MANU SAIDU v. THE STATE
(2019)LCN/12923(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/J/143C/2014
RATIO
FUNDAMENTAL HUMAN RIGHT: TEST OF FAIR HEARING
“The test of fair hearing is the impression of a reasonable person who was present at the hearing whether from his observation justice was done in the case. See Mohammadu v Kano N.A (1968) 1 ALL NLR 424, Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. Having regards to the circumstances, it is my firm view that no reasonable person present at the trial would say that Appellant was not given fair hearing at the trial.” PER ADZIRA GANA MSHELIA, J.C.A.
EVIDENCE: PROOF BEYOND REASONABLE DOUBT
“It is now trite that in any criminal proceedings such as the present, the prosecution is duty bound to prove its case beyond reasonable doubt and this burden does not shift through the proceedings until the duty is fully discharged. This bounden duty of proof beyond reasonable doubt does not mean proof to the hilt of proof beyond all iota of doubt. Therefore once the prosecution has established all the essential ingredients of the offence that an accused is charged with, it has carried out the duty required.” PER ADZIRA GANA MSHELIA, J.C.A.
ARMED ROBBERY: INGREDIENTS OF ARMED ROBBERY
“In this journey to prove the essential elements of the offence of armed robbery the prosecution is expected to establish the following:
(a) That there was a robbery or a series of robberies,
(b) That the accused was one of those who took part in the armed robbery,
(c) That at the time of committing the robbery the accused was armed with firearm or an offensive weapon or was in the company of any person who was so armed. See Olatinwo v State (2013) ALL FWLR (Pt.685) 312 at 333, Anekwe v State (2014) 10 NWLR (Pt.1415) 353 Adeleke v State (2014) ALL FWLR (Pt.722) 1652 at 1673, Anekwe v State (2014) 10 NWLR (Pt.1415) 353. To obtain conviction, the prosecution must prove all the ingredients listed above, beyond reasonable doubt.” PER ADZIRA GANA MSHELIA, J.C.A.
EVIDENCE: PROVING THE GUILT OF AN ACCUSED
“The means or method which the prosecution may employ or adopt in proving the guilt of an accused could be in any one or all of the under listed methods, namely:
(a) By account of eye witness or witnesses who witnessed the commission of the offence.
(b) By circumstantial evidence unequivocally pointing at the guilt of the accused person.
(c) Through voluntary confessional statement of the accused admitting the commission of the offence charged.” PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
MANU SAIDU Appellant(s)
AND
THE STATE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment):
The Appellant and one other were arraigned before the Yobe State High Court Potiskum for the alleged commission of the offence of Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms Act. The Appellant was convicted and sentenced to death. Dissatisfied with the Judgment Appellant lodged an appeal to this Court vide his Notice of Appeal. Appellant sought and obtained leave to file additional grounds of Appeal. The Amended Notice of Appeal was filed on 29/7/2015 but deemed properly filed on 02/03/2015, containing three grounds of Appeal.
In compliance with rules of Court parties filed and exchanged their respective briefs of Argument. Appellant?s Brief settled by A.A. Sange Esq. dated 12/10/2017 was filed on 13/09/2017 but deemed properly filed on 30/10/2017. The Respondent?s Brief settled by U. Ismaila Esq., dated 07/06/2018 was filed on 08/06/2018 but deemed filed on 26/06/2018. Appellant?s Reply Brief was filed on 27/06/2018. When the appeal came up for hearing both counsel adopted their respective briefs of Argument.
Appellant?s counsel urged the Court to allow the appeal. While Respondent?s counsel urged the Court to dismiss the appeal.
In the Appellant?s brief, two issues were distilled for determination as follows:
1. Whether or not the Appellant had fair hearing and fair trial having regard to the manner and the entire circumstances of the trial conviction and sentence of the Appellant to death (Distilled from Additional Ground 2).
2. Whether or not the Respondent had proved the case of the alleged offence against the Appellant beyond reasonable doubt (Distilled from original Ground 1 and Additional Ground 2).
On the part of the Respondent, the issues formulated by the Appellant was adopted.
In determining this appeal, I will adopt the two issue formulated by the Appellant as Respondent did not formulate any new issue.
