ADAMU v. C.O.P, PLATEAU STATE COMMAND (2020)

ADAMU v. C.O.P, PLATEAU STATE COMMAND

(2020)LCN/14704(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, October 07, 2020

CA/J/330/C/2019

RATIO

PRELIMINARY OBJECTION: THE IMPORT OF A PRELIMINARY OBJECTION

The import of a preliminary objection to the hearing of an appeal is that the appeal should not be heard because it is incompetent or badly affected by some other fundamental vice – Chief of Air Staff Vs. Edward (2019)14 NWLR (Pt. 1691) 183 at 189. PER HASSAN, J.C.A.
APPEAL: EFFECT OF A GROUND OF APPEAL WHICH DOES NOT ARISE FROM THE DECISION OF THE COURT APPEALED AGAINST

Indeed it is the law where a ground of appeal does not arise from the decision of the Court appealed against, both the ground and the issue distilled therefrom are incompetent. See Gov. Imo State Vs. Amuzie (2019)10 NWLR (Pt. 1680)331 at 338 and Abdullahi Vs. State (2013) 11 NWLR (Pt. 1366) 435. PER HASSAN, J.C.A.
APPEAL: WHAT IS A GROUND OF APPEAL

A ground of appeal is the error of law or facts alleged as the defect in the decision appealed against. In other words, it is the reason why the decision is considered wrong by the aggrieved party. See Idika vs. Erisi (1988)2 NWLR (Pt. 78) 503 at 578 and Akpan Vs. Bob (2010)17 NWLR (Pt. 1223) 421 at 464. PER HASSAN, J.C.A.

APPEAL: SITUATION WHERE VAGUENESS OF A GROUND OF APPEAL MAY ARISE

Vagueness of a ground of appeal may arise where it is couched in a manner that it cannot be understood, or when the complaint in the ground is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant. See MV Sealion (Ex Antibes) Vs. A.F.S (Gjensidig) (2019)9 NWLR (Pt.1678)385 at 389. PER HASSAN, J.C.A.

Before Our Lordships

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

ISIYAKA ADAMU ‘M’ APPELANT(S)

And

THE COMMISSIONER OF POLICE, PLATEAU STATE COMMAND RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The appellant and his co-accused were arraigned and charged along with four others (at large) for conspiracy contrary to and punishable under Section 6(b) of the Robbery and Fire Arms (Special Provisions) Act Cap. R.11, 2004 and armed robbery contrary to and punishable under Section 1(1)(2)(a) and (b) of the Robbery and Fire Arms (Special Provisions) Act Cap R.11, 2004. The appellant pleaded not guilty to the two counts of charge.

In proof of its case, the prosecution/respondent called six witnesses and tendered exhibits marked as Exhibits A, B, C, D, E, E1 and E2, F1 and F2. The appellant testified in his defence and called no witness to testify on his behalf.
The charge reads:
COUNT 1
That you Isiaka Adamu “M”, Mohammed Waziri “M” and four others all “M” (now at large) on or about the 15/5/2015 at Dengi Kanam, within the jurisdiction of this Honourable Court did commit an illegal act to wit: Criminal Conspiracy when you agreed amongst yourselves and robbed the staff of Zaki Integrated Filling Station Dengi Kanam of the sum of One Million, Four Hundred

and Twenty Thousand, Three Hundred and Twenty Naira only (N1,420,320.00) and some handsets, belonging to the staff of the Filling Station. An act done pursuant to your agreement, you thereby committed an offence contrary to and punishable under Section 6 (b) of the Robbery and Fire Arms (Special Provisions) Act Cap R.11, 2004.
COUNT 2
That you Isiaka Adamu “M”, Mohammed Waziri “M” and four others all “M” (now at large), on or about the 15/5/2015 at Dengi Kanam Local Government Area, within the jurisdiction of this Honourable Court did commit an illegal act to wit: Armed Robbery when you agreed and armed yourselves with gun and dangerous weapons and robbed the staff of Zaki Integrated Filling Station Ltd. at Dengi Kanam, one Yusuf Maidugu, Dauda Sun, Babangida Halidu, Blessing, Auwal and Sani of the sum of One Million, Four Hundred and Twenty Thousand, Three Hundred and Twenty Naira Only (N1,420,320.00) belonging to Zaki Integrated Filling Station Ltd. at Dengi Kanam, one LG handset with dual sim, N5000.00 cash and Techno Handset belonging to Dauda (Sun) and Techno Handset belonging to Zakari, two handsets Techno

and Nokia belonging to Babangida Halidu and sum of N8000.00 cash from the said staff. You thereby committed an offence contrary to and punishable under Section 1(1) (2) (a) and (b) of the Robbery and Fire Arms (Special Provisions) Act Cap R.11, 2004.

After the trial in the High Court of justice, Jos, the appellant was convicted and sentenced to 10(ten) years imprisonment without option of fine for the offence of criminal conspiracy and sentenced to 15 (fifteen) years imprisonment for robbery, the sentence to run concurrently.

Dissatisfied with the judgment delivered on the 30th of May, 2019, the appellant appealed to this Court. The Notice of Appeal dated 25th July, contained seven grounds of appeal with their particulars.

The appellant’s brief settled by Sadiq Abubakar, Esq., was dated the 23rd of August, 2019 and filed on the 30th of August, 2019. The appellant’s reply brief dated 5th September, 2020 was filed on the 11th of September, 2020. Learned counsel for the appellant adopted the briefs and urged the Court to allow the appeal.

