GARBA v. STATE (2020)

GARBA v. STATE

(2020)LCN/14757(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/14C/2020

RATIO

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

The Apex Court had held in a host of cases that the guilt of an accused person can be proved by (a) the confessional statements of the accused person or (b) circumstantial evidence or (c) evidence of eye witness of the crime. Igabele Vs State (2006) 6 NWLR pt 975 pg 100, Olaoye vs the State (2018) LPELR 43601, Ilodigwe Vs State (2012) LPELR 9342 Opolo Vs State (1977) LPELR 2750, Anyasodor Vs State (2018) LPELR 43720; Udoh Vs State (2019) LPELR 47096. PER NDUKWE-ANYANWU, J.C.A.
CRIMINAL LAW: BURDEN OF PROOF IN CRIMINAL TRIAL

In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt and it does not shift. Ani Vs State (2003) 11 NWLR pt 830 pg 142, Igabele Vs The State (supra) PER NDUKWE-ANYANWU, J.C.A.

CONFESSION: EFFECT OF EVIDENCE OF CONFESSION ON THE CO-ACCUSED

It is the law that the confession is evidence against the maker and not the co-accused. See Egunjobi Vs FRN (supra). The Court of Appeal held thus.
“No doubt, it is the law that a confession is only evidence against the person who made it and not against his co-accused: See R v. Bodem (1935) 2 WACA 390, Section 27(3) Evidence Act 1990. A statement made to the police by an accused person is not evidence against a co-accused.”
See also Idowu Vs State (supra) where the Supreme Court held as follows
“…Nor can the confession of the accused upon which he (co-accused) was convicted for stealing be the basis for finding the Appellant guilty of the same offence. Indeed, voluntary confessions are deemed to be relevant facts as against only the persons who make them… they are not ordinarily evidence against co-accused persons… Where, however, a confession is made by one out of the persons charged jointly with a criminal offence in the presence of the others implicating them and any of such other persons adopted the said statement into consideration as against any such other persons… in the instant case, the appellant neither adopted the co-accused’s statement implicating him in the commission of the offence charge by words nor by conduct.” PER NDUKWE-ANYANWU, J.C.A.
CRIMINAL PROCEDURE: DUTY OF AN IPO IN INVESTIGATION OF CRIME

However, an IPO is entitled to investigate crimes as part of his job description. It is obvious that the investigative police office is invariably never at the scene of the crime. His investigation comes after the crime had been committed. An IPO obtains statement from accused persons and witnesses alike. He thereafter, testifies in Court giving a synopsis of what he did during the investigation. He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation.

The investigating police officer thereafter gives direct evidence as to what he has done during the investigation of the crime. The evidence of the IPO is not by any standard hearsay.
He gives an account of what he has done in the course of his investigations. See Obot Vs The State (2014) LPELR 23130, Abiodun Vs State (2016) LPELR. 41399.
The IPO found as a fact that the Rooney/Rumi was the same person as the Appellant during his investigation of the Robbery. Evidence of an IPO can never be taken as hearsay as it is the report of what he saw or discovered in the course of his investigation. See Isah Vs The State (2019) LPELR 49363.
It is, therefore, a direct evidence that Pw4, the IPO gave and not hearsay. Dangana Vs IGP (2018) LPELR 43720 where the Supreme Court held:
“To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the Appellant told him was positive? and direct which was narrated to him by the Appellant and other witnesses he came into contact within the course of his investigation of the case.

Evidence of an IPO is never to be tagged as hearsay.”
This Court in a plethora of its decided authorities had adjudged such evidence as direct evidence and therefore, not hearsay evidence. Per Sanusi JSC Arogundade Vs The State ( 2009) All FWLR pt 469 pg 423, Odogwu Vs State (2009) LPELR 8506. PER NDUKWE-ANYANWU, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

IBRAHIM GARBA APPELANT(S)

And

THE STATE RESPONDENT(S)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Gombe State delivered on 21st March, 2019 by Hon. Justice B. L Iliya. The lower Court tried the Appellant with four (4) others on a two (2) count charge of:
1. Conspiracy to commit Armed Robbery Punishable under Section 1 (2)(b) of the Robbery and Firearms (special provisions) Act LFN, 1990 as amended and abetment to commit the offence of Armed Robbery punishable under Section 6 of the Robbery and Firearms (Special Provision) Act, LFN, 1990 as amended.

The Appellant was arraigned with others and he pleaded not guilty. The prosecution in proof of its case against the Appellant who was the 4th Accused in the Court below, called seven (7) witnesses and tendered exhibits. The Appellant testified as Dw4.