ISSUE ONE
In arguing this issue, learned counsel for the Appellant submitted that the lower Court erred in law when it convicted and sentenced the Appellant to death. That the Appellant was denied constitutional right to fair hearing and fair trial following the proceedings of the lower Court conducted on 27/10/2004, 19/07/2005 and 07/09/2005 (see pages 18 to 19, 39 to 42 and 43 of the record). According to Appellant?s counsel the lower Court did not allow counsel to the Appellant to cross examine PW6. Furthermore the statement of the Appellant taken in Fulfulde was not tendered in evidence neither was it translated to Hausa language. That according to PW2 both accused persons gave their Statements in Fulfulde. See page 61 lines 10 of record. That this prejudiced the Appellant?s defence as same was not properly conducted. This offends S.36 (6) (a) of the 1999 Constitution as amended. Counsel contended that considering the entire manner the proceedings was conducted leading to the conviction and sentence of the Appellant to death shows Appellant did not get fair hearing and fair trial. Reliance placed on S.36 (6) (a) of the 1999 Constitution as amended, Sabi v The State (2011) 14 NWLR (Pt.1268) paras 421 at 437-438, Adebayo Ogundoyin & Ors v David Adeyemi (2006) 1 NHLR 39 at 52-54 paras B-B, 2001 13 NWLR (Pt.730) 403 at 419 to 420 paras D-E. Counsel maintained that the entire circumstances denied the Appellant his constitutional right to fair hearing and fair trial.
Cited in aid S.36 (6) (a) of the Constitution, Sabi v The State (supra) etc. He urged the Court to declare entire proceedings and the Judgment of the lower Court a nullity.
In response, learned counsel for the Respondent submitted that the test of a fair hearing is the impression of a reasonable person who was present at the hearing whether from his observation justice was done in the case. Reliance placed on Mohammadu v Kano N.A (1968) 1 ALL NLR 424, Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 5870. It was his contention that there was no any single day when the lower Court proceeded in the absence of the appellant’s counsel. That appellant was professionally and competently represented in the proceedings of 27/10/214. Though counsel to 1st accused was not in court Mr. Eze counsel to the 2nd accused (now Appellant) offered to represent him and the appellant expressly agreed to this. Reference made to page 21 lines 12-13 of the record. That prosecution witnesses were meticulously cross-examined and a dogged defence was put on behalf of the appellant. See page 22 of the record.
Counsel submitted that if an accused person does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter had led to a miscarriage of justice and that if accused is represented as in this appeal the objection must be taken at the trial in the first instance and not an appeal. See Queen v Imadebhor (1962) 2 SCNLR 289 and Uwaekweghinya v State (2005) 4 ACLR 1 at 5 Ratio 2.
Learned counsel further submitted that on 28/02/2006 four witnesses (i.e PW3-6) testified for the prosecution and the appellant counsel meticulously cross-examined the prosecution witnesses except PW6 and the record did not show that the appellant counsel sought to cross-examine him but was denied by the Court. See pages 50-55 of the record. That both parties are bound by contents of the record. SeeVeepee Ind. Ltd v Cocoa Ind. Ltd (2008) 13 NWLR (Pt. 1105) 486 at 512. That Appellate Court is also bound by the record of proceedings before it and cannot depart from it on ipsi dixit of counsel or on speculation. That records of proceedings are the only indication of what took place in a Court.
See Sommer v FHA (1992) 1 NWLR (Pt. 219) at 548, Olaniyan v Oyewole (2008) 5 NWLR (Pt.1079) 114 at 132.
On the procedure for recording statement of Appellant Exhibit B by Police, counsel submitted that statements of accused persons should whenever practicable be recorded in the language in which they are made. See Olanipekun v State (2016) 13 NWLR (Pt. 1528) 100 at 118. Counsel submitted that where interpreter has been used, there is need to tender the statement recorded in different language other than English. However, where recorder understands that language and record statement directly in English, there is no need to tender the statement translated to accused. See Jimoh v State (2014)3 SCNJ at 27.
