HASSAN v. STATE (2020)

HASSAN v. STATE

(2020)LCN/14589(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, September 22, 2020

CA/KN/321A/C/2019

RATIO

PLEADINGS: THE DUTY OF THE PROSECUTION IN A CRIMINAL CASE.

It is the duty of the prosecution, to prove the offences charged, beyond reasonable doubt, Section 135 of the Evidence Act. It must present credible evidence to satisfy the Court beyond reasonable doubt, that it was the accused that committed the offence with which he was charged. It therefore must prove all the ingredients of the offences charged. The accused person has no duty to prove his innocenceUWAGBOE VS. STATE(2007) 6 NWLR (PT. 1031) 606; HASSAN VS. STATE (2001) 6 NWLR (PT. 709) 285 AND IGABELE VS. STATE (2006) 6 NWLR (PT. 975) 100. On the offence of armed robbery, the prosecution must lead credible evidence to prove that:-
a. there was a robbery or series of them;
b. that it was an armed robbery; and
c. that the defendant accused of the armed robbery, participated in it.
See OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 AND MARTINS VS. STATE (1997) 1 NWLR (PT. 481) 355.For the offence of culpable homicide, the elements of the offence to be proved beyond reasonable doubt by the prosecution, are:-
a. that the deceased had died;
b. that it was the accused person who caused the death; and
c. that the act of accused person of causing death was done with the intention of causing death or that he knew that death would be the probable consequence of his act.
See GALADIMA VS. STATE (2017) 14 NWLR (PT. 1184) 205 AND IGABELE VS. STATE (2006) 9 NWLR (PT. 975) 100. Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS: ON NON-TENDERING OF THE STOLEN ITEMS AND WEAPONS USED IN COMMITTING THE CRIME.

On non-tendering of the stolen items and weapons used in committing the crime, the law is that in prosecuting armed robbery, it is not material that the offensive weapon should be tendered. This is good law and good sense because criminals in a bid to escape the wrath of the law, would normally hide or even destroy weapons they used in committing robbery. If it is made mandatory to tender the weapons and the criminals have done away with same, then they would escape. That should not be. At any rate, where as in this case, they dropped nylon fire balls on the body of the deceased, the fire balls cannot be recovered. See OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 AND OKOSI VS. A.G. BENDEL STATE (1989) 1 NWLR (PT.100) 642. Likewise, it is not necessary to produce the item stolen. Once the trial Court is satisfied with the evidence led in proof of the offence and finds an accused person guilty, an appellate Court would not interfere just because it could have viewed the evidence otherwise, as long as the ingredients of the offence had been established. Tendering the stolen items is not an ingredient of the offence of robbery. SeeOLUSINA AJAYI & ANOR VS. STATE (2011) LPELR – 3670 (CA). The Appellant was arrested alongside the motor cycle stolen. Possession of stolen property is prima facie evidence that a person in such possession, participated in the robbery – FASILATE ADEPOJU VS. STATE (2018) LPELR – 44355 (CA) AT 33. Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS: CULPABLE HOMICIDE PUNISHABLE WITH DEATH.

On culpable homicide punishable with death under Section 221 of the Penal Code, it is incumbent on the prosecution to prove beyond reasonable doubt, the following:-
a. that a human being has died;
b. that the death was caused by the act of the accused person; and
c. that the act was done with the intention of causing the death or that the accused knew that death would be the probable consequence of his act.
See MAIGARI VS. STATE (2010) 16 NWLR (PT. 1220) 439 AT 466-467; KAZA VS. STATE (2008) 7 NWLR (PT. 1085) 125 AT 176 AND GALADIMA VS. STATE (2017) 14 NWLR (PT. 1184) 205.
On the first ingredient, there is evidence from PW1 believed by the trial Judge, that her husband has died and has been buried according to Islamic injunctions. No medical report was tendered to that effect. The law is trite, that a medical report is not necessary to prove that a human being had died or its cause, in all cases. The evidence of PW1 was sufficient in proving that her husband had died and has been buried. It is immaterial that no member of the community was called to say he died. It is also of no moment, that PW1 was the wife of the deceased. Counsel for the Appellant did not elaborate on how PW1 is an interested party. Interested party to what? Her husband was beaten in her presence and he sustained injuries. He was taken to the hospital where he died. She cannot give evidence of this first hand experience? What caution was the trial Judge expected to consider in receiving her evidence in the circumstances when she was also a victim. Is she going to fake the death of her husband?
On the second ingredient of the offence, that is, whether it was the act of the Appellant that caused the death, there is credible evidence of PW1, that she and the deceased were beaten with sticks. In addition, the attackers dropped nylon fire balls on the body of the deceased causing him injuries, taken to hospital and he died the same day. Where there is credible evidence available upon which the trial Court can infer the cause of death, medical report is not vital. Where a person is hit with a weapon, and death is instantaneous or nearly so, a Court can clearly infer death – EDOHO VS. STATE (2010) 42 NSCQR 451 AT 457 AND BAKORI VS. STATE (1980) 8 – 11 S.C. 81. In the instant appeal, the accused persons beat the deceased with sticks and dropped nylon fire balls on his body. He was rushed to the Hospital where he died same day. Cause of death was clearly inferable from the nature of the wounds and the offensive weapons used. What caused the death which was nearly instantaneous, was clearly rightly inferred to be the acts of the Appellant and his co-accused persons. PW1 identified the 1st and 2nd accused persons as those who beat them and inflicted the injuries. The Appellant has been linked to them and to his participation in the robbery.
On the third ingredient, it is in evidence that the Appellant and his co-accused persons, beat the deceased, such that he could only crawl out. Not satisfied, they added nylon fire balls droplets on his back and other parts. He was taken to Gumel General Hospital initially, but due to the nature of the injuries he sustained at the hands of the Appellant and his co-accused, that hospital could not treat him and so had to be referred to the Aminu Kano Teaching Hospital for a more expert care, but he died there the same day. It is clear from the offensive weapons used, the injuries inflicted on the deceased, the Appellant and his co-accused intended to cause the death of the deceased or knew that death would be the probable consequence of their acts. A person intends the natural consequences of his acts. They wanted to rob, kill the deceased and escape. They succeeded. The trial Judge made findings of guilt against the Appellant and we do not find any reason to disturb those findings as they are based on properly received and believed evidence. No miscarriage of justice had been occasioned – ANEKWE VS. NWEKE (2014) 4 SCNJ (PT. 11) 339 AT 372. Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS: CONSPIRACY

