DAMASUS v. STATE
(2022)LCN/16314(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, April 13, 2022
CA/YL/110C/21
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
DANIEL DAMASUS APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE GROUNDNORM IS TO ENSURE THAT THR TRIAL OF ANY ACCUSED PERSON IS CONDUCTED IN A MANNER THAT IS FAIR
The 1999 Constitution of the Federal Republic of Nigeria (as amended) entrenches certain fundamental rights, which any citizen of Nigeria cannot be rightly deprived of. One major way in which a person’s basic rights such as right to life, freedom of movement and so on can be taken away is upon conviction for a criminal offence, which is why the grund norm contains various safeguards in Section 36 to ensure that the trial of any Accused person is conducted in a manner that is fair.
It is immediately obvious from the above provisions of the Constitution that the Court is expected to provide an accused with an Interpreter, only when he cannot understand the language of the Court. The Supreme Court in the case of FRN v. KAYODE (2019) LPELR-48997(SC) (Pp. 23 – 24 Paras A – C) per PAUL ADAMU GALUMJE, JSC, reiterated the principles of law with regards to right to an Interpreter thus:
“Provision of an interpreter to an accused person who does not understand the language of the Court is a Constitutional issue and it is mandatory. Once the Court becomes aware that an accused who is standing trial does not understand the language of the Court, it shall direct that an interpreter be provided for him free of charge.”
The Apex Court in the case of IBRAHIM v. STATE (2013) LPELR-21883(SC) (Pp 21 – 21 Paras A – D) per KUMAI BAYANG AKA’AHS, JSC, clearly pointed out the simple and obvious fact that an interpreter would not be required in circumstances where the accused person understands English thus:
“It was also held in Uchegbu v. State (1993) 8 NWLR (Pt. 309) 89 on providing an interpreter for an accused that – “The provision of Section 33 (6)(c) of the 1979 Constitution on an interpreter enures for the benefit of an accused person who does not understand the language of the proceedings. Therefore where the accused understands the language of the proceedings no miscarriage of justice is occasioned by the failure to provide an interpreter. It follows that failure to provide an interpreter is trivial and not a fundamental flaw. In the instant case, failure to provide an interpreter for the translation of the Ibo version of the proceedings to English Language is not fundamental as the accused understands English and also speaks Ibo.”
See OLANREWAJU v. STATE (2020) LPELR-49569(SC) and SHAIBU v. STATE (2014) LPELR-24465(CA).
The starting point of every criminal trial is the fact that the person accused of committing a crime, is innocent, until he is proven guilty, thus he retains all the rights and benefits of a law abiding citizen until conviction, if any. This is the import of the presumption of innocence entrenched in the ground norm by virtue of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:
“Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
In order to successfully rebut the above stated presumption of innocence, the law fixes a strict burden on the Prosecution to clearly establish that the accused committed the offence he is being charged with beyond reasonable doubt. The reason for this stringent requirement of the law is not farfetched as the consequence of a successful criminal trial is punishment by the law and it would amount to grave injustice for an innocent man to be wrongly punished for a crime he did not commit.
The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999Constitution of the Federal Republic of Nigeria and Section 135 (2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 paras A-C, Sola v. The State (2005) 5 (Pt. 1) 135.”
See NNAJIOFOR v. PEOPLE OF LAGOS State (2015) LPELR 24666(CA), TOMETIM v. STATE (2014) LPELR-22788(CA) and ABBEY v. STATE (2017) LPELR-42358(SC).
The Supreme Court in the case of OPEYEMI v. STATE (2019) LPELR-48764(SC) (P. 25, Paras. C-F) Per KEKERE-EKUN, J.S.C., the Supreme duly listed the ingredients of armed robbery based on a similar provision thus:
“The essential elements of the offence of armed robbery, which must be proved beyond reasonable doubt are: (a) That there was robbery or series of robberies; (b) That each robbery was an armed robbery; and (c) That the appellant was one of those who participated in the armed robbery. See Bozin vs The State (1985) NWLR (Pt. 8) 465, Suberu vs The State NWLR (Pt.1197) 586, Olayinka vs The State (2007) 9 NWLR (Pt.1040) 561, Okoh vs The State (2014) 8 NWLR (Pt. 1410)
See ETINOSA v. STATE (2019) LPELR-48325(CA), OSAGIE v. STATE (2019) LPELR-47827(CA) and OGUDO v. THE STATE(2011) LPELR-860(SC).
