BALA v. STATE
(2022)LCN/16043(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/S/198C/2017
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
MIKAILU BALA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
EFFECT OF UNCONTRADICTED EVIDENCE
Their evidence have not been contradicted or whittled down by cross-examination by the appellant, hence same is admissible evidence which can be acted upon as indicative of the fact that the prosecution has proved a case of criminal conspiracy and Armed Robbery against the appellant. See Ikemson V. State (1989)2 NWLR (P.t.110)455, 477. -PER SAIDU TANKO HUSSAINI, J.C.A.
THE IMPORTANCE OF AN INTERPRETER BEING CALLED AS A WITNESS
The general rule is that a document such as Exhibits D-D1 must be tendered and admitted through the recorder, in this case Exhibits D-D1 ought to have been tendered and admitted through Cyril Goma who was not only the recorder of the statement, he was the interpreter who translated the statement from Hausa to English. The importance of calling the evidence of the recorder of a statement who also double as the interpreter or translator cannot be wished away with the wave of the hand. It has been held in Olalekan vs. State (2001) LPELR–2561 (SC) that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it was called as a witness as well as the person who wrote it down. See further R. vs. Ogburewu (1949) 12 WACA 483. The necessity of the interpreter confirming the statement and therefore rendering it admissible was stated in R. vs. Gidado 6 WACA 60, 62. Looking at Exhibits D-D1, it is clear ex facie that the recorder and the interpreter of those statements or documents is in the person of Cyril Goma. Exhibits D-D1 was not tendered through him but through PW4, to render the documents as documentary hearsay. See Subramanian vs. Prosecutor (1965) 1 WLR 965, The State vs. Ogbolu (1972) ECSLR 438; Akingboye vs. Salisu (1999) 7 NWLR (pt. 611) 434. Exhibits D-D1 was ascribed to the appellant as his confessional statement. The trial Court in its judgment relied and acted heavily on Exhibits D-D1 to convict and sentence the Appellant to terms of imprisonment. However, Exhibits D-D1 being inadmissible documents as earlier stated, shall be expunged from the record. -PER SAIDU TANKO HUSSAINI, J.C.A.
METHODS THROUGH WHICH PROSECUTION CAN PROVE ITS CASE IN COURT
The prosecution in the bid to prove his case can rely on any of the three methods or a combination of any of them to prove his case, namely:
1. Proof by reliance on the Confessional Statement of the accused person.
2. Proof by direct eye witness account of the incident, and
3. Proof by circumstantial evidence.
See: Oka vs. The State (1975) 9-11 SC 17; Emeka vs. The State (2001) FWLR (pt. 66) 682.
By whatever method employed by the prosecution to prove his case, he must ensure that he satisfied the statutory requirements of proof by a standard of proof beyond reasonable doubt. -PER SAIDU TANKO HUSSAINI, J.C.A.
WHEN THE EXERCISE OF DISCRETION BY THE COURTS CANNOT BE CIRCUMSCRIBED / WHERE A STATUTE PRESCRIBES A MANDATORY SENTENCE IN CLEAR TERMS
The trial Court in its judgment convicted the appellant for the two-count charge of Criminal Conspiracy and armed robbery under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. Section 1(1)(2)(a)(b) of the Act provides:
“1(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years. (2) if (a) any offender mentioned in Subsection (1) of this Section is armed with firearms or any offensive weapon or is in company with any person so armed; or (b) at or immediately before the said offender wounds or uses any personal violence to any person; the offender shall be liable upon conviction under this Act to be sentence to death.”
The wordings of the statute are very clear and it requires no further elucidation other than for the Court to apply those provisions as they are by according literal interpretation to them to arrive at a purposeful conclusion. While the exercise of discretion by the Courts cannot be circumscribed under whatever guise, the trial Court in the purported exercise of its discretion cannot impose sentence which is below the sentence prescribed by the relevant statute especially where the sentence is a mandatory sentence of death. This cannot be circumscribed by the trial Court. The Court would have in the circumstance, rewritten the law. It is not within the province of the Courts to make laws. The duty to make laws is exclusively reserved for the legislature to handle in accordance with the principle of separation of powers between the Legislature, the Executive and the Judiciary as enshrined at Sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The duty of the Courts is to interpret the laws which the legislature has enacted. On this, I refer to the decision in His Highness Lamidi Olayiwola Adeyemi (Alafin of Oyo) vs. Attorney General of Oyo State (1984) LPELR – 169 (SC). By this doctrine, neither the Legislature nor the Executive nor the Judiciary can exercise in whole or in part the powers of the other. See further, Governor of Ekiti State vs. Olayemi (2014) LPELR – 23477 (CA) Buba Marwa & Ors. Vs. Murtala Nyako (2012) LPELR – 7837 (SC).