On conspiracy, this is an offence that is normally always hatched in secrecy and so it is rare to find direct evidence of it. It is mostly proved on circumstantial evidence. Its ingredients are:-
a. an agreement between two or more persons to commit an illegal act, or a legal act by illegal means; and
b. that the illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.
See AWOSIKA VS. STATE (2010) 8 NWLR (PT. 1198) 49, ABDULLAHI VS. STATE (2008) 17 NWLR (PT. 1115) 203 AT 221; ABIODUN VS. STATE (2012) 7 NWLR (PT.1299) 394.
Conspiracy to commit an offence is separate and distinct from the actual commission of the offence and it can exist even without proof of committing the actual offence. The conspirators may conspire even if they did not know each other or seen each other or even corresponded with each other. They need not to have all started the conspiracy at the same time as some may join later. It also does not matter who originated the offence charged. See IBOJI VS. STATE (2016) LPELR – 40009) (SC). Per ABUBAKAR DATTI YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

BATURE HASSAN APPELANT(S)

And

THE STATE RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Jigawa State, Gumel, in Case No. JDU/03C/2017, delivered on the 14th February, 2019, wherein the 3rd accused person before that trial Court, now the Appellant, was convicted on three counts of criminal conspiracy, armed robbery and culpable homicide and sentenced to 14 years, 21 years and death by hanging respectively.

The facts as gleaned from the record, are that the Appellant and two others, on or about the 2nd July, 2016 at about 0:130 a.m, went to the house of Mai Unguwa Idi at Gidan Maza Village, Garki Local Government, Jigawa State and attacked the said Mai Unguwa Idi and his wife, whilst armed with guns, clubs and matchetes inflicting injuries on them, leading to the death of Mai Unguwa Idi (the deceased). The accused persons stole a red boxer motorcycle belonging to the deceased and also the cell phones of the deceased and his wife. In the course of the robbery, the accused persons lit nylon with a lighter and dropped fire balls on the back of the deceased, burning him in the process. He was initially taken to

Gumel General Hospital after the robbery but the nature of his wounds necessitated a referral to Aminu Kano Teaching Hospital where he died the same date, and was buried at his home in Fagen Gawo.

The accused persons were arrested and charged as follows:-
FIRST HEAD OF THE CHARGE
That you Hardo Sha’aibu, Bello Musa and Bature Hassan, on or about the 2nd of July, 2016, at about 0130hrs at Malamawa Gidan Maza Village, Garki Local Government Area, Jigawa State, within the Jigawa Judicial Division, did agree within yourselves to do an illegal act to wit robbery, culpable homicide and thereby committed an offence of Criminal Conspiracy Punishable under Section 97 of the Penal Code Law, Cap P3 Laws of Jigawa State, 2012.
SECOND HEAD OF THE CHARGE
That you Hardo Sha’aibu, Bello Musa and Bature Hassan, on or about the 2nd of July, 2016 at about 0130hrs, at Malamawa Gidan Maza Village, Garki Local Government Area, Jigawa State, within the Jigawa Judicial Division, while armed with clubs, guns and machetes, attacked one Mai Unguwa Idi and his wife, and made away with his red Boxer Motorcycle with engine chassis number

DUZWGZ6746/MD2A18A0DWG 68328, and thereby committed an offence of robbery Punishable under Section 298 of the Penal Code Law Cap P3 Laws of Jigawa State 2012.
THIRD HEAD OF THE CHARGE
That you Hardo SHa’aibu, Bello Musa and Bature Hassan, on or about the 2nd of July, 2016 at about 0130hrs, at Malamawa Gidan Maza Village, Garki Local Government Area, Jigawa State, within the Jigawa Judicial Division, caused the death of one Mai Unguwa Idi by attacking him with clubs, guns, and machetes and inflicted severe injuries on him, with the full knowledge that death would be the probable consequences of the act and thereby committed the offence of Culpable Homicide Punishable with death under Section 221 of the Penal Code Law Cap P3 Laws of Jigawa State 2012.

