MALLAMI ABUBAKAR v. THE STATE
(2019)LCN/12884(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/IL/C.107/2017
RATIO
ARMED ROBBERY: INGREDIENTS OF ARMED ROBBERY
“With regards to whether the prosecution established the offence of armed robbery, it is trite law that the prosecution must prove the following ingredients, namely:
1. There must have been a robbery or series of robberies.
2. The robbery or each robbery was an armed robbery, and
3. The accused was one of those who took part in the armed robbery. Osetola vs. The State (2012) ALL FWLR (pt. 649) 1020. Bozin vs. The State (1985) 2 NWLR (pt. 8) 465, Afolahan vs. The State (2012) 13 NWLR (pt. 1316) 185 @ 212, Emeka vs. The State (2014) ALL FWLR (pt. 751) 1480, Simon vs The State (2017) ALL FWLR (pt. 885) 1929 @ 1948.” PER HAMMA AKAWU BARKA, J.C.A.
CRIMINAL LAW: PROOF BEYOND REASONABLE DOUBT
“The standard of proof is proof beyond doubt, meaning that all the ingredients of the offence must be established, and where any doubt exists or is created in the mind of the Court, the most reasonable thing to do is to discharge the accused person. This the Court must do even where in his personal opinion he holds the feeling that the accused person might be culpable to the offence labeled against him. The following cases fully illustrate the highlighted position of the law.Ani vs. The State (2009) 6, 7 SC (pt. 111) 14, Idemudia vs. State (1999) 7 NWLR (pt. 610) 202; Aigbadion vs. The State (2000) 7 NWLR (pt. 666) 686; The State vs Emine (1992) 7 NWLR (pt. 256) 658, Oteki vs AG Bendel State (1986) 2 NWLR (pt. 24) 648, Ogundiyan vs. The State (1991) 3 NWLR (pt. 181) 519, Williams vs. The State (1992) 8 NWLR (pt. 261) 515, Bakare vs. The State (1987) 1 NWLR (pt. 52) 579 and Isa vs. The State (2018) ALL FWLR (pt. 919) 90 @ 124.” PER HAMMA AKAWU BARKA, J.C.A.
CRIMINAL LAW: WHERE AN ACCUSED ADMITS AN ALLEGE OFFENCE
“Now a confessional statement is an admission of the offence alleged. It follows therefore that once an accused person admits committing the alleged offence, the burden placed on the prosecution to prove the commission of the alleged offence is said to have been discharged. See Baalo vs. FRN (2016) 13 NWLR (pt. 1530) 400 @ 428, a confession being regarded as the best form of evidence. FRN vs. Borisade (2015) ALL FWLR (pt. 785) 227 @ 243…It is the settled position of the law that an accused person can be convicted on his own confession alone, whether retracted or not provided the confession is free, voluntary direct and positive. Such a statement has been described as ranking amongst the highest if not the highest method by which the commission of a crime is proved. See Ubierho vs. The State (2005) 5NWLR (pt. 919) 644, Kopa vs. The State (1971) 1 ALL NLR 150, Abirifon vs. The State (2013) 13NWLR (pt.1372) 619 @ 635.” PER HAMMA AKAWU BARKA, J.C.A.
DEFENCE: DEFENCE OF ALIBI
“It is a trite position of the law that by raising the defense of alibi, what is being indicated therein is that the accused person was somewhere else other than the place where the offence was committed and therefore couldn’t have committed the offence alleged against him. Of course the burden of rebutting the defense of alibi lies on the prosecution. However where and when an accused person is fixed at the scene of the crime where the alleged offence was committed, the defense fails, and the prosecution has no further need investigating the same. For whereas the prosecution has the duty to investigate a defense of alibi where raised, the accused person has a corresponding duty to put forward the defense at the earliest opportunity, and detailed as to his where about at the material time, and with whom he was with. Egwumi vs. The State (2013) 13 NWLR (pt. 1372) 525 @ 548.” PER HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: LAYING EVIDENCE IN A CRIMINAL CASE
“It is also trite law that the duty imposed on the prosecution in proving the alleged offence(s) against an accused person is fundamentally achievable in three ways. Firstly by the evidence of an eye witness, secondly by the confessional statement of the accused person voluntarily made, and thirdly by circumstantial evidence: Mbua vs. The State (2003) FWLR (pt. 141) 1969, Igabele vs. The State (2006) ALL FWLR (pt. 311) 1797, Okanlawon vs. The State (2015) 17 NWLR (pt. 1489) 445 @ 479, Etisi vs. The State (2018) ALL FWLR (pt. 920) 60. In Adio vs. The State (1986) 2 NWLR (pt. 24) 581 @ 593, cited in Abirifon vs. State (2013) 13 NWLR (pt 1372) 587 @ 629, the Apex Court had this to say on the issue: How is a case proved beyond reasonable doubt? A case can be proved by direct oral evidence. If the testimony of a witness who saw and heard are believed, there would be proof beyond reasonable doubt the local cases of Joseph Ogunbayode vs. The Queen (1954) 14 WACA 458, (otherwise known as Apalaras case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial evidence..But far and above these two methods of proof is the voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt.” PER HAMMA AKAWU BARKA, J.C.A.
