CORAM

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Tijjani Abubakar Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa Justice of the Supreme Court of Nigeria

Haruna Simon Tsammani Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

Mohammed Baba Idris Justice of the Supreme Court of Nigeria

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PARTIES

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GAMBO SALE

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW AND PROCEDURE, ARMED ROBBERY, CONSPIRACY, EVIDENCE, CONFESSIONAL STATEMENTS, IDENTIFICATION PARADE, BURDEN OF PROOF, CORROBORATION, EYE-WITNESS TESTIMONY, DENIAL OF CONFESSION

 

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SUMMARY OF FACTS

The appellant, Gambo Sale, along with three other co-accused persons, was charged before the Kaduna State High Court on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, LFN 2004. The prosecution’s case was that on July 13, 2006, PW1 (Ojile Emmanuel), a staff of the Nigerian Security and Civil Defence Corps (NSCDC), was part of a team traveling from Abuja to Jos to launch Anti-Vandal Motor Cycles. Their convoy was attacked by armed robbers along Kwoi-Jos Road around 8:00am. The robbers, some wearing police shirts and masks while others were unmasked, surrounded their vehicles with AK-47 rifles and robbed them of approximately N2 million. Two NSCDC personnel were killed during the robbery. PW1 identified the appellant as one of the unmasked robbers who prevented others from killing the victims. Later in July 2006, operatives of the State Security Service (SSS) received a tip-off about criminals hosting a party in Akwatashi, Lafia, Nasarawa State. They arrested five persons including the appellant and his co-accused. During interrogation, they confessed to participating in the robbery and led the SSS to recover arms and ammunition hidden in the bush. The appellant’s confessional statements were recorded and admitted as Exhibits 3 and 3A. The appellant testified in his defense, denying the allegations and claiming he was arrested by one Ali Kwara in his village in Kano State. The trial court convicted all accused persons and sentenced them to death by hanging. The Court of Appeal dismissed the appellant’s appeal, prompting the appeal to the Supreme Court.

 

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HELD

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1. The appeal was dismissed.

2. The Court held that identification parade was unnecessary where the accused person had made a confessional statement identifying himself as one of the perpetrators.

3. The Court found that the appellant’s confessional statements (Exhibits 3 and 3A) were voluntary, direct, positive, and unequivocal.

4. The Court held that the appellant’s denial of making the confessional statement during cross-examination did not render the statement inadmissible, but the Court must subject it to the six-questions test from R v. Sykes.

5. The Court found sufficient corroborative evidence in the eye-witness testimony of PW1 and the recovery of arms and ammunition to support the confessional statement.

6. The Court affirmed the concurrent findings of the trial court and Court of Appeal that the prosecution had proved the case beyond reasonable doubt.

 

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ISSUES

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1. Whether the Court below was right and justified in affirming the conviction and sentence of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery regard being had to the fact that: a) The Respondent did not conduct identification parade to ascertain the identity of the Appellant. b) The Appellant had denied the authorship of the alleged confessional statement said to be made by him and was equally not confronted with the confessional statement said to be made by his co-accused/convicts?

2. Whether the Court below was right in affirming the conviction and sentence of the Appellant by the trial Court for the offences of conspiracy to commit armed robbery and armed robbery?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF IN CRIMINAL CASES – STATIC NATURE AND PROSECUTION’S RESPONSIBILITY

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As rightly submitted by both counsel to the parties, the burden to prove the guilt of an accused person beyond reasonable doubt is always on the prosecution. This burden is static. It does not shift. – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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INGREDIENTS OF ARMED ROBBERY – ESSENTIAL ELEMENTS FOR CONVICTION

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In the case of armed robbery which is the offence alleged in the charge leading to this appeal, the prosecution is obligated to prove the following ingredients beyond reasonable doubt; (I) that there was a robbery, (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accused person or persons were the armed robbers or was one of the armed robbers. All the above ingredients must be proved collectively beyond reasonable doubt.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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CONFESSIONAL STATEMENT RENDERING IDENTIFICATION PARADE UNNECESSARY – SELF-IDENTIFICATION PRINCIPLE

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It does not accord with common sense to insist or assert that an identification parade be conducted to ascertain the identity of the perpetrator of a crime when the perpetrator had identified himself. I am therefore on the same page with the lower Court that the existence of a confessional statement will render identification parade unnecessary. – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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DENIAL OF CONFESSIONAL STATEMENT – EFFECT ON ADMISSIBILITY AND WEIGHT

