HARUNA v. STATE (2020)

HARUNA v. STATE

(2020)LCN/14746(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/K/518/C/2017

RATIO

EVIDENCE: WHEN WILL THE RIGHT TO CROSS-EXAMINATION ARISE

The right to Cross-examination arises only after the completion of witness’s evidence in Chief: Innocent v. State (2013) LPELR 21200 (CA); Isiaka v. State (2011) 1 All FWLR (Pt. 583) 1966, 1983. In other cases, the person whose right it is to Cross – examine a witness can insist and ensure that he exercised that right by putting up an application to Court or to other relevant bodies or authorities to summon the witness for the purpose of Cross-examination. Should the trial Court refuse to honour such application, then, there is thus, a denial of the right to fair hearing by the Court: Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350; Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612, 625 (SC). Such denial translates to an infraction of the Constitution of Federal Republic of Nigeria (1999), at Section 36 (6)(d) . PER HUSSAINI, J.C.A.

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ROBBERY OR ARMED ROBBERY

In a case such as this, where the charge framed against the Appellant is one of Robbery or Armed Robbery under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, LFN, 2004, the prosecution necessarily, must prove, in other to succeed, the essential ingredients of the offence, namely:
(i) That there was robbery;
(ii) That it was an Armed Robbery, and
(iii) That the accused was the robber or one of the robbers.
See Adekoya v. State (2012) 9 NWLR (Pt. 1306)539, 566. PER HUSSAINI, J.C.A.
CRIMINAL LAW: METHODS OF PROVING THE GUILT OF A PARTY

He can lead evidence to prove his case by any of the three (3) methods, recognized for establishing an offence, namely:
(i) Evidence by eye witness
(ii) The confession of the accused person
(iii) Circumstantial evidence
See Igri v. State (2012) 16 NWLR (Pt. 1327) 522, 541. PER HUSSAINI, J.C.A.

CONFESSIONAL STATEMENT: TEST FOR VERACITY OF A CONFESSIONAL STATEMENT

That was the confessional statement ascribed to the Appellant. Although the Appellant denied making that statement, the trial Court rightly in my view admitted same in evidence as the confessional statement of the Appellant hence the same can be acted upon to convict provided there was observance of the principle enunciated in Kareem v. FRN (No. 2) (2002) 8 NWLR (Pt. 770) 664, 683 for the purpose of confirming the truth or otherwise of that Confessional Statement. Thus the conviction of the Appellant/accused on the statement will depend on:-
(a) Whether there is anything outside it to show the statement is true.
(b) Whether it is corroborated
(c) Whether the facts stated in it are true in so far as can be tested.
(d) Whether the accused had the opportunity of committing the offence.
(e) Is his confession possible.
(f) Whether it is consistent, with other facts which have been ascertained and have been proved. See further: Barmo v. State (2000) 1 NWLR (Pt. 641) 425. PER HUSSAINI, J.C.A.
CONFESSION: WHETHER AN ACCUSED CAN BE CONVICTED ON HIS VOLUNTARY STATEMENT

An accused can be convicted on his own voluntary confessional statement alone. See: Afolabi v. State (2016) LPELR-40300 (SC). PER HUSSAINI, J.C.A.

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko HussainiJ ustice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ABUBAKAR HARUNA (ALIAS TURARE) APPELANT(S)

And

THE STATE RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellant and one other person, Shafiu Ahmed were convicted and sentenced to death at the High Court of Katsina State on 25/5/16 for armed robbery pursuant to the provisions of S.1(2)(a) of the Robbery and Firearms (Special Provision) Act Cap. R11 LFN 2004. They are alleged to have attacked and robbed one Dr. Ibrahim Hamisu of his Toyota Matrix car with Registration No. AQ315 KN on or about the 16th of November, 2011 at Gidan Ware Quarters, Katsina. In the course of trial, the Prosecution called evidence of Eighth (8) witnesses, and tendered several Exhibits including statements ascribed to the Appellant as his confessional statements. At the close of evidence of the Prosecution, the Appellant and his co-accused decided to give evidence in their own defence but did not call any other witness or tender any Exhibit. At the end of the trial, the Court below found them guilty of the offence as charged and were each sentenced to death.

By the Notice of appeal dated 23/8/16 and filed on 24/8/2016, the Appellant appealed against that decision to this Court on three (3) grounds. The Notice of

appeal was later amended. However, by the further amended Notice of appeal filed on 13/3/18 but deemed on 30/9/19, the appeal to this Court is on ten (10) grounds. Record of appeal was duly transmitted and parties through their counsel, filed and Exchanged briefs of argument.

The extant brief for the Appellant is the Further amended brief dated the 15th August, 2019, filed on the 30th August, 2019 and deemed filed on the 30/Sept/2019.

Respondent’s extant brief of argument dated 7th September, 2020 was deemed filed on the 10/9/2020. Learned counsel on both sides appeared before us on the 10/9/2020 to adopt their respective briefs. The two (2) issues identified in the Appellant’s Further amended brief of argument are reproduced below:
(i) Having regard to the entire circumstances of the case, can it be said that the Appellant had a fair trial (Grounds 9 and 10 of further amended Notice of Appeal).
(ii) Having regard to the evidence before the Court was the learned trial Judge right when he convicted the Appellant for the offence of Armed Robbery (Grounds 1 and 7 of the Further Amended Notice of Appeal).