The five (5) accused including the Appellant were said to have conspired with each other to Rob Pw1 and Pw2. The couple Pw1 and Pw2 were robbed in their house. The Pw2 came back home one night and as he was driving through his gate opened by his wife, Pw1, the accused persons pounced on him. The accused persons disposed

them of N350,000.00, their phones, bags and other valuables. The accused persons were armed with guns and sticks.

When the accused persons left the Pw2 called his two phone numbers. One of them was picked by one of the accused persons and left open. The Pw2 over heard when the accused persons were discussing how to take his car they stole to Yola the following day to sell and bring back the proceeds for sharing. The following day, the Pw2 enlisted his friends and set out on the journey to Yola. As luck would have it, they saw his car with a different number plate. They pursued the driver and with the help of the vigilantes was caught and returned to Gombe where he was charged.

The story was that the gang enlisted the Appellant to carry their guns to the venue of the robbery. They opined that since he was a police man he would not be checked or stopped at the police check points.

The Appellant was charged with conspiracy and abetment. He was found guilty as charged. He was convicted and sentenced to death. Being dissatisfied, the Appellant filed his notice which was later amended and filed on 10th June, 2020. It was thereafter, deemed properly

filed and served on 9th July, 2020.

The Appellant filed his Appellant’s brief on 22nd June, 2020 and deemed properly filed and served on 9th July, 2020. In the brief, the Appellant articulated two (2) issues for the determination of the Court.

They are as follows:
(i) Whether the lower Court was right to have convicted the Appellant for the two (2) counts offences of (i) conspiracy to commit Armed Robbery; and (ii) abetting the commission of the offence of Armed Robbery based on the confessional statement of Aminu Mohammed (2nd Accused person at the lower Court) and Jeremiah Stephen (3rd Accused person at the lower Court) tendered as Exhibits 4 and 5 and 2(a). (Grounds 1, 3 and 4)
(ii) Whether having regards to the totality of the evidence placed before the trial Court and the position of the law, the Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court. (Ground 2, 5, and 6)

In response, the Respondent filed its brief on 7th September 2020 and served the same day. The Respondent also articulated two (2) issues also for determination as follows:
i. Whether the

circumstantial evidence adduced before the trial Court were sufficient to warrant conviction of the appellant for the offences of criminal Conspiracy and abetment to commit armed robbery contrary to Section 5(b) and 1(2)(b) respectively of the Robbery and Firearms (special provision) Act 1990 (as amended). This issue related to (grounds 2, 3 and 5 of the Appellant’s brief of argument)
ii. Whether the prosecution proved the case of criminal conspiracy and abetment to commit armed robbery against the appellant beyond reasonable doubt. This issue relates to (ground 1, 4 and 6 the appellant’s brief of argument).

The issues articulated by both parties are similar however, I will utilize the issues denoted by the Appellant, the owner of this appeal.

ISSUES 1
The learned counsel for the Appellant submitted inter alia that the learned trial judge convicted the Appellant on the information from the confessional statement of Aminu Mohammed (2nd Accused person) and Jeremiah Stephen (3rd accused person). The confessional statements were admitted as exhibits 4 and 5, exhibits 2(a) and (b). Counsel argued that both 2nd and 3rd accused person

did not mention the Appellant, Ibrahim Garba as the person who conveyed the gun to the venue of the Robbery. Counsel also stated that the confessional statement of the 2nd and 3rd accused persons is not admissible against the Appellant. Egunjobi Vs FRN (2002) FWLR pt 105 pg 896, Idowu Vs State ( 1998) 9-10 SC pg 1.

Counsel argued further that the Appellant did not in any way adopt either by words or conduct, the confessional statement of the 2nd and 3rd accused persons. Bamaiyi Vs A.G.F (2001) 12 NWLR pt 727 pg 468. Nwankwo Vs Yar’adua (2010) 12 NWLR pt 1209 pg 51.

Counsel referred the Court to Section 29(4) of the Evidence Act 2011 and urged the Court to hold that the lower Court was wrong to have relied on the confessional statement of the other accused persons to convict the Appellant.

The counsel urged the Court to resolved this issue in favour of the Appellant.

ISSUE 2
The learned counsel for the Appellant submitted that the prosecution had the burden of proving an accused charged with a crime guilty beyond reasonable doubt. See Section 36(5) of the 1999 Constitution. Section 135, Evidence Act, Ani Vs State (2003) 11 NWLR pt 830

pg 142. Ifejirika Vs State (1999) 3 NWLR pt 593 pg 59, Nweze Vs State (2017) LPELR 42344 and Ibrahim Vs State (2015) 11 NWLR pt 1469 pg 164, Oladele Vs Nig Army (2004) 6 NWLR pt 868 pg 166, Bello Vs State (2007) 10 NWLR pt 1043 pg 564 The State Vs Azeez (2008) 14 NWLR pt 1108.

