AHMED v. KANO STATE (2017)

In The Court of Appeal of Nigeria

On Tuesday, the 17th day of January, 2017

CA/K/425/C/2012

Before Their Lordships

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria


Between

MUHAMMED AHMED Appellant(s)

AND

KANO STATE Respondent(s)

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OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal before us is in respect of the judgment of the High Court of Kano State (the lower Court) in a criminal matter. The Appellant, Muhammed Ahmed was the third accused in a five count charge before the lower Court. The counts are as follows:-THE 1ST HEAD OF CHARGE
That you Paul Chekwudebelu, Nura Sha’aibu Adamu, Mohammed Ahmed and others now at large on or about the 11th day of July, 2010 at Kurnar Asabe quarters, Kano, within Kano Judicial Division, conspired amongst yourselves with others now at large to rob one Alhaji Salisu Sa’idu Maikanti of the sum of One Hundred and forty five thousand Naira, a wrist watch and two Samsung handsets and that you thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria.
THE 2ND HEAD OF CHARGE
That you Paul Chekwudebelu, Nura Sha’aibu Adamu, Mohammed Ahmed and others now at large, on or about the 11th day of July, 2010 at Kurnar Asabe quarters, Kano, within Kano Judicial Division while armed with firearms to wit: 
AK47 assault riffles and a pistol shot at the car of Alhaji Salisu Sa’idu Maikanti, and into the air, forced him out of his car and hit him on his head with a rifle; thereafter took away from him the sum of one hundred and forty five thousand Naira, a wrist watch valued at twelve thousand Naira and two Samsung handsets both valued at forty two thousand naira; and that you thereby committed the offence of armed robbery, punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria.
THE 3RD HEAD OF CHARGE
That you Paul Chekwudebelu, Nura Sha’aibu Adamu, Mohammed Ahmed and others now at large, on or about the 11th day of July, 2010 at Kurnar Asabe quarters, Kano, within Kano Judicial Division committed the offence of abduction by doing an act to wit: you forced one Alhaji Salisu Sa’idu Maikanli at gun point to go from Kurna Asabe quarters, Fagge Local Government Area, Kano to Yamadawa quarters in Gwale Local Government Area, Kano and put him in a room facing the main gate and thereby disposed to put him in danger of being killed, and thereby committed an offence punishable under 
Section 274 of the Penal Code Laws of Kano State 1991.
THE 4TH HEAD OF CHARGE
That you Paul Chukwidebelu, Nura Sha’aibu Adamu, Mohammed Ahmed and others now at large, between the 11th day of July, 2010 and the 12th day of July, 2010 at Yamadawa quarters Kano, within Kano Judicial Division committed the offence of wrongful restraint by doing an act to wit: you prevented one Alhaji Salisu Maikanti from proceeding beyond a room in a house situate at Yamadawa quarters for the purpose of extorting the sum of thirty five million Naira from his son and that you thereby committed an offence punishable under Section 260 of the Penal Code Laws of Kano State Cap. 37.
THE 5TH HEAD OF CHARGE
That you Paul Chukwudebelu, Nura Shaaibu Adamu, Mohammed Ahmed and others now at large, between the 11th day of July, 2010 and 12th day of July, 2010 at Yamadawa quarters, Kano Judicial Division committed the offence of extortion by doing an act to wit: you intentionally put one Alhaji Salisu Sa’idu Maikanti in fear of death and dishonestly induced him to order his son to deliver to you the sum of two hundred and twenty nine thousand, United State of America 
Dollars (equivalent to thirty five million Naira) and that you thereby committed an offence punishable under Section 294 of the Penal Code Cap. 37 of the laws of Kano State.
In a detailed judgment of 83 pages, in which the learned trial judge considered the evidence of the prosecution witnesses and the defence, the extra-judicial statement of the Appellant and other