For the Respondent,

the following two issues were raised for determination, namely:
(i) Whether the inability of PW7 to conclude his testimony leading to the Appellant’s inability to cross examine him amounts to a denial of fair hearing to the Appellant warranting this Honourable Court to reverse the decision of the lower Court.
(ii) Whether going by the totality of evidence led by the Prosecution (Respondent) before the trial Court, the Respondent had proved its case beyond reasonable doubt against the Appellant.

The two (2) sets of issues are virtually the same. I will however abide by the two issues formulated by the Appellant in his brief of argument in addressing this appeal.

With respect to the two (2) issues identified by the Appellant, I want to observe that the two issues are derived from grounds 9, 10, 1 and 7 respectively. By that it means that there are no issues formulated from Grounds 2, 3, 4, 5, 6, 8 as contained in the Further amended Notice of Appeal. Those grounds of appeal are deemed abandoned hence same are struck out without much ado. See: Saliba v. Yassin (2002) 2 SCNJ 14, 24.

ISSUE NOS. 1 AND 2
(1) Having regard to the

entire circumstances of the case, can it be said that the Appellant had a fair trial? (Grounds 9 and 10 of the amended Notice of Appeal)
(2) Having regard to the evidence before the Court was the learned trial Judge right when he convicted the Appellant for the offence of Armed Robbery? (Grounds 1 and 7 of the Further Amended Notice of Appeal)

In addressing the two (2) issues, together it was argued that the case of the Appellant was not fairly treated or considered at the trial Court, who relied heavily on the Evidence of PW7 in its Judgment and yet failed to make the witness available for Cross-examination of the Appellant. Relying therefore on Section 36 (6)(d) of the 1999 Constitution of Federal Republic of Nigeria, (as amended), it was submitted that the Appellant who had not had the benefit of cross-examining the witness, had not had fair trial or hearing and that the trial Court who found to the contrary, was also biased when it pronounced a verdict of guilt on the Appellant, hence the proceedings of the Court below stand vitiated. We were referred to the decision in Sunday Okoduwa & Ors. v. State (1988) 2 NWLR (Pt. 76) 333, 354 –

355; Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt. 53) 673; Innocent v. State (2013) LPELR 21200 (CA); Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612, 625; Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350.

It is further argued for the Appellant that once the evidence of PW7 is discountenanced, the prosecution would have failed to prove the offence alleged. We were urged to resolve issue No. 1 and indeed issue No. 2 in favour of the Appellant.

In response to those submissions, learned Respondent’s counsel in his brief of argument submitted that there was no time the Appellant or his counsel applied to Cross-examine PW7 and he was refused rather the Appellant or his counsel did not raise any objection when the Prosecuting counsel applied to close their case in the face of persistent failure or refusal of the PW7 to appear and continue with his evidence. The trial Court, upon that application, closed the case for the Prosecution. Thus, the claim or contention by the Appellant that his case was not fairly treated at the Court below was/is unfounded. We were urged to so hold.

Relative to issue No. 2, it

was contended for the Respondent that the Prosecution had proved her case even if the entire evidence of PW7 was discountenanced, as there are other pieces of evidence on record upon which this Court can rely on to affirm the conviction and sentence of the Appellant. We were referred to Exhibits 3, 4, 6, 8A and 8B. It was argued that the confessional statement ascribed to the Appellant as in Exhibit 8A and 8B was corroborated and same was an admission of guilt by the Appellant hence the Appellant can be convicted on his confessional statement not withstanding that the accused/Appellant resiled from it. He argued that there are evidences on record which the confessional statement in Exhibit 8B as true. We were referred to the case of Edhigere v. State (1996) 8 NWLR (Pt. 464) 1, 8; Durugo v. State (1992) 7 NWLR (Pt. 255) 525, 541; State v. Gwangwan (2015) 13 NWLR (Pt. 1477) 600, 623-624. We were urged to resolve issue No. 2, also against the Appellant and affirm the decision of the Court below.

RESOLUTION OF ISSUE NOS. 1 AND 2
I will begin with issue No. 1 on the question whether or not the Appellant had fair trial or hearing at the Court below.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The evidence of PW7 is at the centre of it all. He is the victim of the armed robbery attack. His evidence is at pages 63-64 of the record. He testified on the 12/5/2015.
The prosecuting counsel sought to tender through this witness, a car with Registration No. AQ 315KTN. Defence counsel took objection to the car being admitted in evidence. The trial Court reserved ruling to a later date. The Ruling was given or delivered on the 26/5/15. See pages 65 – 66 of the record wherein the trial Court admitted the car in evidence and marked same as Exhibit 9. PW7 was expected to continue with his evidence, in chief after that Ruling. He was not in Court on the said date (26/5/15), thus necessitating another adjournment to the 16/6/15 at the instance of the prosecuting counsel. When the case resumed on 9/6/15 for continuation of hearing with the evidence of PW7 he was still not in Court hence the matter was further adjourned to the 27/7/15 for continuation of hearing. On the 8/10/15 and 12/10/15, the witness was still not in Court for continuation of hearing of his evidence in Chief. On the 22/10/15, the trial Court acceded to the application of the

