HUSSAIYU GARBA & ANOR v. THE STATE
(2019)LCN/12520(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of January, 2019
CA/S/44C/2016
RATIO
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“The essential ingredients of armed robbery as stated and restated in a plethora of decided cases include:
(a) That there was a robbery or series of robberies;
(b) That the robbery or robberies was an armed robbery; and
(c) That the accused person took part in the robbery.
See BELLO V STATE (2007) ALL FWLR (Pt 396) 7002 at 719 B – C, ISIBOR V STATE (2002) 3 NWLR (Pt. 754) 250, 278 D – E. It is needless to emphasize that to secure a conviction, the prosecution must prove all the ingredients beyond reasonable doubt, see GALADIMA V THE STATE (2017) LPELR 41909 (SC).” PER AMINA AUDI WAMBAI, J.C.A.
CRIMINAL LAW: WHERE A PARTY IS AT A CRIME SCENE
“The law is trite that the mere presence at the scene of crime does not, as a matter of law render the person so present guilty of the crime. There must be clear evidence that either prior to or at the time of the commission of the offence, the person present did something or omitted to do any act such as aiding or abetting to facilitate the commission of the offence. See ADE TOKUNBO OGUNLANA V THE STATE (1995 5 SCNJ 189.” PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: VOLUNTARINESS OF CONFESSIONAL STATEMENT
“The law which is now very elementary and has repeatedly been restated is that the right time to challenge the voluntariness of a confessional statement is at the time it is sought to be tendered. An objection to the voluntariness of a confessional statement after the statement has been admitted in evidence, is one too late. It is like an attempt to resuscitate or revive a dead horse. Such an effort will bear no fruit. My lord I T. MUH’D JSC in OSENI V STATE (2012) LPELR 7833 (SC) likened such an attempt to that of a person seeking a remedy to a dented or crucified matter which can hardly be survived. At best, the effect of such denial of the voluntariness of a confessional statement which has been admitted without objection in that such a statement would be treated as the law consider such a statement as a retracted confessional statement which the Court is entitled, if satisfied with, to rely upon so long as it is direct, positive and unequivocal. It is however desirable that before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See BASSEY V THE STATE (1993) 7 NWLR (pt. 306) 469, 479.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. HUSSAIYU GARBA
2. YAHUZA MOHAMMED Appellant(s)
AND
THE STATE Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the judgment of Kebbi State High Court in charge no. KB/RFT/4/2006 delivered on 5th July 2006 which convicted the two Appellants for the offences of conspiracy and Armed Robbery contrary to Sections 5 (b) and 1 (2)(a) of the Robbery and Fire Arms Act 1990, and sentenced each of the appellants to 21 years imprisonment while discharging and acquitting the 3rd accused for the respondent?s inability to prove the offences beyond reasonable doubt against him.
The appellants pleaded not guilty to each of the two count charge. In proof of its case the respondent called five (5) witnesses and tendered six (6) exhibits including a horse whip marked exhibit ‘A’, the first Appellant’s extra judicial confessional statement marked exhibit ‘C’, and the second Appellant’s confessional marked exhibits ‘B’.
The Appellants testified in their defence as DW1 and DW2 respectively and tendered one exhibit marked exhibit ‘E’ but called no other witness.
The facts on the part of the respondent is that on the 19th of March, 2005 the Appellants and one other person charged along with them (now simply referred to the 3rd accused), agreed to commit armed robbery at Zango area of Zuru, Kebbi State and while so armed, they went to the houses of Kabiru Hammadi and Alhaji Bashir Hammadi attacked them and robbed them of the sums of N150, 000 and N2,060 respectively. While the first Appellant was recognised by PW4 through the reflection on the standing mirror by the flashes of torch light of the robbers, the second Appellant was arrested within the scene of crime.
On their parts, the first Appellant denied being the person recognised by PW4 or taking part in the commission of the offence. The second appellant also denied any involvement in the crime.