INTERPRETATION: OFFENCE OF CONSPIRACY
“The offence of conspiracy has been defined as an agreement between two or more persons to do an unlawful act. It lies in the bare agreement and the association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether the accused person(s) had knowledge of its unlawfulness. See Kayode vs. The State (2016) LPELR SC. 83/2012, Clark vs. The State (1986) 4 NWLR (pt. 35) 381, Isa vs. The State (2018) ALL FWLR (pt. 919) 90 @ 124. It is common ground that in a charge of conspiracy, the actual agreement is not easily proved; this is because conspiracy is one of those whose evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred. That is to say that the evidence must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused person. See Yakubu vs. The State (2014) 8 NWLR (pt. 1408) 111, Oduneye vs. State (2001) 2 NWLR (pt. 697) 311, Njovens vs. The State (1973) 5 SC 17 and Onyenye vs. State (2012) 1 NWLR (pt. 1324) 586.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
MALLAMI ABUBAKAR – Appellant(s)
AND
THE STATE – Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the judgment of T.S. Umar J. of the Kwara State High Court sitting at Omu-Aran in Suit No. KWS/12C/2013: The State vs. Mallami Abubakar delivered on the 12th of April, 2016, wherefore the appellant along with two others were convicted for the offences of criminal conspiracy and armed robbery punishable under Sections 6(b) and 1(2) respectively of the Robbery and Firearm (Special Provision) Act R 11 laws of the Federal Republic of Nigeria 2004, and sentenced to death by hanging.
In brief, the appellant who was the third accused person before the trial Court, along with two others, namely Usman Garba and Mohammed Danbamu were arraigned on the 13/5/2013 and charged with the following counts of the charge.
COUNT ONE
That you Usman Garba, Mohammadu Danbamu and Mallami Abubakar on or about the 16th day of August, 2012 at a junction along Baba-Nla village within the jurisdiction of this Honorable Court conspired to commit an illegal act to wit. Robbed Alhaji Guwa Mohammed of the sum (N200,000.00) Two Hundred Thousand Naira and LG Handset with MTN and Glo line and you thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms Act CAP R11 Law of the Federation of Nigeria 2004.
COUNT TWO
That you Usman Garba, Mohammadu Danbamu and Mallami Abubakar on or about the 16th day of August, 2012 at a junction along Baba-Nla village within the jurisdiction of this Honorable Court while armed with guns and cutlasses robbed Alhaji Guwa Mohammed of the sum (N200,000.00) Two Hundred Thousand Naira and LG Handset with MTN and Glo line and you thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms (Special Provision) Act CAP R11 Law of the Federation of Nigeria 2004.
COUNT THREE
That you Usman Garba, Mohammadu Danbamu and Mallami Abubakar on or about the 20/82012 at a Fulani Camp, Oro-Ago within the jurisdiction of this Honorable Court conspired to commit an illegal act to wit; robbed one Umaru Gegele of his handsets and money and you thereby committed an offence to Section 6(b) of the Robbery and Firearms Act CAP R11 Law of the Federation of Nigeria 2004.
COUNT FOUR
That you Usman Garba, Mohammadu Danbamu and Mallami Abubakar on or about the 20/82012 at a Fulani Camp, Oro-Ago within the jurisdiction of this Honorable Court while armed with gun attempted to Rob one Umaru Gegele of his handset and money and you thereby committed an offence contrary to Section 2(2) (a) and (b) of the Robbery and Firearms Act. Cap. R11 Laws of the Federation of Nigeria 2004.
COUNT FIVE
That you Usman Garba, Mohammadu Danbamu and Mallami Abubakar on or about the 20/82012 at a Fulani Camp, Oro-Ago within the jurisdiction of this Honorable Court while armed with gun robbed one Adamu Muhammed and Kobe Guwa of their handset, a polythene bag containing meat and some money and you thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms Act Cap. R11 Law of the Federation of Nigeria 2004.
