BALA MOHAMMED v. THE STATE
(2018)LCN/11895(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/71C/2017
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“I have stated elsewhere in this judgment that the appellant was tried for the offences of conspiracy, armed robbery and voluntarily causing grievous harm but was convicted and sentenced for robbery and conspiracy to rob. To secure conviction on a charge of armed robbery the prosecution must necessarily prove the followings: –
1. There must be robbery or series of robberies;
2. That the robbery or each robbery was an armed robbery, and
3. That the accused was one of those who took part in the armed robbery. See F.R.N V BARMINAS (2017) 15 NWLR (Prt 1588) 177 at 210 and IKEMSON V STATE (1989) 3 NWLR (Prt 110) 455.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. Such a defence being a matter peculiarly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See GACHI V STATE (1965) NMLR 333, ODIDIKA V THE STATE (1977) 2 SC 21 and UKWUNNENYI V STATE (1989) 7 SC (Prt 1) 64 at 72.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
EVIDENCE: WAYS TO PROVE AN ACCUSED PERSON
“Generally the evidence relied upon by the prosecution to establish a charge of robbery may either be direct or circumstantial. In other words, whether the evidence adduced and relied upon is direct or circumstantial in nature, the determining factor is that same must establish the guilt of the accused beyond reasonable doubt. Consequently, the guilt of an accused person can be proven or conviction derived by the prosecution, either by confessional statement, evidence of eye witness or circumstantial evidence. See DURU V STATE (2017) 4 NWLR (Prt 1554) 1, ADEKOYA V THE STATE (2012) 9 NWLR (Prt 1306) 537 and THE STATE V ISAH (2012) 16 NWLR (Prt 1327) 613.”PER MUHAMMED LAWAL SHUAIBU, J.C.A.
EVIDENCE: DIRECT TESTIMONY OF EYE WITNESS
“Thus, where direct testimony of eye witnesses is not available as to the commission of the crime, the Court is permitted to infer from the facts proved the existence of other facts that may be logically inferred. See ADEPETU V STATE (1998) 7 SC (Prt 1) 117 at 141 – 142.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
BALA MOHAMMED Appellant(s)
AND
THE STATE Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of justice, Sokoto State delivered on 3rd April, 2017.
The appellant and two others had been charged jointly with offences of conspiracy, armed robbery and voluntarily causing grievous hurt, contrary to and punishable under Sections 6 (b) and 1 (2) (a) (b) of the Robbery and Firearms (Special Provisions) Act, Cap P11 Laws of the Federation of Nigeria, 2004 as well as Section 248 (2) of the Penal Code Law.
The gist of the case briefly as presented by the prosecution, before the trial Court, is as follows: –
Sometimes on 9th July, 2014, one Bala Dan Magajiya and other commuters were coming from Lagos in a commercial vehicles when at about 21:30hrs met a heap of firewood blocking the road at Bancho Village along Dogon Daji road in Sokoto State. No sooner their vehicle slowed down, some men armed with cutlasses and sticks attacked and robbed them of their valuables including money and GSM handsets as a result of the attack the said Bala Dan Magajiya sustained machete wound around his neck.
Acting on a tip off the police found the appellant and other co-accuseds in the bush sharing the money and other stolen items but upon sighting the police and vigilante group, the appellant and other accused persons took to their heels but after a hot chase, one Mohammed Sani was apprehended who gave the police the clue that resulted into the arrest of the appellant and other fleeing men except one Abu Bancho who is at large.
At the trial, the prosecution called seven (7) witnesses and tendered exhibits which included the statements of the accused made to the police. Each of the accused testified but called no other witness. At the conclusion of the trial, the learned trial judge, Bello Duwale believed the case as presented by the prosecution and accordingly found the appellant among others guilty, convicted and sentenced him to 6 years imprisonment for the offence of conspiracy and 10 years imprisonment for the offence of robbery and the sentences to run consecutively.
Being dissatisfied with the judgment, the appellant appealed to this Court upon four (4) amended notice of appeal.
Distilled from the said four grounds of appeal, the appellant formulated the following two issues for determination of the appeal: –
1. To establish the guilt of an accused person, prosecution must prove the case beyond reasonable doubt. The evidence here is that the prosecution link the appellant with the commission of the offence, or with the alleged stolen items recovered. Was the conviction valid in law? (Distilled from grounds 1 and 2).
