ABDULLAHI v. STATE
(2022)LCN/15949(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 03, 2022
CA/K/520/C/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
BELLO ABDULLAHI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE EVIDENCE OF A SINGLE WITNESS CAN ESTABLISH A CRIMINAL CASE
As rightly pointed out by the learned counsel for the Respondent, the evidence of a single witness, if believed by the Court can establish a criminal case even if it is a murder charge.
See Usufu v. State (2007) 3 NWLR (Pt. 1020) 94 CA.
Effiong v. State (1998) 8 NWLR (Pt. 562) 362 SC.
Garko v. State (2006) 6 NWLR (Pt. 977) 524 CA.
Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 at 584.
In the instant case, the learned trial judge rightly relied on the cases of Okosi v. The State (1989) 2 SC (Pt. 1) 144 and Nkebiebi v. State (2010) 42 (Pt. 2) NSCQR 1173, to emphasise the importance of the quality of evidence rather than the number of witnesses to be relied upon by the prosecution in a criminal charge. Indeed, there is no rule which imposes an obligation on the prosecution to call a host of witnesses. All the prosecution needs do is to call enough material witnesses to prove its case and in so doing it has a discretion in the matter.
See:Babuga v. State (1996) 7 NWLR (Pt. 460) 279 SC
Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521 SC.
Jammal v. State (1999) 12 NWLR (Pt. 632) 582 CA.
Oduneye v. The State(2001) 13 WRN 88 SC.
Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 SC. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Katsina State in suit No. KTH/19c/2017 delivered on the 19th day of October, 2018 by Hon. Justice Sanusi Tukur.
The Appellant was charged as 2nd Accused together with four (4) other Accused persons before the lower Court on a two count charge of Armed Robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act 2004.
The case for the Respondent on the first count of the charge in respect of which the Appellant and two other accused persons were convicted was that the Appellant and two other accused persons, on or about the 20th December, 2016 at about 0400 hours, blocked Charanci – Kafinsoli road, attacked one Haruna Abdullahi Abubakar with dane gun and machetes and robbed him of his valuables.
At the trial, three (3) witnesses testified for the Respondent and seven exhibits were tendered and admitted in evidence. The Appellant testified in his defense and tendered no exhibit. The learned trial judge was persuaded by the eye witness identification account of PW1 which fixed the Appellant to the scene of crime. At the end of the trial, the trial Court found the Appellant guilty, convicted and sentenced him to death along with two others on the first count of the charge.
Dissatisfied with the judgment, the Appellant at first filed a Notice of Appeal in this Court on 17-01-2019 but later and with leave of Court filed an Amended Notice of Appeal containing two (2) grounds of appeal on 22-07-2020.
Learned counsel for the Appellant filed a brief of Argument on 22-07-2020 but the said brief was deemed filed on 5-11-2020.
Learned counsel for the Respondent filed Respondent’s brief of Argument on 16-02-2021 but it was deemed filed on 30-11-2021.
Learned counsel for the Appellant nominated a sole issue for the determination of the appeal.
It is:
“Whether the trial Court was right to have convicted the Appellant and sentenced him to death by hanging on count one based on the retracted confessional statement of the Appellant without any corroborative evidence outside the confessional statement or proof of the ingredients of the offence against the Appellant beyond a reasonable doubt.”
(Distilled from all the grounds of Appeal)
Learned counsel for the Respondent adopted the sole issue nominated by the Appellant for determination of the appeal.
On the sole issue, learned counsel for the Appellant submitted that from the totality of the evidence led and adduced by the prosecution witnesses particularly the evidence of PW1 and PW3 during the trial, the learned trial Judge was wrong to have held:
“From the portion of the testimony of PW1 reproduced above in respect of the last ingredient of the offence as per the first Count of charge against all the accused persons, I hold that it is glaringly clear that this last ingredient is only successfully established by the prosecution against only the 1st, 2nd and 3rd accused persons and not so established against the 4th and 5th accused persons. And therefore for the 1st, 2nd and 3rd accused persons, I hold that the prosecution has successfully discharged the burden placed on it having recourse to Exhibits 1A, 1B, 2A, 2B, 3A & 3B, which are the Hausa and English translated version of the denied but admitted confessional statements of the 1st, 2nd and 3rd accused respectively. In sum total, I accordingly find the 1st, 2nd, and 3rd accused persons GUILTY AS CHARGED AS PER COUNT ONE.”