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documents tendered before him, the learned trial judge found that the case against the Appellant and the others charged with him, were proved beyond reasonable doubt. The trial judge therefore sentenced the Appellant and the two others to death for the offence of conspiracy; death for the offence of robbery, 15 years imprisonment for the offence of abduction; 3 years imprisonment for the offence of wrongful confinement; and 14 years imprisonment for the offence of extortion. In addition, the lower Court ordered the forfeiture of the assets both moveable and immoveable, of the Appellant and the two others, to the government of Kano State.
Dissatisfied with the judgment of the lower Court, which judgment was delivered on the 6th of April, 2016, the Appellant on the 27th of June, 2016, filed a Notice of Appeal on the following five grounds.
GROUND ONE
The learned trial judge erred in law when he found in the portion of the judgment thus:
“From the statement of the 3rd accused to the Police, which was tendered and admitted in evidence as Exhibit J1, and with no objection from Counsel to the accused, and the testimonies of PW1 and PW4 before this Court.
It is very clear that there was a nexus between the meetings which the 2nd and 3rd accused had with one Obinna, a.k.a. Barrister mentioned by the 3rd accused, and who is not before this Court, and the role played by the 1st accused on 11/7/2010, and the house at Yamadawa, rented out to the 2nd accused by PW4 the land lady.
In the circumstances of this case therefore, it can safely be inferred that there was a conspiracy to kidnap PW1, the Complainant in this case, which involved the 1st, 2nd and 3rd accused persons amongst other “
and thereby came to a wrong conclusion which has occasioned a miscarriage of justice.
GROUND TWO
The trial Court erred in law when it held in a portion of the judgment thus:
“Retracting 
Exhibit J1 by the accused in his oral testimony to my mind did not adversely affect the position that the 3rd accused played an active role in the conspiracy that resulted in the abduction of the nominal complainant in this case, and therefore cannot exonerate himself from the Armed Robbery committed by the gang, of which he was an active orchestrated (sic).
I therefore accept the contents of Exhibit J1, as the true position of things. The oral testimony of DW3, who is the 3rd accused person is an afterthought, and an attempt to resile from the truth, I therefore hold that the prosecution has established the case of Armed Robbery against the 3rd accused” and thereby came to a wrong conclusion which has occasioned a miscarriage of justice.
GROUND THREE
The trial Court erred in law in holding that the Appellant is guilty of the offence of abduction of the complainant – Alhaji Salisu Maikanti by relying on the content of Exhibit J1 being the alleged confessional statement of the Appellant.
GROUND FOUR
The trial Court erred in law in holding that the prosecution had proved the offence of wrongful confinement committed 
against the complainant by the Appellant and the other 2 accused persons.
GROUND FIVE
The trial Court erred in law in finding the Appellant guilty of the offence of extortion against the complainant – Alhaji Salisu Maikanti by reliance on the contents of Exhibit J1.

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In the Appellant’s Brief of Argument settled by O.I. Habeeb Esq. and filed on 7/9/16 a single issue for determination was distilled from the five grounds of appeal. That issue is:-
“Whether, having regard to the totality of the evidence led and the contents of the retracted extra judicial statement said to have been made by the Appellant, the trial High Court was justified in convicting the Appellant for the offence of conspiracy, armed robbery, abduction, wrongful restraint and extortion.”
The Respondent in its Brief of Argument settled by Nura Muhammed Fagge Esq. and filed on 20/10/16, adopted the single issue formulated by the Appellant.
Arguing the issue, O.I. Habeeb of Counsel for the Appellant, submitted that the ingredients of the offence of conspiracy are stated in the case of KAZA V. STATE (2008) 7 NWLR (Pt. 108) p. 125 at 176.
Learned Counsel submitted that none of the witnesses of the prosecution including the victim of the crime, PW1, made reference to the Appellant as being involved in the commission of the crime. It was submitted that the reference by the learned trial judge to the evidence of PW1 and PW4 in order to infer the commission of the offence of conspiracy by the Appellant has no basis in law. It was argued that there is no legal basis for the finding of guilt of the Appellant by the lower Court.
Learned Counsel submitted that for conspiracy to be proved, there must be evidence either direct or indirect showing an agreement between two or more persons to do an unlawful act or a lawful act by an unlawful means. Conspiracy, learned Counsel argued, is not committed by the mere intention of the parties. The cases of SHURUMO V. STATE (2010) 9 NWLR (Pt.1226) p.73 at 104; YAKUBU V. FRN (2009) 14 NWLR (Pt.1160) p. 151 at p.174 and YAKUBU V. STATE (2014) 8 NWLR (Pt. 408) p. 111 at p. 137 were cited in support. It was contended that there was a total absence of either direct or circumstantial evidence arising from the evidence of PW1 and PW4, that links the Appellant to the offence of conspiracy.
Appellant’s learned Counsel submitted that in arriving at its decision that the Appellant was guilty of conspiracy, the lower Court relied on an extra judicial statement said to have been made by the Appellant, i.e. Exhibit J1. While conceding that an objection to the involuntariness of the said extra judicial statement Exhibit J1 ought to have been raised at the point of tendering it, and that same was not done, learned Counsel submitted that the Appellant in his oral evidence in Court retracted the extra judicial statement, saying that it was actually made by a Police Officer, PW6 and not himself. It was submitted that the Appellant having retracted the said statement, Exhibit J1, it was wrong for the learned trial judge to have relied on it to convict the Appellant in the absence of evidence corroborating the retracted statement. The case of OGUDU V. STATE (2011) 18 NWLR (Pt. 1278) p. 1 at p. 26 was cited in support.
With regard to the offence of armed robbery, learned Counsel submitted that the Appellant was convicted by the lower Court, again, based on the Appellant’s retracted statement, Exhibit J1, which evidence was not corroborated. It was submitted that PW1, the victim of the crime, did not mention the Appellant in his evidence in Court. Similarly, the evidence of PW2, PW4, PW5, PW6 and PW7, it was submitted, did not show any direct involvement of the Appellant in the commission of the crime.