Upon reviewing the evidence, the learned trial judge found that the respondent proved its case beyond reasonable doubt against the two appellants and accordingly convicted and sentenced each of the 1st and 2nd Appellants to 21 years imprisonment on each count charge to run concurrently but discharged and acquitted the 3rd accused.
Dissatisfied with the conviction and sentence by the trial Court, the appellants appealed to this Court on 6 grounds of appeal.
In the appellants brief of argument filed and deemed on the 27/11/2017 Hussaini Zakariyau Esq who settled the brief formulated a sole issue for determination as follows:
WHETHER from the evaluated evidence by the trial Court; the respondent proof (sic) its case against the Appellants beyond reasonable doubt. (Distilled from ground 1, 2, 3, 4, 5 and 6 of the Notice of Appeal).
Arguing the issue, it was submitted that the Appellants have no duty to proof their innocence until when the respondent has discharged the legal burden of proof placed on him. It was submitted that in its bid to prove the ingredients of the offences against the appellants, the respondent relied heavily on the evidence of PW4, PW5, EXHIBITS B, C and C1, which are of no quality that a Court of law can convict upon.
With respect to the first Appellant, it was submitted that the trial Court in convicting the 1st Appellant relied heavily on the evidence of PW4 the 2nd Appellant?s statement (EXHIBIT B) as well as an EXHIBIT C, the 1st Appellant?s statement which he argued was not made voluntarily as acknowledge by the finding and belief of the Court while discharging the 3rd accused, when the Court held:
“Furthermore the 3rd accused person as DW3 said when the 1st accused was asked by the DPO Zuru about ?150, 000.00 the 1st accused said it was only because he was tortured by the police that he implicated the 3rd accused in the robbery.”
It was thus submitted that Exhibit C which the lower Court relied and acted upon, offends Section 28 (2) of the Evidence Act 2011 having not been made voluntarily by the 1st Appellant but as a result of oppression as defined in Section 28 (5) of the Evidence Act 2011. Similarly, the Court was accused of relying on the statement of the 2nd Appellant, Exhibit B, which was neither made in the presence of nor adopted by the first appellant in convicting the 1st appellant, which is a clear contravention of Section 29 (4) of the same Evidence Act when the Court held:
“Furthermore, there is the evidence of the 2nd accused in Exhibit B that the accused was conveyed to the scene of crime on the day in question.”
He referred to the case of AIKHADUEKI Vs STATE (2014) 9 NCC 707 at 712 ratio 6 where the Supreme Court held:
“…. In any case the Court is wary of an allegation in a statement of one accused person against another. It is trite law that allegations in a statement made by one accused against a co-accused will not constitute evidence against the co-accused unless the said co-accused has adopted the statement.”
Learned counsel submitted that the only evidence remaining against the 1st appellant is that of PW4 which is full of contradictions that he cannot be believed, citing the witness’s inconsistency when he first stated that they (the robbers) followed him in to his room out of which he recognised the 1st Appellant but in another breath stated that the 1st appellant went back to call the remaining robbers. Learned counsel expressing a surprise how PW4 could have escaped through the window when many robbers followed him in to his room and only one of them went back while the remaining are with him in the room, contending further that it is unbelievable that PW4 recognised his assailant who was behind him in the middle of the night through a mirror reflection. That very shaky evidence of PW4, he argued, cannot sustain the 1st Appellant’s conviction more so that PW4’s evidence was worsened in cross examination when he told the Court that the purported person he saw was Hussaiyu Sarkin Aski and with no explanation whatsoever before the Court, to show that Hussaiyu Garba and Hussaiyu Sarkin Aski is one and the same person. He contended that the trial Court erred in law when it used its personal knowledge in identifying Hussaiyu Sarkin Aski to be Hussaiyu Garba urging us to resolve the issue in favour of the 1st appellant.
On the second Appellant, it was submitted that the evidence of PW4 heavily relied upon in convicting the 2nd Appellant is hearsay in that though PW4 told the Court that the second appellant escaped through the window, he refused to tell the Court where the 2nd appellant ran to, nor mentioned the name of the person who arrested the 2nd Appellant, but rather turned around to say that it was the mobile police and the vigilante group members who surrounded the area that arrested the 2nd accused while trying to escape by a motorcycle in front of their house.