In establishing the guilt of the Appellant, the prosecution is mandated to prove all the ingredients of the offence either by direct evidence or circumstantial evidence or by confessional statement. See Emeka Vs State (2001) 14 NWLR pt 734 pg 666, Adio Vs State (1986) 2 NWLR pt 24 pg 581.

To prove conspiracy against the Appellant, the prosecution must establish the following ingredients beyond reasonable doubt.
a. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means;
b. Where the agreement is other than an agreement to commit an offence, that some act beside the agreement was done by one or more parties in furtherance of the agreement; and
c. Specifically, each of the accused individually participated in the conspiracy.

Counsel submitted that the Appellant was charged and

convicted of the offence of conspiracy to commit armed robbery. The lower Court in its judgment held that there was no direct evidence linking the Appellant to the offence. Also that all prosecution witnesses called did not link the Appellant to the offence. The Court held that the prosecution had proved the ingredients of the crime by circumstantial evidence See Ijioffor Vs The State (2001) ALL FWLR pt 49 pg 1457, Idowu Vs State (supra) Omgodo Lori Vs the State (1980) 8-11 SC 81 and Yongo Vs C. O. P (1992) 8 NWLR pt 257, pg 36.

Counsel contended that by virtue of Sections 37 and 38 of the Evidence Act 2011 hearsay evidence is inadmissible and cannot form the basis of this judgment of the Court. The evidence of the 4th accused person as to how he knew the 3rd accused person Jeremiah Stephen was neither challenged or controverted during cross-examination and as such should be accepted. See M. F. Kent (W.A) Ltd VS Marchem Ltd (2000) 8 NWLR pt 669 pg 459, Egbunike Vs A. C. B. Ltd (1995) NWLR pt 375 pg 34 Agribank Nig. Ltd Vs Mosland Enterprises Ltd (2008) 12 NWLR pt 1098 pg 223.

For the offence of Abetting, the learned Appellant’s counsel argued that the

learned trial judge was in error when he convicted the Appellant only on the confessional statement of the 2nd and 3rd accused persons.

The Appellant’s counsel stated that there was nowhere in exhibits 2(a) and (b), 4 and 5 was the Appellant referred to as Rooney. These exhibits being confessional statements are not admissible against the Appellant. Counsel therefore urged the Court to resolve this issue in favour of the Appellant and allow this appeal.

RESOLUTION
The Apex Court had held in a host of cases that the guilt of an accused person can be proved by (a) the confessional statements of the accused person or (b) circumstantial evidence or (c) evidence of eye witness of the crime. Igabele Vs State (2006) 6 NWLR pt 975 pg 100, Olaoye vs the State (2018) LPELR 43601, Ilodigwe Vs State (2012) LPELR 9342 Opolo Vs State (1977) LPELR 2750, Anyasodor Vs State (2018) LPELR 43720; Udoh Vs State (2019) LPELR 47096.
In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt and it does not shift. Ani Vs State (2003) 11 NWLR pt 830 pg 142,

Igabele Vs The State (supra)

In proof of the case against the Appellant, the prosecution called 7 witnesses and tendered many exhibits including the confessional statements of 2nd and 3rd accused persons, exhibits 2(a) and 2(b), exhibits 4 and 5.

In the confessional statement of the 2nd accused, exhibits 4 and 5, Hausa and English version Respectively. The 2nd accused Aminu Mohammed alias Fadalo, he stated in his confessional statement that one policeman was contacted to carry their operational gun to the venue. This was to forestall, the police checkpoints along the way.

Also, 3rd accused Jeremiah Stephen in his confessional statement, exhibits 2(a) and 2(b) also stated that he actually contacted a policeman called Rooney.

The Appellant knew the 3rd accused person as his number was on this phone book. It was on that phone that the 3rd accused person reached him to assist them convey the gun past police checkpoints to the scene of the Robbery. The Appellant never denied knowing the 3rd accused person. The 3rd accused described the Appellant’s motorcycle as being Ash in colour. The 3rd accused Jeremiah Stephen

described the Appellant as his police friend who normally conveyed their operational gun to the venue of operation to avoid police checkpoints.

