ABUBAKAR DANKIDI v. THE STATE (2014)

ABUBAKAR DANKIDI v. THE STATE

(2014)LCN/7487(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 29th day of October, 2014

CA/S/55C/2012

RATIO

PRACTICE AND PROCEDURE: COURT RECORD; WHETHER IT MUST BE EVIDENCE ON RECORD HOW THE COURT ARRIVED AT ITS CONCLUSION OF PREFERRING ONE PIECE OF EVIDENCE TO THE OTHER

It must be evident on record how the court arrived at its conclusion of preferring one piece of evidence to the other see OYEKOLA V AJIBADE [2007] 17 NWLR (Pt 902) 356, IDAKWO V NIGERIAN ARMY [2004] 2 NWLR (Pt 857) 249; ALAKE V STATE (1992) 9 NWLR (PT 265) 260.

EVIDENCE: CORROBORATION; WHETHER A PIECE OF EVIDENCE THAT IS SUPPOSED TO CORROBORATE ANOTHER EVIDENCE MUS NOT CONTRADICT IT

A piece of evidence that is supposed to corroborate another evidence must not be at logger head with the evidence it wants to confirm. Clearly the retracted confessional statement cannot be corroborated by an evidence which kicks against it. Corroboration means “confirming or giving support to” see IKO V STATE [2001] 14 NWLR (Pt 732) 195. per. TUNDE O. AWOTOYE, J.C.A.

COURT: DUTY OF COURT: FACT FINDING DUTY OF THE TRIAL COURT AND WHETHER AN APPELLATE COURT CAN DISTURB THE FINDINGS OF THE TRIAL COURT

Now, findings of fact are within the province of the trial court. But the advantage of having seen and heard the witnesses by the trial judge was not made use of or seen to have been made use of as his conclusion cannot be justified by the record before this court. I shall therefore disturb his findings of fact see KAMALU & ORS V UMUNNA & ORS (1997) 5 NWLR (Pt 505) per. TUNDE O. AWOTOYE, J.C.A.

Before Their Lordships

PAUL A. GALINJEJustice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYEJustice of The Court of Appeal of Nigeria

M. L. SHUAIBUJustice of The Court of Appeal of Nigeria

Between

ABUBAKAR DANKIDIAppellant(s)

AND

THE STATERespondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering The Leading Judgment): This is the Judgment in respect of the appeal filed by ABUBAKAR DANKIDI who was convicted along with two other accused of the offence of attempt to commit the offence of armed robbery contrary to section 2 (2) (a) of the Robbery and Firearms (Special Provisions) Act on 30/3/2011.

The charge against the accused persons (including the appellant) at the court below read as follows:

“CHARGES
1. That you Yusuf Abubakar, Abubakar Labbo and Abubakar Dankidi on or about the 20th day of May, 2008, at about 16:30hrs in the Bush of Bimasa in Tureta Local Government Area of Sokoto State within Sokoto Judicial Division did agreed to do an illegal act to wit; armed yourselves with a cutlass and a knife and attacked and robbed one Ahmadu Na’ardo Buba and that same act done in pursuance of the agreement and thereby committed an offence punishable under section 6(b) of the Robbery and firearms (Special Provision) Act R II L.F.N 2004.
2. That Yusuf Abubakar, Abubakar Labbo and Abubakar Dankidi on or about the 20th day of May, 2008, at about 16:30hrs in the Bush of Bimasa in Tureta Local Government Area of Sokoto State within Sokoto Judicial Division did commit the offence of Armed Robbery is that while armed with a cutlass and a knife attacked one Ahmadu Na’ardo Buba beat him and rubbed him the sum of N17,200 (seventeen thousand two hundred Naira) you thereby committed an offence punishable under section 1(2) of the Robbery and firearms (Special Provision) Act Cap R II L.F.N 2004.

The prosecution, after the court had taken the pleas of the accused persons called witnesses. The accused person also called evidence in defence of themselves.

The learned trial Judge after hearing the parties gave judgment inter alia, convicting the accused persons, thus:

“It is to be noted that on addition to the confessions of the three accused persons in this case admitted in evidence as exhibit B and B1, C and C1 and D and D1. the confessional statement of the first accused person Yusuf Abubakar as exhibit B and B1, the confessional statement of the second accused person Abubakar Labbo as exhibit D and D1 and the confessional statement of the 3rd accused person as exhibit C and C1, there exists some independent evidence corroborating the individual confessions of the accused person in this case. The evidence of PW3 the victim of the robbery incidence the evidence of PW4 an eye witness to the robbery incident and the evidence of PW5 also an eye witness to the incident and exhibits, A, A1, A2 and A3 are all corroborative of the various confessional statements of the accused persons in this case.”