Counsel submitted that the case of Jimoh v State is on all fours with the present appeal. That in the case at hand both Appellant and PW2 speak Fulfulde and Hausa language. That Appellant made the statement in Fulfulde and Hausa language and PW2 recorded it in English language. That although it would have been more appropriate recording the statement in the language which it was made and then translating it into English language, there is nothing wrong with the procedure employed by PW2.
That Exhibit B which PW2 recorded in English language even though made in Fulfulde language did not amount to hearsay particularly when the statement was tendered through interpreter/recorder and admitted in evidence after a trial within trial was conducted to ascertain the voluntariness of the confessional statement of the Appellant. That the procedure was in order. See Semaka v State (2018) LPELR ? 44001 (CA) page 3 ratio 6. See pages 28-29, 33-36 and 40-42 of the record of appeal. He urged Court to resolve the issue in favour of the Respondent.
The complaint of the Appellant is that he was not given fair hearing and fair trial by the trial Court. I have carefully examined the proceedings of 27/10/2004, 19/7/2005 and 17/09/2005. On 27/10/2004, the charge was read out to both accused who pleaded not guilty. The first accused who had no counsel was assigned one by name A.A. Babati Esq. for 2nd accused his counsel did not appear in Court. The matter was adjourned to enable their counsel appear in Court. On 19/07/2005 both accused were represented by counsel during trial within trial that was conducted to ascertain the voluntariness of their confessional statements.
The matter was adjourned for ruling on 07/09/2005 but counsel was absent, though aware of the date and ruling read out in open Court admitting the two confessional statements as Exhibit ?A? & ?B? respectively. After ruling the matter was adjourned for continuation.
As regards PW6, the record showed that he was not cross-examined after he gave his evidence in chief. The matter was further adjourned presumably for cross-examination and continuation of hearing. The defence counsel never raised the issue that he was denied that opportunity. I agree accused persons have the right to cross-examine the PW6. However, Appellant did not explain how the failure to cross-examine PW6 had affected the outcome of his case.
The Appellant?s counsel also raised complaint regarding the procedure adopted by PW2 in recording the Appellant?s statement made to the police. The proceedings of the trial Court at page 61 of the record showed that both accused gave their statements in Fulfulde. PW2 recorded the statements in English and interpreted same to them in Hausa and Fulfulde, before appending their signature.
This clearly shows that PW2 understands Fulfulde, so he acted as interpreter/recorder. There is nothing wrong with the procedure adopted by PW2. It is only where the services of an interpreter is used, then the interpreter must be called as witness and the statement must be recorded in Fulfulde and tendered in evidence. See the Supreme Court case of Bello v C.O.P (2018) 2 NWLR (Pt.1603) 267 at 331. See also Jimoh v State (2014) 3 SCNJ at 37. The Statements were rightly admitted by the Judge.
From the circumstances enumerated, there is nothing to show that Appellant?s right to fair hearing and fair trial was breached. Appellant did not show any breach that occasioned miscarriage of Justice, to entitle the Court declare whole proceedings as a nullity. The test of fair hearing is the impression of a reasonable person who was present at the hearing whether from his observation justice was done in the case. See Mohammadu v Kano N.A (1968) 1 ALL NLR 424, Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. Having regards to the circumstances, it is my firm view that no reasonable person present at the trial would say that Appellant was not given fair hearing at the trial.
It is not correct to say that appellants constitutional right under S.36 (1) (5) and (6) of the 1999 Constitution have been breached. Issue 1 is resolved in favour of the Respondent.
ISSUE TWO
In arguing this issue, learned counsel for the Appellant submitted that prosecution failed to prove beyond reasonable doubt the alleged commission of the offence of armed robbery under S. (1) (2) (a) of the Robbery and Firearms Act. According to counsel the evidence of the prosecution witnesses is materially and irreconcilably contradictory. Reliance placed on Ekpoisong v The State (2009) 1 NWLR (Pt.1122) 354 at 370 paras H-C, Onuoha v The State (2002) 1 NWLR (Pt.748) 406 at 422 para G, Igbi v State (2000) 3 NWLR (Pt.648) 169, Bassey v State (2012)12 NWLR (Pt.1314) 209 at 234 paras D. In urging the Court to allow the appeal and discharge and acquit Appellant counsel relied on Ogueri v The State (2000) 2 CLRN 14 at 24 paras A-B and Saidu v The State (1982) 1 NCR 49 at 67. On the part of the Respondent counsel submitted that a case is proved beyond reasonable doubt by direct oral evidence of the testimony of witnesses who saw and heard and testified.