The Appellant never denied that the 3rd Appellant was his friend and they are on telephone terms with each other. Even though the 2nd and 3rd accused person referred to him as “Rooney” he was one and the same person. His identity was not in doubt. He was given an orderly room trial because of his involvement with this gang and dismissed from service. There were several police men in Gombe Police Command, and the 2nd and 3rd accused person identified him as the one who normally conveyed their operation gun to the scene of Robbery or operation. The Appellant’s girlfriend Sarah Yila was also investigated but released. The Appellant had saved the 3rd accused number in her phone as baby friend. This, the Appellant did not deny.

During investigation, Pw4, Corporal Dahiru Abdullahi in his evidence in Court stated as follows:
He made a statement. He Jeremiah Stephen mentioned the name of the Police officer who assisted them with arms as Rumi, that the said Rumi worked at Pantami before he was

transferred to state police headquarters. That Rumi is also Corporal Garba. He is the 4th accused in Court.

This was what the Pw4 discovered during the investigation of this case. It is the law that the confession is evidence against the maker and not the co-accused. See Egunjobi Vs FRN (supra). The Court of Appeal held thus.
“No doubt, it is the law that a confession is only evidence against the person who made it and not against his co-accused: See R v. Bodem (1935) 2 WACA 390, Section 27(3) Evidence Act 1990. A statement made to the police by an accused person is not evidence against a co-accused.”
See also Idowu Vs State (supra) where the Supreme Court held as follows
“…Nor can the confession of the accused upon which he (co-accused) was convicted for stealing be the basis for finding the Appellant guilty of the same offence. Indeed, voluntary confessions are deemed to be relevant facts as against only the persons who make them… they are not ordinarily evidence against co-accused persons… Where, however, a confession is made by one out of the persons charged jointly with a criminal offence in the presence of the

others implicating them and any of such other persons adopted the said statement into consideration as against any such other persons… in the instant case, the appellant neither adopted the co-accused’s statement implicating him in the commission of the offence charge by words nor by conduct.”
I am aware that the Appellant neither adopted the confessional statement of the 3rd accused by words or by conduct. Section 29(4) of the Evidence Act 2011 forbids the Court to rely on a confessional statement of an accused to convict his co-accused unless he adopts it himself as the true position.

However, an IPO is entitled to investigate crimes as part of his job description. It is obvious that the investigative police office is invariably never at the scene of the crime. His investigation comes after the crime had been committed. An IPO obtains statement from accused persons and witnesses alike. He thereafter, testifies in Court giving a synopsis of what he did during the investigation. He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It therefore, follows that the Appellant was the same Rooney/Rumi referred to by 2nd and 3rd Accused persons. It therefore cannot be said that the trial Court relied on the confessional statements of 2nd and 3rd accused persons, exhibits 2(a) and 2(b), 4 and 5 to convict the Appellant.

The Appellant was also convicted of conspiracy to commit Armed Robbery. “Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do” Nwosu Vs State (2004) 15 NWLR pt 897 pg 466,Amachree Vs Nig. Army (2003) 3 NWLR pt 807 pg 256.
The ingredients of the offence of conspiracy punishable under Section 97 of the Penal Code are as follows: (a) An agreement between two or more persons to do or cause to be done some illegal act, or same act which is not illegal by illegal means. (b) Where the agreement is other than an

agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement and (c) specifically, that each of the accused persons individually participated in the conspiracy. Abacha Vs Federal Republic of Nigeria (2006) 4 NWLR pt 970 pg 239 Aituma Vs State (2006) 10 NWLR pt 989 pg 452.
In this appeal, the Appellant conspired with this gang. He knew the 3rd accused person Jeremiah Stephen who enlisted him to convey their operational gun to the scene of crime.
He of course knew what he was enlisted for, to convey the operational gun for a Robbery. There was no evidence that he participated in the actual Robbery.
The offence of conspiracy is not defined in the Criminal or Penal Code. Therefore, direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inaction of the parties concerned. Oduneye Vs The State (2001) 13 WRN pg 88.
In this appeal, the Appellant ferried the operational gun through the checkpoints to the scene of crime. Of

course he was aware that the gun was not a toy to play with. He knew as a police officer that ferrying the gun across checkpoints was on its own a crime not to think of when it was going to be used for armed robbery.
The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not to have started the conspiracy at the same time.
The bottom line of the offence is the meeting of the minds of the conspirators. Nwosu Vs State (supra).
The other accused person planned the armed Robbery and enlisted the help of the Appellant to assist them ferry the gun through the police checkpoints. There was from all these snippets of evidence a meeting of the mind of the Appellant with the other accused persons. It is very difficult to prove the offence of conspiracy. It is actually a matter of inference from certain acts of the parties. Consequently, the actual commission of the offence is not necessary to ground a conviction for