In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. See Per ARIWOOLA, J.S.C in ADEBAYO V. STATE (2014) LPELR-22988(SC). A person should not under whatsoever circumstance confess and admit what he is not guilty of except when it comes under the exceptions where a confession can be considered involuntarily obtained, otherwise, a crime confessed is a crime committed and ought to be convicted for because it may relieve the prosecution the duty and burden of proof beyond reasonable doubt. Per MOHAMMED, J.S.C in ABASI V. STATE (1992) LPELR-20(SC) clearly stated that it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt but for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true.
See SANNI v. THE STATE (2019) LPELR-48418(CA) and JIMOH v. STATE (2014) LPELR-22464(SC).
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State in CASE NO: TRSJ/1C/2013 delivered on 5th May, 2017 by Honourable Justice Josephine Y. Tuktur Chief Judge (as she then was) wherein the Court convicted the Appellant for the offence of armed robbery contrary to Section 298(b) of the Penal Code.
The material facts of the case leading to this appeal is that the Respondent on the belief that the Appellant was part of a group of Robbers who had robbed Audu Sambo on 16th September, 2012 and Anthony Chiemeke on 25th September, 2012, brought a two count charge before the lower Court, charging the Appellant thus:
Count One Statement of Offence
Armed robbery under Section 298(b) of the Penal Code Laws of Taraba State of Nigeria, 1997.
Particulars of offence
That you Daniel Damasus with others, Umaru and Aminu now at large on or about the 16th and 25th of September, 2012 within Jalingo Judicial Division at T.C. Quarters Mayo Gwoi Jalingo broke into the house of Audu Sambo and robbed him of his Sony LCD flat screen television, home theater (Sony brand), Sony camera, laptop charger, micro box, set of gold jewelry, a blanket, MP3 player and wrist watch.
Count Two Statement of Offence
Armed robbery under Section 298(b) of the Penal Code Laws of Taraba State of Nigeria, 1997.
Particulars of offence
That you Daniel Damasus on or about the 25th of September, 2012 at about 0300hrs committed armed robbery along with Umaru and Aminu now at large broke into the house of Anthony Chimeke at Roadblock Jalingo and robbed him of his Samsung and LG handsets, one VCD player, MYTVE strong model. One DVD player and the sum of N13,000.00 cash while armed with a locally made gun and cutlass and with machetes respectively.
The Appellant was duly arraigned before the trial Court, he pleaded not guilty to the charge and trial commenced. Upon a full trial, the learned trial Judge found that the Respondent had proven the charges against the Appellant under Section 298(b) and consequently convicted the Appellant as charged.
Dissatisfied with the decision of the trial Court, the Appellant appealed the decision via a Notice of Appeal dated and filed on 24th March, 2021, with 6 grounds of appeal. The Appellant’s Brief of Argument is dated and filed on 4th October, 2021, but deemed as properly filed on 29th October, 2021. Appellant’s Reply Brief of Argument is dated 15th November, 2021 and filed on 19th November, 2021.
Appellant’s counsel formulated three issues for determination to wit:
1. Whether there was a breach of the Appellant’s right to fair hearing having not provided him with an Interpreter during his trial and a Counsel at the point of his arraignment. (Grounds 1 and 4)
2. Whether the findings of the Court were not tainted with bias against the Appellant. (Grounds 2 and 3)
3. Whether the totality of the evidence presented by the Respondent are cogent and reliable to ground a conviction of the Appellant for the offence of Armed Robbery. (Grounds 5 and 6)
The Respondent’s Brief of Argument is dated 25th October, 2021 and filed on 29th October, 2021.
Respondent’s counsel also distilled three issues for determination thus:
1. Whether given the circumstances of this case, it was mandatory for the trial Court to provide Appellant with an interpreter and inform him of his right of legal representation at the point of his arraignment. (Grounds 1 and 4)
2. Whether the findings of the trial Court at allocutus that Appellant is a habitual criminal prejudiced his conviction? (Grounds 2 and 3)
3. Whether considering the totality of evidence the trial Court has properly and rightly convicted the Appellant for the two counts charge of Armed Robbery as required by the law? (Grounds 2 and 3)
A careful examination of the issues raised by both parties coupled with a careful consideration of the facts of this appeal reveal that the issues raised are similar in nature and capture the controversy in this appeal. I therefore adopt the issues as formulated by the Appellant, with issues one and two subsumed into one as they bother on Appellant’s right to fair hearing.