PW5 whose evidence was also heavily relied upon on the other hand, made no mention of anything about the 2nd accused but admitted not knowing any of the accused persons even though he saw those arrested by vigilante group. Counsel referred to the evidence of PW5 at page 33 of the record of appeal.
It was thus submitted that there is nothing either in the evidence of PW4 and PW5 nor in EXHIBIT E which can be used to prove the alleged offences as the oral evidence of PW4 cannot alter his documentary evidence made when the issue was fresh in his memory.
That the trial Court having known that there was no evidence against the 2nd appellant, wrongly used his personal knowledge to reach a conclusion in convicting the 2nd appellant, urging us to resolve the issue in favour of the 2nd appellant and to allow the appeal on the authority of the case of MUSA IKARIA Vs STATE (Supra) at 253:9 where the Court held inter alia:
“This crime is too serious an offence to decide to convict an accused person on the wishy washy incoherent testimonies of the prosecution witnesses who in their hesitancies have failed to establish the picture of what really has happened at the locus in criminis from the moment of the alleged intrusion of the armed robbers in to PW3 shop”.
Responding, generally, to the foregoing submission, it was submitted for the respondent that through its witnesses and exhibits tendered, the respondent placed before the trial Court unchallenged, and uncontroverted direct, cogent, admissible, positive and compelling evidence which the trial Court believed and convicted the 1st and 2nd Appellants upon.
ON THE FIRST APPELLANT, it was submitted that the evidence against him which the trial Court believed and relied upon in convicting him consists of exhibits ‘B’ and ‘C’, the direct testimonies of PW4, PW3 through whom exhibit ‘C’ and ‘C1’ were tendered and admitted in evidence without any objection and that of PW2 through whom exhibit ‘B’ was tendered and admitted in evidence.
Of particular importance he argued, is the fact that PW4 knew the 1st accused since childhood and had identified the 1st Appellant at the time of the commission of the offence, at the police station and before the Court while testifying as PW4, as the person that attacked them. That though the 1st Appellant was not arrested at the scene of the crime, the fact that PW4 knew his attacker suffices as it was what led to the arrest of the 1st Appellant’s brother, Mikailu who was later released after the arrest of the 1st Appellant as demonstrated by the testimony of the 1st Appellant and his extra-judicial statement to the police on this fact. To buttress his point learned counsel referred to the evidence of the PW4 at page 29 – 30 of the record and submitted that the witness did not only recognise the 1st Appellant whom he has known for a long time, but also went further to tell the Court of the additional role played by the appellant in calling the remaining robbers which opportunity the PW4 used in escaping through the window. This evidence of PW4 learned counsel submitted, was corroborated by his statement at the police station admitted in evidence as exhibit ‘E’, wherein PW4 stated inter alia: thus
“… I then turn back and went into my room, they pursued me, followed me to my room. When they flashed and I was having a mirror the mirror reflected them as the mirrow flashed them I recognised one, Use Sarki Aski as I saw him I run inside my room from where I broke my window and jump away …”
This evidence counsel submitted, was also confirmed by the appellant in his evidence that when he went to the police station to enquire why his brother was arrested, he was also arrested and PW4 said he (the 1st Appellant) was among the robbers who attacked him but he denied.
These pieces of evidence according to the respondent’s learned counsel were further corroborated in Exhibit B.
We were urged to hold that the referred pieces of evidence which the Court believed, provided the basis for the Court’s finding that the prosecution proved the case against the 1st appellant, found him guilty and accordingly convicted him urging us to uphold the conviction and sentence of the trial Court and dismiss the 1st Appellants appeal.
