CORAM
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Lateef Adebayo Ganiyu Justice of the Court of Appeal
Asmau Ojuolape Akanbi Justice of the Court of Appeal
PARTIES
NAZIRU ISMAIL
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, EVIDENCE LAW, CRIMINAL PROCEDURE, ARMED ROBBERY, CONSPIRACY, CONFESSIONAL STATEMENTS, RETRACTED CONFESSIONS, WITNESS TESTIMONY, BURDEN OF PROOF, IDENTIFICATION EVIDENCE, CONTRADICTION AND DISCREPANCY
SUMMARY OF FACTS
The Appellant, Naziru Ismail, was arraigned along with another person (now at large) on a two-count charge of conspiracy to commit Armed Robbery and Armed Robbery on February 20, 2017, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004. The charges were filed on November 21, 2017, and the Appellant pleaded not guilty upon arraignment on January 9, 2018.
According to the prosecution, on February 20, 2017, at about 6 am in Urora Community, Aduwawa, Benin City, the Appellant, in the company of another person now at large, attacked one Philomena Omojahio. The Appellant demanded her bag at gunpoint, and upon collecting it, ran away. The victim raised an alarm, which attracted the attention of some community youths who chased and apprehended the Appellant. The bag, which was recovered from the Appellant, contained the victim’s police uniform, food, eyeglasses, and Nokia phone.
The police were called to the scene, and upon arrival, the Appellant and the recovered bag were handed over to them. During the investigation, the Appellant made confessional statements admitting to the crime. The prosecution called three witnesses and tendered four exhibits (marked as Exhibits A-D). The Appellant testified in his own defense but called no witnesses.
At the conclusion of the trial, the High Court of Edo State (Hon. Justice Ohimai Ovbiagele) delivered a judgment on July 26, 2018, finding the Appellant guilty on both counts and sentenced him accordingly. Dissatisfied with the judgment, the Appellant filed an appeal challenging his conviction and sentence.
HELD
1. The appeal was dismissed for lack of merit, and the judgment of the High Court of Edo State in Charge No: B/CD/280C/17 delivered on July 26, 2018, was affirmed.
2. The Court of Appeal held that the lower court properly evaluated the evidence before it, particularly regarding the confessional statements (Exhibits C and D). The Court found that Exhibit C, though retracted by the Appellant, was corroborated by other evidence, especially the testimony of PW1 (the victim).
3. The Court held that a trial within trial was not required for a retracted confession, as the Appellant had denied making the statement altogether rather than claiming it was made involuntarily.
4. The Court found that the Appellant was inconsistent in his claim of inability to speak or understand English, as evidence showed he spoke both English and Hausa at different points during the proceedings.
5. The Court held that the prosecution had successfully proved both the conspiracy and armed robbery charges beyond reasonable doubt through the evidence of PW1, PW2, PW3, and Exhibits A-D.
6. The Court rejected the Appellant’s argument that the failure to call the community youths who apprehended him was fatal to the prosecution’s case, holding that the prosecution is not obligated to call a host of witnesses and that what matters is the quality, not quantity, of witnesses.
7. The Court found that alleged contradictions in the testimony of PW1 regarding the contents of her bag were mere discrepancies that did not affect the proof of the essential elements of the offenses.
ISSUES
1. Whether or not the learned trial Judge properly evaluated the evidence by the prosecution and the accused before arriving at the conclusion that the accused person made confessional statements? (Grounds 1, 3, 4, 5, 6, and 7)
2. Whether or not the prosecution met the legal requirements to sustain the charge of conspiracy and armed robbery? (Grounds 2 and 8)
RATIONES DECIDENDI
RETRACTED CONFESSIONAL STATEMENTS – CONDITIONS FOR RELIANCE BY COURT
“It is trite that a lower Court can successfully convict a defendant on a retracted confessional statement if it believes that the confessional statement was made by them. However, it is said to be desirable and not mandatory that there is a piece of corroborative evidence before the Court for the conviction to be properly based on same.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
SIX-WAY TEST FOR CONFESSIONAL STATEMENTS – ENUMERATION OF CONDITIONS
“Now, on the six-way test which the Courts are enjoined to follow as a safeguard to sustain a conviction on a confessional statement, they are, to wit – a) Whether there is anything outside the confession which shows that it may be true; b) Whether the confessional statement is in fact corroborated; c) Whether the relevant statement of fact made in it are most likely true as far as they can be tested; d) Whether the accused had the opportunity of committing the offence; e) Whether the confession is possible; and f) Whether the alleged confession is consistent with other facts that have been ascertained and established.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
TRIAL WITHIN TRIAL – WHEN REQUIRED IN CASE OF RETRACTED CONFESSION