Reading the provision of the Robbery and Firearms (Special Provision) Act, the sentence which the trial Court ought to have imposed on the appellant/cross-respondent in the circumstance is a sentence of death in relation to charge or count Nos. 1 and 2 in the charge sheet and the trial Court was wrong to do otherwise. This cross-appeal in effect, succeeds and same is allowed hence, sentence of death which ought to have been imposed on the appellant/cross respondent under Counts 1 and 2 in the charge sheet is hereby entered and the appellant is accordingly so sentenced in respect of each of the two counts. That is the judgment and order. The Cross appeal succeeds and same is allowed. – PER SAIDU TANKO HUSSAINI, J.C.A.
I wish to add that this Court has on a number of occasions emphasized that where a statute prescribes a mandatory sentence in clear terms the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the matter. The sentence must be pronounced without any reservation. It is a duty imposed by law. In the instant cross-appeal, in view of the latter part of the provisions of Section 1 (1) (b) of the Armed Robbery and Firearms (Special Provisions) Act (supra), it was wrong for the lower Court, after finding the Appellant guilty as charged for the offence of armed robbery, to proceed to sentence him 12 to years imprisonment.
The correct judgment is to substitute the 12 years imprisonment imposed by the learned trial Judge with the sentence of death as mandatorily prescribed by Section 1 (1) (b)(supra). See the recent decisions of this Court in THE STATE V. ABDULLAHI ALI (2020) LPLER-50039 (CA) per Sankey JCA at pages 59-61 B-E and ALIYU BASHIR V. KANO STATE (2016) LPELR-41561 (CA) per Abba Aji, JCA (as she then was) at pages 22 – 23 D – E. -PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): There is before this Court, an appeal and a cross-appeal both of which were lodged at different times but against the same judgment or decision delivered at the High Court of Kebbi State sitting in Yelwa – Yauri Judicial Division on the 14th December, 2016 vide suit or charge No. KB/YR/HC/BC/2016.
The Appellant, Mikailu Bala and 2 others had been convicted and were sentenced to terms of imprisonment for the offence of Criminal Conspiracy and Armed Robbery, offences, contrary to the Section 6(b) and 1(2)(a) respectively, of the Robbery and Firearms (Special Provisions) Act Cap. 398 LFN, 1990. He was however discharged on the 3rd Count under Section 6(a) of the same law.
The appellant’s initial Notice of Appeal containing only the Omnibus Ground of Appeal was filed on the 14th March, 2017. The appellant further filed an amended Notice of Appeal. However, the extant Notice of appeal is the further Amended Notice of Appeal filed on the 13th October, 2020 with the leave of this Court but same was deemed filed on the 10th November, 2020. By the said further Amended Notice, the appellant has appealed to this Court on five (5) Grounds as specified therein.
For the avoidance of doubt the five grounds of appeal, shorn of the particulars are reproduced hereunder namely:
Ground 1
The judgment of the trial Court is unreasonable unwarranted and cannot be supported having regard to the weight of evidence
Ground 2
The learned trial Judge erred in law when he held thus: – “I found the statement to have been made voluntarily by the accused parson, at the conclusion of the trial within trial. The statements by each of the accused persons was positive, direct and consistent and I regard it as evidence of the highest test and most satisfactory particularly with the independent proof in the testimonies of PW 2 and PW 3 that a criminal act was committed against them in a similar manner described by the accused persons in their statements” and thereby occasioned a miscarriage of justice against the Appellant.
Ground 3
The learned trial Judge erred in law when he held thus: – “In the whole, I overrule the objection that the statements of the accused persons at the State C.I.D Birnin Kebbi were procured as a result of force, the statements of 1st, 2nd and 3rd accused persons in Hausa at the C.I.D Birnin Kebbi and the English translation are hereby admitted as exhibits B, B1, C and C1 to and D1 respectively, and thereby caused a miscarriage of justice against the Appellant
Ground 4
The learned trial Judge erred in law when he held that: “It will therefore be seen especially each of the 1st, 2nd, and 3rd accused persons individually participated in the conspiracy to rob Alh. Kasimu Baban Rami (PW2) at his house in Karamar Damba, village. I am therefore satisfied that the prosecution proved the change against 1st, 2nd and 3rd accused persons beyond reasonable doubt”.