That it can also be proved through circumstantial evidence for it is said that witnesses may lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt. The other method of proof is the voluntary confession of the accused person himself which is unambiguous and unequivocal and the best evidence. See Amoosa Opoola Adio & Anor v The State (1986) 4 SC 194 at pp 219-220, Emeka v The State (2001) 14 NWLR (Pt.734) 666 at 669 ratio 1. That in proving its case prosecution called 6 witnesses PW1-6 and tendered a number of Exhibits. That the evidence adduced at the lower Court clearly consists of eye witnesses and confessional evidence. Counsel urged the Court to hold that prosecution had proved its case beyond reasonable doubt. He said proof beyond reasonable doubt is not proving to the hilt, it is not prove beyond all iota of doubt. Where all the essential ingredients of the offence have been proved by the prosecution as in this instant appeal same is said to be proved beyond reasonable doubt. See Adebayo v The State (2008)6 ACLR P.372 at ratio 8.
Counsel further submitted that the law does not say there should be no contradiction in the evidence of the prosecution witnesses, what it says is that the contradictions/discrepancies should not be material. See Enahoro v Queen (1965) 1 ALL NLR 125, 1965 NMLR 265. That there is no material contradiction whatsoever in the evidence of the prosecution witnesses. That it is the duty of the appellant not only to show that such contradiction exists, but must go further to show that such contradiction are material, substantial and has led to a miscarriage of justice. This the appellant has failed to do. See John Agbo v State (2007) 2 NCC at 158-163 ratio 11. According to counsel, the prosecution at the lower Court had met the prerequisite for securing the conviction of the appellant for the offence of Armed Robbery. He urged the Court to resolve the issue in favour of the Respondent.
It is now trite that in any criminal proceedings such as the present, the prosecution is duty bound to prove its case beyond reasonable doubt and this burden does not shift through the proceedings until the duty is fully discharged.
This bounden duty of proof beyond reasonable doubt does not mean proof to the hilt of proof beyond all iota of doubt.
Therefore once the prosecution has established all the essential ingredients of the offence that an accused is charged with, it has carried out the duty required.
In this journey to prove the essential elements of the offence of armed robbery the prosecution is expected to establish the following:
(a) That there was a robbery or a series of robberies,
(b) That the accused was one of those who took part in the armed robbery,
(c) That at the time of committing the robbery the accused was armed with firearm or an offensive weapon or was in the company of any person who was so armed. See Olatinwo v State (2013) ALL FWLR (Pt.685) 312 at 333, Anekwe v State (2014) 10 NWLR (Pt.1415) 353 Adeleke v State (2014) ALL FWLR (Pt.722) 1652 at 1673, Anekwe v State (2014) 10 NWLR (Pt.1415) 353. To obtain conviction, the prosecution must prove all the ingredients listed above, beyond reasonable doubt.
The means or method which the prosecution may employ or adopt in proving the guilt of an accused could be in any one or all of the under listed methods, namely:
(a) By account of eye witness or witnesses who witnessed the commission of the offence.
(b) By circumstantial evidence unequivocally pointing at the guilt of the accused person.
(c) Through voluntary confessional statement of the accused admitting the commission of the offence charged.
As regards the 1st ingredient that is whether or not a robbery took place, there is ample evidence from PW3 and PW4 who are direct victims of the robbery who graphically narrated how they were attacked, injured and robbed of their money. PW1 and PW2 who were investigating Police Officers testified to the effect that when the case of robbery involving the accused persons was transferred to the CID office, Damaturu, from Geidam Division they were assigned to investigate the case. PW1 recorded statements of witnesses, while PW2 recorded statements from accused persons, which statements turn out to be confessional statements, and which were admitted in evidence. PW5 also testified that PW3 and PW4 met him at home with injuries received as a result of the robbery and PW3 was admitted in hospital as a result of the injuries sustained. PW6 also confirmed in his testimony that he participated in tracing the foot prints of the robbers and as a result apprehended the 1st and 2nd accused persons. After considering the facts, I am in agreement with the learned trial Judge that prosecution has proved beyond reasonable doubt that robbery took place on the fateful day.