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Learned Counsel submitted that from the evidence on record, the Appellant made three extra judicial statements before the Police. However, only one, Exhibit J1 was tendered in Court. The failure of the Respondent to tender the other two extra -judicial statements of the Appellant, learned Counsel submitted, should invoke the provisions of Section 167 (d) of the Evidence Act, 2011. The cases of STATE V. AZEEZ (2008) 14 NWLR (Pt. 1108) p.439 at 492 C – D; IGBEKE V. EMONDI (2010) 11 NWLR (Pt. 1204) p. 1 at p. 35 were cited in support.
Learned Counsel O.I. Habeeb Esq. submitted that in convicting the Appellant, the lower Court also relied on Exhibit L, the confessional statement of the 2nd accused which the Court held to be corroborative of Exhibit J1. It was submitted that Exhibit L cannot be relied on as being corroborative evidence of Exhibit J1, Exhibit L being the alleged corroborative statement of a co-accused which the Appellant was not shown to have adopted. The cases of TANKO V. STATE (2008) 16 NWLR (Pt. 1114) p. 597 at 628 and ALARAPE V. STATE (2001) 5 NWLR (Pt. 705) p.79 at 108 – 109 were cited in support. It was submitted that Exhibit L being a confessional statement, itself requires corroboration and therefore cannot be used to corroborate Exhibit J1. The case of GABRIEL V. STATE (2010) 6 NWLR (Pt. 1190) p.28 at 334 was cited in support.
Learned Counsel submitted that his arguments apply with equal force to the offences of wrongful confinement and extortion for which the Appellant was also found guilty. O.I. Habeeb Esq. submitted that it is rather strange that the Appellant who in Exhibit J1 was said to be the mastermind of a kidnap and extortion, would receive a sum of only N500,000.00 out of a ransom of N35 million. The Appellant, it was contended, explained how he came by the sum of N500,000.00 in the account which he gave evidence in Court. The explanation given by the Appellant on how the money came to be in his account learned Counsel submitted, is more credible than the conclusion that the money was his share of the ransom of N35 million. It was submitted that the case against the Appellant raised reasonable doubts about the Appellant’s involvement in the crimes alleged and that the Appellant should be given the benefit of the doubts. The case of ONAFOWOKAN v. THE STATE (1987) 3 NWLR (Pt. 61) p. 538 at 546was cited in support. We were urged to resolve the sole issue in favour of the Appellant.
In his argument in response, Nura Mohammed Fagge Esq, the Director Legal Drafting in the Kano State Ministry of Justice, submitted that a Court can convict based on the confessional statement of an accused person that is voluntary, direct and positive. The case of ADA V. THE STATE (2008) 4 SCNJ p.286 was cited in support. Learned Counsel referred to the judgment of the lower Court, particularly at P.432 of the Record of Appeal and submitted that the evidence of PW1 and PW4 taken alongside the confessional statement of the Appellant, shows that the Appellant committed the offences for which he was convicted. It was submitted that the retraction of the Appellant’s confessional statement cannot disturb the finding of guilt against the Appellant. The case of LADAN V. THE STATE (2016) 1 SCNJ p. 318 was cited in support.
In arriving at the decision that the Appellant committed the offences for which he was convicted and sentenced, the lower Court relied heavily on the confessional statement made by the Appellant which he retracted. At page 432 – 433 of the Record of Appeal, the learned trial judge reviewed the evidence against the Appellant. Here are his words:-
“I have carefully studied Exhibit J1, the statement of the 3rd accused to the Police and