On the 2nd Appellant, it was submitted that the evidence against him consists of the direct testimonies of PWs 2, 4 and 5, as well as Exhibit B admitted without objection through PW2 which the Court is bound to act upon. It was submitted that PW4 and PW5 emphatically informed the Court that the 2nd Appellant was arrested at the scene of the crime which evidence is supported by the testimony of the 2nd Appellant himself as DW2 before the trial Court and his extra-judicial confessional statement to the police exhibit B wherein he even mentioned the remaining robbers he conveyed to Zango area where the incident happened stressing that it was indicative of his guilt. He referred to the evidence of PW4 at pages 30 and 33 of the record. Again, he drew our attention to the confessional statement of the 2nd Appellant earlier reproduced and submitted that the arrest of the 2nd appellant at the scene of the crime who immediately informed the security personnel that he was not alone and went to the extent of mentioning the name of the 1st Appellant, Hussaiyu Garba, who was identified during the commission of the offence by PW4, and the other persons, the 2nd appellant boarded on his motorcycle to Zango area where the robbery took place, is clear indication that the Appellant fully participated in the commission of the offence.
Learned counsel contended that unlike in the case of the 3rd accused who was implicated by the 1st appellant on the basis of which the 3rd accused was discharged and acquitted, the evaluation of the evidence and findings by the trial Court against the 1st and 2nd appellants is solely based on the positive evidence placed on record at the trial Court which this Court should not disturb, same having been substantiated-by the credible evidence on record citing in support the cases of NKEBISI V. STATE (2010) 5 NCC84 at 90, and ONWUBE V. NDUBA (1972) 3 S.C 106.
On the contention that the Court believed that the 1st appellant’s statement was not made voluntarily because the Court believed that he was tortured to implicate the 3rd accused, it was submitted that the 3rd accused was only quoting the wordings of the 1st Appellant when he was testifying as DW3 and was merely saying what the 1st Appellant told the DPO. That portion of the testimony of the 3rd accused, counsel argued, is not independently saying that the 1st Appellant was tortured, but rather repeating what the 1st Appellant said.
On the Appellants’ evidence that they were tortured to make their statements, it was submitted that being fully represented by counsel who know the proper procedure and time to challenge voluntariness of confessional statement, it is rather late for the appellants to raise the issue after the statements had been admitted without any objection and the witnesses had left the witness box, citing in support the case of EKE v. THE STATE (2011) 6 NCC pg. 1 at pg. 4. That where the objection is not raised timeously to afford the trial Court the opportunity to conduct a Trial Within Trial, the appellant can no longer raise the objection. It was submitted that the Appellants confessional statements satisfied all the requirements of a valid confessional statement.
Similarly, the retraction of the confession or resiling from same does not affect its admission or prevent the Court from relying on same, he submitted. On the name of the 1st Appellant, it was submitted that assuming but not conceding that the name of the 1st Appellant is in dispute, it is very clear that his identity is not in dispute since In law, it is the identity of the accused person that matters and not the name, since he was identified by the witness (PW4) as his attacker. That the Appellants having woefully failed to discredit the evidence, nothing can stop the Court from acting on that evidence that insisting that the Court did not use its personal knowledge in identifying Hussaiyu Sarkin Aski to be Hussaiyu Garba nor did the Court use its personal knowledge in convicting and sentencing any of the Appellants.
Finally, it was submitted that the respondent having proved the offences of conspiracy to commit robbery and robbery punishable under Sections 5(b) and 1 (1) of the Robbery and Firearms (Special Provision) Act 1990 as amended against the Appellants, their conviction and sentence should be affirmed.
Now, the offences which the Appellants along with one Muhammed Bawa, who was then the 3rd accused person, were charged with, are the offences of armed robbery and conspiracy to commit armed robbery punishable under Section 1 (2) (a) and 5 (b) of the Robbery and Firearms (Special Provisions) Act 1990 CAP 398.
The essential ingredients of armed robbery as stated and restated in a plethora of decided cases include:
(a) That there was a robbery or series of robberies;
(b) That the robbery or robberies was an armed robbery; and
(c) That the accused person took part in the robbery.
See BELLO V STATE (2007) ALL FWLR (Pt 396) 7002 at 719 B – C, ISIBOR V STATE (2002) 3 NWLR (Pt. 754) 250, 278 D – E.