In the appellant’s brief, two issues were distilled for determination thus

“Whether or not the trial Court was right when it held that the prosecution had proved its case beyond reasonable doubt?” (Grds 1 and 2)
2. “Whether or not there was corroborative evidence in support of the statements of the appellant that can justify their conviction at the trial Court?” (Grds 3, 4 & 6)

Ground 7 is deemed abandoned having no issue distilled therefrom.

The respondent’s brief settled by N.D. Dashe Esq., dated 24th June, 2020 was filed on the 25th of June, 2020 but deemed properly filed and served on the 1st of July, 2020. In it, four issues were formulated for determination as follows:
1. “Whether the respondent who was the prosecution proved the case of Criminal Conspiracy and Armed Robbery against the appellant who was jointly tried with one Isiaka Adamu beyond reasonable doubt.” (Grds 1 and 3)
2. “Whether the lower Court was right to have attached any probative value to the statement of the Accused person/Appellant, same having been supplied to the police in Hausa and written in English without providing the Hausa Version.” (Grd 6)
3. “Whether there was

something outside the confessional statement of the appellant that corroborated the said statement or showed that the statement was true.” (Grds 2&4)
4. “Whether the prosecution was bound to call any particular witness to prove its case.” (Grd 5)

Learned counsel for the respondent adopted the brief and urged the Court to dismiss the appeal.

Learned counsel for the respondent raised a preliminary objection incorporated in its brief of argument filed on the 25th of June, 2020. The grounds upon which the objection is predicated are:
(a) Grounds 2 and 3 do not flow from the judgment and they are vague hence incompetent
(b) Ground 4 is also vague as it does not learn itself to comprehension.

That issue one is not distilled from any ground of appeal, hence it is incompetent while grounds 5 and 7 appear to have been abandoned. Issues, two and three were argued based on incompetent grounds of appeal and so are vitiated by incompetence. All the issues which were either distilled from incompetent grounds are argued together with competent grounds and are liable to be struck out.

Arguing on the objection, learned

counsel for the respondent submitted that grounds 2, 3 and 4 of the appellant’s grounds of appeal are incompetent as they are vague and do not flow from the judgment of the trial Court. Relying on Garuba Vs. Omokhodion (2011) LPELR – 1309 (SC); Livestock Feeds Plc Vs. Funtua (2005) LPELR – 7515 (CA); Babalola Vs. State (1989)4 NWLR (Pt. 115)264 and Nnanna Vs. Onyenakuchi (2000)15 NWLR (Pt. 689)92 among others, it is submitted that where a ground of appeal does not attack the decision of the count, it is liable to be struck out. That grounds 2, 3 and 4 being incompetent were argued with other competent grounds. He referred to paragraphs 2.0, 3.0 at pages 7-29 of the appellant’s brief, that issue two argued grounds one and two together when ground two is incompetent, and issue three argues grounds 3, 4 and 6 together when grounds 3 and 4 are incompetent.

Counsel argued that the appellant having argued incompetent and competent grounds together, the effect is that there is no competent ground of appeal as the incompetent ground contaminates the argument on the competent ground. The Court was referred toIroaganachi Vs. Madubuko (2016)

LPELR – 400048 (CA) and urged to uphold the preliminary objection and strike out all the grounds of appeal and dismiss the appeal.

Finally, the respondent’s counsel submitted that there is no issue one formulated from any of the grounds, but the brief of the appellant show argument on issue one at pages 4-7. That the argument cannot stand having no issue distilled from any of the grounds of appeal.

The learned counsel for the appellant responded to the preliminary objection in his reply brief filed on 11/9/2020 but deemed properly filed on 15th September, 2020. He submitted that reading the entire appellant’s grounds of appeal will make one to appreciate the basis of the appellant’s appeal. That both grounds 2 and 3 are attack on the conviction of the appellant by the trial Court. He referred to page 162 paragraph one, the judgment of the trial Court and also page 163 last paragraph of the judgment to submit that both grounds 2 and 3 are attack on the judgment of the trial Court on the conviction of the appellant for conspiracy and armed robbery.

That the objection was made in error, aimed at frustrating the hearing of

the appeal, as the appellant’s grounds of appeal arose from the decision of the trial Court and we are urged to so hold. The Court was referred to Kherokholo Vs. Ude (2011) 3 NWLR (Pt. 1234) 323 at 328 ratio 6; NJC Vs. Agumagu (2015)10 NWLR (Pt. 1467)365 at 386 ratio 22; George Vs. FRN (2011)10 NWLR (Pt. Pt.1254) 1 at 33; Daniel Vs. INEC (2015)9 NWLR (Pt. 1463) 113 at 124 ratio 15 and FRN Vs. Nwosu (2016)17 NWLR (Pt. 1541) 336 at 252 ratio 26. We are urged to dismiss the preliminary objection and allow the appeal to be heard on merit.