ISSUE ONE
WHETHER APPELLANT’S RIGHT TO FAIR HEARING WAS BREACHED BY THE MANNER THE TRIAL BEFORE THE LOWER COURT WAS CONDUCTED (Grounds 1,2,3,4)
Learned counsel for the Appellant argued that the trial of the Appellant without an interpreter breached the Appellant’s fundamental right to be informed of the crime he is accused of and to have his trial for the crime conducted in the language the Appellant understands, and therefore constitutes a breach of the Appellant’s right to fair hearing, which renders the whole proceedings a nullity. Counsel pointed out that in order to meet with the mandatory requirement of conducting the trial of an accused person in the language he understands, the Court is empowered to suomotu make enquiry and provide the Appellant with an Interpreter where required, which the lower Court failed to do, as the Court only provided the Appellant with an Interpreter during arraignment.
Section 36(6)(a),(b) and (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended);State v. Gwonto (1983) 14 NSCC 104 at 110, Buraimah Ajayi v. Zaria Native Authority (1963) ALL NLR 168, Joel Adamu v. State (2017) 14 NCC 136 at 193 and Madu v. State (1997) LPELR-1808 (SC).
Learned counsel in trying to establish that the Appellant only understood Hausa and ought to have been provided with an interpreter by the Court, submitted that in portions of the record of appeal, particularly pages 50, 51, 52, 53, 54, 55 and 58, the trial Court documented that the Appellant speaks Hausa, while on other days it was recorded that the Appellant speaks English, with no indication of an Interpreter; that the PW2, the IPO at pages 36 and 37 of the records under cross-examination stated that the Appellant said he could not speak English and that the Appellant’s extra-judicial statement was taken in Hausa; and that the fact the Appellant’s thumbprint was affixed to the statement also shows he didn’t understand English.
Counsel further argued that the absence of a legal practitioner representing the Appellant during his arraignment and the failure of the Court to inform the Appellant of his fundamental right to legal representation also constitutes a breach of the Appellant`s right to fair hearing.
He relied on: Section 36(c) and (d) of the 1999 Constitution, Section 186 of the Criminal Procedure Code Laws of Northern Nigeria 1960, Ezechukwu v. Onwuka (2005) ALL FWLR (Pt280) 1514 at 1542 and Josiah v. State (1985) 1 NWLR (Pt125) at 140 SC.
Learned counsel submitted that the holding of the learned trial Judge, found at page 80 of the record of appeal, to the effect that the Appellant is a habitual criminal, on the basis of a retracted confessional statement, is contrary to the presumption of innocence guaranteed by Section 36(5) of the Constitution and reveals that the trial Court overreached and placed undue reliance on the confessional statement which created bias in the mind of the Court against the Appellant and constitutes a breach of the Appellant’s right to fair hearing.
He referred to the cases of Ajayi v. State (2014) 9 NCC 257 at 301 and Babarinde v. State (2014) 3 NWLR (Pt1395) 568.
On the other hand, learned counsel for the Respondent submitted that from the outset of the proceedings before the lower Court, the Appellant had indicated to the Court that he understood the language of the Court, thus obviating the need for the services or assistance of an Interpreter during his trial in accordance with Section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Counsel stated that on the 19th day of February, 2012, when the Appellant was arraigned, it was recorded that Appellant “speaks English” and thereafter the charge was read to the Appellant in English and he understood same and pleaded not guilty, as seen at page 25 of the record of appeal. Counsel also pointed out that on 3rd December, 2013, it was again recorded that the Appellant speaks English and that when the prosecutor informed the Court that the matter will not proceed, the Appellant who was not represented that day informed the Court in his own words that: “I am pleading to this Court to consider my case. I am a student and I have been coming to Court and only for the Counsel to ask for adjournment” as seen at page 28 of the record of appeal.
He relied on Nwachukwu v. The State (2007) 17 NWLR (Pt1062), Anyanwu v. State (2002) 10 NSCQR 1335 and Adewunmi v. The State (2016) 9 SCM page 9 para H.
Learned counsel further submitted that when the matter was further adjourned to 17th December, 2013, the day PW1 testified, the Appellant was well represented by Mr. LP Mahanan Esq., who never requested for an interpreter nor informed the Court that the Appellant did not understand the language of the Court as was his duty to do. He referred to the case of Madu v. State (1997) 1 NWLR (Pt482) 386.