Be that as it may, after a very careful perusal of the evidence adduced by the prosecution before me I am quite satisfied that the prosecution has failed to establish a case under 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap R11 L.F.N 2004, but I have no doubt in my mind that a case of attempt to commit armed robbery contrary to section 2(2) (a) of the Robbery and Firearms Act was proved against the 1st, 2nd and 3rd accused persons in this case and I found them guilty and convict them accordingly. The accused persons are equally found guilty for the offence of conspiracy under section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 L.F.N 2004 and I convict them accordingly.”

Dissatisfied with the judgment of the Lower Court, the appellant on 29/6/2011 filed a Notice of Appeal containing a single ground of appeal. With leave of court on 5/3/2013 5 additional grounds of appeal were filed by the appellant.

The grounds of appeal (excluding the particulars) read as follows;

“GROUND 1
The Learned Trial Judge erred in law when he (sic) it failed to discharge and acquit the accused person after holding that the ingredients of the offence of armed robbery against the accused persons were not proved beyond reasonable doubt.

GROUND 2
The Lower Court erred in law by attaching much weight to the retracted confessional statement of the accused persons to convict them for the offence of attempted robbery.

GROUND 3
The court erred in law and facts when it inferred the act of conspiracy when same was not proved by any act before the court.

GROUND 4
The court erred in law and fact when it held that attempted robbery was proved beyond reasonable doubt by the prosecution on the basis of which the accused was convicted.

GROUND 5
The learned trial judge erred in law and fact when it held that that (sic) the prosecution proved beyond reasonable doubt that the accused persons were armed with offensive weapons.

The appellant, through the amended Notice of Appeal filed on his behalf by learned counsel Boma Ozobia sought for

“i. An order overturning the decision of the trial court
ii. an order discharging and acquitting the accused of attempted robbery
iii. any further orders which it pleases the court to grant in its inherent jurisdiction.

After transmission of the record of appeal to this court, learned counsel for the appellant filed appellant’s brief of argument and subsequently learned counsel for the Respondent’s brief of argument.

The appellant’s amended brief of argument was deemed filed on 28/10/2013 and further deemed filed on 24/9/2014.

Learned appellant’s counsel formulated 3 issues for determination.
They are: –

(i) Whether the prosecution proved the offence of attempted armed robbery beyond reasonable doubt to warrant the conviction and sentence of the Appellant to life imprisonment.
(ii) Whether the Lower Court was right in attaching so much weight to the retracted confessional statement without caution.
(iii) Whether the Lower Court was correct to hold that the circumstantial evidence before it was sufficient to establish the conspiracy to commit the alleged crime of robbery when same was not proved.”

Learned counsel for the appellant on issue No.1 submitted that the burden on the shoulders of the prosecution to prove the commission of a crime never shifted. Any doubt arising in the circumstances must, she submitted be resolved in favour of the accused person. She cited AIGBEDION V STATE (2000) 7 NWLR (Part 666) 686 at 704 TANKO V STATE [2008] 16 NWLR (PT 114) 597 at 636.

She argued that the faulty evaluation of the evidence of PW1 – PW4 by the learned trial judge led to a wrong finding.

She urged the court to therefore discharge and acquit the accused.

On issue No.2 learned counsel contended that before a court could convict on the retracted confessional statement of an accused person the confession and the testimony of the accused along with the entire evidence should be evaluated.
She cited IDOWU V STATE [2000] 12 NWLR (Pt 682) at 607.

She submitted that all the evidence which the learned trial Judge could have relied upon were full of discrepancies and so were unreliable.

On issue No.3 Learned counsel relying on the authority of AKINMOJU V STATE (2006) 6 NWLR (Pt 662) 608 submitted that there was no strong circumstantial evidence which irresistibly pointed to the guilt of the appellant. The circumstantial evidence was not conclusive and unequivocal. She therefore urged the court to allow the appeal and set aside the conviction of the appellant and discharge and acquit him.