The import of a preliminary objection to the hearing of an appeal is that the appeal should not be heard because it is incompetent or badly affected by some other fundamental vice – Chief of Air Staff Vs. Edward (2019)14 NWLR (Pt. 1691) 183 at 189.
The respondent’s objection is basically on grounds 2 and 3 which he said did not arise from the decision of the trial Court, and they are vague. Indeed it is the law where a ground of appeal does not arise from the decision of the Court appealed against, both the ground and the issue distilled therefrom are incompetent. See Gov. Imo State Vs. Amuzie (2019)10 NWLR

(Pt. 1680)331 at 338 and Abdullahi Vs. State (2013) 11 NWLR (Pt. 1366) 435.
Grounds 2 and 3 with their particulars are hereby reproduced:
GROUND 2
The learned trial judge erred in law and occasions a miscarriage of justice where it held that failure by the appellant to give explanation on how they got the items (exhibits) is conclusive evidence of committing the offence of criminal conspiracy and armed robbery.
PARTICULARS
1. The learned trial judge shifted the burden of proof in criminal matter to the appellant instead of the prosecution.
2. The trial Court failed to aver its mind to the facts that an accused person cannot prove his innocence but is for the prosecution to prove his guilt.
3. That the issue of buying cow, goats and maize with the proceeds of the robbery as claimed came from the respondent’s side and is therefore their responsibility to prove any allegation related thereto.
GROUND 3
Learned trial judge erred in law and occasions a miscarriage of justice when he sentenced the appellants on the allegation of criminal conspiracy without making findings as to the charge.

PARTICULARS
The trial Court’s failure to relate any of the evidence adduced before him and relate same with the allegation of criminal conspiracy as charged but only make pronouncement that having found the 1st and 2nd accused persons guilty of armed robbery, I also found them guilty of conspiracy and are hereby equally convicted of criminal conspiracy.
A ground of appeal is the error of law or facts alleged as the defect in the decision appealed against. In other words, it is the reason why the decision is considered wrong by the aggrieved party. See Idika vs. Erisi (1988)2 NWLR (Pt. 78) 503 at 578 and Akpan Vs. Bob (2010)17 NWLR (Pt. 1223) 421 at 464.

In ascertaining the real issue or complaint, the grounds of appeal and all the particulars there, should be read and construed together. In the instant case, grounds 2 and 3 of the appellant’s grounds of appeal considered together with their particulars complained about the trial Court’s judgment delivered on 30th May, 2019.
Vagueness of a ground of appeal may arise where it is couched in a manner that it cannot be understood, or when the complaint in the ground is not defined in relation to

the subject or it is not particularized or the particulars are clearly irrelevant. See MV Sealion (Ex Antibes) Vs. A.F.S (Gjensidig) (2019)9 NWLR (Pt.1678)385 at 389.
In this case, the particulars of grounds 2 and 3 are related to the complaint in the grounds. Further more the respondent was not misled as to the nature of the complaint, that they challenged the conviction of the appellant on the judgment of the trial Court. So contrary to the objection of the respondent, grounds 2 and 3 of the appellant’s ground of appeal and their particulars are competent. Preliminary objections are filed against the hearing of an appeal, and so once it succeeds, the appeal no longer exists. However, preliminary objection is not be filed against one or more grounds when there are other grounds that can sustain the appeal. Instead a motion on notice striking out the defective grounds should be filed. See Muhammad Vs. I.G.P. (2019)4 NWLR (Pt. 1663)492 at 502; and S.P.D.C.N. Ltd. Vs. Amadi (2011)14 NWLR (Pt. 1266) 157 and Order 10 Rule 1of Court of Appeal Rules 2016. In the instant case, the respondent’s preliminary objection attacked only grounds 2,

3 and 4 of the Notice of Appeal. There are seven grounds of appeal. For all intent and purposes, the remaining grounds upon which there was no complaint could sustain the appeal. The preliminary objection filed by the respondent is not a suitable method of challenging the competence of the grounds of appeal which when upheld could not terminate the appeal. The preliminary objection is incompetent and it is therefore struck out.

Although the appellant’s counsel claimed to have formulated three issues for determination of this appeal but only two issues are reflected from Pp. 3-4 of the brief paragraph 2.0. The argument on purported issue one is therefore discountenanced.

I shall be guided by the two issues identified by the appellant and the two issues will be taken together.
ISSUE ONE
1. “Whether or not the trial Court was right when it held that the prosecution had proved its case beyond reasonable doubt?”
ISSUE TWO
2. “Whether or not there was corroborative evidence in support of the statements of the appellant that can justify their conviction at the trial.”

Arguing on issue one, learned

counsel for the appellant submitted that proof beyond reasonable doubt does not mean proving beyond any shadow of doubt, but the Court must have before it evidence that will leave no reasonable judge in doubt that the accused is the one that committed the offence in question. He referred to Obi Vs. The State (2013) 5 NWLR (Pt. 1346) 68 at 74 ratio 4.

Counsel referred to the evidence of PW1 under cross-examination and the evidence of PW2 to submit that they did not mention the name of any of the accused persons nor did they identify the appellants as the persons that robbed them. He said the evidence of the witnesses cannot assist the trial Court’s decision having failed to link the appellant with the crime committed and we are urged to so hold. The Court was referred to Mohammed Vs. The State (2014) 2 NWLR (Pt. 1390)44 at 51 ratio 4 and Udo Vs. State (2016) 12 NWLR (Pt. 1525) 1 at 6 ratio 3.

On the evidence of PW3, counsel submitted that his testimony is to the effect that he could not identify any of the robbers while PW4 gave evidence that he was not present when the robbery took place. He said PW5, through whom the statement of the appellant

was tendered, an objection was raised to its admissibility which led to trial within trial. The objection was overruled and the statement of the appellant was admitted into evidence as Exhibit E1 and E2.

The appellant’s counsel argued that to overrule an objection to the admissibility of a confessional statement, reasons must be advanced relating to the evidence adduced during the trial within trial.