Learned counsel submitted that the absence of a Legal Practitioner at the Appellant’s arraignment does not constitute a breach off air hearing of a nature that would vitiate the proceedings as legal representation is only mandatory for offences which attract death penalty upon conviction and the Appellant has not shown how the failure to be informed of the right to Legal Practitioner occasioned miscarriage of justice.
He relied on Section 382 of the Criminal Procedure Code, Laws of Taraba State, 1997 and Adamu v. State (2017) 1 SCM page 28 paras G-I.
Learned counsel submitted that the holding of the lower Court after conviction and during allocutus to the effect that the Appellant was a habitual criminal could not have impacted proceedings before conviction and therefore cannot be taken as evidence of bias which constituted a breach of Appellant’s right to fair hearing. He referred to the case of Lucky v. The State (2016) LPELR 40541.
In the reply brief, learned counsel for the Appellant submitted that the requirement of interpretation is not a one-off thing, but applies to the whole trial and one isolated outburst by the Appellant in English language could not be taken as proof that he understood the proceedings. He referred to the case of Buraimah Ajayi Julande v. Zaria Native Authority (1963) ALL NLR 168.
Counsel also submitted that failure of the Court to inform an accused of right to Counsel should be deemed a deprivation of the right to adequate time and facility and that the principle of fair hearing applies to every aspect of a case including after trial.
RESOLUTION OF ISSUE ONE
The 1999 Constitution of the Federal Republic of Nigeria (as amended) entrenches certain fundamental rights, which any citizen of Nigeria cannot be rightly deprived of. One major way in which a person’s basic rights such as right to life, freedom of movement and so on can be taken away is upon conviction for a criminal offence, which is why the grund norm contains various safeguards in Section 36 to ensure that the trial of any Accused person is conducted in a manner that is fair.
All the provisions of Section 36 are apt, but the most germane and relevant to this appeal, are hereby reproduced below.
Section 36(1) and (4) which is specifically on fair hearing provides thus:
(1) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
(4) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality…”
Section 36(6)(a)-(e) which contains basic requirements of a proper criminal trial provides:
(6) “Every person who is charged with a criminal offence shall be entitled to –
a. be informed promptly in the language that he understands and in detail of the nature of the offence;
b. be given adequate time and facilities for the preparation of his defence;
c. defend himself in person or by legal practitioners of his own choice;
d. examine in person or by his legal practitioners, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
e. have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
It is immediately obvious from the above provisions of the Constitution that the Court is expected to provide an accused with an Interpreter, only when he cannot understand the language of the Court. The Supreme Court in the case of FRN v. KAYODE (2019) LPELR-48997(SC) (Pp. 23 – 24 Paras A – C) per PAUL ADAMU GALUMJE, JSC, reiterated the principles of law with regards to right to an Interpreter thus:
“Provision of an interpreter to an accused person who does not understand the language of the Court is a Constitutional issue and it is mandatory. Once the Court becomes aware that an accused who is standing trial does not understand the language of the Court, it shall direct that an interpreter be provided for him free of charge.”
The Apex Court in the case of IBRAHIM v. STATE (2013) LPELR-21883(SC) (Pp 21 – 21 Paras A – D) per KUMAI BAYANG AKA’AHS, JSC, clearly pointed out the simple and obvious fact that an interpreter would not be required in circumstances where the accused person understands English thus:
“It was also held in Uchegbu v. State (1993) 8 NWLR (Pt. 309) 89 on providing an interpreter for an accused that – “The provision of Section 33 (6)(c) of the 1979 Constitution on an interpreter enures for the benefit of an accused person who does not understand the language of the proceedings. Therefore where the accused understands the language of the proceedings no miscarriage of justice is occasioned by the failure to provide an interpreter. It follows that failure to provide an interpreter is trivial and not a fundamental flaw. In the instant case, failure to provide an interpreter for the translation of the Ibo version of the proceedings to English Language is not fundamental as the accused understands English and also speaks Ibo.”
See OLANREWAJU v. STATE (2020) LPELR-49569(SC) and SHAIBU v. STATE (2014) LPELR-24465(CA).
A careful examination of the facts and proceedings of this appeal reveals that the Appellant understood English and Hausa. Understanding one language does not preclude an understanding of the other and the level of understanding of the English language which the Appellant displayed on 3rd December, 2015, where he could grasp the proceedings of the Court, complain about the adjournment being considered and advance reasons why the matter ought not be adjourned leaves no doubt in the mind of this Court that the Appellant understood English and did not require an interpreter. Even if my interpretation of the facts is wrong, it is settled law that the issue of lack of interpreter must be raised at trial, at the earliest opportunity and this was not done by the Appellant, hence he cannot be heard to complain now.