(See page 50 paragraphs 2 of the printed record).
He submitted that there are three ingredients which must be proved beyond reasonable doubt to constitute the offence of armed robbery. That they are:
a. that 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.
On this, counsel referred to the cases of Osetola v. State (2012) 17 NWLR (Pt. 1329) pg. 251 at 255, Maigari v. State (2010) 16 NWLR (Pt. 1220) pg. 439, Bozin v. State (1985) 2 NWLR (Pt. 8) pg. 465, Alor v. State (1997) 4 NWLR (Pt. 501) pg. 511, Alabi v. State (1993) 7 NWLR (Pt. 307) 511, Olayinka v. State (2007) 9 NWLR (Pt. 1040) pg. 561.
Appellant Counsel further reminded us that each of the ingredients of the offence of armed robbery must be proved beyond reasonable doubt and that the burden of proof remains on the prosecution throughout the trial and does not shift to the accused person. For these propositions, he referred amongst other cases to Igabele v. State (2006) 6 NWLR (Pt. 975) 100, Omoko v. State (2014) Vol. 3 WRN page 96 at 104, Okoh v. State (2014) Vol. 31 WRN 63 at 57.
He submitted that the evidence of the PW1 and PW3 are not sufficient to link the Appellant to the commission of the crime of armed robbery in any of the charges. He reproduced the testimony of PW1 and submitted that the evidence of PW1 was never corroborated by any of the prosecution witnesses or by the retracted confessional statement of the Appellant.
He submitted that PW1 claims he was accosted by the accused persons at about 4am and that he was held till around 6am when he was called to collect his car key. Counsel surmised that PW1 has no time enough to recognize the Appellant being someone he has never seen before. That the period between when the operation was alleged to have begun is not enough under the circumstances for the victim to recognise the Appellant. Also, that PW1 never said he saw the Appellant participating in the crime. The evidence of PW1 is not strong enough to link the Appellant to the commission of the crime of armed robbery.
Appellant’s counsel submitted that the evidence of PW3 shows that at the time the case file was brought to his department, there was no suspect yet and that the defendants were arrested afterwards barely two days after the alleged commission of the offence in count two of the charge which was alleged to have taken place on 11th of March, 2017.
That it is not strange to find the Appellant a farmer and cattle rearer with a machete as by convention, a machete is clearly a tool used by Fulani cattle rearers and by farmers. He noted that the trial Court convicted and sentenced the Appellant on the retracted confessional statement of the Appellant without any evidence outside the statement to corroborate same and also on the uncorroborated testimony of PW1 that he saw the Appellant when the 1st and 3rd defendants came to give him his car key.
Appellant’s counsel submitted that a conviction can be based on a confessional statement alone, but it has to undergo some tests before it can be ascertained as true. He referred to the cases of Ubierho v. State (2005) 5 NWLR (Pt. 819) 644 at 655, Onyenye v. State (2012) 15 NWLR (Pt. 1324) 586 and submitted that the trial Court did not apply the test in the above mentioned cases before relying on the confessional statement to convict the Appellant.
Appellant’s Counsel submitted that the Appellant’s defense to the charge was a denial and testified inter alia that he was tortured and shot by the police. The trial Court said counsel, ought to have resolved the doubt created by the inability of the prosecution witnesses to successfully link the Appellant as one of the robbers and by the unchallenged evidence of the Appellant that he was shot and tortured by the police in favour of the Appellant to the effect that even if the Appellant had made the statement, same was not voluntarily made.
He referred to the case of Ubani v. State (2003) 4 NWLR (Pt. 809) 51 at 53 and submitted that the testimony of PW1 did not substantiate the charge of armed robbery against the Appellant. That he (PW1) never stated the involvement of the Appellant or the role played by the Appellant. All that he (PW1) said was that he saw the Appellant around 6am “when they called me to give me the car key…”
Appellant counsel added that the prosecution did not clearly give the circumstances in which the Appellant was arrested so as to link him to the commission of the offence.