All the accused persons pleaded not guilty. In a bid to prove the case, the prosecution called two witnesses. The Appellant also testified in his own behalf but did not call any witnesses. At the end of the trial, the Appellant, along with the two other accused persons, were convicted as charged and sentenced. Being dissatisfied, the Appellant filed an appeal to this Court. His counsel, M. M.

Kashim, filed the Appellant’s brief on 25th June, 2019. In it, he identified three issues from the four grounds of appeal filed. They are:-
ISSUES
1. Whether the learned trial Judge rightly applied the correct principles of law in his review and evaluation of evidence to warrant his findings, conviction and sentences in this case. (Distilled from ground 2).
2. Whether from the totality of the evidence proffered in this case, the prosecution’s evidence was cogent enough to warrant the conviction of the Appellant on three counts of conspiracy, culpable homicide and robbery. (Distilled from ground 3).
3. Whether there is sufficient circumstantial evidence to sustain the charges preferred against the Appellant in the absence of proper identification of the Appellant. (Distilled from ground 4).

The Respondents’ brief, settled by Aliyu Abdullahi, Chief State Counsel was filed on 29th July, 2019. He identified one issue for determination to be:-
Whether from the proper evaluation of the evidence before the Court, the learned trial Judge was right on holding that the prosecution (Respondent) proved its case beyond

reasonable doubt against the Appellant.

In view of the fact that the issue raised by the Respondent encapsulates all the issues raised by the Appellant, I shall adopt it in resolving this appeal with a slight amendment by removing the word “proper”, before “evaluation”. So the issue is:-
Whether from the evaluation of the evidence before the ourt, the learned trial Judge was right in holding that the prosecution proved its case beyond reasonable doubt against the Appellant.

Learned counsel for the appellant referred to the evidence of PW1 who said that she did not know the Appellant, showing that she did not identify him. He then referred to the finding of the trial Judge at page 54 of the record, that it was the 1st and 3rd accused persons that robbed PW1 and her husband as hasty, since the Appellant had not been identified. He referred to OKANLAWON VS. STATE (2016) ALL FWLR (PT. 825) AT 359 AND 383. He also refed trreo the evidence of PW2 and submitted that all his testimony was hinged on information he received from two persons, Bulama Auwalu and another person standing in front of a Mosque at Gayawa town, and

therefore hearsay and inadmissible, AL-MUSTAPHA VS. STATE (2010) ALL FWLR (PT. 501) 972 AT 988 AND AL-MUSTAPHA VS. STATE (2013) 17 NWLR (PT. 1383) 350 AT 419. Counsel referred to pages 12 – 13 of the record and submitted that PW2 had contradicted himself on his presence at the scene of crime and so no probative value should have been accorded his testimony, OBRI VS. STATE (1997) 7 NWLR (PT. 513) 352 AT 362. Further, counsel referred to page 5 of the record where PW1 said she knew some of the accused persons, and submitted that she contradicted herself at page 6 under cross-examination when she told the Court that “she did not know any of them before the incidence”. Counsel also criticized PW1 when she said she did not know how many robbers there were, but were many, saying that ascertaining three people could not be difficult. He therefore submitted that since the contradictions shown in the evidence of PW1 and PW2 are material, the trial Judge should have treated same as unreliable, especially on the number and identity of the robbers, AL-MUSTAPHA VS. STATE (SUPRA) AT 403. Since the evidence of identification was unreliable, he argued, the

Appellant had not been linked to the commission of any crime and should have been discharged.

On the review of the defence of the Appellant, learned counsel for the Appellant referred to page 58 of the record, and submitted that since the evidence of the Appellant was not shaken or contradicted under cross-examination, the trial Judge should have ascribed probative value to it, SHEHU VS. STATE (2010) ALL FWLR (PT. 523) 1841 AT 1866 AND SIMON VS. STATE (2017) ALL FWLR (PT. 885) 1929 AT 1956. Even if the Appellant had given evidence amounting to “tissue of lies” as the trial Judge found, the lie, he argued, is not synonymous with guilt or evidence of commission of any offence – UGHENEYOUWE VS. STATE (2005) ALL FWLR (PT. 245) 1006 AT 1030.