See OKORO v. STATE (2012) LPELR-7846(SC), UWAEKWEGHINYA v. STATE (2005) LPELR-3442(SC)and JAMIU v. STATE (2021) LPELR-55621(CA).
With regards to Appellant’s counsel submission on the right to counsel, there is no doubt that the Appellant was represented by Counsel for the substantial part of his trial and no miscarriage of justice was occasioned by the absence of Legal Representation at the Appellant’s arraignment.
See OMOSAYE v. STATE (2014) LPELR-22059(SC), SULAIMON v. STATE(2018) LPELR-44280(CA)and SUNDAY v. STATE (2020) LPELR-51371(CA).
In light of the above, this issue is resolved against the Appellant.
ISSUE TWO
WHETHER THE TOTALITY OF THE EVIDENCE PRESENTED BY THE RESPONDENT ARE COGENT AND RELIABLE TO GROUND A CONVICTION OF THE APPELLANT FOR THE OFFENCE OF ARMED ROBBERY. (GROUNDS 5 AND 6)
Learned counsel for the Appellant argued that the Respondent as Prosecution at trial failed to prove the offence for which the Appellant was charged as the evidence presented by the prosecution Respondent was riddled with material contradictions, which creates doubt that ought to be resolved in the Appellant’s favour; the evidence did not contain any positive identification of the Appellant as one of the robbers who robbed the victims of the crime charged, and the Appellant was never placed in locus criminis.
He relied on Oden v. FRN (2005) 1 NCC 303 at 308 paras B-C, Hassan Jimoh v. State (2014) 9 NCC 463and Atobatele v. FRN (2018) LPELR-44792(CA).
Counsel sought to substantiate his submission on failure to identify the Appellant as one of the robbers by stating that the record of appeal, particularly at pages 31 contains the testimony of PW1, one of the Victims of the robbery, who upon being shown the group of Suspects including the Appellant who had been arrested and were in custody in relation to the crime, stated that he had never seen any of the Suspects and no identification parade was conducted.
He relied on Bolanle v. State (2005) 1 NCC 342 at 346 and Mohammed Ibrahim v. State (2015) 11 NCC 589 at 596.
Counsel in furtherance of his argument on material contradictions in the Respondent’s evidence at trial, posited that while part of the testimony was to the effect that it was vigilantes that arrested the Appellant, other aspects of the evidence was to the effect that it was the Police who arrested the Suspects which led to recovery of the stolen properties. Counsel also pointed out that while count 2 of the charge found on page 1 of the record of appeal stated that the armed robbery took place on 25th September, 2012, under cross-examination, PW2 stated that his Colleague, Corporal Danjuma Markus arrested the Appellant at a roadblock in Jalingo on 27th September, 2012, whereas PW3 testified that he saw the stolen but recovered items on26th September, 2012 at the police Station, a day after he was robbed. The implication being that the Police recovered the items before an arrest was even conducted.
Counsel also submitted that key witnesses such as the people who actually arrested the people involved in the robbery and the persons who conducted the search that led to the recovery of the stolen property were not presented to the trial Court, an omission which means the provision of Section 167 of the Evidence Act 2011, on the presumption that evidence which could be produced but is not produced is unfavourable to the party who withheld it ought to operate in the Appellant’s favour.
On the other hand, learned counsel for the Respondent argued that the Respondent as Prosecution at trial proved all the ingredients of the crime with which the Appellant was charged beyond reasonable doubt, through direct evidence of eye witnesses, the testimony of the investigating police officer and the confessional statement of the Appellant himself.
He relied on: Akeem v. The State (2018) Vol 277 LRCN
Counsel submitted that while PW1 one of the Victims of the Robbery could not identify theAppellant, but testified that he was shown items that were stolen from his house during the robbery as having been recovered from the Appellant, the PW3, another victim of the robbery, clearly identified the Appellant as a Robber who robbed him while being armed with a machette and who threatened the PW3 to stop looking at his face, else the Appellant would cause him bodily harm. He also submitted that circumstantial evidence such as the recovery of the stolen property from the Appellant also helped establish the fact that he committed the robbery as the presumption that the person found in possession of stolen goods is a thief was not rebutted by the Appellant at the trial.