He submitted further that there was no iota of testimony of weapon identified or allegedly used by the Appellant by all the prosecution witnesses including PW1 the victim of the offence in count one. The weapon i.e. the machete said to have been found with the Appellant as a farmer and cattle rearer was not connected to the crime or Appellant by the testimony of PW1.
He submitted that the trial Court was wrong to have relied on the uncorroborated sole evidence of PW1 on the identification of the Appellant in concluding that the Appellant participated in the armed robbery.
He referred to the cases of Ojukwu v. State (2002) 4 NWLR (Pt. 780) 80 and Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439 for the proposition that for a conviction which rests wholly or substantially on evidence of identification to be sustained, such evidence of identification must as a matter of law be corroborated.
He submitted that the prosecution did not adduce any evidence outside the testimony of PW1 that he saw the Appellant at around 6 am when they called him (PW1) to give him the car key. Learned counsel for the Appellant also referred to the case of Amadi v. State (1993) 8 NWLR (Pt. 314) 644 to say that although a conviction may be made on the evidence of a single witness, it is always safer that the trial Court warns itself of the danger of convicting on the uncorroborated evidence of such a witness.
He submitted that there was no evidence of a proper identification parade to support the testimony of PW1 that indeed the Appellant was the one he saw with the armed robbers neither was there any evidence in the retracted extra judicial statement or any other evidence to establish that the Appellant was the one PW1 saw.
Learned Counsel for the Appellant again referred to the cases of Onuoha & Anor. V. State (1998) 5 NWLR (Pt. 548) 118 at 134, Musa v. State (1996) 8 NWLR (Pt. 468) at 618 – 619, Wakala v. State (1991) 8 NWLR (Pt. 211) 552 at 566 and submitted that the shortness of the time PW1 said he saw the Appellant was not enough for him to recognize the Appellant being someone he said he never knew before the incidence viz-a-viz the period between when the Appellant was arrested and the time the police purportedly conducted an identification exercise.
He urged us to resolve the sole issue in favour of the Appellant.
In response, learned counsel for the Respondent reiterated the trite position of the law through the cases of IGRI v. State (2012) 16 NWLR (Pt. 1327) Pg. 522 at 541, ALI v. State (2012) 7 NWLR (Pt. 1299) Pg. 209 at 242 that an offence can be proved by either or all of the following ways:
(a) Evidence by eye witness or
(b) The confession of the accused; or
(c) Circumstantial Evidence.
He submitted that the instant case was proved against the Appellant through the evidence of the three (3) prosecution witnesses more particularly the evidence of PW1 who was an eye witness and the victim of the offence. He submitted that PW1 gave a vivid account of how he was attacked and robbed of his valuables and how he identified the Appellant among the robbers. That the trial Court observed that the testimony of PW1 was unchallenged and unimpeached even under cross examination. In the circumstances, said counsel, the trial Court was at liberty to rely on the uncontradicted testimony of PW1. On this, counsel referred to the cases of EBEINWE v. State (2011) 7 NWLR (Pt. 1246) Pg. 402 at 416, Akindipe v. State (2012) 16 NWLR (Pt. 1325) Pg. 94 at 116, Osung v. State (2012) 18 NWLR (Pt. 1332) Pg. 256.
Learned Counsel for the Respondent noted the observation of the trial Court on page 52 of the record to the effect that the quality of the evidence of the witness is a very important factor in criminal trials and submitted relying on the cases of Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 at 584 and Okpa v. State (2017) 15 NWLR (Pt. 1589) 1 at 28 that the evidence of one credible witness if believed is enough to prove the case of the prosecution and also that it is undoubtedly the duty of the trial Court to assess witnesses, form impression about them and evaluate their evidence having regard to the impression it formed of the witnesses.
