BELLO v. STATE
(2022)LCN/16016(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, March 09, 2022
CA/YL/109C/2021
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
MUAZU BELLO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
PROVING THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT
He argued that there are lots of doubt which were not cleared by the Respondent in attempting to establish the guilt of the Appellant. The law is that all doubts must be resolved in favour of the accused person. See the case of ONWE V. STATE (2017) LPELR – 42589 (SC) thus:-
“The failure of the Respondent to prove the guilt of the accused person beyond reasonable doubt earns the accused an order of discharge and acquittal. See AMEH V. THE STATE (supra), JUA V. THE STATE (2010) 4 NWLR (Pt. 1184) 217 SC – Per EJEMBI EKO JSC (PP. 53 Paras D – E)”. MUHAMMED LAWAL ABUBAKAR, J.C.A.
THE DEFINITION OF CONFESSION AND CONVICTING AN ACCUSED SOLELY ON HIS CONFESSIONAL STATEMENT
A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. The law gives the Court the license to convict an accused person, such as the Appellant, solely in his confessional statement. See UTTO V. STATE (2022) NWLR ((Pt. 1814) pages 309 – 402 Ratio 6, DIKE V. STATE (2022) NWLR (Pt. 1813) pages 1 – 52. AGAGUA V. STATE (2017) 10 NWLR (Pt. 1573) 254.
It is settled that to sustain conviction, a judicial or extra-judicial confession must be free, voluntary, direct and positive, and not circumstantial. Further, the Court has to believe it is the truth. See UTTO V. STATE (Supra) page 389, paras D – E. See also Section 28 of the Evidence Act, 2011 for the meaning and nature of confession. MUHAMMED LAWAL ABUBAKAR, J.C.A.
THE TREATMENT AND EVALUATION OF EVIDENCE OF CONFESSION AL STATEMENT REDUCES THE BURDEN OF INVESTIGATION OF THE POLICE AND THE TRIAL COURT
On the treatment and evaluation of confession statement, the Apex Court held that “it makes the work of the police and trial Court easy as it reduces the burden of investigation and evaluation of evidence. But great caution shall be exercised in ascertaining whether or not the extra judicial statement of an accused person constitutes a confession especially where grievous offences are involved.” See UTTO V. THE STATE (Supra) Ratio 6 P. 392 Paras. A – C. MUHAMMED LAWAL ABUBAKAR, J.C.A.
THE PROOF BEYOND REASONABLE DOUBT IS NOT PROOF BEYOND ALL DOUBT BUT ESTABLISHING THE GUILT OF THE ACCUSED
The Apex Court has held times without number that proof beyond reasonable doubt doesn’t mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See the case of DIKE V. THE STATE (2022) NWLR (Pt. 1813) page 369, OKONJI V. STATE (1987) 1 NWLR (Pt. 52) 659. It is settled law that the ingredient for the offence of Armed Robbery, which the prosecution must prove beyond reasonable doubt is that there was a robbery or series of armed robberies, each robbery was an armed robbery and the accused person was one of those who robbed or took part in the armed robbery. See the case of UTTO V. STATE (2022) NWLR (Pt. 1814) pages 369 – 403, DIKE V. THE STATE (2022) NWLR (Pt. 1813), MOHAMMED V. STATE (2019) LPELR – 46420 (SC). MUHAMMED LAWAL ABUBAKAR, J.C.A.
THE PRINCIPLE OF HEARSAY EVIDENCE IN REFERENCE TO THE EVIDENCE OF A POLICE INVESTIGATING OFFICER
I also wish to add that the evidence of a police Investigating Officer cannot therefore be rightly tagged as hearsay. The Respondent’s witnesses such as the PW1, PW2 and PW3 gave direct information or evidence as what they saw, discovered and/or recovered from the Appellant Exhibits B1 – B4. The evidence gathered from these witnesses was direct and positive. See, KAMILA VS. STATE (2018) LPELR – 43603 (SC) PP. 22 – 23, PARAS. D – A and in OLAOYE VS. STATE (2018) LPELR – 43601 (SC) PP. 42 – 43, PARAS. D – A, his lordship Peter – Odili, JSC in stating the position of the law held thus:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but, from him since the Court has to know the synopsis of his investigative journey, it is direct evidence. See OBOT VS. STATE (2014) LPELR – 23130 (CA).” CHIDI NWAOMA UWA, J.C.A.
MUHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State per Hon. Justice Josephine Y. Tuktur which was delivered on 1st March, 2016 in Suit No. TRSJ/25C/2013 wherein the Appellant was convicted for the offence of Armed Robbery punishable under Section 298(c) of the Penal Code. The Appellant being dissatisfied with the judgment of the lower Court lodged this appeal via a Notice of Appeal as contained at pages 82 – 92 of the Record of appeal where 8 grounds of Appeal were raised for determination of this appeal.
During the hearing of this appeal on 01/02/2022, learned counsel to the Appellant adopted the Appellant’s Brief of Argument filed on 22/09/2021 as representing his argument for the appeal. Upon receipt of the Respondent’s Brief of Argument the Counsel also filed Appellant’s Reply Brief of Argument in response to the Respondent’s Brief of Argument on 19/11/2021.
In the Appellant’s Brief of Argument, the learned counsel for the Appellant formulated 3 issues for determination as follows:-
1. Whether the trial Court was right in convicting the Appellant for the offence of Armed Robbery, solely on the purported confessional statement of the Appellant. (Distilled from grounds 1 and 2 of the Notice and Grounds of Appeal).
2. Whether the Respondent was able to prove beyond reasonable doubt that the Appellant committed the alleged armed robbery for which he was convicted by the trial Court. (Distilled from grounds 3, 4, 5 and 6 of the Notice and Grounds of Appeal).
3. Whether the Respondent was able to prove its case without calling eye-witnesses to testify at the trial. (Distilled from Grounds 7 and 8 of the Notice and Grounds of Appeal).
The learned Respondent’s Counsel in his Brief of Argument formulated a sole issue for determination by this Court as follows:-
“Whether the prosecution has discharged the onus of proof placed on it as required by law.” (Distilled from Grounds 1 – 8 of the Appellant’s grounds of Appeal).
It is noted by this Court that the above mentioned issues for determination formulated by the learned counsel to both Appellant and the Respondent are identical in substances as they raised the issue of burden of proof by the prosecution. Consequently, I merged all the issues raised by the Appellant and the Respondent and reframed them in a sole issue for determination as follows:-
“Whether from the totality of the evidence adduced in Court, the Appellant ought to be found guilty of offence charged against him”.
The learned counsel to the Appellant in his Brief of Argument submit that the Appellant allegedly made two extra-judicial statements which were tendered before the trial Court and admitted as Exhibits A and A1 contained in pages 10 and 14 of the Records of Appeal. The Appellant denied making the statements but the trial Court went ahead and convicted the Appellant with no convincing corroborative evidence adduced by the Respondent to establish that the Appellant carried out the robbery. An accused person can be convicted on his confessional statement but the laws required corroborative evidence such as that of the eye-witnesses to determine the truthfulness or otherwise of such statement. He cited the case of OKPAKO V. STATE (2018) LPELR – 43875 (SC), EFFIONG V. STATE (2016) LPELR – 40124 CA.
The Counsel further submits that it is the law that the Court must take proper assessment of a confessional statement in relation to other evidence before it, as it is not enough to convict solely on a confessional statement of an accused person especially a retracted confessional statement as in the instant Appeal. The Appellant’s retraction of his confessional statement should have been a catalyst to activating the mind of the learned trial Judge to danger inherent in convicting the Appellant solely on such statement. The only real testimony before the trial Court is the testimony of DW1 which contradicted the contents of Exhibits A and A1.
Secondly, the counsel submit that prosecution failed to link the Appellant with the commission of the alleged robbery as no victims of the robbery nor eye-witnesses were produced at the trial Court which means there was no conclusive evidence before the trial Court that a robbery occurred in the first place. The Appellant was not arrested at the scene of the crime and the eye-witnesses of the alleged crime who could have positively identified the Appellant were not called during the trial to establish his guilt. The Counsel added that Exhibits B1, 2, 3 and 4 referred to at page 29 of the Record of Appeal were not recovered from the Appellant and the persons who recovered the said Exhibits did not testify nor cross examined to ascertain the veracity of the claims.
From the fact of this case, it is clear that the PW1 – PW2 did not visit the locus criminis which means there was no proper investigation to prove the identity of the Appellant and the elements of the alleged crime as complete reliance was placed on the conclusions of the vigilante group. This reliance on the vigilante group amount to hearsay. PW1 – PW3 gave testimony at the trial Court about what was told to them and not fact that was acquired from visiting the locus criminis or as a result of investigation.
The Counsel submits further it is the law that hearsay evidence is the testimony by a witness of what others have said and not what he or she knew personally and such evidence is inadmissible. He cited the case of ITODO V. STATE (2019) LPELR – 49069 (SC), SAMA’ILA V. STATE (2021) LPELR – 53084 (SC).