Ground 5
The learned trial Judge erred in law when he held that: “In the circumstance and on the authority of the cases cited above, I found the testimonies of the 1st, 2nd and 3rd accused persons as DW1, DW2 and DW3 respectively unreliable and therefore ignored. I am satisfied that the prosecution has proved the 1st, 2nd and 3rd accused persons beyond reasonable doubt. In the result, I find the 1st, 2nd and 3rd accused persons guilty of the offence of Criminal Conspiracy to commit armed robbery and firearms (special provisions) Act Cap 398 LFN 1990 and convict each as charged and this has occasioned a miscarriage of justice to the Appellant.”
The main record of appeal and the additional record have both been transmitted to this Court. In the like manner, brief of argument have been filed and exchanged with respect to the appeal and the Cross-Appeal. However, the extant briefs of argument relied upon and adopted at the hearing by counsel with regard to the appeal are:-
(1) Appellant’s Amended Brief of Argument filed on the 15th July, 2021 but deemed filed on the 20th September, 2021.
(2) The Respondent’s Amended Brief Argument filed on the 10th January, 2022 and deemed on the 17th January, 2022.
(3) Appellant’s Reply Brief of argument filed on 8th February, 2022 in response to the Amended Respondent’s Brief of Argument.
The Appellant has formulated two (2) issues in his Amended Brief of Argument at paragraph 3.1, page 3 of the brief thus:
1. Whether the learned trial Judge was right to have admitted and ascribed probative value on Exhibits D and D1 (Confessional Statements) of the Appellants in law? (Distilled from grounds 1, 2 and 3 of the further Amended Notice of Appeal).
2. Whether from the evidence adduced and evaluated by the trial Court, the Respondent has proved its case against the Appellant beyond reasonable doubt to warrant conviction? (Distilled from grounds 1, 4, 5 of the further amended Notice of Appeal.)
As can be seen from the two issues formulated in the appellant’s brief of argument, there is a proliferation of issues with regard to ground 1 of the further amended Notice of Appeal from which issues No. 1 and 2 were purportedly derived or distilled.
Proliferation of issues arise when the number of issues formulated outnumbers the number of grounds of appeal. In the case of Okwuagbala vs. Ikwuleme (2010) 19 NWLR (pt. 1226) 54, Onnoghen JSC put the concept this way when he held that:
“It is settled law that though a counsel can formulate an issue out of a ground of appeal, he is not allowed to formulate two or more issues out of a ground of appeal and that where more than one issue is formulated out of a ground of appeal, the issues are incompetent. It is known as the rule or principle against proliferation of issues in an appeal.”
Counsel formulating issues for determination arising from grounds of appeal must avoid prolixity and keep closely within the confines of the grounds of appeal relied on. It is not only undesirable but also confusing to split a ground of appeal into more than one issue.
As I have indicated before, the appellant has formulated two (2) issues from ground one (1) of the further amended notice of appeal. This is wrong. However, the Court has the right to modify the issues in the interest of Justice as clearly illustrated in the case of Uko vs. Mbaba (2001) 4 NWLR (pt. 704) 460. Issue No. 1 is in my view, superfluous as it relates to ground 1 in the further amended notice of appeal and I choose to ignore same in relation to that ground of appeal but shall consider issue 1 in relation to grounds 2 and 3 of further amended grounds of appeal.
The Respondent has adopted the two issues formulated by the appellant as per their paragraph 3.1 in the Respondent’s brief of argument.
Counsel’s Submissions
Learned Counsel for the Appellant in arguing Issue No. 1 has submitted that Exhibits D-D1 were not admissible evidence as those documents do not meet with the requirements of a valid confessional statement under Section 27 of the Evidence Act which can be ascribed to the appellant as his voluntary confessional statement.