Relying on the case of Erizea Vs. Nigeria Army (2016) 10 NWLR (Pt. 1519) 52 at 63 ratio 11, it is submitted that the admissibility of the appellant’s confessional statements was in clear violation of the principles of adjudication. That failure to give reason by the trial Court for admitting Exhibit E1 and E2 is an error of law and same should be expunged by this Honourable Court.

Submitting further, that the confessional statement Exhibits E1 and E2 are the basis for convicting the appellant by the trial Court, which caused great injustice on the appellant. The cases of Sale Vs. State (2016)3 NWLR (Pt. 1499) 392 at 402 ration 13 and Omotola Vs. The State (2009)7 NWLR (Pt. 1139) 148 at 160 ratio 12 were referred to.

Learned counsel for the appellant said from the evidence of PW1-PW6 none of them testified that the appellants are the ones that carried out the robbery on the 15th of May, 2015.

Relying on the case of Okoh Vs. The State (2014)8 NWLR (Pt. 1410)501 at 511 ratio 11, it is submitted that, to prove allegation of armed robbery, reasonable and reliable evidence must be produced to leave the Court with no doubt that it was the accused that committed the offence. He said there is nothing before the Court to support the case of the prosecution that actually placed the appellant at the scene of robbery.

It is finally submitted on this issue that from the record with particular reference to the evidence of PW1-PW6 there is nothing capable of connecting the appellant with the offence of criminal conspiracy and armed robbery.

On issue two, it is the submission of the appellant’s counsel that since the appellant denied making the content of Exhibits E1 and E2, the trial Court was wrong in convicting the appellant without evidence corroborating the confessional statement. He relied on Ismail Vs. The State (2008)15 NWLR (Pt. 1111) 593 at 598 Ratio 7 and referred to page

159 paragraph 4, the judgment of the trial Court in the record.

That it was a wrong conclusion for the trial judge to rely on exhibits as corroborative evidence in support of the respondent’s case. Learned counsel for the appellant submitted that it is the duty of the prosecution to prove its case beyond reasonable doubt and not for the accused to prove his innocence.

Counsel argued that upon the information received from the appellant’s brother that the appellant was part of those that committed the robbery on 15th May, 2015 at the Filling Station, it is the duty of the prosecution to produce evidence that the items recovered from the appellant were bought with the proceeds of crime as alleged but not for the appellant to explain how he came about them. He relied on Baalo Vs. FRN (2016)13 NWLR (Pt. 1530) 400 at 410 R. 12 and State Vs. Azeez (2008) 14 NWLR (Pt. 1108) 439 at 451.

That Exhibits A, B, C and D to corroborate the content of Exhibit E1 and E2, the appellant’s brother ought to have been called to testify to that effect. Failure to call him is fatal to the case of the prosecution. The Court was referred to

Okoh Vs. State (2014) 8 NWLR (Pt. 1410) 502 at 507 R. 7, Sama’ila Vs. State (supra) and Afolabi Vs. The State (2014) 13 NWLR (Pt. 1371) 292 at 299 R. 10.

That the trial Court was wrong to have gone outside the evidence placed before it, to convict the appellant. Relying on the case of Orji Vs. Amara (2016) 14 NWLR (Pt. 1531) 21 at 26 R. I, it is submitted that the judgment of the trial Court is perverse and we are urged to so hold.

Counsel argued that corroborative evidence must be cogent such that it will not leave the Court with any reasonable doubt that it was the accused person that committed the offence as charged. He relied on Sale Vs. The State (2016)3 NWLR (Pt. 1499) 392 at 402 R. 14; Orji Vs. Amara (supra) and Mohammed Vs. The State (supra) at 53 R.18.

It is also the submission of the appellant’s counsel that the trial judge did not make any reference to the evidence of any of the prosecution witnesses in convicting the appellant for the offence of conspiracy, which occasioned a miscarriage of justice. The Court was referred to Aduku Vs. FRN (2009)9 NWLR (Pt. 1146) 370 at 377 R.8.

It is finally submitted on this issue that the

trial Court did not properly evaluate the evidence before it to arrive at its decision. That the prosecution has failed to prove its case beyond reasonable doubt as required by law. That this Court has the power to reconsider the entire evidence. He referred to Adebiyi Vs. State (2016)8 NWLR (Pt. 1515) 459 at 466 R. 13 and Abdullahi Vs. State (supra); That failure to tender the Hausa version of Exhibit E1 and E2, the appellant’s statement was in violation of the position of the law and same should be disregarded. The Court was referred to George Vs. State (supra) and Olanipekun Vs. State (2016)13 NWLR (Pt. 1528) 100.

Relying on the cases of Ogundele Vs. Agiri (2009) 18 NWLR (Pt. 1173) 227 R. 10 and Ezeuko Vs. State (2016)6 NWLR (Pt. 1509) 529 at 540 R. 9, it is submitted that the trial Court was wrong in convicting the appellant on suspicion as none of the witnesses of the prosecution fixed him at the scene of crime. The Court is urged to reverse the decision of the trial Court.

For his part, learned counsel for the respondent referred to the relevant portion of the appellant’s confessional statement to show how he confessed to the fact

that he was among those who robbed the Filling Station on the 15th May, 2015. That pursuant to the appellant’s confession and the information received, the police officers went to the house of the appellant where Exhibits “A, B, C and D” were recovered and tendered without objection. That this fact was neither contradicted nor controverted under cross-examination by the defence. He argued that PW6 testified to the effect that he investigated the case against the appellant and the appellant confessed to the commission of the offence and his confessional statement was admitted into evidence as Exhibit “E1 and E2”.