COUNT SIX
That you Usman Garba, Mohammadu Danbamu and Mallami Abubakar on or about the 20/82012 at a Fulani Camp, Oro-Ago within the jurisdiction of this Honorable Court conspired to commit an illegal act to wit; robbed one Adamu Muhammed and Kobe Guwa of their handset, a polythene bag containing meat and some money and you thereby committed an offence contrary to Section 6(b) of the Robbery and Firearms Act CAP R11 Law of the Federation of Nigeria 2004.
All the accused persons (appellant inclusive), pleaded not guilty to the charge read to their understanding. The prosecution in an effort at proving their case, called six witnesses, and tendered 10 exhibits in the process. The accused persons all gave evidence in their defense (including the Appellant who gave evidence and was recorded as DW3), and at the close of hearing, written addresses were ordered filed and adopted. The trial Court considered the evidence before it and found for the prosecution, thus convicting and sentencing all the three accused persons before him to death by hanging.
The case for the prosecution in a nut shell deducible from the judgment of the lower Court is that the alleged offences took place at two distinct places and dates. Thus it was stated that on the 16/8/2012 and also the 20/8/2012, the 3rd accused person (appellant) at a junction along Baba-Nla village road, and also at a Fulani Camp at Oro-Ago, conspired with the two other accused persons and committed armed robbery while armed with guns and cutlasses. In particular they were said to have robbed the following persons, Alhaji Guwa Mohammed, Adamu Abubakar and Umar Gegele of various sums of money, handsets, and a polythene bag which contained meat. It was further asserted by the prosecution that the accused persons in the heat of the Armed Robbery committed on the 16th of August, 2012, mistakenly handed to one of the victims, named Adamu Mohammed, their own polythene bag which contains rubber shoes, presumably the property of one of the accused persons.
On the 20/8/2012, the accused persons were said to have followed their victims to their camp at Oro-Ago and demanded for the return of their bag mistakenly handed over to Adamu Mohammed. They were said to have also demanded for money, from their victims, threatening to kill the Pw2 and Pw3, in furtherance of which the 1st and 2nd accused persons were reportedly shooting in the air to frighten their victims. In the ensuing melee, the Pw2 mustered courage, used his cutlass and decapitated the 1st accused person on his hand; causing his gun to fall out from his hand. The 1st accused person was there and then over powered and caught at the scene, while the two other accused persons escaped.
The appellant denied his involvement in the alleged armed robbery, alleging that he was arrested at Iyana share around 2.00am while travelling with his goods, (bags of beans and pepper), and stopped to offer the magrib prayers, when the police arrested him and took him to the Ilorin Criminal Investigation Department, Station, where he was thoroughly beaten by the police and fearing that he will be killed, admitted to being part of the alleged armed robbery.
Being dissatisfied with the judgment of the lower Court, therefore wherein he was convicted and sentenced to death by hanging, appellant filed a Notice of appeal predicated on seven grounds on the 24/1/17, pursuant to the leave granted him by this Court to appeal out of time on the 16/1/2017. The record of appeal was compiled and transmitted to this Court on the 19th of September, 2017, but deemed transmitted on the 5th of December 2017. Thereafter the appellant filed the Appellants brief on the 12/3/2018, but deemed filed on the 7/5/2018.
The Respondent on his part, and in opposing the appeal, filed the respondents brief of argument on the 10/9/2018 deemed filed on the 14/1/2019.
Both parties identified and adopted their respective briefs on the 4/2/2019 being the scheduled hearing date.
In the appellants brief settled by Abdulwahab Bamidele of learned counsel for the appellant, two issues were identified for the resolution of the appeal and they are as follows:-
i. Whether it can be safely concluded that the Prosecution has proved the allegations of criminal conspiracy and armed robbery against the appellant beyond reasonable doubt.
ii. Whether the lower Court has properly considered the defenses available to the Appellant and or those raised by him.
For the respondent, and in the brief settled by Jimoh Adebimpe Mumini, the learned Director Public Prosecution, Kwara State, in adopting the two issues distilled by the appellant, argued the appeal seriatim.
Having therefore studied the record and submissions of learned counsel, I do agree with both counsel that the issues identified and agreed upon, could conveniently settle the appeal. I therefore adopt the issues thus distilled by the appellant and adopted by the respondent in the resolution of the appeal.
Issue One
Whether it can be safely concluded that the Prosecution has proved the allegations of criminal conspiracy and armed robbery against the appellant beyond reasonable doubt.