It is further argued that since PW4 through whom the document was tendered and admitted was not the maker of Exhibits D-D1, the same could not have been tendered and admitted through him hence, the trial Court wrongly admitted the said Exhibits D-D1 through PW4. He referred us to Section 83 of the Evidence Act. He argued that it is the person who took the statement and additionally interpreted or translated the statement recorded in Hausa to English that should be called upon to tender those documents. He argued stating that it is Sgt. Cyril Goma, the recorder and the interpreter of the Statement written or recorded in Hausa that ought to be called to tender those documents. Relying therefore on the decision in Obinna Oshuaha vs. State (2010) 16 NWLR (pt. 1219) 364, 371 he submitted that Exhibits D-D1 was admitted through PW4 and acted upon by the trial Court, was documentary hearsay in that PW 4 was not in a position to give oral evidence on the contents of Exhibits D-D1. He argued further and submitted that there was no reason given why the maker of Exhibit D-D1 was not called to tender those documents. It is further argued that so far as the maker of Exhibits D-D1 was not dead, he ought to have been called to testify. He relied on the case of Saidu vs. Attorney General Lagos State (1986) 2 NWLR (pt. 21) 156, 167; Kayili vs. Yilbuk (2015) 7 NWLR (pt. 1457) 26, 70-91.
Contrary to the evidence of PW4, it is submitted that he (PW4) was not the maker of exhibit D–D1, in reference to the evidence of Cyril Goma in his testimony as a witness in the trial within Trial (TWT). It is further argued that, Cyril Goma and not P.W 4 was, who wrote Exhibits D–D1. We were also urged to look at the contradictory nature of the evidence of PW4. That whereas PW4 said he was the maker of Exhibits D–D1, in another breath he admitted that it was Cyril Goma and not himself who recorded Exhibits D–D1. In the light of all those, it is submitted that the trial Court was in error to admit and to act on Exhibits D–D1. We were urged to expunge Exhibits D–D1 from the record as evidence improperly admitted and acted upon to convict the appellant. In those circumstances, it was argued, that this Court can reverse the decision of the trial Court. On this point, we were referred to Archibong V. State (2006) LPELR 537 (SC).
With respect to issue No. 2, it was argued that the Respondent has not proved its case by the standard of proof beyond reasonable doubt. It is further argued that the trial Court relied on the evidence of P.W. 2 and PW 3 as well as Exhibit D–D1 to convict the appellant whereas the evidence of the P.W. 2 did not implicate the appellant. That the appellant was never identified by the P.W. 2 hence the evidence of PW 2 in relation to the appellant was hearsay. He cited Ari Vs. the State (2009) 6 NWLR (Pt. 1168) 457–458. It is further argued by him that the evidence of PW3 did not also implicate the appellant rather evidence of PW3 relate to the 1st accused person, i.e. (Sagir Muhammed) hence, the offence over which the appellant was convicted was not proven against him in that the evidence of P.W. 2 and P.W. 3 being merely hearsay evidence as it relates to the appellant. He cited the case of Musa Ikara vs. State (2013) 8 NCC 252, Omoyele v. State (2014) 3 NWLR (pt. 1394) 333.
On the evidence of PW4 and Exhibits D-D1, it is argued that the witness contradicted himself. Whereas at one breath he admitted that he recorded Exhibits D-D1 at another breath he said Exhibits D-D1 was recorded by the Cyril Goma. He argued that this contradiction in the evidence of PW4 cannot be overlooked or swept under the carpet as the trial Court did. It is the view of the learned appellant’s counsel that the Prosecution has not established his case beyond reasonable doubt to warrant the conviction of the appellant.
On the issue of conspiracy, it is argued that the conviction of the appellant on the charge of Criminal Conspiracy was based on Exhibits D and D1, a document which was tendered, not by the maker, but by PW4. We were urged to allow this appeal and quash the decision of the trial Court.
As indicated before, the Respondent in his Amended Respondent Brief of Argument at page 4 has adopted the two (2) issues formulated by the appellant in his brief but went ahead to add a 3rd issue i.e. Whether considering the provisions of Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act 1990, the Hon. trial Judge was right to have sentenced the Respondent to 12 years imprisonment? (Distilled from grounds 1 and 2 of the Notice of Cross-Appeal)?
As can be seen from that supposed third issue identified by the Respondent, this (third) issue was formulated out of grounds 1 and 2 in the Notice of Cross Appeal and not out of the grounds in the Notice of Appeal. It is wrong to merge issues arising from the Notice and Grounds of Main Appeal with issues arising from the Notice and Grounds of Cross-Appeal and argue them together in the same brief of argument.