Counsel for the Appellant emphasized that the prosecution had a duty to prove the offences beyond reasonable doubt – Section 135(1) of Evidence Act 2011 and ORJI VS. STATE (2008) ALL FWLR (PT. 422) 1093 AT 1118. He then recounted the ingredients of the offence of robbery. On the first ingredient of the offence, that there was robbery, counsel submitted that there was no sufficient proof of it. He submitted

that although PW1 said they shouted for help, no hint was given as to whether help came or not; that there was no mention of any person or record of medical attention given to the deceased; there was no record of what happened at Aminu Kano Teaching Hospital or the persons who accompanied them there; that Bulama Auwalu, was never called to testify and no police officer came to testify or tender any statement of the Appellant; that PW1 did not give the name, model or value of the cell phones stolen, nor were they tendered; that the charge did not give details of the motorcycle. Although tendering same was not mandatory he argued, it was desirable to do so, SIMON VS. STATE (SUPRA) 1949. He urged that there was no proof of robbery. On the second ingredient, that robbery was committed with the use of arms, counsel submitted that PW1 did not know the Appellant and had not been linked to the offence at all; that although PW1 said sticks were used, they were not tendered; her evidence was severally punctured under cross-examination and so unreliable. He therefore urged us to hold that the second ingredient of the offence had not been proved. On the third ingredient

of the offence, that the Appellant was one of the robbers, counsel reiterated his position that PW1 did not fix the Appellant to the robbery and that the evidence of PW2 is hearsay as it was based on what a bystander had told him. These lead to a reasonable doubt which should be resolved in favour of the Appellant he said, relying on AZEEZ VS. STATE (2008) ALL FWLR (PT. 662) 1632 AT 1650. He urged us to hold that the third ingredient of the offence of robbery had not been satisfactorily proved.

On culpable homicide punishable with death under Section 221 of the Penal Code, learned counsel for the Appellant recounted the three ingredients of the offence as enshrined in OCHIBA VS. STATE (2012) ALL FWLR (PT. 608) 849 AT 870. On the first ingredient, he maintained that apart from the evidence of PW1 which had been discredited under cross-examination, nothing was placed before the trial Court suggesting that any person had died. He was emphatic that in law, a Court has a duty to disbelieve a witness shown to be lying or who has been successfully assailed under cross-examination,INCAR NIG. PLC & ANOR VS. BOLEX ENTERPRISES (NIG.) PLC & ANOR (2001) 12

NWLR (PT. 728) 646 AT 668. Since her evidence should not have been believed, no medical report tendered of the death of the deceased, and no member of the community called to testify to the death of the deceased, there is no evidence that the death of a human being, the deceased, had occurred. He emphasized that PW1 is an interested party and her evidence should have been received with great caution – IMAM VS. SHERIFF (2005) 4 NWLR (PT. 914) 80 AT 206 AND AZEEZ VS. STATE (SUPRA) AT 1479 D – E. On the second ingredient of the offence, that the death was caused by the Appellant, learned counsel for the Appellant stuck to his gun, that the Appellant was not identified by PW1 or properly identified as a participant in the commission of the crime, and so the ingredient had not been proved.

On the third ingredient, that it was the act of the Appellant that caused the death with intention of causing death or that he knew that death would be the probable consequence of his act, learned counsel argued that apart from the fact that the Appellant was not fixed to the scene of crime, there is no evidence of what act or omission he committed that led to the

death of the deceased. So, he argued, it has not been shown that the deceased died as a result of the act of the Appellant – OCHIBA VS. STATE (SUPRA) AT 870 G-H AND EMEKA VS. STATE (1998) 7 NWLR (PT. 559) 556.

On conspiracy, learned counsel referred to the case of IBOJI VS. STATE (2016) ALL FWLR (PT. 825) 345 AT 352 – 353 and submitted that there is no where a specific role is referred to the Appellant in the realization of the commission of the crime. Since that is so he argued, the inference drawn by the trial Judge at page 56 of the record, is wrong. He urged us to so hold.

On circumstantial evidence, learned counsel referred to SHEHU VS. STATE (SUPRA), to submit that such evidence must be narrowly examined with utmost care, such that it leads to the inevitable conclusion, that it was the Appellant who committed the act and that circumstantial evidence rooted in crass suspicion cannot sustain a valid conviction. He then argued that the only circumstantial evidence relied upon by the trial Court to convict the Appellant, is that of PW2 who infact built his evidence on hearsay, given to him by a by-stander and that he met the Appellant in the

house of the 1st convict, evidence which is not admissible and not reliable. He argued further, that the trial Judge did not warn himself on the caution required to be exercised, especially where there was no proper identification of the Appellant. Counsel tied this issue to the fact that vital witnesses in the person of Bulama Auwalu, the by-stander, the police officers who investigated the case had not been called, leading to the failure to tender extra-judicial statements of the Appellant. These fundamental lapses he argued, are fatal to the case of the prosecution – SALE VS. STATE (SUPRA) AT PAGE 415 B – C AND OGUDO VS. STATE (2012) ALL FWLR (PT. 629) 1111 AT 1131. In conclusion, he urged this Court to allow the appeal, set aside the Judgment of the trial Court and enter a verdict of acquittal in favour of the Appellant.