The Respondent’s brief was settled by A. M. DAN-IGE (PSC) of Ministry of Justice Sokoto. The brief of argument was filed on 14/11/2013 but deemed filed on 24/9/2014.

Learned Respondents counsel formulated one issue for determination as follows:-

“Whether the trial court was right in convicting the Appellant on the strength of the evidence presented by the prosecution.”

Learned counsel relied on HARUNA V AGF [2012] 49 NSCQLR PT III page 1410 at 1420 in submitting that the guilt of an accused person in any criminal proceedings could be proved through any of the following.

(i) The confessional statement of an accused person
(ii) Circumstantial evidence
(iii) Evidence of an eye witness account of the crime.

He submitted that the evidence before the trial court was a combination of the appellant’s confessional statement as well as the eye witnesses’ account of the crime. He added that the learned trial judge having admitted the confessional statement of the appellant was right to have inferred from it that the accused/appellant showed and demonstrated his participation in the attack of Amadu Na Ardo Buba and that he agreed and conspired with the other accused persons. He cited SULE V THE STATE [2009] 38 NSCQLR PT II Page 1069 at 1073.

He submitted that it was misleading to hold that the retracted confessional statement which was supported by the evidence of eye witness could not be relied upon to convict the accused persons.
He finally urged the court to refuse the relief sought, dismiss the appeal and affirm the conviction by the court below.

I have carefully considered the submissions of counsel on both sides. I have deeply considered the issues formulated by counsel on both sides for determination.

I am of the considered view that the sole issue as formulated by the Respondent’s counsel is wide and apt enough for the fair determination of this appeal. I shall therefore adopt it in determining this appeal.
For clarity’s sake I shall restate the issue as formulated by the Respondent’s counsel, thus;

“Whether the trial court was right in convicting the Appellant on the strength of the evidence presented by the prosecution.”

In resolving the above issue it is necessary to ponder over the evidence adduced before the court below apart from the confessional statement of the appellant.

PW1, Alhaji Umaru Matankari was a village head at Bimasa who knew all the accused persons. All the accused persons resided in Bimasa.
He said on 20/5/2008 Alkali Isa asked for assistance because armed robbers attacked his boys but one of the robbers was arrested. He said members of the vigilante group went to bring the victim of the attack and the robber. He said he saw the vigilante group holding Abubakar Dankidi, the appellant. He said he questioned the victim as to who attacked him and he pointed to the appellant. He said on questioning the appellant he told him 1st and 2nd accused persons were his accomplices.

The 3rd PW, a cattle rearer was the victim of the attack. He said it was the 2nd accused Abubakar Labbo that was arrested and taken to the village head PW1. He said he did not know who removed the money from his pocket. However, under cross-examination the witness said it was the 3rd accused person who held a matchet during the attack. He added that it was the 3rd accused who removed the money from his pocket. He said the money stolen from him was recovered from the 3rd accused person who told the PW1 that the money belonged to him (PW3)

Sulaiman Dan Isa, from Tabkin Maza a cattle rearer was the PW4. He was with Umaru Sanda when he heard shout for help. They ran to the scene and he saw the accused persons. They succeeded in arresting the 2nd accused person.

But under cross-examination the witness said he saw the accused persons struggling with the victim of the robbery. He said the 3rd accused held a matchet and the 1st accused held a knife. He said the 2nd accused held the stick of the victim of the robbery. He did not arrest the 2nd accused with any weapon.

PW5, Umaru Sanda also cattle rearer was with PW4. The two of them helped in arresting the 2nd accused person. He said he saw the accused persons with matchet and knife.

Under cross-examination, he said he could not state who among the accused persons held a cutlass or knife. He said 2nd accused was with the victim’s stick. He said the accused persons used knife on the victim and also collected money from him, but he could not state who exactly stabbed the victim.