It is needless to emphasize that to secure a conviction, the prosecution must prove all the ingredients beyond reasonable doubt, see GALADIMA V THE STATE (2017) LPELR 41909 (SC).
On the first ingredient which is that there was a robbery, there is no disputing the fact that on the 19th March, 2005 a robbery incident took place. This fact is not in contention and there are no firestorms on the existence or proof of this first ingredient of the offence. That there was a robbery was conceded by the Appellant?s counsel.
On the 2nd ingredient of the offence that the robbery was an armed robbery, the evidence on record is that on the said 19/3/2005 some people armed with some weapons including sticks, matchets, Horse whips etc. went to the houses of Kabiru Hammadi, PW4, and Alhaji Bashir Hammadi, PW5 at Zango Area beat them up and stole the sums of N150, 000 from PW4 and N2050 from PW5. On the proof of this ingredient, the learned trial judge considering the evidence of PW5 that the robbers were not armed with offensive weapons found that through that does not amount to a contradiction in the prosecution?s case, held it is safer and in the interest of justice to resolve in favour of the accused persons and hold that the robbery was a mere robbery and not an armed robbery and I so hold. (See p. 59 of the record).
In any case, this 2nd ingredient of the offence as with the 1st ingredients is not subject of any contest as the argument of the learned Appellant?s counsel is only directed at the 3rd ingredient. Therefore, without dissipating any much energy, it suffices in a single sentence to say that it stands established by the unchallenged evidence on record that the prosecution proved the 1st and 2nd ingredients of the offence beyond reasonable doubt against the 1st Appellant.
On the 3rd ingredient in respect of the 1st Appellant, that the 1st Appellant took part in the robbery, it is not only the most difficult of the 3 ingredients in terms of proof but is also the most often disputed ingredient of the offence. It remains the recurring point of discordance between the prosecution and the defence and it shall remain so. This is the bone of contention between the Appellant and the Respondent in this appeal.
It has since been established over time that the guilt of an accused person may be established either by the confessional statement of the accused; by circumstantial evidence, or by the evidence of eye witnesses account to the commission of the offence. See IGABELE V THE STATE (2006) 6 NWLR (Pt. 975) 100, N.G. ARMY & 2 ORS V COMMANDER S.A UBE LANBERT (2007) ALL FWLR (Pt. 398) 574, at 586.
The prosecution paraded four witnesses and tendered six exhibits. PW4 and PW5 were the victims of and the eye witnesses to the commission of the offence. The evidence of PW4 is contained at pages 29 – 32 of the record. He identified the 1st Appellant at the scene. His evidence fixing the identity of the 1st Appellant at the scene of crime goes as follows at page 29 – 30 of the record:
‘On 29/3/05 something happened what happened was that on that day myself and my relation Alhaji Bashir were sleeping inside our house separately. As I woke up I suddenly saw about 5 or 6 people holding about 4 or 5 rechargeable lamps and they flashed the light on my face. They were also armed with matchets, sticks, knives and weeps. They did not say anything to me but started beating me with sticks and weep and I even fell down. When I woke up in self-defence I heard a sound of a gun shot outside the house by the gate. I then ran into my room and they followed me flashing the rechargeable lamps on me. The lamps were so bright. As they were flashing the light there was a standing mirror in my room which reflected the face of one of my assailants and I recognized him. The person I recognized is Hussaiyu Garba, the 1st accused. Then Hussaiyu went back to call the other robbers but as he went out of the room I escaped through the window of my room and left the house.’
It is the contention of the Appellant’s counsel that the said evidence of PW4 is full of contradictions making it unbelievable in that while the witness at one breath said the robbers followed him to the room, at another breath he turned round to say that the 1st Appellant went to call the remaining robbers. He wondered how PW4 could have escaped from the window if many of the robbers followed him to the room and only the 1st Appellant went to call the remaining. He also wondered how the PW4 recognized the 1st Appellant who was behind him in the middle of the night.