“At the retraction of a confessional statement, the Appellant is said to have denied ever making the said confessional statement in question, meaning that he did not admit to making the statement either voluntarily or involuntarily. Thus, he cannot be heard asking the Court to conduct a trial within trial which is intended to test the voluntariness of making the statement. He has clearly stated that he did not make any statement, thus, the lower Court was right when it did not conduct a trial within trial.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
CONSPIRACY – NATURE OF PROOF REQUIRED
“On the nature of proof required to establish conspiracy, Achike, JSC (as he then was) stated thus in ODUNEYE v. THE STATE (2001) 1 SC (PT.1) 1 @ 6-7, (2001) 2 NWLR (PT.697) 311 @ 324. “A conviction for conspiracy is not without its inherent difficulties… a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred… Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused.”” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A. (quoting Peter-Odili, JSC in Sansani v. State (2022) LPELR-57954(SC))
CONTRADICTIONS VERSUS DISCREPANCIES – MATERIAL EFFECT ON CRIMINAL TRIAL
“For contradiction to be material, it must relate to the ingredients of an alleged offence. The ingredients of the offence of armed robbery will be x-rayed in the fullness of time in this judgment. Suffice to say that recovery of loot of armed robbery does not fall within the perimeter of its ingredients. Thus, the recovery/return of the stolen items and vice versa do not derogate from the charge of armed robbery hurled against the appellant et alia. The recovery or non-recovery of the stolen items does not diminish, an inch, the classic parole evidence of armed robbery preferred against the appellant.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A. (quoting Ogbuinya, JSC in Agbo v. State (2025) LPELR-80184(SC))
PROSECUTION WITNESSES – OBLIGATION REGARDING NUMBER AND CHOICE
“In our criminal justice system, there is no duty foisted on the prosecution to call a particular person as a witness. The duty of the prosecution is to prove the charge against the accused and the moment that duty is discharged, the Court can convict the accused person. The choice of witnesses is the discretion of the prosecution, and I dare say, the discretion is unfettered.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A. (quoting Tobi, JSC in State v. Olatunji (2003) LPELR-3227 (SC))
EVALUATION OF EVIDENCE – PRIMARY FUNCTION OF TRIAL COURT
“The evaluation of evidence and the ascription of probative value is the primary duty of the lower Court, as rightly posited by the Appellant in his Brief; the law on this point is trite. Evaluating evidence is vital for achieving just findings in a lower Court. The lower Court must ensure that its conclusions on findings are not based on a failure to evaluate the evidence before it.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES – POSITION OF LAW
“Under our criminal jurisprudence, the duty of proving the guilt of a Defendant standing trial for an offence(s) beyond reasonable doubt rests squarely on the Prosecution as the Defendant enjoys the presumption of innocence and is therefore not required to prove his innocence.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
PRESENCE AT CRIME SCENE – EVIDENTIAL VALUE
“Not only did the Appellant drive the Robbers to the scene of crime, He also went into the house with the 2nd Accused Person who was also with a gun. Whatever the Appellant did in furtherance of this crime is immaterial. The important thing was that he was properly identified, situated at the crime scene and was on the getaway motorcycle when they were accosted.” – Per LATEEF ADEBAYO GANIYU, J.C.A. (quoting NDUKWE-ANYANWU, JCA in ADISA V. STATE (2021) LPELR-56346(CA))
DISCREPANCIES IN WITNESS TESTIMONY – EFFECT ON CREDIBILITY
“The law condones discrepancies in evidence of witnesses in that ‘minor variations in their testimonies merely imbue their evidence with imprimatur of truth’, see Eke v. State (supra), at 665, per Fabiyi, JSC; Muh’d v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows that minute differences in the narration of evidence attest to the veracity of witnesses on a point.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A. (quoting Ogbuinya, JSC)
RETRACTION OF CONFESSIONAL STATEMENT – EFFECT ON ADMISSIBILITY AND EVIDENTIARY VALUE
“It is trite that the retraction of a confessional statement by an accused person in his evidence on oath during trial does not adversely affect the situation once the Court is satisfied as to its truth and can rely solely on the confessional statement to ground a conviction.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.
DESIRABILITY OF SIX-WAY TEST – NOT MANDATORY IN ALL CASES
“It should be noted however that the desirability of the above test before a conviction based on a confessional statement is discretionary, depending on the circumstances of a case, and not mandatory as posited by the Appellant.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
IDENTIFICATION OF ACCUSED – VALUE OF EYE-WITNESS TESTIMONY
“A careful examination of the Record of Appeal will reveal that the identity of the Appellant was not in issue as there were conclusive pieces of evidence leading to the identification of the perpetrator of the offence. PW1, the sole eyewitness of the said crime, under the heat of cross-examination, stated that the Appellant robbed her.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 (Sections 1(2)(a) and 6(b))
• Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Section 36(5))
• Evidence Act, 2011 (Section 135(1) & (2), Section 167)
CLICK HERE TO READ FULL JUDGMENT