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It is no longer the law that once an accused person denies making a confessional statement attributed to him, the Court is handicapped and cannot make use of the statement in determining the guilt or otherwise of the accused person. The law is now firmly settled that in a situation where an accused person denies a confessional statement attributed to him, the Court is expected to subject the statement to the six-questions test propounded in R VS. SYKES. – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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SIX-QUESTIONS TEST FOR CONFESSIONAL STATEMENTS – VERACITY DETERMINATION

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The fact that an accused person denies making a confessional statement to the police, does not render such extra-judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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EYE-WITNESS IDENTIFICATION IN DAYLIGHT – RELIABILITY OF IDENTIFICATION

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This is because the robbery incident took place around 10 O’clock in the morning with the benefit of the day break. It is also in evidence that the robbery incident took place for about 30 minutes and the Appellant is one of the armed robbers that did not wear any face mask. Given this picture painted of the scene of the robbery, it cannot be reasonably contended that PW 1 was not in a position to identify the Appellant with certainty. – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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CONFESSIONAL STATEMENT AS STRONGEST EVIDENCE – SELF-ADMISSION PRINCIPLE

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It is fairly settled that a confessional statement of an accused person, without more, can establish guilt. There is no stronger evidence than a person’s own admission or confession that he/she committed the offence. Once the confession is direct and positive, and the Court is satisfied of its truth, even without corroboration, can be relied upon to establish the guilt of the Appellant.– Per CHIDI NWAOMA UWA, J.S.C.

 

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IDENTIFICATION PARADE UNNECESSARY WHERE ACCUSED CONFESSES – WASTE OF TIME PRINCIPLE

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On the contention of an identification parade, I agree with the Respondent that an identification parade is unnecessary and would amount to a waste of time, where the accused person has confessed to the commission of the crime, as in the instant case.– Per CHIDI NWAOMA UWA, J.S.C.

 

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METHODS OF ESTABLISHING IDENTITY IN CRIMINAL CASES – THREE-FOLD APPROACH

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In every criminal prosecution, the identity of the person that perpetrated the act is of paramount importance. Therefore, the prosecution has to lead cogent and credible evidence that establishes that the accused person committed or was one of the persons that committed the offence. This fact may be established by the testimony of eye witnesses who saw when and how the offence was committed. Circumstantial evidence may also link the accused with the commission of the offence with the accuracy of mathematics. The accused person may self-identify himself through his confessional statement. – Per HARUNA SIMON TSAMMANI, J.S.C.

 

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ELEMENTS OF CRIMINAL CONSPIRACY – AGREEMENT TO COMMIT UNLAWFUL ACT

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The essential ingredients of the offence of conspiracy lie in the agreement to do an unlawful act which is contrary to or forbidden by law, and it does not matter whether or not the accused persons had knowledge of its unlawfulness… The offence of conspiracy is separate, distinct and independent of the actual commission of the offence to which conspiracy is related. A mere agreement to commit the offence is sufficient; its commission is not necessary. – Per MOHAMMED BABA IDRIS, J.S.C.

 

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RETRACTED CONFESSIONAL STATEMENT – ADMISSIBILITY AND PROBATIVE VALUE

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It is also trite that the confessional statement does not become inadmissible and resiling from the statement does not make it unreliable. The Court can still admit and convict on a retracted confession, if satisfied that same was indeed made by the accused person and the circumstances under which the statement was made guaranteed the credibility of the content of the confessional statement.– Per MOHAMMED BABA IDRIS, J.S.C.

 

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CIRCUMSTANCES WHERE IDENTIFICATION PARADE IS UNNECESSARY – ESTABLISHED EXCEPTIONS

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It is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused to the crime on the day the crime was committed (like the evidence of the PW1 and the confessional statement of the Appellant), a formal identification may be unnecessary. Also, where an accused by his confession identifies himself, there would be no need for an identification parade. – Per MOHAMMED BABA IDRIS, J.S.C.

 

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CONFESSIONAL STATEMENT WITHOUT OBJECTION – GOOD EVIDENCE PRINCIPLE

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A person may be convicted on his own confession alone once the statement complies with the law governing the method of taking the statement and it is tendered and not objected to by the defense and it is admitted as an exhibit, then it is good evidence and no amount of retraction will vitiate his admission as a voluntary statement. – Per MOHAMMED BABA IDRIS, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Robbery and Firearms (Special Provisions) Act, Cap. R. 11, LFN 2004

2. Evidence Act, 2011

3. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

 

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