In replying to the position of the Appellant, the learned counsel for the Respondent submitted that the trial Court was right when it held that the prosecution had proved the offences charged against the Appellant, beyond reasonable doubt. He referred to the cases of SIMON VS. STATE (2017) ALL FWLR (PT. 885) 1948 AND

ADAMU VS.STATE (2017) ALL FWLR (PT. 894) 1389 on the ingredients of the offence of armed robbery. On the first ingredient, counsel referred to the evidence of PW1, showing that the accused persons broke into their room, beat them and stole their cell phones and the motor cycle of her husband the deceased. On the second ingredient, counsel also referred to the evidence of PW1 where she stated that the accused persons beat them with sticks and dropped fire balls from burning nylon on the back of her deceased husband. On the third ingredient, counsel referred to the testimony of PW2 who in his evidence in chief, stated that he and others, had pursued all the accused persons (Appellant inclusive) after the robbery on the fateful night. That he knew all the accused persons before the robbery and how they were arrested after the hot chase they gave them. He submitted that the non-tendering of the items stolen and recovered was not mandatory, since there is evidence of how the robbery was carried out by the accused persons including the Appellant – SIMON VS. STATE (SUPRA). Likewise, there was no obligation to tender the sticks used in beating the deceased and his wife

– SIMON VS. STATE (SUPRA). On the third ingredient, counsel submitted that the position taken by the Appellant as to the identity of the Appellant as one of the robbers is not tenable, because an accused person can be identified directly either by the victim of the crime, by witnesses or through circumstantial evidence – AKINRINOLA VS. STATE (2017) ALL FWLR (PT. 877) 234. That in this case, PW2 had stated that without doubt, the Appellant was part of the robbers and that all of them were arrested in his presence.

For the offence of culpable homicide punishable with death, counsel referred to the cases of MAIYAKI VS. STATE (2008) 15 NWLR (PT. 1109) 173; MAMMAN VS. STATE (2015) LPELR – 25963 (CA); GALADIMA VS. STATE (2017) 14 NWLR (PT. 1184) 205 AND SHA’AIBU VS. STATE (2017) 16 NWLR (PT. 1592) 432 on its ingredients. On the first ingredient, counsel referred to the evidence of PW1 who testified that her husband died at Aminu Kano Teaching Hospital that same date, and was buried according to Islamic injunctions. He argued that non-tendering of a medical report to that effect, was not necessary or obligatory as death could easily be inferred –

GALADIMA VS. STATE (SUPRA). On the second ingredient, that the death was caused by the Appellant, counsel referred to the evidence of PW1 who stated that the accused persons beat them with sticks and dropped fire balls on the body of her deceased husband, burning him and leading to his death. He argued that the position of the Appellant that PW1 did not identify him as one of the persons who participated in the commission of the crime, is of no moment since PW2 had properly identified him, when he was apprehended hours after the commission of the crime. On the third ingredient, counsel submitted that any person who sets nylon on fire and allows the fire balls to drop on the body of a human being, will definitely know that death or grievous bodily injury would be the probable consequence of his act. Hence the intention of killing the deceased or causing him grievous bodily harm is easily deductible from the act of the accused persons which included mercilessly beating the deceased with sticks. He urged us to hold that all the three ingredients of the offence had been proved.

On criminal conspiracy, learned counsel referred to the case of GARBA VS. C.O.P. (2007) 16 NWLR

(PT. 1060) 378 AT 400-401 to submit that all that is required, is the meeting of the minds of the persons to commit the offence, but it needs not be physical and the commission of the offence is not necessary. He argued that the Appellant and others conspired to commit robbery and in the process committed murder as well and were seeing running away. He also posited that PW2 saying that he knew all the accused persons including the Appellant before the incident, was a vivid and graphic account of identifying the Appellant and was not therefore circumstantial evidence. He urged us to dismiss the appeal and affirm the conviction and sentence of the Appellant.

I find it imperative to take up right away the evaluation of evidence carried out by the trial Judge and the grouse of the Appellant on it.

It is true, as submitted by learned counsel for the Appellant, that PW1 did not identify the Appellant as one of those she recognized, who attacked them on the fateful night. However, the fact that she did not identify the Appellant, does not make the finding of the trial Judge hasty when he found that it was the 1st, 2nd and 3rd accused persons who robbed PW1

and her husband. This is because there is evidence from PW2 whom the trial Court believed, that the Appellant was one of the accused persons who were chased and arrested in his presence. The evidence in chief of PW2 in parts, reads:-
“….As the robbers approached us on motor bike. They diverted, by following another route and we started following them upon reaching the major road they turned to south-following Gujungu Road, ….they entered Fulani settlement we followed them, realizing that we were still following them they took off again three of them on one motor bike, they took Gayawa route. ……we saw a man at the frontage of Mosque, we asked him whether he saw some people on a motor bike, he told us that he saw Hardo Shuaibu (the 1st accused) with 2 other people, he also pointed out the tyre print of their motor bike….He showed us the route the accused persons followed, he also followed that same way, we saw them entering into a thick bush near Gayaya. Our motor vehicle cannot enter, we therefore returned to Tudun Fulani (1st accused house)

because we left our people there. Upon our return we saw the motorcycle of Namalamawa at the back of the 1st accused person’s house, near cattle route…..We also saw the 3rd accused (Appellant) person in the house of the 1st accused person, the police arrested him alongside the motorcycle (robbed) after his arrest, the 2nd person came out from granary, he attempted to escape we pursued him and got him arrested.”

The above clearly shows that PW2 pursued the robbers, saw they were three on a motor bike and was present when the police arrested the Appellant alongside the motor cycle belonging to the deceased which was robbed earlier on. This is direct evidence. A stolen article found with a person especially very soon after it was stolen is presumed to be the thief. In this case, the Appellant was arrested alongside the stolen motor bike after a hot chase by PW2 and those he mobilized to help track the robbers.