The Learned counsel for the appellant argued this issue extensively from pages 6 to 23 of the brief. Therein, learned counsel submitted that from the entirety of the evidence adduced, the charges of conspiracy and armed robbery against the appellant were not proved as required by law. He submits that the evidence adduced by the prosecution, must be in line with the charge brought against the accused person, and relied on the cases of Ogudo vs.The State (2011) 12 SC (pt. 1) 79 @ 99 and FRN vs. Barminas (2017) 2, 3 SC (pt. 11) 77. He maintained that the evidence adduced against the accused persons with regards to the two count charge was not in line with the charge brought against the appellant, contending that upon a proper consideration of the evidence of the pw 4 would reveal that there was no credible and believable evidence in support of the allegations against the appellant. He goes on to posit that no arm as contained in the charge against the appellant was recovered from any of the accused persons.
It was his further submission on the issue that a proper consideration of the evidence of the pw 4 would reveal lot of speculations and doubts, which ordinarily cannot sustain nor amount to acceptable evidence. Learned counsel then argued that since the pw 4 is said to have known the appellant before the alleged incident, but failed to mention the name of the appellant at the earliest opportunity, the Court was wrong to have accepted and acted on such identification. He relied on the case of Ibrahim vs. State (2015) 3-4 SC (pt. 11) 110 @ 131.
He insists that the totality of the evidence of the pw4 instead of implicating the appellant rather exculpated him. Further on the issue, learned counsel submits that since the evidence rendered by the pw4 did not suggest any incident of armed robbery, the alleged confessional statement of the appellant cannot stand, there being no corroborative outside evidence in support. He urged the Court to consider the confessional statement against the backdrop of the six way test enunciated in the cases of Akpan vs. The State (1992) 6 NWLR (pt. 248) 439, Kaza vs. The State (2008) 7 NWLR (pt. 1085) 125, and thereby hold the view that the conviction of the appellant was not predicated on any cogent and admissible evidence and therefore ought to be upturned. The case of Omopupa vs. The State (2008) ALL FWLR (pt. 445) 1648 @ 1684 was cited in support. It was further submitted that from the evidence of the pw2, pw3, and pw5 the prosecution demonstrated lapses, shortcomings and sharp intra and inter contradictions in the evidence of the prosecution witnesses with regards to all the counts of the charge. He referred specifically to the evidence of the pw2 which he claims speaks volumes about the innocence of the appellant as regards counts 5 and 6, thus urging the Court to resolve the issue in favor of the appellant.
The response of the learned DPP for the state with regards to the issue can be seen from pages 2 to 6 of the brief of argument, and contrary to the submissions of the appellants counsel, is of the view that the prosecution established a clear case of conspiracy and armed robbery against the appellant. It was thus submitted that from the evidence of the pw4 and exhibit 8, (the confessional statement of the appellant), it was poignantly established without a doubt that the appellant conspired and robbed Pw2 and Pw4, as charged. He made reference to exhibit 8, the confessional statement of the appellant, contending that once there is in existence a confessional statement which is direct, cogent and unequivocal to the fact in issue, the prosecution needed no further proof. See Mustapha Mohammed vs. The State Suit No. SC/84/2006. That legal position notwithstanding, it was the further submission of counsel that the evidence of pw2 and pw4 indeed corroborated the voluntary confession of the appellant in line with the decisions of Ogudo vs. The State (2011) 202 LRCN 11, Mbenu vs. The State (1988) 3 NWLR (pt. 84) 615 and Stephen vs. The State (1986) 5 NWLR (pt. 46) 978. He argued that there was nothing speculative in the evidence of the Pw4, which was straightforward, direct and cogent corroborating exhibit 8 and there was nothing to show that Pw4 knew the name of the appellant before the robbery incident.
On the issue raised by the appellant that the statement of the appellant was not subjected to the six way test, learned counsel alluded to the trial Courts holding at page 134 of the record to show that the Court gave due consideration to the issue. He maintained that there was no contradiction in the evidence adduced particularly as to the names borne by the accused persons, and the appellant having made a confessional statement admitting all the elements of the offence, duly corroborated by the testimonies of the prosecution witnesses, the lower Court was right to have dutifully convicted the appellant.
