BUHARI USMAN v. THE STATE
(2018)LCN/11444(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2018
CA/K/412A/C/2017
RATIO
WHAT MUST BE PROVED IN A CHARGE OF CONSPIRACY TO COMMIT ARMED ROBBERY?
For the prosecution to succeed in the charge of conspiracy to commit armed robbery, it must prove the following facts beyond reasonable doubt: a. That there was an agreement or confederacy between the accused and others to commit the offence. b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies. c. That the robbery or each robbery was an armed robbery. Per UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
BUHARI USMAN – Appellant(s)
AND
THE STATE – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)
This appeal is against the judgment of Honourable Justice I.B. Ahmed of High Court of Katsina State, Katsina Judicial Division in Charge No.KTH/23C/2014, delivered on 25/5/2017, wherein the Appellant was convicted and sentenced to death for conspiracy to commit armed robbery to be remanded in prison at the Governors pleasure.
The charge against the Appellant contained at page 1 of the records in the Charge Sheet dated 6/2/2014 reads as follows:
That you, (1) BUHARI USMAN of Ajiwa town, Batagarawa Local Government Area of Katsina State, and (2) BUHARI SANI of Yarshanya village, Batagarawa Local Government Area of Katsina State, on or about the 13th day of August, 2013, at Ajiya town, AGREED TO DO AN ILLEGAL ACT TO WIT; ATTACK and rob one Abdulrazak Idris and the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation, 2004.
The facts as narrated by PW1 are that he and the 1st accused person live in the same village and he knew the 1st accused person while the Appellant lives in Ajiwa. That as a business man dealing in purchases and sales of cattle, while coming back from Ajiwa market on 13/8/2013, he was suddenly beaten by somebody who made him to fall down and his money was carted away and he was rushed to his neighbors house and subsequently taken to hospital for treatment, where his head was stitched and later discharged home, where he recuperated. He stated that the person in his company reported the matter to the police which led to the arrest of the 1st accused person and later the Appellant, whom the 1st accused person named as his accomplice. During investigation in Yarshanya, a matchet, stick and a knife were recovered from the houses of the 1st accused person and the Appellant and the sum of N60,000.00 recovered from the 1st accused persons house. The case was later transferred to the State CID for interrogation, and then arraigned to the Court wherein he pleaded not guilty. At the trial, 4 witnesses were paraded by the Respondent and 12 exhibits tendered and admitted while the Appellant testified for himself and called DW3.
In the judgment of the Court, the Appellant was sentenced to death for conspiracy to commit armed robbery, to be remanded at the Governors pleasure.
The Appellant dissatisfied with the said conviction and sentence appealed vide a Notice of Appeal dated 17/7/2017 and filed on 19/7/2017, with 4 Grounds of appeal contained at pages 122-125 of the records. In accordance with the Rules of this Court, the Appellant filed his brief of argument dated and filed on 16/8/2017, settled by Abdulhamid Mohammed, Esq, wherein he formulated 3 issues for the determination of the appeal contained at page 4 of his brief to wit:-
- Whether the trial Court was right in convicting and sentencing the Appellant solely on the challenged and retracted confessional statements.
- Whether the trial Court was right in convicting and sentencing the Appellant even when there was no evidence identifying the Appellant as the person who conspired with his co-accused to commit the alleged offences.
- Whether the learned trial judge failed to evaluate and adjudicate on the defence of the Appellant and whether the failure occasioned a miscarriage of justice.
The Respondent on the other hand, prepared its brief of argument dated and filed on 14/9//2017, settled by Abdul-Rahman Umar, Esq (Asst. Director, Public Prosecution, Ministry of Justice, Katsina State), and adopted all the issues formulated by the Appellants Counsel.
At the hearing of the appeal on 26/3/2018, the Counsel to the Appellant adopted his brief of argument and prayed this Court to allow the appeal and discharge the Appellant, whereas the Counsel to the Respondent adopted its brief and urged this Court to dismiss the appeal in its entirety and substitute the sentence with death sentence. .
