latter implicating the defendant probable in some material particular.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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EVIDENTIAL VALUE – TREATMENT OF EVIDENCE WITHOUT PROPER LINKAGE

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“The law is trite that evidence that is simply dumped on a Court without being demonstrated to be linked to any aspect of the case, lacks probative value and cannot be used for any purpose by the Court. See DURUMINIYA V C.O.P. (1962) NNLR 70 @ 73-74.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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EVIDENCE OF IDENTIFICATION – FACTORS FOR DETERMINING CREDIBILITY

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“The guiding factors for determining the credibility of the evidence of a witness on the question of the identification of a defendant are as follows:

1. The circumstances in which the witness saw the defendant.

2. How much time the witness had to see the defendant.

3. The lighting conditions of the scene, if it was not daytime.

4. The opportunity the witness had to closely observe the defendant.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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IMPORTANCE OF PROPER IDENTIFICATION – EFFECT OF WEAK IDENTIFICATION EVIDENCE

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“The importance of identification of an accused person cannot be overemphasized. It is only when an accused person has been properly identified as the perpetrator of the alleged crime that his conviction can stand. Where the evidence of identification is weak, the trial Court must give the accused person the benefit of doubt and go on to acquit him of the offence…” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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IDENTIFICATION PARADE – CIRCUMSTANCES WHERE MANDATORY

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“Although it is not in every case that an identification parade must be held, it is mandatory to hold it in the following circumstances: a. Where the victim/witness did not know the offender before and their first contact was during the commission of the offence. b. Where the victim/witness was confronted by the offender for a short time. c. Where the victim/witness did not have sufficient opportunity to observe the features of the offender. d. Where the victim/witness did not identify the offender immediately at the scene of the incident or contemporaneously thereafter.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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CONSPIRACY AS DISTINCT OFFENSE – INDEPENDENCE FROM SUBSTANTIVE OFFENCE

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“A count or conviction for conspiracy does not automatically fail because the conviction for the substantive offence has failed. See BOUWER V STATE (2016) 4 NWLR (PT 1502) 295, BALOGUN V A-G, OGUN (2002) 6 NWLR (PT 763) 512, OKANLAWON V STATE (2015) 17 NWLR (PT 1489) 445, COP V OGOR (2022) LPELR-57558 (SC). This is because conspiracy to commit an offence is a separate and distinct offence by itself, independent of the offence of commission of the substantive offence to which the conspiracy relates.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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CONSPIRACY CONVICTION – WHEN IT MUST FAIL WITH SUBSTANTIVE OFFENCE

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“However, where the facts are inextricably interwoven and the same evidence is adduced or relied upon by the prosecution to prove both the substantive offence and the count of conspiracy, once the conviction for the substantive offence fails, as in the instant case, the conviction for the count of conspiracy must also fail.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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INGREDIENTS OF ROBBERY – ELEMENTS TO BE PROVED BY PROSECUTION

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“The ingredients of robbery are:

1. That the defendant stole something that was capable of being stolen.

2. That the defendant used or threatened to use violence, before, during or immediately after the stealing.

3. That the defendant was the robber or one of the robbers.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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QUALITY OF IDENTIFICATION EVIDENCE – REQUIREMENT FOR SPECIFICITY

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“To be accepted and relied upon by a Court, the evidence of identification of a defendant must be direct, cogent and specific.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Penal Code, Section 97

• Robbery and Firearms (Special Provisions) Act, Section 1(1)

• Evidence Act, 2011, Section 135(1)

• Judges’ Rules

 

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