In resolving this issue, I must give due consideration to the established and immutable position of the law with regards to the burden and standard of proof in criminal which cases has to be borne in mind. The legal principle which is notorious by virtue of its being given constitutional pre eminence is that an accused person no matter the gravity of the alleged offence is presumed innocent until he is by law found guilty of the offence charged. The fact that he remains silent throughout his trial is of no moment, being that there is no duty imposed on him to prove his innocence. The standard of proof is proof beyond doubt, meaning that all the ingredients of the offence must be established, and where any doubt exists or is created in the mind of the Court, the most reasonable thing to do is to discharge the accused person. This the Court must do even where in his personal opinion he holds the feeling that the accused person might be culpable to the offence labeled against him. The following cases fully illustrate the highlighted position of the law.
Ani vs. The State (2009) 6, 7 SC (pt. 111) 14, Idemudia vs. State (1999) 7 NWLR (pt. 610) 202; Aigbadion vs. The State (2000) 7 NWLR (pt. 666) 686; The State vs Emine (1992) 7 NWLR (pt. 256) 658, Oteki vs AG Bendel State (1986) 2 NWLR (pt. 24) 648, Ogundiyan vs. The State (1991) 3 NWLR (pt. 181) 519, Williams vs. The State (1992) 8 NWLR (pt. 261) 515, Bakare vs. The State (1987) 1 NWLR (pt. 52) 579 and Isa vs. The State (2018) ALL FWLR (pt. 919) 90 @ 124.
It is also trite law that the duty imposed on the prosecution in proving the alleged offence(s) against an accused person is fundamentally achievable in three ways. Firstly by the evidence of an eye witness, secondly by the confessional statement of the accused person voluntarily made, and thirdly by circumstantial evidence: Mbua vs. The State (2003) FWLR (pt. 141) 1969, Igabele vs. The State (2006) ALL FWLR (pt. 311) 1797, Okanlawon vs. The State (2015) 17 NWLR (pt. 1489) 445 @ 479, Etisi vs. The State (2018) ALL FWLR (pt. 920) 60.
In Adio vs. The State (1986) 2 NWLR (pt. 24) 581 @ 593, cited in Abirifon vs. State (2013) 13 NWLR (pt 1372) 587 @ 629, the Apex Court had this to say on the issue:
How is a case proved beyond reasonable doubt? A case can be proved by direct oral evidence. If the testimony of a witness who saw and heard are believed, there would be proof beyond reasonable doubt the local cases of Joseph Ogunbayode vs. The Queen (1954) 14 WACA 458, (otherwise known as Apalaras case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial evidence..But far and above these two methods of proof is the voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt.
The appellant in the instant case is alleged to have conspired with others charged along with him, and to have committed armed robbery, and consequently duly convicted and sentenced. The appellant now complains that from the totality of the evidence adduced, the appellant was not shown to have committed the offences of conspiracy and armed robbery alleged against him as required by law. For instance, the learned counsel for the appellant argued that the evidence adduced by the prosecution was not in line with the charges preferred against the appellant, and relying on the holding in the cases of Ogudo vs The State (supra) and FRN vs. Barminas (2017) 2-3 SC (pt. 11) 77 opined that the material averments in the charge were not proved.
In reaching its decision as to whether the prosecution satisfied it with regards to the charge against the appellant, the trial Court evaluated the evidence placed before it, and at page 134 of the record, stated that the pieces of evidence provided by the prosecution witnesses corroborated the confessional statement of the accused person, in other words, the trial Court hinged or arrived at its findings from the pieces of evidence adduced by the prosecution witnesses and the confessional statement of the accused person (appellant).
The question therefore begging for resolution before this Court is whether from the record before us, there was sufficient evidence against the appellant with regards to the offence of conspiracy, which the lower Court relied upon in convicting the appellant.
The offence of conspiracy has been defined as an agreement between two or more persons to do an unlawful act. It lies in the bare agreement and the association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether the accused person(s) had knowledge of its unlawfulness. See Kayode vs. The State (2016) LPELR SC. 83/2012, Clark vs. The State (1986) 4 NWLR (pt. 35) 381, Isa vs. The State (2018) ALL FWLR (pt. 919) 90 @ 124. It is common ground that in a charge of conspiracy, the actual agreement is not easily proved; this is because conspiracy is one of those whose evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred. That is to say that the evidence must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused person. See Yakubu vs. The State (2014) 8 NWLR (pt. 1408) 111, Oduneye vs. State (2001) 2 NWLR (pt. 697) 311, Njovens vs. The State (1973) 5 SC 17 and Onyenye vs. State (2012) 1 NWLR (pt. 1324) 586.