The other witnesses called by the prosecution were police officers.
The appellant, Abubakar Dankidi gave evidence in his own defence which I quote hereunder;

“D.W.1 Abubakar Dankidi:- My name is Abubakar Dankidi.
I live at Bimasa in Tureta local government. I’m 27 years old I’m a farmer and I also sale firewood. I know Ahmadu Na Ardo Buba. I know Amadu Na Ardo when he came to board a vehicle to Talata Mafara. It is not true that we robbed the said Amadu Na Ardo Buba the sum of N17,000. Exhibit A to A4 did not belonged to me. I did not do anything to Amadu Na Buba Ardo and I was not arrested with anything. I was arrested in a farmland near Tabkin Maza. The farmland belonged to us. I know P.W.1 Alhaji Umaru. He is the village head of Bimasa. I’m his subject because he is our village head. My relationship with Alhaji Umaru is not cordial because of political reasons. We used to belong to ANPP together and Alh. Umaru has never assisted me in anyway. Alh Umaru Later decamped to P.D.P and he had wanted us to join him in the P.D.P and we refused to do so. After that Alhaji Umaru threatened us telling us that he would show us that we are under him. It is clear that Alhaji Umaru from that time bone grudges against us. Exhibit C and C1 is not my statement before the C.I.D I have never informed the police that I once robbed Amadu Na Ardo Buba. My signature is in exhibit C and C1 – but I signed exhibit C and C1 because of the torture I received from the police. When I was brought to the C.I.D office, the police had already injured me on the legs and I could not even walk properly. It is not true that I conspired with the 2 accused persons in the dock to commit armed robbery.

CROSS-EXAMINATION
We are very many in our village that refused to join Alhaji Umaru P.W. 1 to decamp to P.D.P. We are more than 100 people in the village. There were so many people around when Alhaji Umaru threatened us that he would show us that he is the village head of Bimasa. Alhaji Umaru threatened the whole crowd of people and not myself alone. I did not make any statement before the police at Tureta and also at C.I.D office Sokoto. I signed statement at C.I.D office Sokoto. I did not make any statement at Tureta. All what I told this court about this case is the truth.”

There is need to state some pertinent principles of law that are applicable in this appeal.
1. In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused persons beyond reasonable doubt. See YONGO V C.O.P [1992] NWLR (Pt 257) 36 OGUNDIYAN V THE STATE (1991) 3 NWLR (Pt 181) 519.
2. Any reasonable doubt in the prosecutions case must be resolved in favour of the accused see OKONJI V THE STATE (1987) 1 NWLR (Part 52) 959
3. A confessional statement properly proved can sustain a conviction but it must be established by some other evidence no matter how slightly – see MUMUNI V STATE [1975] 6 SC. 66
4. NWANGHOMU V THE STATE (1994) 2 NWLR (Pt 327) 380
5. Only material contradictions in the prosecution’s case which have disparaging effect on the case and go to the substance of the case can vitiate the prosecution’s case see AGBO V THE STATE [2006] NWLR (Pt 977) 545, EKANEM V. QUEEN [1960] G FSC. 14; NASAMAU V THE STATE (1979) 6-9 SC.153

I shall view this appeal in the light of the above.

There is no doubt that the appellant at the Lower Court retracted his statement. He stated in his defence that exhibits C and C1 were not his statements.

According to him, “my signature in exhibit C and C1, but I signed exhibit C and C1 because of torture I received from the police. When I was brought to the CID office, the police had already injured me on the legs and I could not even walk properly.” This is why it is necessary to look at the other evidence adduced in the determination of this appeal.

The village head of the appellant’s village gave evidence to the effect that it was the appellant that was arrested and brought to him by the vigilante. This evidence was in conflict with that of the cattle rearers who actually allegedly arrested the 2nd accused at the scene.

I need to state at this juncture that even though the learned trial judge saw and heard the witnesses, the reasons why he preferred one side of the evidence to the other are not stated in his judgment.

The person who linked the 1st and 2nd accused person to the crime was the appellant according to the village head who claimed, the appellant was brought to him. He said

“They conveyed the victim of the robbery and one of the alleged robbers arrested, when they came I saw them holding Abubakar Dankidi, the 3rd accused person. I inquired from the victim of the robbery who did this to you and he pointed at Abubakar Dankidi, the 3rd accused person. I enquired from Abubakar Dankidi whether he was the one who did the dastardly act and he answered he has never participated in any armed robbery operation before. I enquired who were his accomplices and he mentioned the 1st and 2nd accused persons Yusuf Abubakar and Abubakar Labbo.”

So, according to PW1 it was through the appellant that the other accused person was arrested since they were not arrested at the scene of crime.

This part of the evidence is important because the cattle rearers who claimed to have witnessed the incident gave unclear evidence of identification.

The PW4 Sulaiman Dan Isa in his evidence in chief said it was the 2nd accused (not the appellant) that they arrested.