The only issue striving for recognition here is:
Whether by the facts and circumstances of this case, the prosecution has proved its case against the Appellant beyond reasonable doubt to warrant his conviction by the trial Court for conspiracy to commit armed robbery
ISSUE FOR DETERMINATION:
The Appellants Counsel has submitted that the Appellant having timeously challenged his confessional statement, the trial Court ought to look outside it other corroborating evidence before convicting him on it as decided in SIMON V. STATE (2017) 8 NWLR (PT.1566) 146-147. Again, that it is trite that an accused person cannot be convicted for conspiracy on the strength of his own confession unless there is independent evidence. He relied on STATE V. AJAYI (2016) 14 NWLR (PT.1532) 229. It is submitted that since there was nothing linking the Appellant to the commission of the offence, the doubt ought to be resolved in his favour as held in OSUAGWU V. STATE (2016) 16 NWLR (PT.1537) 58, MOHAMMED V. STATE (2014) 2 NWLR (PT.1390) 63. Also, that the prosecution has failed to establish the ingredients of armed robbery against the Appellant. He made reference to the case of SANI V. STATE (2014) 1 NWLR (PT.1387) 24, OKOH V. STATE (2014) 8 NWLR (PT.1410) 523. It is further argued that the trial judge did not consider the evidence of the Appellant and DW3 in evaluating the evidence in this case which occasioned a miscarriage of justice against the Appellant. Thus, that the trial Court has the duty to consider every defence put up by the Appellant as held in AHMED V. STATE (1999) 7 NWLR (PT.612) 681, AKPABIO V. STATE (1994) 7 NWLR (PT.359) 671. Furthermore, that the prosecution failed to disprove the defence and the Court must do justice to both the society and the accused person as decided in OLAYINKA V. STATE (2007) 9 NWLR (PT.1040) 586-587. He urged this Court to answer the issue in favour of the Appellant and to discharge and acquit him.
Contrariwise, the learned Counsel to the Respondent has submitted that the Court can convict solely on the confessional statement of the accused even where it was retracted as held in AGUGUA V. STATE (2017) 2 SCNJ AT 30, BUSARI V. STATE (2015) 5 NWLR (PT.1452) 367-368. That the guilt of an accused can be proved by confessional statement, circumstantial evidence and direct eyewitness as affirmed inIGBIKIS V. STATE (2017) 11 NWLR (PT.1575) 150. It was contended that the Appellant was convicted for conspiracy to commit armed robbery and not armed robbery based on his confessional statement since there is no evidence stronger than his confession as reinforced in DIBIA V. STATE (2017) 2 SCNJ AT 141. That the proof of conspiracy can be circumstantial if there is proof of common intention to commit a wrong as decided in AJAYI V. STATE (2013) 12 SCNJ 455.
Learned Counsel to the Respondent has further submitted that the identification of the Appellant is not necessary since he has identified himself in Exhibits 2A, 2B, 4A, 4B, 6A and 6B. Similarly, that where the accused is linked to the offence by convincing evidence, identification parade is not relevant. He relied on PIUS V. STATE (2016) 9 NWLR (PT.1517) 365. It is conceded that while it is true to avail the Appellant all the defences available, the alibi he raised was not timeous and therefore unreliable as decided in AGU V. STATE (2017) 10 NWLR (PT.1573) 196-197. He submitted that the sentence of the Appellant ought to be death sentence and not to be detained at the Governors pleasure since the Appellant was at the time of the commission of the offence 20 years and not 17 years and urged this Court to do that by Order 20 Rule 11(1), (2) of the Court of Appeal Act, 2010. He prayed that this issue be resolved in his favour and the sentence be substituted to death sentence.
Having read the records, encompassing the proceedings and the evidence with the briefs of the parties, I shall appreciate the issues in this appeal better. The Appellant herein was charged on one count offence of conspiracy to commit armed robbery. It is therefore incumbent on the Prosecution to prove this charge beyond reasonable doubt to warrant the conviction of the Appellant, otherwise he shall be discharged and acquitted. See Tobi JSC in SHEHU V. STATE (2010) LPELR-3041(SC).
Contrary to the submission of the learned Counsel to the Appellant, the Appellant herein was not charged with armed robbery but conspiracy to commit same as rightly asserted by the learned Counsel to the Respondent. I think that he has just dissipated energy in arguing on the conviction of the Appellant on armed robbery instead of conspiracy to commit same. I shall therefore only concentrate on the charge with which he was arraigned to Court for.
For the prosecution to succeed in the charge of conspiracy to commit armed robbery, it must prove the following facts beyond reasonable doubt: a. That there was an agreement or confederacy between the accused and others to commit the offence. b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies. c. That the robbery or each robbery was an armed robbery. See Per KEKERE-EKUN, J.S.C in OKOH V. STATE (2014) LPELR-22589(SC).
The Respondent in proving that there was an armed robbery called PW1, the victim of the armed robbery, who at page 14 of the record gave an account of how he was robbed by Buhari Sani, the accomplice to the Appellant. He affirmed that he was beaten, fell down, became unconscious, and his N100,000 carted away and consequently taken to the hospital where stitches were made on his cut/wounded head. This was without doubt a direct evidence establishing that there was an armed robbery. Although the weapon used was not mentioned by him, he added that during the investigation, when the police took him and Buhari Sani, a matchet, stick and knife were recovered from Buhari Sanis house. PW2 equally confirmed this account where he narrated that he recovered N57,800 and a matchet from Buhari Sanis house.