Respondent’s counsel submitted, contrary to the suggestion of the learned counsel for the Appellant that PW1 narrated how he spent a long time with the armed robbers from 4.00 am to 6.00 am under the full light of a J5 van which was parked and used by the armed robbers for the robbery operation. That he (PW1) identified the Appellant with precision as the person who called him at the end of the robbery and handed him the key to his car. The witness has all the opportunities of identifying the Appellant at the scene of crime.
On the submission of the Appellant that identification parade ought to have been conducted for PW1 to identify the Appellant, learned counsel for the Respondent submitted that identification parade is not a sine qua non in all cases. That where there is no uncertainty or doubt as to the identity of an accused person, there will be no need to conduct an identification parade.
He urged us to resolve the sole issue in favour of the Respondent.
Resolution of Sole Issue
In the instant case, the learned counsel for the Respondent was right to have said that the conviction of the Appellant was based on the eye witness account of PW1 who saw the Appellant while he (PW1 – victim) was called upon by the accused persons and given the key of his (PW1’s) vehicle.
For ease of reference, the entire eye witness account is reproduced as contained on pages 31 – 32 of the record of appeal:
“Pw1:- Haruna Abdullahi Abubakar Muslim, affirmed I’m 39 yrs old I live in Kaduna but we have a project in Katsina State I’m a civil servant I work with Energy Commission of Nigeria.
I know only the 1st, 2nd and 3rd accused persons.
On 20th December 2016, while driving early morning around 4am from Katsina to Abuja Before I reach K/soli just about 4 (four) kilometres to K/soli around a sherp bend, I saw a full light J5 bus as a driver I deemed then but they didn’t respond. The road was not clear due to the full light of the J5 bus. The next I climbed a stubled block and when I climed I jumped off and even the second block I jumped off as I was speedy at 140 klm per hour.
The tyre busted and the rim got crumbled. Before the car stopped the 1st accused came and opened the driver door and I saw some people came all over to me, when I opened the door he asked me where is the money. I told them, yes I have money my wallet, my wrist watch and my handset the 1st accused used the torch light and I took my wallet, wrist watch and hand set. It was the 1st accused who collected my wallet and my handset he removed the money in the wallet. Because of my request he used and hit me with a matchet.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Some were saying they should kill me, others said they should take me to the bush unless my family came to pay ransom later they said I should lie down.
I was carrying my 2 bags which contains my I.D. Card, my cloth and children clothy, they took everything away then a morning vehicle from K/soli was coming and they then asked me to go to the bush but before the Car came he saw there was a problem, and he ran-away but he herd when they were instructing Sada to approached him.
As I was lying down, the 3rd accused came and statained on one while I looked at him, he threatened to kill me. And he was the one speaking in Hausa fluently while the others had Fulani ascent.
Around 6:00 am they instructed me to came and take my car but the Car was completely damaged they then instructed me to start running but they now called me to give me the Car Key and that is when I saw the 2nd accused.
Later on the police came and said I should go to Kankia and make my complaint.
Cross-examination:- yes, when the accused were subsequently arrested, I was called by the police to identify them.
I first saw the 2nd and 3rd accused inside the police Van later the police came with the 1st accused whom I identified but there was another person inside the police station whom they showed to me, and I said I could not identify him.
I never know the 1st – 3rd accused person the day of the incidence.
Re-examination:- none.”
Given the above vivid account of the event of 20th December 2016 by the PW1, victim himself, it is not difficult to agree with the learned trial judge when he held at page 50 of the record that:
“From the portion of the testimony of PW1 reproduced above in respect of the last ingredient of the offence as per the first count of charge against all the accused persons, I hold that it is glaringly clear that this last ingredient is only successfully established by the prosecution against only the 1st, 2nd and 3rd accused persons and not so established against the 4th and 5th accused persons. And therefore for the 1st, 2nd and 3rd accused persons, I hold that the prosecution has successfully discharged the burden placed on it having recourse to Exhibits 1A, 1B, 2A, 2B, 3A & 3B, which are the Hausa and English translated version of the denied but admitted confessional statements of the 1st, 2nd and 3rd accused respectively. In sum total, I accordingly find the 1st, 2nd and 3rd accused persons GUILTY AS CHARGED AS PER COUNT ONE.”