Under cross-examination, PW2, re-asserted that they found the stolen motor cycle in the house of the 1st accused person near the cattle route just as he stated in his evidence in chief. He also re-iterated that the Appellant was

arrested and was one of those he pursued. He was not shaken under cross-examination. His evidence was direct on this point, not hearsay and therefore admissible. It was believed by the trial Judge. It is the prerogative of the trial Judge to believe or disbelieve a witness who gave evidence before him and ascribe probative value thereto. He does that by listening to what he said, how he answered questions and his demeanor generally in the witness box. It is the trial Judge that has that privilege. The Appellate Court is not similarly positioned since it does not re-hear witnesses and cannot form an impression as to whether to believe them or not. Since that is the position, the appellate Court does not interfere with the trial Court in its belief or disbelief of a witness unless there are exceptional and glaring reasons to so do, such as where the evidence is inadmissible – UKEJE VS. UKEJE (2014) 4 SCNJ 1 AT 24, 25 AND 28;CHIEF OLONADE & ANOR VS. H. SOWEMIMO (2014) 5 SCNJ (PT. 11) 522 AT 542 – 543. The trial Judge was right in his findings, that the Appellant was part of the gang of accused persons that carried out the robbery on that night.

This puts paid to all the submission of learned counsel for the Appellant, that the Appellant was not properly identified as being one of the robbers. The trial Judge was not hasty, he was right that the Appellant had been one of the robbers. It was not all the testimony of PW2 that was hinged on information he received from Bulama Auwalu and the person standing in front of the Mosque. The relevant information on the identity of the Appellant as one of the robbers came from the personal knowledge of PW2 who saw three persons on a motor cycle and who was present when the Appellant was arrested in the house of the 1st accused person alongside the motor cycle that had just been robbed.

Learned counsel for the Appellant had also referred to pages 12-13 of the record to submit that PW2 had contradicted himself on his presence at the scene of crime and so should not be believed. I have looked at the said pages. At page 12, PW2 answered the question put to him whether he was present when the robbery took place and he said he was not. I have not seen at page 12 or 13 or anywhere else in the record, where PW2 stated that he was present when the robbery took place.

So where is the contradiction alleged by counsel to the Appellant? None.

On PW1, at page 5 of the record, she said she knew the 1st and 2nd accused persons. Counsel for Appellant submitted that at page 6, she contradicted herself under cross-examination where she told the Court that “she did not know any of them before the incidence”. For a contradiction to be said to occur, it must substantially be a disparagement of what the witness said – OHIWEREI VS. OKOSON (2003) 11 NWLR (PT. 832) 463 AT 491. What PW1 said under cross-examination at page 6 was to answer “No” to the question whether she knew the accused persons before the incident. The cross-examination then proceeded like this:-
“Question: You said you don’t know them before the incident?
PW1: Yes
Question: How do you manage to identify the 1st and 2nd accused?
PW1: I identified them when they broke in before they started using torch to lit our faces.”

Therefore, what PW1 said under cross-examination, was clearly and essentially, an explanation as to how she knew the 1st and 2nd accused persons, and was not at all contradictory or a

disparagement of what she said. There is no doubt about this. Again counsel for the Appellant criticized PW1 for saying many people stormed their house, when three cannot be many. There is no evidence whatsoever, that only three people stormed the house. The fact that only three were apprehended, does not mean there could not be others. She was on the spot and she saw many. At any rate, this is not a material point at all. I have therefore not seen where PW1 contradicted herself or where she contradicted the evidence of PW2.

On the review of the evidence of the Appellant, his counsel has argued that since his evidence was not shaken or contradicted under cross-examination, he should have been believed. Actually, the Appellant as DW3 had infact been shaken under cross examination. At one breadth at page 20, he said that:-
“the distance from the point where the robbed motorcycle was recovered and the house of the 1st accused is about 2 kilo metres.”
Then in a volte face, he said:-
“I have not seen the motorcycle in question.”

If he did not see the motorcycle in question, how did he know where it was recovered?

He cannot be believed on the two contradictory statements under cross-examination. It is true that telling a “tissue of lies” as the trial Judge found the evidence of the Appellant to be, is not synonymous with guilt. But it means that the Appellant could not be believed and his testimony would not be ascribed any probative value, as counsel for the Appellant had infact shown by referring to the case of INCAR (NIG.) PLC. & ANOR VS. BOLEX ENTERPRISES (NIG.) PLC (SUPRA). The trial Judge was therefore perfectly within his right to reject the evidence of the Appellant.

On the offence of armed robbery, the

prosecution must lead credible evidence to prove that:-
a. there was a robbery or series of them;
b. that it was an armed robbery; and
c. that the defendant accused of the armed robbery, participated in it.
See OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 AND MARTINS VS. STATE (1997) 1 NWLR (PT. 481) 355.