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his oral testimony in Court and would want to observe that the fact that the 3rd accused resiled from his earlier statement as contained in Exhibit J1 is of no moment as it does not adversely affect the case of the prosecution, When looked at alongside Exhibit L the statement of the 2nd accused, this Court will be left with no alternative but to arrive at the inevitable conclusion that the active conspiracy of the 3rd accused also resulted in the Armed Robbery, the subject matter of this trial retracting Exhibit J1 by the accused in his oral testimony to my mind, did not adversely affect the position that the 3rd accused played an active role in the conspiracy that resulted in the abduction of the nominal complainant in this case and therefore cannot exonerate him from the armed robbery committed by the gang of which he was an active orchestrated (sic) I therefore accept the contents of Exhibit J1 as the true position of things. The oral testimony of DW3 who is the 3rd accused person is an afterthought and an attempt to resile from the truth. I therefore hold that the prosecution has established the case of armed robbery against the 3rd accused.”
The 3rd accused in the above quotation from the judgment of the lower Court is the Appellant in this appeal. It can be seen from the quotation that in arriving at its decision, the lower Court relied on the extra judicial statement Exhibit J1 which the Appellant retracted and Exhibit L, the confessional statement of the 2nd accused in the case. The law is that a Court can act on a retracted confession provided that there is something outside the confession to show that it is true. See KIM v. STATE (1992) NWLR (Pt. 233) p. 17. In line with this position of the law, it would seem that the lower Court found in Exhibit L, the confessional statement of the 2nd accused, that “something outside the confession to show that it is true”. But can Exhibit L be used as corroborative evidence? The answer to that question must be in the negative. This is because a confessional statement of a co-accused is no evidence against an accused person unless the latter has adopted the statement either by words or conduct. See EVBUOMWAN v. COP (1961) NMLR p. 251; OZAKI v. STATE(1990) 1 NWLR (Pt. 124) p. 92 at P.99. The Appellant clearly never adopted Exhibit L and therefore there was no basis in law to use it as corroborative of Exhibit J1. The result is that the decision of the lower Court quoted above is not properly founded and cannot stand.
It is noteworthy that CPI Usman Tijjani, the Police Officer who testified as PW6 stated in his evidence at page 63 of the Record of Appeal thus:
“I recorded three statements from the accused.”
The questions that sticks out like a sore thumb is this: why were the other two statement of the Appellant not tendered in evidence? Why was only Exhibit J1 tendered? Clearly the law would presume as prescribed in Section 167 (d) of the Evidence Act 2011 that those other statements if produced, would have been damaging to the Respondents case. Section 167 (d) of the Evidence Act states that the Court may presume that evidence which could be and is not produced, would if produced, be unfavourable to the person who withholds it. The Respondent surely should have produced the two other statements made by the Appellant if it had nothing to hide. The role of the prosecution it must be emphasised, is not to secure a conviction at all cost. Its role is to assist the Court to arrive at justice by placing all relevant evidence before the Court. The non production of the two other statements of the Appellant further thickened the cloud of doubt that hung over the case against the Appellant. The doubt thereby created, must perforce be resolved in the Appellant’s favour.

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All said, the case against the Appellant did not rise to the threshold of proof beyond reasonable doubt that is required in criminal cases. The sole issue in this appeal is therefore resolved against the Respondent. The concomitant result in that the appeal has merit and is hereby allowed. The conviction and sentence of the Appellant by the lower Court is hereby set aside.
Instead, the Appellant is hereby discharged and acquitted.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my lord, Obietonbara Daniel-Kalio, J.C.A. I am in full agreement with the reasoning and conclusion arrived at in allowing the appeal for being meritorious. The learned trial Judge relied on the extrajudicial statement made by the appellant though same was retracted. In the determination of whether to attach any weight to the statement made by an accused person which has been retracted or not, the Courts, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa v. State (1990) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267- 268:
On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R.293 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them is sound and golden. The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is It consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of 
authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307 (4) Obue v. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors v. The Queen (1963) 7 All NR 365.”
A co-accused’s extra-judicial statement cannot be relied on to convict, unless such extra-judicial statement has been adopted by the other co-accused. In short, an extra-judicial statement even though confessional, cannot corroborate the evidence against a co-accused, unless, same has been adopted by the other co-accused. The learned trial Judge of the lower Court was not right in relying on the extra-judicial statement of a co-accused to convict the appellant.
The evidence adduced by the prosecution at the lower Court was not cogent and reliable to established the commission of the offences with which the appellant and the other co-accused were charged and convicted. The commission of an offence by an accused person must be proved beyond reasonable doubt. What is meant by proof beyond reasonable doubt has been enunciated in the

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case of Afolalu v. State (2010) All FWLR (Pt. 588) P. 812 to be:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused will be upheld even if it is on the credible evidence of a single witness. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of doubt resulting in the discharge and acquittal.”
The prosecution did not discharge the burden of proof as required by law, therefore, the conviction of the appellant was not justified in law. It is for the foregoing, and the fuller reasons ably marshalled by Daniel Kalio J.C.A, that, I, too, hereby allow the appeal, set aside the judgment of the lower Court. In consequence, I order for the discharge and acquittal of the appellant.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the Judgment of my learned brother, Obietonbara Daniel-Kalio, JCA and I am in agreement that this appeal has merit. I also allow it and set aside the conviction and sentence of the Appellant by the lower Court.

Appearances

O.I. Habeeb Esq. For Appellant

AND

Nura Muhammed Fagge Esq. For Respondent

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