A cross-appeal of the Respondent is an independent process distinct and separate from the main appeal. A cross-appeal is not dependent on the main appeal being filed first. The respondent in whose favour the judgment has been given or entered can nonetheless appeal against that judgment and in doing so he files his Notice of Cross-Appeal against those aspects of the judgment he did not find favour with. As indicated before, he does that as the cross-appellant. All the principles or rules which apply to Notice of appeals equally apply to cross-appeals as for instance, the cross-appellant is required to file his Notice and grounds of cross-appeal within the statutory time set for the filing of that cross-appeal unless the Court has granted him an extension of time to do the needful where he was already out of time. He is also expected to compile the Record of Cross-Appeal and transmit same to the appellate Court within regulation time except in cases where the time to transmit same had been extended by Court at his request and the Court had granted him leave to make use of the record compiled and transmitted for the hearing of the appeal, to be used for the hearing of the cross-appeal as well.
He must file a separate brief of argument to reflect the cross-appeal wherein issues the cross-appellant was expected to canvass at the hearing shall be identified as such in that brief of argument.
It is irregular and definitely not the correct procedure to wrap up such issues together with issues identified for hearing in the main appeal. Having said that as much I think I should overlook and ignore the Respondent’s issues No. 3 which he has added to the two (2) issues proposed by the appellant in his brief of argument. Rather the said issue No. 3 can be addressed as the only issue identified by them for consideration in the cross-appeal, to which I shall revert shor0tly.
In the meantime, I shall give the summary of the submissions made by counsel to the respondent relative to issues 1 and 2 in the appellant’s brief of argument. With regard to issue No. 1, learned respondent’s counsel submitted that Exhibits D-D1 was properly tendered and admitted through PW4 even though he was not the recorder of the statements in Exhibits D-D1. The argument is that since PW4, Cpl Nuruddeen Bashir was a member of the team in which Sgt. Cyril Goma, the recorder of the statements, was also a member, those documents i.e. Exhibits D-D1 can be tendered and admitted through PW4 and the trial Court was just right in admitting those documents in evidence through him. He relied on the decision in Matthew vs. The State (2015) LPELR–24 270 (CA).
He argued in any case stating that the appellant or his counsel did not object to Exhibits D-D1 being tendered on account of PW4 not being the maker. He argued that the bone of contention in the objection to Exhibits D-D1 being admitted at the trial Court, was on the ground that the same document was obtained under duress. It is argued for the respondent that given the provision of Section 83(2)(a) of the Evidence Act, Exhibits D-D1 were properly admitted through PW4.
Section 83(2)(a) of the Evidence Act relied on by the Respondent provide thus:
“In any proceeding, the Court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in Subsection (1) of this Section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence notwithstanding that
(a) The maker of the statement is available but is not called as a witness; and
(b) The original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the Court may approve, as the case may be.”
It is very clear to me that Section 83(2)(a) of the Evidence Act will be invoked to save the proceedings from being unduly delayed by the absence of the maker or the recorder of the statement sought to be tendered. However, it is incumbent on the person relying on this provision to lay some proper foundation for the admissibility of a document under Section 83(2)(a) of the Evidence Act.
In the instant case, the question to ask is what is the delay that is envisaged if the document was not admitted through the person other than the maker? It is my view that no such foundation has been laid in this case to warrant Exhibits D-D1 being tendered and admitted through PW4. In any case, the recorder of Exhibits D-D1 was called to give evidence in the trial within trial. Can it then be said that his absence will occasion some delay in the proceedings if the document was not tendered and admitted through PW4 as they did? This question must be answered in the negative. Indeed Section 83(2)(a) of Evidence Act cannot avail the respondent. The general rule is that a document such as Exhibits D-D1 must be tendered and admitted through the recorder, in this case Exhibits D-D1 ought to have been tendered and admitted through Cyril Goma who was not only the recorder of the statement, he was the interpreter who translated the statement from Hausa to English. The importance of calling the evidence of the recorder of a statement who also double as the interpreter or translator cannot be wished away with the wave of the hand. It has been held in Olalekan vs. State (2001) LPELR–2561 (SC) that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it was called as a witness as well as the person who wrote it down. See further R. vs. Ogburewu (1949) 12 WACA 483. The necessity of the interpreter confirming the statement and therefore rendering it admissible was stated in R. vs. Gidado 6 WACA 60, 62. Looking at Exhibits D-D1, it is clear ex facie that the recorder and the interpreter of those statements or documents is in the person of Cyril Goma. Exhibits D-D1 was not tendered through him but through PW4, to render the documents as documentary hearsay. See Subramanian vs. Prosecutor (1965) 1 WLR 965, The State vs. Ogbolu (1972) ECSLR 438; Akingboye vs. Salisu (1999) 7 NWLR (pt. 611) 434. Exhibits D-D1 was ascribed to the appellant as his confessional statement. The trial Court in its judgment relied and acted heavily on Exhibits D-D1 to convict and sentence the Appellant to terms of imprisonment. However, Exhibits D-D1 being inadmissible documents as earlier stated, shall be expunged from the record. In effect, issue No. 1 is resolved in favour of the appellant and against the respondent and this now leads me into Issue No. 2 which state thus:
“Whether from the evidence adduced and evaluated by the trial Court, the respondent has proved its case against the Appellant beyond reasonable doubt to warrant conviction?”