Counsel submitted that the appellant did not retract the 2nd confessional statement volunteered at the SARS office. That the only objection to the statement was that the investigation police officer who came to testify did not make a statement to his finding which ought to have been attached to the proof of evidence. The voluntariness or otherwise of the confessional statement was not challenged and the appellant did not deny making the statement.

Relying on the case of Haruna Vs. AG, Federation (2012) LPELR

– 7821 (SC), it is submitted that there are three ways in which the guilt of an accused person can be established; (a) by confessional statement, (b) Circumstantial evidence and (c) evidence of eye witness. That it is trite a confessional statement of an accused person alone can ground conviction. He relied on Afolabi Vs. State (2013) LPELR – 20700 (SC); Odua Vs. FRN (2002) LPELR –7166 (CA); R Vs. Sykes (1913) CAR 113 and Yesufu Vs. State (1976) 6 SC 167 among others to submit that the respondent complied with the requirement as enumerated in the above cases. That the trial Court who has the exclusive advantage of watching the witnesses testify and watching their demeanour properly evaluated the evidence on both side and found that there was something outside the confessional to make it most likely true. Counsel argued that the trial Court was right when it held that the recovery of Exhibits “A, B, C and D” which were bought with the proceeds of the robbery was enough indication that the confessional statement was true.

Arguing further, it is submitted that the it is trite, there is no law that requires corroboration of

evidence in armed robbery cases. He relied on this submission in the case Olomo Vs. State (2014) LPELR- 22517 (CA); Sule Vs. State (2009)4 NSCC 456; Olayinka Vs. State (2007) 2 NCC 505 and Oludamilola Vs. State (2010)5 NCC 192.

Learned counsel for the respondent contended that it was consequential upon the confession that the discovery of Exhibit “A, B, C and D” was made and recovered. When the exhibits were sought to be tendered, there was no objection to their admissibility by the defence and the fact was never discredited or contradicted in cross-examination which the law presumed admitted. The Court was referred Isitor Vs. Fakarode (2008) 1 NWLR (Pt. 1069)601 at 606; Yakubu Vs. State (2014) LPELR-22410 (SC). That failure of the appellant to explain how he came about Exhibits “A, B, C and D” or refute facts supplied by PW5 and PW6 as to the discovery and circumstances of recovery of the exhibits was fatal to his case.

On the 2nd confessional statement of the appellant admitted as Exhibit “F1”, the respondent’s counsel submitted that there was no objection to its voluntariness which is enough to ground the

conviction of the appellant. That the appellants only challenged the competence of the investigating police officer (PW6) coming to testify. That failure to question the confessional statement was an admission of the facts contained therein which makes it direct and unequivocal. He referred to Afolabi Vs. The State (2013) LPELR 20700 (SC) and Odua Vs. FRN (2002) LPELR 7166 (CA).

It is also submitted that the appellant’s attempt to deny the statement completely in his defence at trial goes to no issue because an accused person can only retract his statement at the time of tendering same by the prosecution but not during his defence. The Court was referred to Muhammad Vs. State (2017) LPELR (SC), Aliu Vs. State (2014) LPELR – 23253 (CA) and Thomas Vs. State (2013) LPELR – 20205 (CA).

Learned counsel submitted that failure to call certain witnesses does not amount to withholding evidence as argued by the appellant’s counsel. That it is trite, it is not the number of witnesses that matters but the quality of the evidence of the witnesses, since one witness can establish a case of the prosecution. He referred to Akpan Vs. State

(1994) 9 NWLR (Pt. 368) 347; Oguonzee Vs. State (1998) LPELR (SC); Theophilus Vs. State (1996)1 NWLR (Pt. 423) 151 and Maba Vs. State (2020)1 SCNJ 322 at 353-354.

With regard to no finding of criminal conspiracy by the Court as argued by the appellant’s counsel, the respondent’s counsel stated that there are more than enough facts to support the charge of criminal conspiracy against the appellant. That the appellant in this confessional statement stated that he was amongst those that robbed the filing station and also stated how the proceeds of robbery were shared which is enough evidence to support the finding of criminal conspiracy. Counsel argued that where there is a common intention to commit offence, the Court presumes agreement as an essential element of conspiracy in favour of the prosecution. The Court was referred to Shodiya Vs. State (2013) LPELR 2071 (SC) and Adekoya Vs. The State (2010) LPELR 3604.

On failure of the investigating police officer to produce the Hausa Version of the statement of the appellant which the appellant’s counsel submitted is fatal to the case of the prosecution, counsel submitted that the

investigating police officer did not say that the statement was written in Hausa but that the appellant confessed in Hausa and because he understands Hausa as the recorder, he wrote the statement in English but interpreted it to the appellant in Hausa which he understood and signed by thumb printing. He relied on Sunday Vs. State (2014) LEPLR 24415 (CA) and Idi Vs. State (2019) 15 NWLR (Pt. 1696) 448 at 472.

That the appellant having not denied the content of the statement particularly the one tendered by PW6, he cannot at this stage raise the issue of an interpreter.

It is finally submitted that the totality of the evidence placed before the trial Court established the offence against the appellant. That the duty to prove a case beyond reasonable doubt does not amount to proof beyond all shadow of doubt. He referred to Olabode Vs. State (2007) ALL FWLR (Pt. 389)130 at 1325 para C-D and Jua Vs. State (2020)2 NMJSC 152 at 170 para C-G.

That the judgment of the trial Court not perverse, this Court is urged not to disturb it.