Driving home the complicity of the Appellant in the armed robbery wherein he agreed to do an illegal act; to attack and rob one Abdulrazak Idris and the same act was done in pursuance of the agreement and thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation, 2004, PW1 categorically stated in the same page from line 20-27 thus:
A week later, the 1st accused person was arrested and in the course of interrogation, the 1st accused person informed the police that he was not alone as he was with one Buhari Usman who was later arrested by the police. The police invited me and together with the suspect took us to Batagarawato Yarshanya where a matchet, stick and knife were recovered. These items were recovered from the house of the two accused persons.”
The evidence of PW2 is contained at pages 15-19 of the record. At page 16 precisely, he gave this evidence as follows from line 14-17:
We also move to Buhari Usmans house where a knife and one Sega player were recovered. On our return to the office both accused persons wanted to give additional statements which were recorded by me after adopting the same procedure.
At pages 138-139, contained at Exhibit 6B, the Appellant confessed to his aborted plan to rob the victim, Abdulrazak, with one Buhari Sani, and that he was holding katako and knife and how they were sent away by the barking of dogs which made the victim to flash touch light at them and they ran away. Subsequently, he narrated how they conspired again thus at page 139:
And we did not meet again till on Tuesday 13/8/2013, we met at the place of one Bala Mai doya at Ajiwa market. We then discussed to attack Abdulrazak on his way going home from Ajiwa market, in which we discussed to meet near some stones along the way Abdulrazak will pass. And I did not get time to go where we discussed to meet, and when he waited and did not see me, he went and committed the offence he alone.
With the foregoing, the Respondent proved not beyond shadow of doubt but beyond reasonable doubt that the ingredients of conspiracy to commit armed robbery were proved against the Appellant. A voluntary confession by itself without any other evidence is sufficient to support a conviction. See Per KARIBI-WHYTE, J.S.C in UDOFIA V. STATE (1984) LPELR-3306(SC).
At the trial, the Appellant nevertheless took a u-turn by retracting his confessional statement that it was not voluntary and called DW3 to support his plea of alibi.
This is now the cry of the Appellants learned Counsel that the trial Court ought to have warned itself before relying on the confessional statement to solely convict the Appellant since same was retracted.
As earlier stated, the Appellant has not been charged with armed robbery for the defence of alibi here to avail him. Besides, it is nothing but an afterthought and foolishness to rely on it since he was not there physically or by actus to commit the crime but was there in the reus. Alibi has never been and can never be a defence for reus as it encompasses both. It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact no act. It is also a defence of absence of mens rea. 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. See Per KARIBI-WHYTE, J.S.C in UKWUNNENYI & ANOR V. STATE (1989) LPELR-3353(SC). Again, it was not raised at the earliest opportunity as laid down by the law. Per OGUNBIYI, J.S.C in ESENE V. STATE (2017) LPELR-41912(SC) quoting and relying on the case of UKWUNNENYI V. THE STATE (1989) 2 NWLR (PT. 114) 131 emphasized this when he decided that “the best defence and evidence of alibi is one pleaded at the first opportunity and not at the trial.”
The retraction of the confessional statement by the appellant is of no moment. The law is well settled that an accused person can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however desirable, as in the instant case that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confessional statement was true. See Per OKORO, J.S.C in UMAR V. STATE (2018) LPELR-43719(SC), OKOH V THE STATE (2014) LPELR – 22589 (SC) (2014) 1 NWLR (PT.1410) 502, ULUEBEKA V THE STATE (2000) 7 NWLR (PT.665) 404. In the instant case, the evidence of PW1 and that of Buhari Sani contained in Exhibit 5B corroborated the confessional statement of the Appellant contained at Exhibit 6B in great material. His conspirator later also confessed in Exhibit 5B that although they conspired to rob the victim in his house, “I waited till around 2100hrs but Buhari Usman did not come, I then went alone and hide in the dark of crops in the farm along the way that Abdulrazak will pass. Moreover, it is for full-proof that this is needed, otherwise, once it is established that a confessional statement is voluntary, the Court can safely convict on it, though retracted. Per BAGE, J.S.C in STATE V. MASIGA (2017) LPELR-43474(SC) cautioned thus:
“It has also been established that the retraction of the confessional statement by an accused person in his oral testimony in Court during trial is of no moment. The most important thing is that the Court must be satisfied as to the truth of the confession, and can therefore rely on it alone to ground conviction. However, it is also settled that it is desirable that the Court should, outside the confessional statement look for some corroborative evidence, no matter how slight.