The prosecution in the bid to prove his case can rely on any of the three methods or a combination of any of them to prove his case, namely:
1. Proof by reliance on the Confessional Statement of the accused person.
2. Proof by direct eye witness account of the incident, and
3. Proof by circumstantial evidence.
See: Oka vs. The State (1975) 9-11 SC 17; Emeka vs. The State (2001) FWLR (pt. 66) 682.
By whatever method employed by the prosecution to prove his case, he must ensure that he satisfied the statutory requirements of proof by a standard of proof be0yond reasonable doubt.
Given my earlier discourse in this matter, relative to statement ascribed to the Appellant, Exhibits D-D1 is out of the question, those documents having been tendered and admitted through the person (PW4) other than the person who recorded those statement and translated same. The trial Court ought not to act on them given Section 83(2)(a) of the Evidence Act. There is however the evidence adduced by the prosecution through PW1, PW2, PW3 PW4 and PW5. Of the five (5) witnesses called by the prosecution, it is PW2 and PW3 who appeared to have given eye witness account of the incident at the scene of crime. They gave eye witness account of the incident at the Locus Criminis. The evidence of PW2 and PW3 is at pages 28-29 of the record of appeal. From a combination of the evidence of PW2 and PW3 in chief, it can be seen that they were attacked by men whom they identified or recognised on that fateful occasion. The attackers were armed with guns and knives and they threatened to kill them should they refuse to release money to them. For fear of his life, PW2 released to his attackers, the sum of N150,000.000. PW3 was forced to part with her handset. Both PW2 and PW3 recognised their attackers, one of whom is by name called Sagir; the 1st accused person, who held on to a knife. The 2nd and 3rd accused (the appellant herein) both carried guns.
According to PW2 and PW3, the assailants were not masked and so they recognised them. In any case, there *was brightness in the rooms as the rooms were lighted with lantern at that material time and so they said they had no difficulty in recognising the appellant and his cohorts. Issue of recognition or identification of accused persons means a whole series of facts and circumstances for which a witness associate an accused person with the commission of the offence charged. It may consist of or include evidence in the form of finger prints, handwriting, voice, identification parade, photographs identity, of the recollection of the features of the culprit by a witness who saw him in the act of the commission of the crime or a combination of two or more of these. Identification evidence is that evidence which tend to show that the person charged is the same as the person who was seen committing the offence. The question whether the accused was properly identified or not is a question of fact to be resolved by the Court. See Mohammed Vs. the State (2013) LPELR 22352 (CA). Thomas Vs. the State (2017) LPELR 41735(SC).
Given the evidence of PW 2 and PW 3 on the description of the roles played by each accused person in the house of PW 2, including the appellant, on the day of the incident, PW 2 and PW 3 cannot be mistaken over the identity of the appellant.
The offences in which the appellant and his co-accused were arraigned and charged under counts 1 and 2 are: –
1) Criminal conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provision) Act, Cap. 398 LFN 1990.
2) Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, 1990.
*****
Therefore, going by the evidence of PW 2 and PW 3 on record, I have no difficulty in coming to the conclusion that:
1) Both PW 2 and PW 3 recognised or identified their attackers at the scene of crime.
2) The appellant and his cohorts acted in concert when they attacked PW 2 and PW 3. There was thus, an agreement or understanding between them, to carry out an illegal act which they executed to their plan.
3) In carrying out the attack, the appellant and his cohorts were armed with dangerous weapons, to wit, knife, and guns.
The evidence of PW 2 and PW 3 indicate that both of them parted with some valuables to the assailants (appellant) out of fear or threat for new their lives. Their evidence have not been contradicted or whittled down by cross-examination by the appellant, hence same is admissible evidence which can be acted upon as indicative of the fact that the prosecution has proved a case of criminal conspiracy and Armed Robbery against the appellant. See Ikemson V. State (1989)2 NWLR (P.t.110)455, 477. The trial Judge made findings to that effect in his judgment relative to the evidence of PW 2 and PW 3. See pages 55-56 of the record of appeal. I am therefore of the opinion that the accused persons including the appellant herein can be convicted of the offence of Criminal Conspiracy and armed robbery based on the evidence of PW 2 and PW 3 and the trial Court rightly convicted the appellant based on those evidence.