2. For an accused person to be guilty of robbery, prosecution must amongst other ingredients show that the victim(s) was robbed by the accused. The contradictory testimonies of the prosecution witnesses were admitted in evidence which invariably failed to establish the proof of robbery against the appellant. Was the trial Court right to have convicted the appellant on this materially contradictory evidence. (Distilled from grounds 2 and 3).
The appellant’s brief of argument was deemed argued on 21/5/2018 and in it learned appellant’s counsel, E. U. Chinedum took the above issues seriatim. On issue No.1, he submitted that the prosecution has failed to link the appellant with the offences charged and that the appellant’s conviction was based on mere suspicion which cannot warrant a conviction.
He referred to MOHAMMED V- STATE (2014) 2 NWLR (Prt 1390) 53. Learned counsel referred copiously to the testimonies of PW4 and PW7 in contending that where the appellant denied being involved in the commission of the offence and also denied being at the scene of the crime, it is the duty of the prosecution to show proof that he was there and that he committed the offence charged. Thus, the prosecution was not able to prove any of the offences beyond reasonable doubt.
On issue No.2, learned appellant’s counsel submitted that apart from the prosecution’s inability to link or identify the appellant as one of those that committed the offences, there were fundamental contradictions in the evidence of PW6 and PW7. He referred to the statement of PW6 and PW7 at the police station at page 7 of the record of appeal and his evidence at the trial at page 75 of the record of appeal to buttress the point that PW6 told the police that the robbers went away with his N100, 000.00 and other items but during trial he said he was robbed of the sum of N200, 000.00. He also contended that while PW6 said he was unconscious as a result of the cuts/injuries inflicted on him and that the police took him to Dogon Daji hospital.
PW7 on his part stated that when their vehicle was stopped, they all ran away leaving PW6 behind who was seriously injured by the robbers and could not run. That when he came back the following morning he met PW6 lying on the road unconscious. He submitted that where the contradictions are so fundamental and material in nature such conviction should be set aside by an appellate Court. In aid, he placed reliance on the cases of AMODU V STATE (2010) 2 NWLR (Prt 1177) 79 and MAIGARI V STATE (2010) 116 NWLR (Prt 1220) 469.
He urged this Court to resolve the two issues in favour of the appellant and to allow the appeal.
Learned counsel for the respondent, Steve Emelieze, Esq. on his part formulated a lone issue for the determination of the appeal thus: –
Whether having regard to the evidence adduced at the trial, the trial Court rightly convicted the appellant of the offences of conspiracy and robbery.
In addition, learned counsel for the respondent has faulted the style by which the appellant has formulated his issues contending that same are mere questions not issues contemplated under Order 18 Rule 3 (1) of the Court of Appeal Rules, 2016. He submitted that the appellant having failed to distill any issue from the amended grounds of appeal, the grounds are deemed abandoned and ought to be struck out. He referred to OJEGBE V KENT OMATSONE (1999) 6 NWLR (Prt 608) 591 at 597 – 598 and NWOKEARU V THE STATE (2013) 5 SCNJ 525.
Arguing the lone issue, learned counsel for the respondent submitted that the pertinent question is, whether the ingredients of the offences have been proved beyond reasonable doubt to warrant the appellant’s conviction.
On the offence of armed robbery, he submitted that the evidence adduced at the trial clearly establishes the fact that a robbery took place at about 21:30hrs on 9th July 2014 along Dogon Daji ? Sokoto road at Bancho village of Tambuwal Local Government Area wherein the robbers used arms. He referred copiously to the evidence of PW4, PW6 and PW7.
Still in argument, learned counsel submitted that the appellant who had ample opportunity to challenge the evidence of PW4, PW6 and PW7 either through cross – examination or evidence in defence, never did so and therefore, the law deem such unchallenged evidence as established. He referred to OFORLETE V THE STATE (2000) 12 NWLR (Prt 681) 415 and GAJI V PAYE (2003) 8 NWLR (Prt 823) 583.
On the use of cutlass to inflict wounds on PW6, he referred to Section 15 (1) of the Robbery and Firearms (Special Provision Act) Cap R11 LFN 2004 to submit that the definition of ‘arms’ is not limited only to fire arms but extend to any object likely to induce fear or bodily harm. He referred to AJIBADE V THE STATE (2011) LPELR 4938, and AFOLALU V STATE (2010) 16 NWLR (Prt 1220) 584.
On whether the appellant was identified by PW6 and PW7, learned counsel referred to Exhibits D, E, G, G1 and H and H1, items stolen from the vehicle in which PW6 and PW7 travelled on the fateful day when the robbery incident took place. These facts having not been denied same are deemed established also relying on OFORLETE V THE STATE (Supra).