As to whether accused persons took part in the robbery, prosecution called 6 witnesses and tendered 12 Exhibits in order prove its case. PW3 and PW4 were direct victims of the robbery. They narrated how the accused persons robbed them on the fateful day. PW3 identified the 1st accused as having robbed him by use of cutlass and injured him. He testified that he was able to identify the 1st accused through his voice because he knew him for the past 20 years and they live nearby. PW4 identified 2nd accused (now appellant) who was with 1st accused. PW4 also confirmed that he identified them through their voices though it was dark and that he knows them for a long time over 20 years. PW2 also gave evidence to the effect that he recorded the statements of both accused persons who confessed to have committed the offence. The confessional statements were admitted as Exhibits ?A? & ?B? respectively. Exhibit ?B? was the Appellants Confessional Statement.
As to whether the robbery was an armed robbery or not, the testimony of PW3 and PW4 who were direct victims of the robbery confirmed that they were attacked and injured with cutlass, bows and arrows. They were robbed of their money. PW3 testified as to how 1st accused attacked him with a cutlass and injured him. 1st accused also robbed him by taking away his money. The PW4 had similar experience. 1st accused cut him at the back with a cutlass and robbed him of his money. PW5 also corroborated the testimony of PW3 and PW4 when he testified that when PW3 and PW4 met him at Balle he took PW3 to the hospital at Geidam where he was admitted because of the injuries he sustained as a result of the robbery.
?
By virtue of Section 15 of Robbery and Firearms (Special Provisions) Act, Capt 389, Laws of the Federation of Nigeria 1990, Offensive Weapon means any article made or adopted for use for causing injury to the person or intended by the person having it for such use by him and includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. According to the testimony PW3 and PW4 both accused persons were armed with cutlass, bow and arrow at the time of commission of the offence of robbery. The offence of armed robbery was committed by the accused persons. The findings of fact made by the trial Judge that all the three essential ingredients of the offence of armed robbery have been satisfied cannot be faulted. Even without the confessional statements, adequate eyewitnesses (i.e PW3 & PW4) evidence abound that the appellant herein did commit armed robbery as rightly found by the learned trial Judge.
The alleged conflict or contradictions (if any) at all are not material contradictions. The prosecution had led uncontroverted, unchallenged and cogent evidence of eye witnesses who are direct victims of the offence of the actual commission of the offence of armed robbery against the appellant and they duly identified the appellant and confirmed that while undertaking the robbery attack on them, the appellant was armed and was in company of his partners in crime who were so armed. I am of the firm view that the lower Court had properly evaluated the evidence adduced and ascribed probative value to the testimony of the witnesses. See State v Fadezi (2018) 18 NWLR (Pt. 1650) 1. There is no reason to interfere with the findings of fact arrived at by the trial Court. Prosecution had proved their case beyond reasonable doubt; as such the appellant was rightly convicted for armed robbery.
The two issues are resolved against the Appellant. On the whole, the appeal lacks merit and same is dismissed. The conviction and sentence of death by hanging passed on the Appellant by Hon. Justice Ali Garba on 7th day of November, 2006 in charge No. YBS/HC/PT/IC/2004 is hereby affirmed.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment by my learned brother, Adzira Gana Mshelia, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I abide by the reasoning and agree with the conclusion reached therein.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment delivered by my learned brother ADZIRA GANA MSHELIA, J.C.A., (PJ) and I am in agreement that the appeal lacks merit, accordingly I also dismiss it and affirm the judgment of the trial Court convicting the appellant.
Appearances:
A. A. Sangei with him, A. A Mohammed, S.Y Mangai, Esq. and I.H AbdullahiFor Appellant(s)
U. Ismail (C.S.C Yobe State Ministry of Justice)For Respondent(s)