In the instant case, the evidence of the pw4, relevant to the issue at hand can be seen from pages 70 to 73 of the record. There in, Alhaji Guwa Mohammed stated thus:
On 16/8/2012, I was coming from Ajase Market to Babanla, to the Fulani camp there was a junction, immediately I passed the junction a little, I saw some people at about 8.00 to 8.30 at night. I was on motor cycle they stopped me and demanded money from me that is the 2nd and 3rd accused persons. I surrendered to them and they searched me and they met N200, 000.00 with me and LG handset. The handset contains two Sim, MTN and GLO. After collecting all the items they left me and went away. The 3rd accused person was holding the key of the motorcycle and threw the key to me that is all.
Further at page 71 to 72 of the record, the witness under cross examination stated thus:
When I was attacked for two to three days I was not myself but I intended to report to police. I recognize 2nd and 3rd accused that night but I did not report because after the incidence I was not myself.
In his statement to the police exhibit 8, which can be seen at page 17 of the record, the appellant is said to have stated thus:
I know one Danbamu, jayan and Belle, we had once conspired together and robbed one Alhaji Guwa along (his) a way (sic) to his house. The scene of crime is not far away from Babanla village. Danbamu told me that it was one hundred and ten thousand naira (110,000.00 he collected from Alhaji Guwa during the robbery operation. Actually we attacked him with guns and disposed him the said money, handsets and two bundles of rope. We also collected his cutlass. It was the sum of twenty eight thousand naira (N28, 000.00 was given to me by Danbamu Maisamore.
The Pw3, Umaru Gegele at page 70 of the record, also gave evidence as to the happenings on the 20th of August, 2012. On being cross examined by learned counsel, the witness stated as follows:
The 1st accused person was facing me and 2nd and 3rd accused were behind. I know the 2nd and 3rd accused very well. I knows (sic) the 3rd accused as a fellow cattle rearer. We normally meet where we rear cattle but I do not know his camp.
The Pw 2 also in his evidence alluded to the third accused person but did not identify him as the appellant.
Now a confessional statement is an admission of the offence alleged. It follows therefore that once an accused person admits committing the alleged offence, the burden placed on the prosecution to prove the commission of the alleged offence is said to have been discharged. See Baalo vs. FRN (2016) 13 NWLR (pt. 1530) 400 @ 428, a confession being regarded as the best form of evidence. FRN vs. Borisade (2015) ALL FWLR (pt. 785) 227 @ 243.
At this stage, can we say that exhibit 8, being the confessional statement of the appellant is irrelevant, and or being that same does not bear the truth of the assertions therein? My view is that it is late in the day to argue that exhibit 8, is not the statement of the appellant and or that same was taken in contravention of Section 28 of the Evidence Act. In reaching the decision that appellants confessional statement exhibit 8, is relevant, even though resiled from before the lower Court, I take refuge in the reasoning of Nweze JSC in the case of FRN vs. Borisade (supra) @ page 242, where he stated thus:
The raison detre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary and hence inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. See also FRN vs. Dairo (2015) ALL FWLR (pt. 776) 486 @ 519.
The lower Court rightly in my view, conducted a trial within trial in determining whether the statement allegedly made by the appellant as accused person was voluntarily made as the prosecution asserted, or whether the statement was obtained in violation of the law. At the conclusion of trial, the lower Court reached the verdict that exhibit 8 was indeed voluntarily made by the appellant. The state of the law is that once a confessional statement is admitted following a trial within trial proceedings, it becomes difficult for the Court sitting on appeal to intervene against its admissibility. This is because the evaluation of the evidence presented at the trial is based on the credibility of the witnesses, which duty is solely that of the trial Court which had the singular advantage and privilege of seeing the witnesses testify as well as watching their demeanor. See Ogoala vs. The State (1991) 2 NWLR (pt. 175) 509, Esangbedo vs. The State (1989) 4 NWLR (pt. 113) 57, Lasisi vs. The State (2013) 9 NWLR (pt. 1358) 74 @ 96.
Still on whether the lower Court was right in holding that the prosecution proved the offence of conspiracy against the appellant, what should be examined is whether the ingredients of the offence were established by the prosecution as demanded by law, and to establish the offence of conspiracy, the prosecution has the duty of proving that an agreement between two or more persons, involving the appellant, to do or cause to be done some illegal act or an act which by its nature is not illegal, but illegal means were employed. Further that some act was done in furtherance of the agreement, and that each of the accused persons individually participated in the alleged wrongful agreement, or that accused consented in advancement of the agreement conceived, thus translated to the overt act or omission or mutual consultation or agreement. See Tanko vs The State (2008) 16 NWLR (pt. 1114) 597, Yakubu vs. The State (supra) @ 111.