He contended that it goes beyond mere co-incidence that these facts all came to exist around and involving the appellant and his cohorts. He thus, submitted that the evidence adduced by the prosecution established link between the appellant and his cohorts for the offence robbery charged as the evidence unequivocally suggest that the appellant was one of the persons who committed the said offence and no one else could have been the perpetrators.
On the offence of conspiracy learned counsel referred to the cases of OBIAKOR V THE STATE (2002) 10 NWLR (Prt 776) 621 at 628, OYAKHERE V STATE (2005) 15 NWLR (Prt 947) 159 at 160 and BELLO SHURUMO V THE STATE (2011) 6 NCC 90 in submitting that the offence of conspiracy is completed once a concluded agreement exist between two or more persons that share a common criminal purpose. He further submitted that by the evidence of PWs 6 and 7, there were indeed an agreement between the appellant and his cohorts to rob and dispossess their victims of their valuables.
On the alleged contradictions in the prosecution’s case, learned counsel submitted that all that exist was a difference between the figure contained in the statement made to the police and the figure stated in the evidence of PW6 which according to him are a mere discrepancies which are not fatal to the appellant’s conviction. He referred to OKONKWO V OKONKWO (2004) 5 NWLR (Prt 865) 87 at 128.
I have carefully examined the issues formulated by both parties for the determination of this appeal and I have decided to utilize the lone issue formulated by the respondent for being concise and quite apposite. I have stated right from the onset that the appellant was tried along with others for conspiracy, armed robbery and voluntarily causing grievous harm. However; the appellant and his other cohorts were convicted and sentenced for conspiracy and robbery.
Before proceeding to determine the merits of this appeal it is pertinent to comment briefly on the issues formulated by the appellant. By virtue of Order 19 Rule 3 (1) of the Court of Appeal Rules, 2016, the brief shall inter alia contain what are, in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal. I am in agreement with the submission of the learned counsel for the respondent that the two issues formulated are mere questions that are not capable of being used as a pedestal for determining anything.
However, the respondent’s challenge to the competence of the grounds of appeal and or issues for determination of the appeal ought to have been by way of preliminary objection provided for under Order 10 Rule 1 of the Court of Appeal Rule 2016. The purpose of a preliminary objection is to contend that the appeal is defective or incompetent and if sustained, the appeal would no longer be heard. Thus, a successful preliminary objection terminates the hearing of the appeal. The fundamental requirement is that the preliminary objection must be filed and served on the appellant three days before the hearing of the appeal thereby removing the element of surprise and giving the appellant enough time to respond. In the instant case, the respondent’s challenge to both the amended grounds of appeal and the issues distilled therefrom fell short of the requirements of the applicable rules of Court and therefore not in order.
Generally the evidence relied upon by the prosecution to establish a charge of robbery may either be direct or circumstantial. In other words, whether the evidence adduced and relied upon is direct or circumstantial in nature, the determining factor is that same must establish the guilt of the accused beyond reasonable doubt. Consequently, the guilt of an accused person can be proven or conviction derived by the prosecution, either by confessional statement, evidence of eye witness or circumstantial evidence. See DURU V STATE (2017) 4 NWLR (Prt 1554) 1, ADEKOYA V THE STATE (2012) 9 NWLR (Prt 1306) 537 and THE STATE V ISAH (2012) 16 NWLR (Prt 1327) 613.
I have stated elsewhere in this judgment that the appellant was tried for the offences of conspiracy, armed robbery and voluntarily causing grievous harm but was convicted and sentenced for robbery and conspiracy to rob. To secure conviction on a charge of armed robbery the prosecution must necessarily prove the followings: –
1. There must be robbery or series of robberies;
2. That the robbery or each robbery was an armed robbery, and
3. That the accused was one of those who took part in the armed robbery. See F.R.N V BARMINAS (2017) 15 NWLR (Prt 1588) 177 at 210 and IKEMSON V STATE (1989) 3 NWLR (Prt 110) 455.
In the quest to establishing the above, the prosecution paraded seven witnesses but the pertinent ones are the evidence of PWs 4, 6 and 7. PW4 is the leader of the vigilante group who pursed the armed robbers and succeeded in arresting one of them. At page 65 lines 4 ? 11 of the record of appeal, PW4 has this to say-
”We could only arrest the 1st accused at that time. The 3rd accused person was arrested with the 2nd accused in the house of the 2nd accused person. I told the Court what I did and observed in the case. One of the victims was injured by the accused persons. We recovered the exhibits A ? J from the accused person after searching their houses.”