The appellant’s brief is discountenanced being a repetition of what has already been canvassed in the main brief.

The law is settled that in criminal proceedings, the prosecution has a duty to prove the charge against the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. It is equally trite that the general burden of proof remains on the prosecution throughout the trial and does not shift. See Woolmington Vs. DPP (1935) AC 462; Igabele Vs. The State (2006)6 NWLR (Pt. 975) 100; Abokokuyanro Vs. The State (2016)9 WNRL (Pt. 1518) 520 and Egbufor Vs. State (2019)5 NWLR (Pt. 1665) 260. Even where the accused person pleads guilty to the charge, the prosecution is not relieved of the burden of establishing his guilt beyond reasonable doubt. See Aigbadion Vs. The State (2000) 7 NWLR (Pt. 666) 686 at 704 B-C and Ameh Vs. The State (1978) 6-7 SC 27.

For the prosecution to sustain a charge of armed robbery, the following must be proved beyond reasonable doubt.

(1) That there was robbery or series of robberies.
(2) That the robbery or robberies were armed robberies.
(3) That the accused person was one of those who participated in the armed robbery. See Emeka Vs. State (2014) 13 NWLR (Pt. 1425) 614 and Ikemson Vs. The State (1989) 3 NWLR (Pt. 110) 455.

Before delving into the arguments proffered by learned counsel to both parties, I deem it necessary to reproduce the evidence of PW4 reflected at pages 101-102 of the record.
He testified as follows:
“Muslim, affirmed and states: My name is Alhaji Ali Adamu Zaki. I live at Dengi. I am a business man dealing in petroleum products in Dengi. I am 37 years old. The name of my business is Zaki intergrated (Nig.) Ltd. I know the accused persons in respect of this case. I know the accuseds came to my filing station and robbed us on Friday 15th May, 2015. It was about 7.15pm when the incident happened, I was not present. It was the next day of the incident that I and the manager went and reported to the police station and investigations continued. It was during the investigation that we received information from the younger brother of the 1st accused that it was the 1st accused who committed the robbery with others. I have forgotten the name of the younger brother of the 1st accused who gave us the information. Through his information the 1st accused was arrested at Bankilong. During further investigation the 1st

accused named the 2nd accused as one of the robbers together with others who could not be arrested.
While investigation was continuing, the friends of the 2nd accused by name Alhaji Yunusa Wase, Babaji Wase came and said they have found out that 1st and 2nd accused actually committed the offence. They sought for settlement and pay the money involved which was N1,420,320.00. I agree that the money be refunded but they could not fulfil their promise. Since they couldn’t pay, the matter now has come to Court.
The 1st accused used part of his share of the money stolen to buy goats and cows. And he took two big goats with three small ones and one male cow, which was taken to the police station and one and a half bag of maize. The police complained about the feeding of the goats and cow and they were released to me. They are still with me.
The 2nd accused is from Wase and since his people who promised to pay back the money did not do so, we now went to the Emir of Wase. At the Emir’s palace Wase, we were informed that the lawyer of the 2nd accused refused him and advised him not to come. The Emir then direct us to follow up the case legally.

Cross-examination by counsel for the 1st accused: I was not around when the robbery took place. The police were the ones that carried the cows and goats. I gave statements both at police station Dengi and SARS.
Cross-examination by counsel for the 2nd accused: We reported the matter at police station Dengi. It is true that when the friends of the 2nd accused came to meet me, the 2nd accused was not there. We were five of us when we went to the Emir of Wase and the 2nd accused was not there. What I told the Court is contained in my statements both at Dengi and at SARS.”

PWI, Yusuf Maidugu, the Managing Director of Zaki integrated Services (Nig.) Ltd. was the victim of the armed robbery. He testified as to how the robbers came into his office at the petrol filling station, pointed a gun at him, ordered him to lie down and show where the money was. He testified that they were six in the office with his staff and the robbers that came in, were four in number. They took away the total sum of N1,420,320.00 and collected all their handsets. Under cross-examination, he said there was no light as they were using lantern in the office.

He said he did not recognize any of the persons that robbed them.

PW2, Umar Halidu said on 15th May, 2015 at about 7.15pm he was at the filing station outside when some people came with guns and as there was no light he did not know the people. The people ordered him at gun point to take them to the Manager. His handset was seized and was directed to lie down. Initially he said he knows the 1st and 2nd accused persons because they live together in Dengi. He changed and said he does not live with the accused persons in Dengi. He was not cross-examined.

PW3, a staff of the Filing Station is also a victim of the robbery as he was in the office with the Managing Director calculating money for the sale of that day. They have calculated the money and put it in one place, when the robbers came in. Under cross-examination he said as he was lying down he could not identify any of the armed robbers.

PW5, Danladi Bala is the police investigation officer in the case. He is attached to Dengi Police Division. He testified that in the course of investigation the 1st accused (appellant) was arrested. In his confessional statement recorded by the witness, appellant

was said to have named other suspects, hence the arrest of the 2nd accused while others are at large. When the statement was sought to be tendered, there was objection to its admissibility on the grounds of obtaining same under duress and torture. Trial with trial was conducted, the objection was overruled and the statement was admitted into evidence as Exhibit “E1”.

It is also the evidence of PW5 that a search was conducted in the house of the appellant and one and a half bag of maize, two goats with two kid goats and one male cow were recovered and tendered and marked as Exhibits “B, C and D” respectively while the search warrant is Exhibit “A”.