The trial Court having examined the confessional statement of the appellant, viv a vis the pieces of evidence adduced by the prosecution witnesses, rightfully in my view arrived at the irresistible conclusion that the accused persons acted in furtherance of an agreement to wit, the commission of the offence of armed robbery. The lower Court and the respondent are therefore right in stating that from the confessional statement of the appellant, exhibit 8, which unequivocally admitted to the hatching and execution of the perceived agreement between the accused persons, coupled with the testimony of the PW2, Pw3, and Pw4, the ingredients of the offence of conspiracy were established to the hilt. I see no reason to fault the lower Court in that regard.
With regards to whether the prosecution established the offence of armed robbery, it is trite law that the prosecution must prove the following ingredients, namely:
1. There must have been a robbery or series of robberies.
2. The robbery or each robbery was an armed robbery, and
3. The accused was one of those who took part in the armed robbery. Osetola vs. The State (2012) ALL FWLR (pt. 649) 1020. Bozin vs. The State (1985) 2 NWLR (pt. 8) 465, Afolahan vs. The State (2012) 13 NWLR (pt. 1316) 185 @ 212, Emeka vs. The State (2014) ALL FWLR (pt. 751) 1480, Simon vs The State (2017) ALL FWLR (pt. 885) 1929 @ 1948.
In proof of the ingredients of the offence of armed robbery, PW4, PW2 PW3 all gave evidence on the series of armed robberies which occurred on the 16th and 20th of August, 2012. They gave evidence that the robbery was armed robbery, and that the appellant was one of the armed robbers. Pw5 the Police Investigation Officer testified to the effect that a case of conspiracy and armed robbery was reported to the police station on the 21st of August, 2012, and when they moved to the scene in company of the Divisional Police Officer, they met the 1st accused person who was arrested by the victims at the scene of the crime, and also recovered one locally made barrel gun, one expended cartridge, one handset and sundry other items. The appellant in his statement made to the police, admitted the commission of the offence. His statement is cogent and straightforward.
It is the settled position of the law that an accused person can be convicted on his own confession alone, whether retracted or not provided the confession is free, voluntary direct and positive. Such a statement has been described as ranking amongst the highest if not the highest method by which the commission of a crime is proved. See Ubierho vs. The State (2005) 5NWLR (pt. 919) 644, Kopa vs. The State (1971) 1 ALL NLR 150, Abirifon vs. The State (2013) 13NWLR (pt.1372) 619 @ 635. Nevertheless, the confessional statement of the appellant was amply corroborated by the pieces of evidence adduced by the prosecution witnesses who were eye witnesses, and who gave eye witness account of the happenings on that fateful day, roping the appellant with the commission of the offence. The gun used and the expended pellets all add up in proof that an armed robbery took place on the dates mentioned, that the robbery was armed robbery, and that appellant was one of the robbers. The argument that appellants confessional statement must be supported by outside evidence in the circumstance is of no moment.
The appellant counsel in his submissions alluded to
contradictions in the case of the prosecution, and also spoke of speculations by the lower Court in arriving at its decisions. I agree with the appellant that Courts cannot base their findings or decisions on speculation, but must arrive and base its findings and decisions on cogent and believable evidence. I however do not see where the Court is said to have speculated in arriving at its decisions, nor did I see any material contradiction(s) capable of dislodging the findings of the lower Court, in support of the case against the appellant. I agree with the respondents counsel that the lower Court rightly acted on the appellants confessional (statement exhibit 8), duly corroborated by the testimony adduced by the other prosecution witnesses in convicting the appellant. I resolve this issue against the appellant.
Issue two.
Whether the lower Court has properly considered the defense available to the appellant and or those raised by him.
Learned counsel for the appellant argued the issue from pages 23 to 33 of the appellants brief. The contention of the learned counsel is that the appellant was a victim of circumstances, but the lower Court instead of giving consideration to this defense raised by the appellant, relied on the alleged confessional statement of the appellant to the detriment of giving consideration to the defenses open to the appellant, which occasioned a miscarriage of justice. Learned counsel submitted that where the pieces of evidence given by the pw2, pw3 and pw4, are critically examined, against the backdrop of the evidence adduced by the appellant, the likelihood of the appellant being a victim of circumstance becomes very high. Also alluding to the evidence adduced by the pw5, learned counsel complained that the trial Court failed to consider the effect of the evidence given by the prosecution alongside the defense of the appellant. In conclusion, it was submitted for the appellant with regards to this issue that the trial Court solely relied on exhibit 8, to convict the appellant.