See also per Ariwoola, JSC in CHIOKWE V. STATE (2013) 8 NCC 185. Per Onu JSC in EMOGA V. THE STATE (1997) 7 SCNJ 578 also gave a caveat that:
“It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a freeman simply because he has a change of mind. The whole trial will be a mockery. It would be dangerous to apply the principle of extra judicial confession of the accused person as it would open a flood gate of retracing of all statements made by accused persons before the police officer.”
It is not doubtful that the Respondent has proved the ingredients of conspiracy to commit armed robbery against the Appellant by his confessional statement strongly corroborated. By both Exhibits 6B and 5A &B respectively, the Appellant and Buhari Sani have confessed that they planned to attack the victim in his house and attempted but were warded off by the dogs and when the second plan was hatched, the Appellant could not be there because he confessed that he did not have time. Thus, conspiracy to commit armed robbery like other conspiracies are hardly established by direct evidence. One is reminded that conspiracy to commit an offence is usually established either by direct evidence of how the conspiracy was hatched or came about or by inference by certain criminal acts of the parties concerned, done in the presence of an apparent criminal purpose in common between them. It is to be stated that it is the obvious that conspiracy can hardly be proved by direct evidence since plotting is done in secrecy, being a meeting of the minds. Therefore, conspiracy is a matter deducible by inference from certain criminal acts of the parties concerned done in pursuance of the criminal purpose between them. Proof of conspiracy, the act or omission of the conspirators in furtherance of the common desire may be and is often given in evidence against another of the conspirators. See Per PETER-ODILI, J.S.C in OKIEMUTE V. STATE (2016) LPELR-40639(SC).
The Respondents learned Counsel has urged this Court to substitute the sentence of the Appellant to death sentence. The trial of the Appellant was concluded and sentence was passed without any objection from the Respondent as to the age of the Appellant. In fact, after the judgment was read, the Respondent at page 121 of the record, urged the trial Court that “as for the age of the convicts at the time they committed the offences, the Court could still proceed to sentence them notwithstanding that they were minors at the time they committed the offences. How can the Respondent now be asking for another thing This will definitely be prejudicial to the Appellant and there will be miscarriage of justice against him. Besides, this appeal is not against sentence and neither did the Respondent file any notice to contend the sentence of the Appellant. It is advised therefore that to permit an appellate Court to increase a sentence of a person is to set the right of appeal as a trap for an unwary convict. Such will be giving the appellant an unsolicited ‘Greek Love or Offer.’ Equally, an appellate Court would not be justified to substitute a sentence it would consider right to pass on an accused were it to have tried the accused at first instance. This is because an appellate Court is not at liberty to merely substitute its own exercise of discretion for the discretion already exercised by the trial Court. See per FABIYI, J.S.C in OMOKUWAJO V. FRN (2013) LPELR-20184(SC). This prayer is therefore refused.
I therefore also hold that the Respondent in the instant appeal has proved its case satisfactorily against the Appellant for conspiracy to commit armed robbery who has failed woefully to prove his innocence.
Therefore, the judgment of Honourable Justice I.B. Ahmed of High Court of Katsina State, Katsina Judicial Division in Charge No.KTH/23C/2014, delivered on 25/5/2017, wherein the Appellant was convicted and sentenced to death for conspiracy to commit armed robbery to be remanded in prison at the Governors pleasure is hereby affirmed.
IBRAHIM SHATA BDLIYA, J.C.A.: Having had the advantage of reading in draft before now the lead judgment delivered by my Noble lord, UWANI MUSA ABBA AJI, J.C.A, I cannot but to totally agree with the reasonings leading to the dismissal of the appeal for being unmeritorious. I therefore affirm the judgment of the lower Court, including the orders made thereby.
OBIETONBARA O. DANIELKALIO, J.C.A.: I have had the benefit of reading in draft form the judgment of my lord UWANI M. ABBA AJI JCA. And I agree with the reasoning and conclusions of my lord in the said judgment. I also agree that there is no reason whatsoever to tamper with the sentence passed by the lower Court.
Appearances
J.P. ISRAEL, ESQ., WITH HIM, M.O. ERIC, ESQ.For Appellant
AND
S.B. UMAR, ESQ., (DIRECTOR PUBLIC PROSECUTION, MINISTRY OF JUSTICE, KATSINA STATE), WITH HIM, A.A. IBRAHIM ESQ., CSC, AMINU GARBA, ESQ., CSC, M.M. MANI, ESQ., CSO AND FATIMA SADA, ESQ., SSC.For Respondent