PW6, Monday Ogenede is the police investigating officer attached to SARS. He testified that the appellant and his co-accused were transferred from Dengi Kanam Divisional police Headquarters to SARS office with the original case file and the exhibits for further investigation. He said the appellant and co-accused volunteered their statement in Hausa which he recorded in English under words of caution and interpreted same to them in Hausa which they agreed is their

statement and signed, while he countersigned. He took them before a superior officer and read out the statements and interpreted before the officer who asked them if the statements were voluntarily made by them, and they agreed and signed. The Superior police officer also endorsed on the statements.

When the statements were sought to be tendered, counsel to the appellant objected to the admissibility of the statement through the witness (PW6) on the basis that the witness (PW6) is not competent on the ground that the witness’s statement is not in the proof of evidence. The objection was overruled and the statement was admitted as exhibit “E1 and E2”.

The appellant, testified in his defence as DWI. He said he was arrested in his house and taken to Dengi Police Station. At the police station, he said he was beaten and unable to stand. He said gun was pointed at him and he gave his statement because he was beaten. He testified that he is not in good term with his younger brother Garba Adamu who threatened to see him killed, that is why he brought the police to arrest him in connection with this case. Under Cross-examination, he

said it was the police who took his hand and thumb printed on the statement. Where the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the appellant’s guilt beyond reasonable doubt. Where the eye witness account does not meet this quality of evidence, it cannot sustain a conviction. See Anekwe Vs. The State (2014) 10 NWLR (Pt. 1415) 355.

The importance of correctly identifying the perpetrator of a crime cannot be over-emphasized. This is because not only his liberty but in the case of a capital offence, his life is at stake. See State Vs. Aibangbee (1988)3 NWLR (Pt. 84) 548 and Archibong Vs. State (2006)14 NWLR (Pt. 1000) 349.

The three basic ways of proving the commission of a crime are: (a) Confessional Statement (b) Circumstantial evidence (c) Evidence of eye witness. See Seun Vs. State (2019) 8 NWLR (Pt. 1673) 144 at 146; Kanu Vs. AG Imo State (2019) 10 NWLR (Pt. 1680) 369 at 374 and Agboola Vs. State (2013) 11 NWLR (Pt. 1366) 619.

To succeed in proving its case beyond reasonable doubt

in a charge of armed robbery, one of the essential ingredients is proof that the accused person was one of those who participated in the armed robbery or series of armed robberies. See Afolabi Vs. The State (supra) Aliyu Vs. State (supra) and Lawali Vs. State (2019)4 NWLR (Pt. 1663) 457.

My observation is in respect of the identity of the appellant as one of the armed robbers. The correct identification of the perpetrator of a crime is crucial, particularly where the accused was not arrested at the scene of crime and the victim did not know him prior to the incident or did not identify him. PW1, and PW3, the victims of the armed robbery gave account of all that transpired on the fateful day. From their evidence none of them identified or recognized any of the armed robbers that attacked them. With regard to the first ingredient, it is evident from the evidence of PW1, PW2 and PW3 that there was a robbery operation in the night of 15th May, 2015 at Zaki Integrated Filling Station Dengi Kanam. Their evidence confirmed that the robbery was armed robbery as guns were used to instill fears in the minds of the victims while robbing them of their property.

PW4, the owner of the Filling Station testified to the fact that he was not around at the time of incident. He along with PW1 reported the case of armed robbery to the police at Dengi Police Division. He testified that it was in the course of police investigation that information was received from the younger brother of the appellant that the appellant is one of the armed robbers that operated at the filling station. It is also his evidence that friends of the appellant’s co-accused came to him for settlement of the matter and undertook to pay the proceeds of robbery but failed to do so. It is my view that the appellant’s younger brother and the friends of the appellant’s co-accused are vital witnesses to this case, but none of them was called to testify. Moreso when the appellant testified as to the sour relationship between him and his younger brother, which he said he reported to the ward Head.
The question is, without the evidence of the younger brother of the appellant can the appellant be said to be one of the robbers that participated in the armed robbery when none of the victims of the armed robbery recognized or

identified him. I entertain serious doubts that the appellant was in fact identified as one of those that participated in the armed robbery.
The trial Court ought to have been more cautious in relying on the confessional statement of the appellant, Exhibits E1 and E2 when there was no other evidence outside the confessional statement tying the appellant to the offence.

It is settled that a trial Court can convict on the retracted confessional statement of the accused person, but before that is done, the Court is enjoined to evaluate the confessional statement and his testimony at the trial, as well as other evidence adduced. See State Vs. Saidu (2019) 10 NWLR (Pt. 1680) 308 at 312. This would entail the trial Court examining the new version of events presented by the accused person that is different from his retracted confession, and then ask the following questions:
(a) Is there anything outside the confession, which shows that it may be true?
(b) Is it corroborated in any way?
(c) Are the relevant statements of fact made in it most likely true as far as they can be tested?
(d) Did the accused have an opportunity to commit the offence?

(e) Is the confession possible
(f) Is the confession consistent with other facts which have been ascertained and established? – Ifedayo Vs. State (2019)3 NWLR (Pt. 1659) 265 at 269-268; State Vs. Ibrahim (2019) 8 NWLR (Pt. 1674) 294 at 298; Lawal Vs. State (2016) 14 NWLR (Pt. 1531) 69; and Fabiyi Vs. State (2015) 18 NWLR (Pt. 1490)80.
These are tests to be applied to a confession.
In the instant case, Exhibit E1 and E2 relied upon in convicting the appellant was not corroborated by the evidence of any of the prosecution witnesses and the stolen money and handsets were not found with the appellant.
The law is settled that the Court can convict on the retracted confessional statement of an accused but before it does this, the trial Court is enjoined to evaluate the confession and find out if the statement is corroborated and whether there is anything outside the confession, which shows that it may be true. See Egboghonome Vs. C.O.P (1993)7 NWLR (Pt. 306) 383; Afolabi Vs. State (supra) and Mohammed Vs. State (supra).