On his part, PW6 at page 75 of the record of appeal said-
”When our vehicle stopped some robbers demanded me to give them money. They hit me at the back of my neck with cutlasses and collected the sum of N200, 000.00 from me. I fell down. I was lying down when the police came.”
When cross – examined, he stated at page 76 of the record of appeal that-
”All the passengers ran away leaving me. The police recovered my stolen items from the robbers.”
At page 77 of the record of appeal, PW7 said: –
”One 9/7/2014 on Tuesday I was robbed. I was from Lagos on reaching D/Daji road we met the road blocked by robbers with wood. When our vehicle stopped we started running. Because PW6 could not run. He was seriously injured by the robbers.”
He went further to state at page 78 of the record of appeal that-
”I can identify my stolen properties. These women wrappers belong to me. This white bundle of clothes belong to me. None of these shoes belong to me.”
It is settled law that for a witness evidence to support and sustain the conviction of an accused, it must be credible, reliable and point irresistibly to no one else but the accused. Therefore, a conviction must be founded on evidence establishing the guilt of the accused beyond reasonable doubt. In IGBIKIS V STATE (2017) 11 NWLR (Prt 1515) 126 it was held that only such circumstances that make a complete and unbroken chain, constituting sufficient proof that an accused person committed the offence for which he is charged, that would sustain a conviction.
However, it needs to be pointed out here that although the burden of proof on the prosecution in criminal cases is to establish its case beyond ‘reasonable doubt’, it must be recognized all the same, that not all doubts are reasonable and ‘reasonable doubt’ necessarily excludes unreasonable or speculative doubts or a doubt that is not borne out by the particular case. See MUFUTAU BAKARE V THE STATE (1987) 3 SC 1 at 33.
Also in MILLER V MINISTER OF PENSIONS (1947) 2 ALL E.R 372 Denning, J as he then has succinctly explained the meaning of proof beyond reasonable doubt required in criminal cases before an accused person is found guilty as follows: –
”That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the case least probable’ the case is proved beyond reasonable doubt; but nothing short of that will suffice.”
In the present case the appellant and his cohorts were pursued after being found sharing the loot of the robbery operation which took place at Dogon Daji road in which PW6 and PW7 were dispossessed of their money and other valuables, PW6 also sustained injuries on his neck as a result of the said robbery. It is thus, my view that the prosecution had proved the essential ingredients of the charge of robbery against the appellant and the learned trial judge was right when he held at page 111 of the record of appeal as follows: –
”It is not necessary to identify the accused person since the incident happened in the night. But having identified some of their stolen properties which were recovered from the accused persons after searching their houses this is conclusive evidence/proof linking the accused persons with the robbery committed at Bancho village along Dogon Daji – Sokoto Road on 9/7/2014.”
Learned appellant’s counsel alluded to the contradictions in the evidence of PWs 4 and 6 on one hand and that of PWs 6 and 7 on the other hand in respect of the amount allegedly stolen from PW6 as well as the injuries he sustained. A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. See GABRIEL V STATE (1989) 5 NWLR (Prt 122) 457 at 468.
However, contradiction in the testimonies of the prosecution’s witnesses would not cast or raise doubts in the Court where they are not material. Thus, mere contradictions are usually noticed or found in testimonies of witnesses due to long period between the date an event happened and the date of the witness testimony which result in the witnesses forgetting all or some of the events. Therefore, where the contradictions are not on material points, they cannot be fatal. See GALADIMA V STATE (2017) 14 NWLR (Prt 1585) 187 at 207.
In the present case, PW6 in his statement to the police said he was dispossessed of N100, 000.00 whereas he testified in Court that the amount he lost to the armed robbers was N200, 000.00. When cross – examined on this point, PW6 said:-
”They stole the sum of N200, 000.00 from me. I told the police the sum of N100, 000.00 was collected from me.”
Another contention was whether or not PW6 was taken to the hospital by the police for the treatment of the injuries he sustained as a result of the said robbery. At page 75 of the record of appeal, PW6 said-
”The police took me to Dogon Daji hospital. The hospital refused to receive me. I was taken to Tambuwal where I was admitted. I was treated and discharged.”
PW7 at page 77 of the record of appeal said of PW6’s injuries thus:-
”Because PW6 could not run he was seriously injured by the robbers. When I came back the following morning, I met PW6 lying on the road unconscious.”