He argued that there are lots of doubt which were not cleared by the Respondent in attempting to establish the guilt of the Appellant. The law is that all doubts must be resolved in favour of the accused person. See the case of ONWE V. STATE (2017) LPELR – 42589 (SC) thus:-
“The failure of the Respondent to prove the guilt of the accused person beyond reasonable doubt earns the accused an order of discharge and acquittal. See AMEH V. THE STATE (supra), JUA V. THE STATE (2010) 4 NWLR (Pt. 1184) 217 SC – Per EJEMBI EKO JSC (PP. 53 Paras D – E)”.
The Counsel urged the Court to hold that the prosecution did not establish beyond reasonable doubt the person and identity of the Appellant in relation to the commission of the crime.
Thirdly, the learned Counsel to the Appellant submitted that the offence of Armed Robbery is a particular offence for which the Apex Court in the case of STATE V. ISAH (2012) LPELR SC listed vital witnesses the prosecution must call to establish the offence of armed robbery as follows:
(1) The victim of the Armed Robbery if still alive.
(2) The Police officer who arrested the accused persons.
(3) Evidence of circumstances in which the accused person was arrested.
(4) Eye witnesses or any witness who should give credible evidence of the armed robbery.
(5) If reliance is placed on circumstantial evidence, it must be compelling and lead to one conclusion and that is that the accused persons were responsible for the armed robbery.
The Counsel also cited the case of AKINLOLU V. STATE (2015) LPELR – 25986 (SC), AGU V. STATE (2017) LPELR – 41664 (SC) and submit that the testimony of eye witnesses is the best evidence and when available should always be relied upon in proving the commission of a crime.
The counsel argued that the prosecution at page 31 of the Record of Appeal informed the trial Court that he couldn’t locate the rest of his witnesses and consequently close his case. The counsel wondered why the Police failed to locate the witnesses and bring them to Court. He added that the trial Court erroneously held at page 64 of the Record of Appeal thus:-
“ … It should not be a condition that an eye witness and victim of the offence must be summoned as a witness before the Respondent will satisfy the law of proof beyond reasonable doubt”.
The Counsel urged this Court to uphold their argument and set aside the conviction for Armed Robbery as there was no evidence before the trial Court to sustain the allegation of armed robbery.
In reaction, the learned Counsel to the Respondent in his Respondent’s Brief of Argument submits the law is that in criminal trials, the burden of proof rests on the shoulders of the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 135(1) of the Evidence Act. But it does not mean proof beyond all iota of doubt. See OSENI V. STATE (2012) 208 LRCN 151 at 185.
The Counsel submits further that in discharging the burden of proof, the prosecution can competently do so through eye witness account of the crime, or the confessional statement of the accused person or by circumstantial evidence which irresistibly tied the accused person to the alleged crime. See OSENI V. STATE (Supra) at 185, OKIEMOTA V. STATE (2016) 260 LRCN 1 at pages 42 – 43.
The Counsel further submits that the law is that the requirement for the proof beyond reasonable doubt is not a function of the number of witnesses called by the prosecution. The evidence of one single witness if believed, is enough to ground conviction unless the offence with which an accused is charged is specifically required by law to be corroborated before conviction can lie, like offences of Forgery, evidence of a child etc. See the case of ADAMU V. STATE (2017) 265 LRCN 94 at 119.
The learned Counsel submits that in this case the Respondent called three (3) witnesses and tendered six (6) Exhibits i.e Exhibits ‘A’, A1, B1 to B4. Exhibits A and A1 are the extra-judicial statements of the Appellant from Bali Divisional Headquarters, Exhibit ‘B’ is the extra-judicial statement of the Appellant from the SARS Office, Jalingo. Exhibit ‘B1’ is the Kampala trouser and Jumpa, Exhibit ‘B2’ is a pair of Jeans trouser, Exhibit ‘B3’ is the T-shirt and Exhibit ‘B4’ is a single barrel locally made gun. The evidence of prosecution/Respondent’s witnesses can be found at pages 23 – 31 of the Record of Appeal. The Counsel referred this Court to the testimonies of PW1 – PW3.
The Counsel submits further that on the offence of Armed Robbery, it is the duty of the prosecution to establish the following ingredients, beyond reasonable doubt, to wit:-
(a) Theft by the accused person(s).
(b) The causing of hurt or wrongful restraint on the victim(s) by the accused person(s).