For the offence of culpable homicide, the elements of the offence to be proved beyond reasonable doubt by the prosecution, are:-
a. that the deceased had died;
b. that it was the accused person who caused the death; and
c. that the act of accused person of causing death was done with the intention of causing death or that he knew that death would be the probable consequence of his act.
See GALADIMA VS. STATE (2017) 14 NWLR (PT. 1184) 205 AND IGABELE VS. STATE (2006) 9 NWLR (PT. 975) 100.

On robbery, the prosecution led evidence through PW1 who testified that she and her husband were attacked on the fateful night, and their cell phones and a motor cycle belonging to her husband stolen. She also testified to the fact that the accused persons used sticks to beat them and also dropped nylon fire balls on the

back of her deceased husband. She identified 1st and 2nd persons to be amongst the attackers. Her evidence was direct and positive. She was not discredited under cross-examination. The trial Judge believed her. PW2 also testified and stated that when he was contacted about the robbery, he immediately organized a search party and they pursued the robbers when they sighted them. He saw three people on a machine. The Appellant was shown to be amongst the three accused persons who ran away from the scene of the crime and who was arrested alongside the motor cycle that had just been stolen from the deceased, at the house of the 1st co-accused person, soon after the robbery and the other co-accused persons. These circumstances, point to only one inevitable conclusion, that he was one of the robbers. The evidence of PW2 was direct, cogent and unequivocal, pointing to the fact that there is no other reasonable explanation apart from that he was one of the robbers – BABAWORO USMAN VS. STATE (2014) 5 SCNJ 353 AT 372, AND EBEHI VS. STATE (2009) 6 NWLR (PT. 1138) 431. The trial Judge was therefore in order when he made the finding from the circumstantial evidence that the

Appellant participated in the robbery. He had thus been properly identified and linked to the scene of the robbery.

established. Tendering the stolen items is not an ingredient of the offence of robbery. SeeOLUSINA AJAYI & ANOR VS. STATE (2011) LPELR – 3670 (CA).

The Appellant was arrested alongside the motor cycle stolen. Possession of stolen property is prima facie evidence that a person in such possession, participated in the robbery – FASILATE ADEPOJU VS. STATE (2018) LPELR – 44355 (CA) AT 33.

The three accused persons were tried together. PW1 clearly identified the 1st and 2nd accused persons as perpetrators of the offence. The Appellant has been linked to the offence and there is prima facie evidence that he participated in the robbery. The law is clear. Where two or more persons form a common intention to prosecute an unlawful act, and commit an offence in the process, each one of them is deemed to have committed the offence as they were charged jointly for committing the crime. Each member of that gang is guilty of the offence, irrespective of what each of them had done in furtherance of the commission of the crime – UBIERHO VS. STATE (2005) 5 NWLR (PT. 919) 644. The trial Judge considered the defence put up by the Appellant and rejected it as

tissue of lies. He was entitled to so find. He never stated, as counsel for the Appellant had submitted, that he found the Appellant guilty because he told a lie. No. He did not believe his testimony as they were lies; he believed the evidence of PW1 and PW2 and so convicted him on their evidence. In sum therefore, the prosecution had proved beyond reasonable doubt all the ingredients of the offence of robbery, and the trial Judge was right in convicting the Appellant of that offence.

Judge, that her husband has died and has been buried according to Islamic injunctions. No medical report was tendered to that effect. The law is trite, that a medical report is not necessary to prove that a human being had died or its cause, in all cases. The evidence of PW1 was sufficient in proving that her husband had died and has been buried. It is immaterial that no member of the community was called to say he died. It is also of no moment, that PW1 was the wife of the deceased. Counsel for the Appellant did not elaborate on how PW1 is an interested party. Interested party to what? Her husband was beaten in her presence and he sustained injuries. He was taken to the hospital where he died. She cannot give evidence of this first hand experience? What caution was the trial Judge expected to consider in receiving her evidence in the circumstances when she was also a victim. Is she going to fake the death of her husband?
On the second ingredient of the offence, that is, whether it was the act of the Appellant that caused the death, there is credible evidence of PW1, that she and the deceased were beaten with sticks. In addition, the attackers dropped

nylon fire balls on the body of the deceased causing him injuries, taken to hospital and he died the same day. Where there is credible evidence available upon which the trial Court can infer the cause of death, medical report is not vital. Where a person is hit with a weapon, and death is instantaneous or nearly so, a Court can clearly infer death – EDOHO VS. STATE (2010) 42 NSCQR 451 AT 457 AND BAKORI VS. STATE (1980) 8 – 11 S.C. 81. In the instant appeal, the accused persons beat the deceased with sticks and dropped nylon fire balls on his body. He was rushed to the Hospital where he died same day. Cause of death was clearly inferable from the nature of the wounds and the offensive weapons used. What caused the death which was nearly instantaneous, was clearly rightly inferred to be the acts of the Appellant and his co-accused persons. PW1 identified the 1st and 2nd accused persons as those who beat them and inflicted the injuries. The Appellant has been linked to them and to his participation in the robbery.
On the third ingredient, it is in evidence that the Appellant and his co-accused persons, beat the deceased, such that he could only crawl

out. Not satisfied, they added nylon fire balls droplets on his back and other parts. He was taken to Gumel General Hospital initially, but due to the nature of the injuries he sustained at the hands of the Appellant and his co-accused, that hospital could not treat him and so had to be referred to the Aminu Kano Teaching Hospital for a more expert care, but he died there the same day. It is clear from the offensive weapons used, the injuries inflicted on the deceased, the Appellant and his co-accused intended to cause the death of the deceased or knew that death would be the probable consequence of their acts. A person intends the natural consequences of his acts. They wanted to rob, kill the deceased and escape. They succeeded. The trial Judge made findings of guilt against the Appellant and we do not find any reason to disturb those findings as they are based on properly received and believed evidence. No miscarriage of justice had been occasioned – ANEKWE VS. NWEKE (2014) 4 SCNJ (PT. 11) 339 AT 372.