It has long been laid down by a long chain of authorities that not every contradiction is fatal to the prosecution’s case save where such contradiction goes to the substance and materiality of a fact or facts in issue in the charge as to raise a doubt in the mind of the Court. See ODUNEYE V STATE (2001) 1 SC (Prt 1) 1 at 15 and UDO V STATE (1992) 2 NWLR (Prt 224) 471 at 479.
In the instant case, the alleged contradictions are mere discrepancies of inconsequential nature that did not relate to the robbery operation. I unhesitatingly reject the learned appellant?s counsel submission in this regard.
It is worthy to also mention that the appellant denied knowing PW6 and committing the offences charged. Since the appellant was neither identified nor make any confessional statement, his conviction was based on circumstantial evidence from the totality of the evidence adduced by the prosecution.
Generally, for circumstantial evidence to ground a conviction, it must lead only to one conclusion, namely, the guilt of the accused person but where there are other possibilities in the case than that it was the accused who committed the offence but that others other than the accused had the opportunity of committing the offence with which he was charged such accused person cannot be convicted of the offence. Thus, where direct testimony of eye witnesses is not available as to the commission of the crime, the Court is permitted to infer from the facts proved the existence of other facts that may be logically inferred. See ADEPETU V STATE (1998) 7 SC (Prt 1) 117 at 141 – 142.
In the instant case, the learned trial judge after considering the specific denials of the appellant and his cohorts he restated the legal position at page 112 of the record of appeal as follows: –
”The accused persons denied committing the offence at the trial and in exhibits K – M. But they did not deny the recovery of exhibit D, E, G and H from them by the police which were among the items stolen from PW6 and PW7. It is the law that if a person is found in possession of property recently stolen the presumption is that he is either the thief or knew the property to be stolen.”
It is my respectful view that the learned trial judge had rightly drawn the right inferences and came to the right conclusion on the guilt of the appellant based on circumstantial evidence.
The appellant had at page 79 of the record of appeal attempted to raise a defence of alibi to show that he was at Jumuka sleeping on 9/7/2014.
It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. Such a defence being a matter peculiarly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See GACHI V STATE (1965) NMLR 333, ODIDIKA V THE STATE (1977) 2 SC 21 and UKWUNNENYI V STATE (1989) 7 SC (Prt 1) 64 at 72.
In the instant case, the appellant did not raise the defence of alibi and furnish its particulars at the earliest opportunity and not until at the time of the trial. The appellant having failed to give such details and particulars of his whereabouts there was therefore justification in rejecting the defence of alibi by the trial Court.
The appellant was also convicted for the offence of conspiracy to rob. In a charge of conspiracy direct positive evidence of the plot or design or agreement between the co-conspirators is hardly capable of proof. Thus, it is a matter of inference to be deduced from certain acts or inactions of the parties concerned. See ODUNEYE V STATE (Supra). In AKWUOBI V STATE (2017) 2 NWLR (Prt 1550) 421 it was held that the conduct of the accused and or his co-conspirators often go a long way to suggest or establish that there had been implied or express agreement amongst them to commit a criminal offence.
In the instant case, the learned trial judge considered the conduct of the appellant along with his co-conspirators in arriving at the right decision when at page 115 of the record of appeal held as follows:
”Without any agreement between the accused persons the road would not have been blocked by the accused persons. The blockage of the road at that time of the night by the accused persons is sufficient proof of their common intention to rob PWs 6 and 7 of their money and properties which they did in view of my findings in this judgment.”
I do not see any justification in disturbing the above inference in respect of the offence of conspiracy by the learned trial judge.
In conclusion, the lone issue is resolved against the appellant. The appellant was rightly convicted upon circumstantial evidence adduced by the prosecution. The appeal is lacking in merit and it is accordingly dismissed. The judgment of the trial Court delivered on 3/4/2017 which convicted and sentenced the appellant is hereby affirmed.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading in advance, the lead judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with the eloquent reasoning therein and the conclusion that the appeal is bereft of merit. The unmeritorious appeal is accordingly dismissed. I subscribe to the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L SHUAIBU, JCA just delivered and I am in agreement with his reasoning and conclusion in resolving the sole issue for determination in favour of the Respondent. The Appeal is therefore moribund as it is lacking in merit. It is accordingly dismissed. I abide by the consequential orders made thereto.
Appearances:
For Appellant(s)
Stere Emelieze with him, Al-Mustapha Abubakar, ADPP, MOJ, Sokoto State.For Respondent(s)