Although issue No. 1 in the appellant’s brief of argument was resolved in his favour, his appeal nonetheless should fail based on issue No. 2 resolved in favour of the respondent and against the appellant. This appeal is dismissed hence the conviction of the appellant at the trial Court is affirmed. However, Exhibits D-D1 admitted and acted upon by the trial Court are hereby expunged from the record of judgment of the Court below.
The respondent filed a Cross–appeal by reason of the Notice of Cross–appeal filed on the 6th December, 2018. The Cross–appeal of the respondent is on two (2) grounds namely: –
Ground 1
The Honorable Judge of the lower Court erred in law when he convicted the respondent under Section 6(b) and 1(2)(A) of the Robbery and firearms (Special provision) Act Cap. 398 LFN, 1990 (as amended) but sentenced him to 10 and 12 years term of imprisonment.
Ground 2
“The Honourable Judge of the lower Court erred in law when on conviction of the respondent passed a sentence far less than the minimum sentence fixed by law.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Grounds 1 and 2 reproduced above are without their particulars.
By the said Grounds of Cross appeal, the cross-appellant has appealed to this Court on the issue of sentencing of the Appellant/Cross-respondent.
The Cross-appellant has formulated just one (1) issue but which he describes it as issue No. 3 in his brief of argument at paragraph 3.1 at page 4 D of the Respondent/Cross-appellant’s brief. The issue read thus: –
“Whether considering the provisions of Section 1(2) (a) of the Robbery and Firearms (Special provisions) Act, 1990 the Hon. trial Judge was right to have sentenced the Respondent to 12 years imprisonment (Distilled from Grounds 1 and 2 of the grounds of Cross-appeal).”
I have said it before and I can reiterate it that a Cross-Appeal must be treated as an independent appeal, having its own separate brief of argument by which issues peculiar to the cross-appeal are addressed in the cross-appellant’s brief of argument. There is thus, no place for the cross-appellant to argue issues meant for address at the hearing of the cross-appeal, in the appellant’s or respondent’s brief of argument.
One of the duties which the appellant must observe as done, is to ensure that the record of appeal is transmitted to the appellate Court in the pursuit of that appeal vide Order 8 Rules 1, 2 and 3 of the Court of Appeal Rules, 2021. The cross-appellant is obliged to do the same. He must ensure that the record of Cross-Appeal is transmitted to the appellate Court for the purpose hearing of the Cross-Appeal unless he has leave of the appellate Court to make use of the record of appeal already transmitted in connection with the hearing of the appeal.
The record of cross-appeal is strictly speaking not before us but our attention has been drawn to the order of Court granting the cross-appellant leave to utilize the record of appeal in the hearing of the Cross-Appeal vide the supplementary record of appeal transmitted on the 11th January, 2022 to this Court and deemed on 17th January, 2022.
The grouse of the cross-appellant in the cross-appeal is the failure or refusal of the Court below to pronounce the appropriate sentence on the appellant who was convicted on the two count charge of Criminal Conspiracy and Armed Robbery under Section 6(b) and Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, 1990.
It has been argued for the cross-appellant that it is wrong for the trial Judge to so sentence the appellant to 10 years imprisonment for Criminal Conspiracy and 12 years term of imprisonment for Armed Robbery given the mandatory stipulation of the sentence vide those provisions. In reference to the decision in Joseph Amoshima vs. State (2011) LPELR 283/2009 (SC), he argued that the trial Court was under a duty to impose the mandatory sentence as the statute provides and that the trial Judge has no jurisdiction to do otherwise or pronounce any less sentence. He has urged on this Court to pronounce death sentence on the appellant in line with the provisions of the Act already referred to and set aside the sentences imposed by the trial Court on the Appellant.
In response to those submissions, the Cross-Respondent in his brief of argument filed on 9th February, 2022 has argued that the sentence imposed on the cross-appellant was borne out of the inherent discretion of the trial Court and he cited the decision in Tanko vs. State (2009) 4 NWLR (pt. 1131) 430, 457; Amoshima vs. State (2011) 14 NWLR (pt. 1268) 530, 554, Musa vs. State (2012) 13 NWLR, (pt. 1286) 59, 95. We were urged not to interfere with the sentence imposed on the cross-respondent but affirm it.