conspiracy. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical. Nwosu Vs the State (2002) 10 NWLR pt 776 pg 612. Daboh Vs State 1977 5 SC pg 197.
It is trite law that in a conspiracy proceedings evidence of what one accused says in the absence of the other conspirators is admissible against such others on the basis that if they are all conspirators what one of them say in furtherance of the conspiracy is admissible evidence against them, even though it might have been said in the absence of the other conspirators. This statement of law is thus an exception to the rule of hearsay. Nwosu Vs State (2004) 15 NWLR pt 897 pg 466.
The Appellant was part and parcel of the conspiracy and as such was rightly convicted of the offence of Conspiracy to commit armed robbery.

The Appellant’s counsel argued that there was no link between the Appellant and the so-called Rooney to ground any charge against the Appellant. I have dealt comprehensively about the link between the Appellant Ibrahim Garba and Rooney. His girlfriend Sarah Yila, Pw6 referred to him as Ibrahim Garba alias Rooney.

Also PW3 in his evidence in Court as IPO found as a fact that the reference of a police officer called Rooney was the same as the Appellant Ibrahim Garba.
If the Appellant was the same as Rooney it, therefore, means that the Appellant was the police officer that ferried the gun to the scene of the robbery across police checkpoints. Section 5(a) and (b) of the Robbery and Firearms (special provision) Act 1990. Provides thus.
“Any person who;
a. Aids, counsels, abets or procures any person to commit an offence under Sections 1, 2, 3 or 4 of this act or
b. Conspires with any person to commit such an offence, whether or not he is present when the offence was committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this act.”
In this appeal, it is obvious that the Appellant aided the other four (4) accused persons in the commission of the armed Robbery by conveying the operational gun to the scene of the crime. Zango Gwamna and Shongo Idrisa quarters Gombe on 3rd July 2014.

The Pw4 (IPO) corporal Dahiru Abdullahi

stated that from his investigations he found out that the 3rd accused person Jeremiah Stephen enlisted the Appellant Ibrahim Garba alias Rooney to convey the gun to the scene of crime. Also Pw6 described Ibrahim Garba alias Rooney as her boyfriend. The Appellant was also the one who saved the 3rd accused person’s no in his girl friend’s phone as (baby friend) Pw4 and Pw6 corroborated the snippets of information collected during investigation by Pw4.

In sum, it is clear that the prosecution proved the charges against the Appellant beyond reasonable doubt. The standard of proof in a criminal trial is proof beyond reasonable doubt. There was evidence which identified the person accused ie the Appellant with the offence and that it was his act, which caused the offence. Abadom Vs State (1997) 1 NWLR pt 479 pg 1, Akinyemi Vs State (1999) 6 NWLR pt 607 pg 449, Aigbadion Vs State (2000) 4 SC pg 1.
However, in proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. Thus, if the evidence adduced by the prosecution is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with the

sentence “of course it is possible” the case is proved beyond reasonable doubt, but nothing short of that would suffice. Agbo Vs State (2006) 6 NWLR pt 977 pg 545, Uwagboe Vs State (2007) 6 NWLR pt 1031 pg 600.
I therefore hold that the prosecution proved its case against the Appellant beyond reasonable doubt. This appeal is unmeritorious. It is dismissed. I affirm the judgment of the lower Court in convicting the Appellant for the charge of conspiracy to commit armed robbery and abetment. I also affirm the conviction and sentence of the Appellant.

JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege of reading in draft the lead Judgment read by my learned brother, Ndukwe-Anyanwu, J.C.A. I agree with his reasoning and conclusion that the Appeal lacks merit.

Accordingly, I also dismiss the Appeal. I abide by the consequential orders made.

I too further affirm the conviction and sentence passed on the Appellant by the trial Judge.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. His Lordship’s detailed analysis of the evidence adduced before

the trial Court vis-à-vis, the Judgment of the said trial Court is an excellent display of his Lordship’s prowess in the role of adjudication. The conclusions reached cannot be faulted. Just as his Lordship, I too find this appeal to be without merit. Therefore I dismiss same, and in consequence, affirm the Judgment of the lower Court.

Appearances:

Adesina Esq., with him, A. Abdulkadi Esq. and T. J. J. Danjuma Esq. For Appellant(s)

Zainab A. Rasheed (Solicitor General/Permanent Secretary, Ministry of Justice Gombe State), with him, Abdulkadir Umar Esq. For Respondent(s)