Prosecuting counsel to close his case and the Court adjourned further proceedings to the 10/11/15 for defence. See page 70 of the record. It can thus, be seen from the pages of the record of proceedings that the evidence of PW7 remained inconclusive even as regards his evidence in Chief.
The right to Cross-examination arises only after the completion of witness’s evidence in Chief: Innocent v. State (2013) LPELR 21200 (CA); Isiaka v. State (2011) 1 All FWLR (Pt. 583) 1966, 1983. In other cases, the person whose right it is to Cross – examine a witness can insist and ensure that he exercised that right by putting up an application to Court or to other relevant bodies or authorities to summon the witness for the purpose of Cross-examination. Should the trial Court refuse to honour such application, then, there is thus, a denial of the right to fair hearing by the Court: Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350; Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612, 625 (SC). Such denial translates to an infraction of the Constitution of Federal Republic of Nigeria (1999), at Section 36 (6)(d) . However, the Record

before us does not so indicate that the Appellant was at any time denied his right to Cross-examine the witness (PW7). My take on all of these therefore, going by the record before us, is that the testimony of PW7 was simply inconclusive and evidence of witness which was not complete cannot be acted upon by the Court, being a worthless piece of evidence. I resolve issue No. 1 against the Appellant.

The second issue flow from the first and that is, whether the Prosecution can be said, has proved their case considering that the evidence of PW7 is of no moment?

In a case such as this, where the charge framed against the Appellant is one of Robbery or Armed Robbery under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, LFN, 2004, the prosecution necessarily, must prove, in other to succeed, the essential ingredients of the offence, namely:
(i) That there was robbery;
(ii) That it was an Armed Robbery, and
(iii) That the accused was the robber or one of the robbers.
See Adekoya v. State (2012) 9 NWLR (Pt. 1306)539, 566.
He can lead evidence to prove his case by any of the three (3) methods,

recognized for establishing an offence, namely:
(i) Evidence by eye witness
(ii) The confession of the accused person
(iii) Circumstantial evidence
See Igri v. State (2012) 16 NWLR (Pt. 1327) 522, 541. At the trial, the prosecution called evidence of PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8.

The evidence of PW7 as I said before, is of no moment and the same is hereby discountenanced. In addition to evidence of witnesses, the prosecution also tendered Exhibits 1, 2, 3, 4, 5, 6, 7, 8A, 8B and 9. Exhibits 3, 4 6, 8A and 8B are ascribed to the Appellant as his confessional statement. Exhibits 8A and 8B in particular were tendered through PW6, Inspector Mukhtar Alasan of the C.I.D office, Katsina.

Exhibit 8B is the English version of Exhibit A, a statement written or recorded in Hausa Language. In Exhibit 8B, the Appellant stated thus:
“…in the process, we then met this man who parked his motor vehicle and entered one uncompleted house. We hide ourselves when he came out all attempted to open his vehicle. When myself and Shafiu attacked him with matchet and stick and threatened to kill him if he raises any alarm.

We searched him and collected all his money also we took him back to the uncompleted house and locked him. Then Shafiu came and drove the vehicle where we proceed to Kano Shafiu directed us to throw all the documents… found in the vehicle. Actually, I was the one who brought the matchet and committed the robbery…”

confession possible.
(f) Whether it is consistent, with other facts which have been ascertained and have been proved. See further: Barmo v. State (2000) 1 NWLR (Pt. 641) 425.
Given the evidence of PW6 who invited the victim of the crime to C.I.D office to identify his car, the evidence of PW8 in whose custody is the record of the stolen Toyota Matrix Car, belonging to Dr. Ibrahim Hashim, the victim of the offence, I am constrained to answer those questions in the affirmative, that is to say that the confession in Exhibit 8B is true.
An accused can be convicted on his own voluntary confessional statement alone. See: Afolabi v. State (2016) LPELR-40300 (SC). There co-exist in Exhibit 8B all the ingredients of the offence of armed robbery as charged. Issue No. 2 is similarly resolved against the Appellant. In effect, the appeal before us is without merit and the same is dismissed. The judgment delivered at the High Court of Katsina State on 25th May, 2016 is affirmed.
That is the Order and Judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSAINI, J.C.A. and I agree with my Lord

that the appeal be dismissed for lacking in merit. The confessional statement of the Appellant had credible evidence outside it that warranted the inexorable conclusion that the confessional statement is true.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother SAIDU TANKO HUSAINI J.C.A., where the facts and issues in contention have been well set out.

I agree with my Lord’s reasonings and conclusions and also dismiss the appeal. This judgment of the lower Court is accordingly affirmed.

Appearances:

Yakubu Maikasuwa, Esq. For Appellant(s)

Hassan Yusuf, DPP, Katsina State with him Abu Umar, SSC. For Respondent(s)