(c) That the act complained of were done in the process of committing the theft and or carrying away the property obtained by the theft.
(d) That the accused persons did the acts complained of voluntarily, and
(e) That the accused person(s) was/were armed with dangerous weapons while committing the offence in question. See the case of ABDULLAHI V. THE STATE (2008) 164 LRCN page 96 at 11 Ratio 5.
The learned Counsel referred this Court to the case of ADEKOYA V. THE STATE (2012) 209 LRCN page 125 at 130 to 131 Ratio 5 where the Supreme Court held that there are three (3) essential elements of the offence of armed robbery:-
(a) That there was a robbery.
(b) That it was an armed robbery.
(c) That the accused was the robber or one of the robbers.
All the above must be proved beyond reasonable doubt before a conviction is sustained. The Counsel referred to the evidence of PW1 – PW3 and all the Exhibits tendered and submit that all the ingredients of the offence were proved beyond reasonable doubt against the Appellant.
The Counsel cited Section 28 of the Evidence Act which defines confession and the case of OKANLAWON V. STATE (2015) 17 NWLR (Pt. 1489) and submit that a Court can convict an accused person solely on his confessional statement as there is no evidence stronger than the person’s own confession. He referred to Exhibits A and A1 which are the extra-judicial statement of the Appellant and submit that the trial Court was right in convicting the Appellant.
The Counsel submit further that the Appellant in his evidence in chief as DW1 merely retracted his extra-judicial statement. See page 33 of the Record of Appeal. It is settled law that mere retraction of a voluntary confessional statement by an accused person, as in this case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See OLAOYE V. STATE (2018) 282 LRCN 161 at 173 Ratio 11, DAWODU V. STATE (2000) 7 SC (Pt. 11) page 50.
The Counsel submits further that on the issue of eye witness, the law is that the prosecution can competently discharge the burden of proof placed on him through eye witness account of the crime or the confessional statement of the accused person or by circumstantial evidence. See OSENI V. THE STATE (Supra). The Counsel added that the prosecution has proved its case through the confessional statement of the Appellant and Exhibits B1 – B4 i.e the robbery items found in possession of the Appellant which provides corroboration.
On the issue raised by the Appellant’s Counsel that the evidence of PW1 to PW3 are hearsay evidence, the learned Counsel submit that the said testimonies cannot be hearsay as the PW1 – PW3 are Police officers who were the Investigating Police Officer (IPO) and Exhibit keeper respectively. It is trite law that the evidence of the IPO cannot be regarded as hearsay. See the case of OLAOYE V. THE STATE (Supra) at 70 Ratio 4 at 194.
The Counsel added that the case of ITODO V. STATE (Supra) cited by the Appellant’s counsel was cited out of context, as the witnesses, in that case, are not Police officers. He urged this Court to discountenance the submission of the Appellant and affirm the judgment of the lower Court. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
RESOLUTION
A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. The law gives the Court the license to convict an accused person, such as the Appellant, solely in his confessional statement. See UTTO V. STATE (2022) NWLR ((Pt. 1814) pages 309 – 402 Ratio 6, DIKE V. STATE (2022) NWLR (Pt. 1813) pages 1 – 52. AGAGUA V. STATE (2017) 10 NWLR (Pt. 1573) 254.
It is settled that to sustain conviction, a judicial or extra-judicial confession must be free, voluntary, direct and positive, and not circumstantial. Further, the Court has to believe it is the truth. See UTTO V. STATE (Supra) page 389, paras D – E. See also Section 28 of the Evidence Act, 2011 for the meaning and nature of confession.
On the treatment and evaluation of confession statement, the Apex Court held that “it makes the work of the police and trial Court easy as it reduces the burden of investigation and evaluation of evidence. But great caution shall be exercised in ascertaining whether or not the extra judicial statement of an accused person constitutes a confession especially where grievous offences are involved.” See UTTO V. THE STATE (Supra) Ratio 6 P. 392 Paras. A – C.
Now, Section 37 of the Evidence Act defines Hearsay as a statement:-
(a) Oral or written made otherwise than by a witness in a proceeding, or
(b) Contained or recorded in a book, document, or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Section 38 of the Evidence Act states as follows:
“Hearsay evidence is not admissible except as provided in this part or by or under any other provision of this or any other Act”.