The trial Court in its judgment convicted the appellant for the two-count charge of Criminal Conspiracy and armed robbery under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. Section 1(1)(2)(a)(b) of the Act provides:
“1(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years. (2) if (a) any offender mentioned in Subsection (1) of this Section is armed with firearms or any offensive weapon or is in company with any person so armed; or (b) at or immediately before the said offender wounds or uses any personal violence to any person; the offender shall be liable upon conviction under this Act to be sentence to death.”
The wordings of the statute are very clear and it requires no further elucidation other than for the Court to apply those provisions as they are by according literal interpretation to them to arrive at a purposeful conclusion. While the exercise of discretion by the Courts cannot be circumscribed under whatever guise, the trial Court in the purported exercise of its discretion cannot impose sentence which is below the sentence prescribed by the relevant statute especially where the sentence is a mandatory sentence of death. This cannot be circumscribed by the trial Court. The Court would have in the circumstance, rewritten the law. It is not within the province of the Courts to make laws. The duty to make laws is exclusively reserved for the legislature to handle in accordance with the principle of separation of powers between the Legislature, the Executive and the Judiciary as enshrined at Sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The duty of the Courts is to interpret the laws which the legislature has enacted. On this, I refer to the decision in His Highness Lamidi Olayiwola Adeyemi (Alafin of Oyo) vs. Attorney General of Oyo State (1984) LPELR – 169 (SC). By this doctrine, neither the Legislature nor the Executive nor the Judiciary can exercise in whole or in part the powers of the other. See further, Governor of Ekiti State vs. Olayemi (2014) LPELR – 23477 (CA) Buba Marwa & Ors. Vs. Murtala Nyako (2012) LPELR – 7837 (SC).
Reading the provision of the Robbery and Firearms (Special Provision) Act, the sentence which the trial Court ought to have imposed on the appellant/cross-respondent in the circumstance is a sentence of death in relation to charge or count Nos. 1 and 2 in the charge sheet and the trial Court was wrong to do otherwise. This cross-appeal in effect, succeeds and same is allowed hence, sentence of death which ought to have been imposed on the appellant/cross respondent under Counts 1 and 2 in the charge sheet is hereby entered and the appellant is accordingly so sentenced in respect of each of the two counts. That is the judgment and order. The Cross appeal succeeds and same is allowed.
Ordered accordingly.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now, the leading judgment of my learned brother, Hussaini, JCA. I agree that this appeal is devoid of any merit. I also agree that the cross-appeal of the State has a considerable merit. In adopting the reasoning and conclusion of my learned brother on the cross-appeal, I wish to add that this Court has on a number of occasions emphasized that where a statute prescribes a mandatory sentence in clear terms the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the matter. The sentence must be pronounced without any reservation. It is a duty imposed by law. In the instant cross-appeal, in view of the latter part of the provisions of Section 1 (1) (b) of the Armed Robbery and Firearms (Special Provisions) Act (supra), it was wrong for the lower Court, after finding the Appellant guilty as charged for the offence of armed robbery, to proceed to sentence him 12 to years imprisonment.
The correct judgment is to substitute the 12 years imprisonment imposed by the learned trial Judge with the sentence of death as mandatorily prescribed by Section 1 (1) (b)(supra). See the recent decisions of this Court in THE STATE V. ABDULLAHI ALI (2020) LPLER-50039 (CA) per Sankey JCA at pages 59-61 B-E and ALIYU BASHIR V. KANO STATE (2016) LPELR-41561 (CA) per Abba Aji, JCA (as she then was) at pages 22 – 23 D – E.
For all the other reasons ably adumbrated by my learned brother on the cross-appeal, I too dismiss the appeal and allow the cross-appeal.
MOHAMMED DANJUMA, J.C.A.: I have read in draft, the lead judgment just delivered by my learned brother Saidu Tanko Hussaini JCA. I agree with the reasoning and conclusion that the cross-appeal succeeds and it is hereby allowed. I abide by all the consequential orders in the lead judgment.
Appearances:
Y. S. Bawa, Esq, with him, A. I. Wasagu, Esq., For Appellant(s)
Lawal Hudu Garba, Esq, (DDPP), with him, Shamsudeen Ja’afar, Esq., (ADPP) For Respondent(s)