He relied on: Afolabi v. State (2009) NWLR (Pt.1126) P.189, para F, Idiok v. State (2008) ALL FWLR (Pt421) 797, 818 (P.259) and Okundaye v. State (2020) LPELR-50782(CA).
Counsel posited that the confessional statement of the Appellant also contained admission that the Appellant participated in the series of robbery and the learned trial Court was right to have convicted the Appellant on the confession. He referred to the cases of Nwachukwu v. State (2007) 17 NWLR (Pt. 1062) page65 para H and Olanipekun v. The State (2016) SCM.
Counsel argued that the instances of contradiction in the Prosecution’s evidence as pointed out by Appellant’s counsel are not material as to create doubt as they do not affect the and substance of the case before the Court that the Appellant was placed in locus criminis by the PW3’s eye witness testimony and that there was no need for the Prosecution to call other Witnesses when the case against the Appellant had been established to the required standard.
He relied on Afolabi v. The State (2009) 3 NWLR (Pt. 1127) page 185 paras B-E; Ndukwe v. State (2009) 2 SCN pg.223; Isah v. State (2017) LPELR-43472; Adeyemi v. State (2014) 11 SCM pg 25 paras E-H, Sale Umar v. State (2020) LPELR-51372(CA), Oduneye v. State (2001) 1 SC (Pt1), Mohammed v. State (1991) 7 SC (Pt1) 141 and Ankpegher v. State (2018) LPELR-43906(SC) pages 24-25.
In the reply brief, learned counsel for the Appellant submitted that the proper identity of the Appellant was never arrived at during investigation and the trial processes. He referred to the cases of State v. Muhammad (2019) LPELR-48122(SC) and State v. Sani(2018) LPELR-43598(SC), on the effect of failure to identify an accused person as a participant in the robbery for which he was charged.
Learned counsel also submitted that contradiction as to the date of happening of an event is material and ought to be resolved in favour of the Appellant. He relied on FRN v. Iweka (2011) 11-12 SC (Pt.1) P.109.
RESOLUTION OF ISSUE TWO
The starting point of every criminal trial is the fact that the person accused of committing a crime, is innocent, until he is proven guilty, thus he retains all the rights and benefits of a law abiding citizen until conviction, if any. This is the import of the presumption of innocence entrenched in the grund norm by virtue of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:
“Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
In order to successfully rebut the above stated presumption of innocence, the law fixes a strict burden on the Prosecution to clearly establish that the accused committed the offence he is being charged with beyond reasonable doubt. The reason for this stringent requirement of the law is not farfetched as the consequence of a successful criminal trial is punishment by the law and it would amount to grave injustice for an innocent man to be wrongly punished for a crime he did not commit.
Section. 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999Constitution of the Federal Republic of Nigeria and Section 135 (2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 paras A-C, Sola v. The State (2005) 5 (Pt. 1) 135.”
See NNAJIOFOR v. PEOPLE OF LAGOS State (2015) LPELR 24666(CA), TOMETIM v. STATE (2014) LPELR-22788(CA) and ABBEY v. STATE (2017) LPELR-42358(SC).
Section 298((1)(b) of the Penal Code under which the Appellant was charged read in conjunction with Section 296 reveals that the ingredients of armed robbery with which the Appellant was charged includes:
i. That there was a robbery or series of robbery;
ii. That the accused was part of the robbers who partook in at least one of the robberies; and
iii. The accused was armed while partaking in the robbery.
The Supreme Court in the case of OPEYEMI v. STATE (2019) LPELR-48764(SC) (P. 25, Paras. C-F) Per KEKERE-EKUN, J.S.C., the Supreme duly listed the ingredients of armed robbery based on a similar provision thus:
“The essential elements of the offence of armed robbery, which must be proved beyond reasonable doubt are: (a) That there was robbery or series of robberies; (b) That each robbery was an armed robbery; and (c) That the appellant was one of those who participated in the armed robbery. See Bozin vs The State (1985) NWLR (Pt. 8) 465, Suberu vs The State NWLR (Pt.1197) 586, Olayinka vs The State (2007) 9 NWLR (Pt.1040) 561, Okoh vs The State (2014) 8 NWLR (Pt. 1410)
See ETINOSA v. STATE (2019) LPELR-48325(CA), OSAGIE v. STATE (2019) LPELR-47827(CA) and OGUDO v. THE STATE(2011) LPELR-860(SC).