While it is correct as submitted by the respondent’s counsel, that the prosecution is not

obliged to call a number of witnesses in proof of its case, but a vital witness is one whose evidence may determine the case one way of the other and failure to call such a vital witness is likely to be fatal to the prosecution’s case. See Ikumonihan Vs. State (2018)14 NWLR (Pt. 1640) 456 at 463 and Onah Vs. State (1985) 3 NWLR (Pt. 12) 236.
In the instant case, the evidence of PW4 is to the effect that based on the information received from the brother of the appellant, the appellant is one of those that participated in the armed robbery and that the cow, goats and maize i.e. Exhibits “B, C and D” recovered from the appellant in his house were purchased with the proceeds of crime. The evidence of PW5 is that these items were recovered from the appellant which he purchased with his share of the proceeds of crime.
The evidence of PW4 as to what happened in his filing station in the night of 15th May, 2015 did not derive its veracity solely from the credit given to PW4 but rested wholly on the veracity and competence of the appellant’s younger brother who was the source of the information. That part of evidence of PW4 is hearsay

and inadmissible as its object is to establish the truth of the statement concerning the armed robbery. See Zaki Vs. Magayaki (2002) FWLR (Pt. 135)798 and Zubairu Vs. State (2015) 16 NWLR (Pt. 1486) 504.

The trial Court in the summary of his judgment at page 159 of the record held:
“However, information was subsequently received from the junior brother of the 1st accused (appellant) by name Garba Adamu to the effect that the 1st accused was one of the robbers that robbed the Filling Station. Armed with search warrant the police went to Bankilong and searched the house of the 1st accused and Exhibits “A, B, C and D” were recovered, being items bought by him with his share of the proceeds of the crime.”
He went further at page 160 to hold:
“Certainly the junior brother, Garba Adamu who gave the information know that for the 1st accused to suddenly bring those items to the house was questionable.”
It is my view that this holding of the trial Court is speculative and speculation is not known to or recognized in criminal administration. See State Vs. Aibangbee (1988)3 NWLR (Pt. 84) 548; Udosen Vs. State (2007)4

NWLR (Pt. 1023) and State Vs. Yahaya (2019)13 NWLR (Pt. 1690)397.

The case of the prosecution was built on suspicion. Suspicion no matter how strong can never ground a conviction. The prosecution concluded on the information received from the younger brother of the appellant. As there was no evidence from the younger brother of the appellant neither was the appellant identified by eye witnesses to the armed robbery or arrested at the scene of robbery, the evidence leading to the conviction rested in the realm of conjuncture and mere speculation. See Al-Mustapha Vs. State (2013)17 NWLR (Pt. 1383) 350; Ikomi Vs. State (1986) 3 NWLR (Pt. 28) 340; Zubairu Vs. State (2015) 16 NWLR (Pt. 1486) 504 at 512 and Igbikis Vs. State (2017) 11 NWLR (Pt. 1575)126 at 137.

In conclusion, I hold that there is reasonable doubt in the identification of the appellant as one of those that participated in the armed robbery at Zaki Integrated Filling Station on the 15th May, 2015. The doubt I hold that must be resolved in the appellant’s favour. I hold that this is one of the circumstances where the findings of the trial Court must be interfered with, as it has

occasioned a miscarriage of justice. The evidence presented by the prosecution is not credible, direct and positive to justify the conviction that the case was proved beyond reasonable doubt.

The appeal accordingly succeeds and it is hereby allowed. The judgment of the trial Court convicting and sentencing the appellant is hereby set aside. I enter a verdict of not guilty in favour of the appellant. He is accordingly acquitted and discharged.

Counsel to both parties are advised to improve in writing their briefs of argument. Briefs of argument need to be concise, comprehensive, consistent and accurate. Some of the eternal qualities of a good brief of argument are brevity and precision. It must not be too short as to leave out the essentials and must not be too long as to become otoise. The goal must be to achieve maximum brevity, consistent with accuracy and clarity. The brief should not be unnecessarily voluminous and contain repetitive arguments of issues as in this appeal. Litigation is not a long essay competition where success is determined by the length of the brief of arguments and repetition does not improve an argument in a brief.

See Uwazurike Vs. Nwachukwu (2013)3 NWLR (Pt. 1342) 503; Nabegu Co. Nig. Ltd. Vs. Unity Bank Plc. (2014) 7 NWLR (Pt. 1405) 42 at 50-51 and Sifax (Nig.) Ltd. Vs. Migfo (Nig) Ltd. (2018) 9 NWLR (Pt. 1623) 138.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother, TANI YUSUF HASSAN, JCA. I agree with the reasoning and conclusion reached thereat that the appeal succeeds and should be allowed.
I also allow the appeal and I abide by the consequential orders therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A., and I am in agreement with his reasoning and conclusion and hereby adopt it as mine. I also set aside the judgment of the lower Court convicting appellant and thereby enter a verdict discharging and acquitting him.

Appearances:

Sadiq Abubakar For Appellant(s)

D. Dashe (PSC) MOJ PL. State For Respondent(s)