On conspiracy, this is an offence that is normally always hatched in secrecy and so it is rare to find direct evidence of it. It is mostly proved on

circumstantial evidence. Its ingredients are:-
a. an agreement between two or more persons to commit an illegal act, or a legal act by illegal means; and
b. that the illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.
See AWOSIKA VS. STATE (2010) 8 NWLR (PT. 1198) 49, ABDULLAHI VS. STATE (2008) 17 NWLR (PT. 1115) 203 AT 221; ABIODUN VS. STATE (2012) 7 NWLR (PT.1299) 394.
Conspiracy to commit an offence is separate and distinct from the actual commission of the offence and it can exist even without proof of committing the actual offence. The conspirators may conspire even if they did not know each other or seen each other or even corresponded with each other. They need not to have all started the conspiracy at the same time as some may join later. It also does not matter who originated the offence charged. See IBOJI VS. STATE (2016) LPELR – 40009) (SC).

Evidence led and believed by the trial Judge has established that the accused persons went to the house of the deceased Mai Unguwa Idi, armed, to commit robbery and they did so. They beat the deceased and his wife

PW1, inflicted wounds on him causing him to sustain burnt injuries and carted away cell phones and a motor-cycle. The 1st and 2nd accused persons were identified perpetrating the gruesome act. The Appellant has been shown to be part of the robbery crime. All the accused persons were sighted on a motor cycle together, making their escape. They were pursued and the Appellant was arrested alongside the stolen motor cycle in the house of the first accused person, soon after the robbery. They must have agreed at one point, to go and commit the robbery. They must have agreed on the time to commit same or meet in the said house of the deceased. They could not have just happened to be there, armed with sticks, a lighter and nylon, at the same time. Once the accused persons agreed and decided to do something in concert with the same mind set, there is conspiracy.

The learned counsel for the Appellant had submitted that there is no where a specific role is referred to against the Appellant in the realization of the crimes he was charged and convicted for. There is no law that requires a specific role to be pinpointed against an accused person in a charge of

conspiracy. The only requirement is that he has agreed with another to commit an illegal act or a legal act by illegal means and the illegal act was done in furtherance of the agreement. The Appellant participated in the illegal act which he and his co-accused had agreed to commit. The trial Judge was perfectly in order when he deduced and inferred from circumstances established before him, since it is not easy to lead direct and distinct evidence, that the Appellant had conspired with the co-accused persons, to commit the offences with which they were charged.

Similarly, it was the duty of the trial Judge to evaluate the evidence and make findings of facts. He evaluated the evidence, applied the law correctly and rejected the evidence of the Appellant.
There is no perversity or miscarriage of justice in that exercise. We have no reason to interfere – OWIE VS. IGHIWI (2005) 5 NWLR (PT. 917) 184 AND BIBIE AJUNNAH & 2 ORS. VS. SEBASTIAN ADILI (1985) 2 NWLR (PT. 9) 710.

In the premises, this appeal lacks merit and it is hereby dismissed. I affirm the Judgment of the trial High Court, Gumel in Case No.1DU/03C/2017, delivered on 15th February, 2019

wherein the Appellant was convicted for criminal conspiracy, armed robbery and culpable homicide and sentenced to fourteen years, twenty-one years and death by hanging, respectively.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.

I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State, sitting in Gumel, in Suit NO. JDU/03C/2017 delivered by Honorable Justice Ado Yusuf Birni Kudu on the 14th of February, 2019, along with the conviction of and the sentences passed on the Appellant therein.

AMINA AUDI WAMBAI, J.C.A.: I read before now the leading judgment of my learned brother A.D. YAHAYA JCA and I agree with his reasoning and conclusion.

There is abundant evidence on record which the learned trial judge duly evaluated, and applying the correct principles of law, came

to the conclusion that the prosecution proved the offences against the Appellant.

I find in particular the eye witnesses evidence of PW1 and PW2 very direct and unshaken linking the Appellant to the commission of the crimes. I find no fault with the findings and conclusion of the trial Court which are rock solid on the evidence on record.

In the circumstance, the appeal lacks any merit and is accordingly dismissed by me.

I affirm the judgment of the lower Court delivered on 03/10/2017 in Charge No. K/07c/2016 including the conviction and sentence of the Appellant.

Appearances:

M. Kashim
For Appellant(s)

Aliyu Abdullahi (ADCL Ministry of Justice, Jigawa) For Respondent(s)