It is trite as contended that in criminal trials such as the one under consideration, any defense available to an accused person, whether raised by him or not must be given due and ample consideration. The cases of Gabriel vs. The State (1989) 12 SC 129, Williams vs. The State (1992) 8 NWLR (pt. 201) 515 and Edibo vs. The State (2007) 5 SC 137, all cited by the appellant are apposite.
The learned counsel referred this Court to the testimony of the appellant located at pages 121 to 122 of the record. The totality of the evidence given its literal meaning was that on the fateful day, at around 2.00 pm, he was at Iyana Share where he was arrested, and taken to the police CID office. He denied being amongst the alleged people that committed the armed robbery, until when he was subjected to unbearable beating that he admitted to save his life. He denied knowing the two persons charged along with him as well as the exhibits recovered. Thus his evidence ran contrary to the contents of exhibit 8, his purported confessional statement.
The trial Court rightly in my view, understood the appellant as saying that he was indeed a victim of circumstance, having been arrested at a scene different from the scene of the incident. In other words, that he did not participate nor did he commit the alleged offences, thus understood as having raised the defense of alibi. The trial Court at page 135 of the record considered and faulted this defense put forward as an afterthought, the appellant having failed to raises it timeously, and more over there being ample evidence fixing the appellant at the scene of the commission of the offence, and consequently disbelieved the defense of alibi raised.
It is a trite position of the law that by raising the defense of alibi, what is being indicated therein is that the accused person was somewhere else other than the place where the offence was committed and therefore couldn’t have committed the offence alleged against him. Of course the burden of rebutting the defense of alibi lies on the prosecution. However where and when an accused person is fixed at the scene of the crime where the alleged offence was committed, the defense fails, and the prosecution has no further need investigating the same. For whereas the prosecution has the duty to investigate a defense of alibi where raised, the accused person has a corresponding duty to put forward the defense at the earliest opportunity, and detailed as to his where about at the material time, and with whom he was with. Egwumi vs. The State (2013) 13 NWLR (pt. 1372) 525 @ 548.
From the available evidence laid before the lower Court, and most particularly that of the pw2, pw3 and pw4, fixing the appellant at the scene of the crime at the material time, that defense as rightly held by the lower Court fades into insignificance, and can rightly be termed as nothing more than an afterthought. See also Idemudia vs. The State (2015) ALL FWLR (pt. 800) 1302 @ 1318.
The situation is made worse in that appellant in his statement did not allude at all to being elsewhere other than at the scene of the crime, and an active participant thereof. His evidence was duly corroborated in all material particular, thus fixing him tightly as a participis criminis. The learned counsel for the appellant cannot therefore be right in his argument that the lower Court dwelt entirely on the confessional statement without more. What is more, appellant did not deny the fact that he bears the name of Mali, in the event, of which no further defense was raised or available to the appellant which was not considered. The lower Court in my view admirably dealt with the issue, and I see no reason to fault him. Interestingly, the evidence adduced by the pw5, debunked the fact that appellant was a victim of circumstance as the learned counsel would want the Court to believe. This issue is also determined against the appellant.
The two issues canvassed by the appellant in support of his appeal having been determined against him, the end result is that the appeal fails for lack of merit, and must be and stands dismissed accordingly.
The judgment of T. S. Umar J, in suit No. KWS/15c/2013, delivered on the 12th of April, 2016, convicting and sentencing the appellant to death by hanging is hereby affirmed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the judgment just delivered by my learned brother, Barka, JCA. having equally perused the briefs of argument of the two respective learned counsel vis-a-vis the records of appeal, I cannot but concur with the reasoning ably reached in the judgment to the conclusive effect the the present appeal is devoid of merits. I hereby adopt the reasoning and conclusion as mine, and accordingly dismiss the appeal for lacking in merits. I abide bt the consequential order made therein.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had a purview of the leading judgment just delivered by my Noble Lord, HAMMA AKAWU BARKA, J.C.A. I entirely concur with the reasoning and the decision arrived at in dismissing the appeal being unmeritorious. All the issues raised in the appeal have been resolved creditably. I have nothing useful to add thereto other than to adopt my Lord’s reasoning and decision as mine (with gratitude), and to also dismiss the appeal for the reasons ably adumbrated in the leading Judgment. I too, do hereby dismiss the appeal and in consequence, affirm the judgment of the lower Court delivered on the 12th of April, 2016, in charge No. KWS/12C/2015.
Appearances:
Abdulwahab Bamidele with him, B. F Folorunsho and A. B Ibrahim For Appellant(s)
J. A Mumini (DPP Kwara State) with him, S. O Dada (CSC) For Respondent(s)