Cross-examination, he later said “we arrested the 2nd accused person in Bimasa village. We did not arrest the 2nd accused person with any weapon.”

PW5, was the other cattle rearer. He confirmed that it was the 2nd accused that was arrested. He further said, “Because the accused persons were running I cannot exactly state who among them was holding a cutlass or a knife, I cannot state the faces of those that ran away.” He further stated in evidence that the accused persons used knife on the victim and stabbed him. The victim, himself, PW3 denied this.

If it was the appellant that was brought to PW1, the village head of Bimasa, then PW4 and PW5 did not arrest the 2nd accused. If PW4 and PW5 could not identify the person they arrested and PW5’s evidence on stabbing of the victim was denied by the victim, then the conflicts are disparaging.

What is more, the victim who gave evidence as PW3 said he did not know exactly who removed the money from him under examination is chief but under cross-examination that same day in court he said,

“I saw with my own eyes when the 3rd accused person removed the money from my pockets. I cannot exactly state the denomination of the money in my pockets that were removed. The said amount of money was removed from the pocket of my trousers. The money was found on the 3rd accused person. It was PW1 that found the money in possession of the 3rd accused person. I was around when money was found in possession of the 3rd accused person it was at the village head’s house that the said money was found in possession of the 3rd accused person I was at the village head palace when the money was found in possession of the 3rd accused person. I did not know the amount of the money found in the 3rd accused because the 3rd accused money was removed from him and I was not given the money to count. It was on the day of the incident that the 3rd accused was arrested. The 3rd accused person was not arrested at the scene of the incident. It is true that anybody is entitled to have money in his possession. I m sure that the money found in the 3rd accused person belonged to me. I cannot recognize my money because I did not put any mark on the money.”

If there are doubts as to the identity of the culprits and what exactly happened at the scene what did the learned trial judge consider before picking and choosing which evidence to accept?

He obviously could not have concluded from the demeanour of the witness otherwise he would have so stated which witness he believed and which he did not believe and why he either believed or disbelieved them.

The supposed confessional statement which the learned trial judge accepted did not help matters. The appellant was said to have confessed that he was the person arrested and taken to the village head. This does violence to the evidence of PW4 and PW5 who allegedly effected the arrest.

A piece of evidence that is supposed to corroborate another evidence must not be at logger head with the evidence it wants to confirm. Clearly the retracted confessional statement cannot be corroborated by an evidence which kicks against it.
Corroboration means “confirming or giving support to” see IKO V STATE [2001] 14 NWLR (Pt 732) 195.

Reasonable doubts in the prosecution’s case are to be resolved in favour of the accused. See AIGBEDION V STATE [2000] 7 NWLR (part 666) at 704.

There are serious doubts in the prosecution’s case which the learned trial judge ought to have resolved in the appellant’s favour.

I shall therefore resolve the doubts in the appellant’s favour.
I resolve the sole issue as adapted for this appeal in favour of the appellant.
This appeal succeeds and it is hereby allowed.

The judgment and sentence of the court below delivered on 30/3/2011 by Hon. Justice M. Umar of Sokoto High Court is hereby set aside. In its place I hereby order that the appellant is discharged and acquitted.

PAUL A. GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother Awotoye JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. I have nothing useful to add. For the same reasons articulated in the lead judgment, I allow the appeal and enter a verdict of acquittal for the appellant.

M. L. SHUAIBU, J.C.A.: I have the privilege of reading the draft of the judgment just delivered by my learned brother, Tunde O. Awotoye JCA.

I am in full agreement that the retracted confessional statement of the Appellant in the instant case cannot be corroborated by evidence that are contradictory with one another. That once there is reasonable doubt created by the evidence given, the prisoner is entitled to an acquittal. Accordingly the doubt which manifested itself in the conflicting evidence of PW1, PW3 and PW4 in the instant case must be resolved in favour of the appellant. And the court cannot draw an inference of guilt from mere suspicion.

For the fuller reasons given in the lead judgment, I also allow the appeal and hereby discharged and acquitted the Appellant Abubakar Dankidi.

Appearances

Boma Ozobia Esq. with J. T. Nyiatanher EsqFor Appellant

AND

A. M. Dan-ige Esq. M. O. J Sokoto with M. S. Yahaya (S.C II)For Respondent