There is no contention as to whether there was a robbery or that the Robbers were armed, as the prosecution was able to produce two eye witnesses who gave unchallenged testimony, with PW3 in particular damning the Appellant, having testified to the effect that he remembered the Appellant as the Armed Robber who robbed him and threatened him. PW3’s testimony is enough to convict the Appellant in line with the settled principle of law to the effect that an accused person may be convicted by the oral testimony of even one witness only, so long as the testimony is cogent.
See CHIDOZIE v. C.O.P (2018) LPELR-43602(SC) (Pp. 24-25, Paras. A-B) Per SANUSI, J.S.C.; ADEBOWALE v. STATE (2018) LPELR-46766(CA), STATE v. SULEIMAN & ORS (2018) LPELR-45636(CA) and GIKI v. STATE(2018) LPELR-43604(SC).
In addition to the oral testimony of the witnesses, is the confession of the Appellant which the trial Court also relied on in convicting the Appellant in line with settled principle of law that the confessional statement of an accused person is a veritable means of establishing the fact that he committed an offence and can successfully ground conviction on its own.
The Supreme Court in the case of AKIBU v. STATE (2019) LPELR-47630(SC), per ABBA AJI, J.S.C. (Pp. 25-28, Paras. B-B), reiterated the above principle thus:
“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 and this includes both extra-judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. Confession has also been held to be a criminal suspect’s oral or written acknowledgement of guilt, which often includes details about the crime alleged. In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. See Per ARIWOOLA, J.S.C in ADEBAYO V. STATE (2014) LPELR-22988(SC). A person should not under whatsoever circumstance confess and admit what he is not guilty of except when it comes under the exceptions where a confession can be considered involuntarily obtained, otherwise, a crime confessed is a crime committed and ought to be convicted for because it may relieve the prosecution the duty and burden of proof beyond reasonable doubt. Per MOHAMMED, J.S.C in ABASI V. STATE (1992) LPELR-20(SC) clearly stated that it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt but for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true.
See SANNI v. THE STATE (2019) LPELR-48418(CA) and JIMOH v. STATE (2014) LPELR-22464(SC).
A careful examination of the confessional statement of the Appellant, which was rightly considered as voluntarily given by the lower Court, reveals that same is consistent with other facts established by the Prosecution at trial and that the Appellant was in a position to participate in the robbery as confessed, thus the lower Court rightly in my view convicted him on the basis of the confessional statement. See NALADO v. STATE (2019) LPELR-47626(SC).
The contention of Appellant’s counsel that there were contradictions in the evidence of the Prosecution at trial would not avail him, as they do not go to the root of the case and cannot be said to be of such a material nature as to impugn the veracity of the conclusions reached by the trial Court. The reason for this is that the fact that there was some differences with the two dates the robbery occurred and when the Appellant was arrested, do not affect the fact that was established to a very high degree of certainty that a robbery took place on the day in question and that the Appellant participated in the commission of the said robbery. In the case of EDUENOH v. STATE (2019) LPELR-48345(CA), where there were discrepancies in the evidence of the Prosecution witnesses with regards to different dates of commission of the offence 14th March, 2013, 19th March, 2013 and 13th March, 2013, the number of phones recovered from the appellant and the place of arrest of the appellant at the scene of the crime, the Court held such as being immaterial.
See Akpa v. State (2007) 2 NWLR (Pt. 1019) 500 at 528 Paras. D – G (CA); and JOHN OGBU & ANOR V. THE STATE.
A careful examination of the evidence at trial reveals that the Prosecution without doubt established the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt and issue two is resolved against the Appellant.
In summation, I find the appeal lacking in merit and same is hereby dismissed.
The judgment of the lower Court delivered on 5th May, 2017 in case no. TRSJ/1C/2013 is hereby affirmed. The conviction and sentence of the Appellant is also affirmed.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking merit. I also dismiss it and affirm the judgment of the trial Court in case no. TRSJ/1C/2023 delivered on the 5th May, 2017.
MUHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA in the matter.
I entirely agree with his Lordship’s arguments and resolution of issues canvassed.
The appeal is lacking in merit and is hereby dismissed.
Appearances:
John Okezie, Esq., with him, P.E. Ibe, Esq. and I. I. Daniel, Esq. For Appellant(s)
D.D. Shintema Senior State Counsel Taraba State Ministry of Justice. For Respondent(s)