The Apex Court has held times without number that proof beyond reasonable doubt doesn’t mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See the case of DIKE V. THE STATE (2022) NWLR (Pt. 1813) page 369, OKONJI V. STATE (1987) 1 NWLR (Pt. 52) 659. It is settled law that the ingredient for the offence of Armed Robbery, which the prosecution must prove beyond reasonable doubt is that there was a robbery or series of armed robberies, each robbery was an armed robbery and the accused person was one of those who robbed or took part in the armed robbery. See the case of UTTO V. STATE (2022) NWLR (Pt. 1814) pages 369 – 403, DIKE V. THE STATE (2022) NWLR (Pt. 1813), MOHAMMED V. STATE (2019) LPELR – 46420 (SC).
I have carefully perused the record of Appeal and found that the Respondent in proof of his case called three (3) witnesses i.e PW1, PW2 and PW3 who were the Police Investigating Officer (IPO) and Exhibit keeper. Six (6) Exhibits were also tendered i. e Exhibits A, A1 and B1 – B4 which were extra judicial statements of the Appellant, Campala trouser and Jumpa, pair of Jeans trouser, a T-shirt and single barrel locally made gun. See pages 23 – 31 of the Record of Appeal.
One of the grouse of the Appellant is that the trial Court convicted the Appellant solely on the purported confessional statement of the Appellant and that no eye witnesses testified at the trial.
It is noted that the Exhibits ‘A’ and A1 which are the confessional statements of the Appellant were tendered in evidence unchallenged by the Appellant’s Counsel. See pages 25 and 27 of the Record of Appeal. The Appellant’s Counsel failed to challenge the admissibility of the said statements on their voluntariness which would have made the trial Court to conduct a trial within trial to test the voluntariness of the statements. The Counsel only contended himself with objecting to the admissibility of the statement for the reason that the accused did not make the statements. The trial Court rightly overruled the objections on the ground that the statements are admissible in evidence but may only effect the weight of evidence attached to them at the end of the trial during evaluation of evidence for the prosecution.
Moreover, the Appellant in his defence admitted that he thumb print the said statements. See page 33 paragraph 5 of the Record of Appeal. The trial Court was satisfied of the truth of the confession when it held at page 76 paragraphs 5 to 10 of the Record of Appeal thus:-
“From the evidence before this Court, with all other facts disclosed from the Exhibits before this Court, I find and hold that the confessional statement of the accused person Exhibits ‘A’ and ‘A1’ is voluntarily made by the accused person. It is direct, positive, cogent and consistent with other facts. In the instant case, …were produced before the Court and tendered without any objection …”
I hold that the findings of the trial cannot be faulted. I agree with the Respondent’s Counsel that the said confessional statements corroborated the evidence of PW1 and PW2.
I agree with the submissions of the Respondent counsel that in proving the guilt of an accused person, the prosecution doesn’t need to call a host of witnesses. The evidence of one single witness if believed, is enough to ground conviction.
On the issue that the evidence of PW1 to PW3 are hearsay evidence, I do not agree with the submissions of the Appellant’s Counsel as the said witnesses are Police officers i.e Investigating Police Officer (I.P.O.) and Exhibit keeper. In the case of ANYASODOR V. STATE (2018) LPELR – 43720 (SC) the Supreme Court held thus: “To my mind, all that the PW3 (I.P.O.) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigation. His testimony on what the Appellant told him was positive, and direct which was narrated by the Appellant and other witnesses he came into contact with in the course of his investigation of the cases. Evidence of an Investigating Police Officer is never to be tagged as hearsay.”
See also the case of OLAOYE V. STATE (2018) 282 LRCN 161 at 173. I hold that the evidence of PW1 to PW3 were never hearsay evidence as envisaged by the Counsel to the Appellant.
Another grouse of the learned Counsel to the Appellant is that the Respondent failed to prove its case beyond reasonable doubt. It is settled law that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the accused person with compelling and conclusive evidence.
To establish the offence of Armed Robbery the prosecution provided the evidence of PW1 – PW3 who are Police officers but couldn’t secure the attendance in Court of other civilian witnesses as they had relocated from their known addresses. The prosecution had to close his case at that stage. See page 31 paragraphs 15 – 20 of the Record of Appeal.
From the totality of evidence, it is evident that there was a robbery and the robbery was an armed robbery, that the Appellant was one of the robbers, he had the opportunity of committing the offence and the confession is consistent with other proved facts.
The prosecution in my view has discharged the burden placed on it by the laws and has proved the crime against the Appellant beyond reasonable doubt. The findings of the trial Court convicting and sentencing the Appellant is unassailable. In the end, I resolve this issue in favour of the Respondent and against the Appellant. Consequently, I dismiss this Appeal as it has no merit and affirm the decision of the lower Court in Suit No. TRSJ/25C/2013 delivered on 1st March, 2016.
CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the Judgment delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. I agree without reservations with the reasoning and conclusion arrived at. Nevertheless, I shall add a few words in concurrence, on the burden and/or duty to prove the guilt of an accused person which squarely rests on the Prosecution which must discharge this burden by a standard of proof beyond reasonable doubt, however it cannot be interpreted to mean proof beyond every shadow of doubt. See IKENNE VS. THE STATE (2018) LPELR – 44695 (SC) PAGES 12 – 13 PARAS. E-A.
The apex Court in the case of EZEANI VS. FRN (2019) LPELR – 46800 (SC) P. 23, PARAS. A – C, his lordship Okoro, JSC explained it thus:
“The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170, AKINLOLU VS. THE STATE (2015) LPELR – 25986 (SC), OSENI VS. THE STATE (2012) LPELR – 7833 (SC); MILLER VS. MINISTER OF PENSIONS (1974) 2 ER P. 372.”
See also, AMEH VS. STATE (2018) LPELR – 44463 (SC) PP. 22 – 23, PARAS. E – A.
I am also in agreement with the findings of my learned brother that the testimonies of the PW1, PW2 and PW3 and the six (6) Exhibits tendered and admitted are apt and sufficient to secure the conviction of the Appellant. In pages 4 – 6 of the printed records of appeal, the victims of the robbery Yusuf Isah and Lawan Habu upon the receipt of the information on the 21/02/2014 of the arrest of the Appellant, went to the Garba Chede Police Station where they saw the Appellant and identified the clothes stolen in his possession. The Appellant clearly stated in his extra-judicial confession Exhibits “A & A1” the role he played, how one Saleh (now at large) invited him to a sugarcane farm and told him of the lucrative business and he agreed to actively participate in the business by following the said Saleh who was armed with a single barrel locally made gun to the houses of the victims, the appellant was equally armed with a stick who stood outside to keep watch, they collected the clothes and the total sum of N64,000.00 (sixty Four Thousand) and the sum of N3,000.00 was given to him as his share of the proceeds gotten from the robbery. See, pages 10 – 12 and 14-17 of the printed records of appeal. From the above facts, it is my humble but firm view that the Appellant’s denial of the extra-judicial statements in his testimony as DW1 is nothing but an afterthought and the prosecution adequately discharged their duty by law.
I also wish to add that the evidence of a police Investigating Officer cannot therefore be rightly tagged as hearsay. The Respondent’s witnesses such as the PW1, PW2 and PW3 gave direct information or evidence as what they saw, discovered and/or recovered from the Appellant Exhibits B1 – B4. The evidence gathered from these witnesses was direct and positive. See, KAMILA VS. STATE (2018) LPELR – 43603 (SC) PP. 22 – 23, PARAS. D – A and in OLAOYE VS. STATE (2018) LPELR – 43601 (SC) PP. 42 – 43, PARAS. D – A, his lordship Peter – Odili, JSC in stating the position of the law held thus:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but, from him since the Court has to know the synopsis of his investigative journey, it is direct evidence. See OBOT VS. STATE (2014) LPELR – 23130 (CA).”
See my earlier judgments in ROWAYE VS. FRN & ORS (2018) LPELR – 45650 (CA) PP. 66 – 68, PARAS. C – B and BRILLA ENERGY LTD. VS. FRN & ORS (2018) LPELR – 45651 (CA) PP. 52 – 53, PARAS. A – F. Also, DANGANA VS. IGP (2018) LPELR – 45276 (CA). I hold that the evidence of the investigating police officers (PW1 – PW3) cannot be termed hearsay, it is direct evidence on what they discovered and/or recovered from their investigation.
I cannot also fault the findings of the trial Court and for the fuller illuminating reasons adduced in the leading judgment, I too hold that the appeal is lacking in merit, and is liable to be dismissed. I too dismiss it.
Consequently, I abide by the order made in holding that the judgment of the High Court of Taraba State in Case No. TRSJ/25C/2013 delivered on 1st day of March, 2016 is hereby affirmed.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading the draft copy of the lead Judgment just delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. I agree with the decision of my learned brother dismissing the appeal and affirming of the lower Court. I also dismiss the appeal.
Appearances:
John Okezie, with him, P. C. Ibe, Esq. and I. I. Daniel, Esq. For Appellant(s)
D. D. Shintema, Esq. (Senior State Counsel Ministry of Justice, Taraba State) For Respondent(s)