My Lords, it would be recalled contrary to the suggestion of the learned counsel for the Appellant in this appeal that the Appellant did not put up a defence of alibi. He never said I was not at the scene of crime. The Appellant merely denied participation or involvement in the offence charged. To this extent, the suggestion of the Appellant’s counsel for an identification parade, corroboration, or warning on the eye witness account/evidence of PW1 was unnecessary and uncalled for. Similarly, the cases relied upon by the learned counsel for the Appellant for the need for an identification parade, corroboration of the evidence of PW1 and/or warning of the danger of convicting solely on the evidence of PW1 are in the circumstances irrelevant.
As rightly pointed out by the learned counsel for the Respondent, the evidence of a single witness, if believed by the Court can establish a criminal case even if it is a murder charge.
See Usufu v. State (2007) 3 NWLR (Pt. 1020) 94 CA.
Effiong v. State (1998) 8 NWLR (Pt. 562) 362 SC.
Garko v. State (2006) 6 NWLR (Pt. 977) 524 CA.
Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 at 584.
In the instant case, the learned trial judge rightly relied on the cases of Okosi v. The State (1989) 2 SC (Pt. 1) 144 and Nkebiebi v. State (2010) 42 (Pt. 2) NSCQR 1173, to emphasise the importance of the quality of evidence rather than the number of witnesses to be relied upon by the prosecution in a criminal charge. Indeed, there is no rule which imposes an obligation on the prosecution to call a host of witnesses. All the prosecution needs do is to call enough material witnesses to prove its case and in so doing it has a discretion in the matter.
See:Babuga v. State (1996) 7 NWLR (Pt. 460) 279 SC
Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521 SC.
Jammal v. State (1999) 12 NWLR (Pt. 632) 582 CA.
Oduneye v. The State(2001) 13 WRN 88 SC.
Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 SC.
In the circumstances, I agree with the trial Court that the prosecution has successfully proved the charge against the Appellant through the evidence of PW1, PW2 and PW3, more especially the PW1.
The only issue in this appeal is resolved against the Appellant. This appeal lacks merit and it is accordingly dismissed.
The judgment and orders of Hon. Justice Sanusi Tukur in case No. KTH/19c/2017 wherein the Appellant was convicted and sentenced to death is hereby affirmed.
AMINA AUDI WAMBAI, J.C.A.: I read before now the lead judgment delivered by my learned brother, Mojeed Adekunle Owoade, JCA.
The importance of an eye witness evidence as one of the ways of proof in criminal trial, as relied by the lower Court and adopted in the lead judgment in dismissing the appeal cannot be over-emphasized. The evidence of an eye witness when properly evaluated may sometimes be the best evidence, being the witness who is not only present at the venue and time of the commission of the offence, but one who the event as it happened. The witness narrates his evidence from personal observation and that is why such evidence if properly evaluated weighs next only to a voluntary confessional statement. It is evidence that if believed, is sufficient to ground the conviction of an accused person. See EKE V. STATE (2011) 3 NWLR (Pt. 1235) 589, OKETAOLEGUN V. STATE (2015) 12 NWLR (Pt. 1477) 538.
In the case at hand, the lower Court properly evaluated the eye witness evidence of PW1 and rightly relied on same.
I agree with my learned brother in the lead judgment that the vivid evidence of PW1 was sufficient to convict the Appellant. See OLAYINKA V. STATE (2007) 9 NWLR (Pt. 1040) 561 AT 584.
I too dismiss the appeal and affirm the judgment of the lower Court delivered by Hon. Justice Sanusi Tukur in the case NO. KTH/19C/2017 delivered on 19/10/2018.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MOJEED A. OWOADE, JCA. I entirely agree with the reasoning and conclusion reached to the effect that there is no merit in this appeal and it is liable to be dismissed. I also dismiss the appeal and I abide by the consequential Order(s) in the lead judgment.
Appearances:
Victor Agunzi, Esq. For Appellant(s)
A. A. Ibrahim, DCL, Ministry of Justice, Katsina State with him, Aliyu Isah, SC and Amina Umar, SC For Respondent(s)