Now, our Courts have been enjoined to always be cautious and wary on matters of identification of accused persons especially when the resolution of the issue turns solely on the identify the accused person. That is why the Courts are enjoined to be guided by some factors so as to guard against instances of mistaken identity. These factors though not closed, include;
(1) The circumstances under which the eye witness saw the accused;
(2) The length of time the witness saw the accused (3) the lightening conditions (4) close observation opportunity (5) previous counters between the two. See RASAKI V STATE (2011) 16 NWLR (Pt 1273) 251 @ 293 – 294.
The need for this caution is more where there are no previous contacts, familiarly, acquaintance or knowledge of the accused person or in conditions which render the identification difficult and the identification evidence weak.
It is trite that whenever the case turns wholly on the correctness of the identification of the accused, and the defence alleges that the identification is mistaken, the Court has an onerous task of meticulously examining the identification evidence with a view to discovering the truth. See UKPABI V STATE (2004) 11 NWLR (Pt 884) 439.
Nonetheless, it is settled law that each case must be considered on its own facts and peculiar circumstances the question of whether an accused person is properly identified or not being a question of fact to be considered by the trial Court. See UKPABI V STATE (Supra).
How did the lower Court treat the evidence of PW4 vis–vis the denial of the 1st Appellant?
It is apt to bring to focus the identification evidence offered by PW4 and the grounds upon which the identification was based, PW4 stated:
“Even before the incident I know all the accused persons very well. I know Hussaiyu very well as he was born in their house which was close to my house Yahuza’s mother was my age mate and I knew whenever she got married. I know Yahuza very well.”
Based on this solid evidence of PW4, the learned trial judge found at page 56 of the record that:
“In this trial, there is the unchallenged evidence of PW4 that the 1st accused was among the robbers who attacked him at his house and PW4 said he knew the accused very well before and that he was born in their house which was close to his house and stated that the 1st accused persued him into his room where as a result of flash of bright torch light to a standing mirror in the room he identified the 1st accused.”
He then held as follows:
“In the case at hand it is clear from the evidence adduced by the prosecution that the 1st accused was positively identified by PW4 at the time of the incident, at the Police Station Zuru and before the Court that he was among the robbers who attacked him.”
The purpose of evolving guidelines to guide trial Courts in resolving complaints on issues of identification of an accused person or to satisfy itself that the accused was properly identified by the witness, is to safeguard against cases of mistaken identity. But in cases where there is previous contact or familiarity between the witness and the person so identified and the identification evidence is cogent, the Court will be entitled to accept and act on the evidence. In the case of in Charles Anyaele and others vs. The State SC. 299 (1971) delivered on February 23rd, 1973 the Supreme Court held:-
“When considering the value of the identification of an accused person by witness, a distinction should be drawn between a witness who has merely made a brief acquaintance with the person being identified and one who knows him well. And since in the present case the witness who testified against the appellants knew them well, the acceptance of their evidence by the trial Judge was proper and was not open to any objection”.
In the case at hand, there is familiarity between the PW4 and the 1st Appellant whom he identified as one of the robbers who attacked him and followed him to the room. PW4 has known the 1st Appellant for a long time since childhood. Indeed, they are neighbours. The degree of certainty of the evidence of pw4 that the 1st appellant followed him to the room leaves no doubt that the 1st Appellant was the person PW4 saw as one of the robbers. Bearing all these in mind the finding of the lower Court that the 1st Appellant was positively identified by the PW4 cannot be faulted. The settled position of law is that once the Court believes the identification evidence of even a lone witness, that evidence is sufficient to sustain the conviction of an accused person.
In FATAI V STATE (2013) 10 NWLR (Pt 1361) 1 Ngwuta JSC held:
“It has been held by this Court that where there is no dispute about the identity and identification of an accused person by a witness there will be no reason why his evidence alone, if believed, cannot ground and sustain a conviction even on a charge of murder.”
See also OCHIBA V STATE (2011) 12 SC (Pt. 11) 79.
On the contradiction which the learned Appellant’s counsel complains of in the evidence of PW4, it is not a material contradiction and does not affect the substance of his evidence.
The learned counsel for the Appellant also contended that the lower Court was in error when he relied on the statement of the 2nd Appellant in convicting the 1st Appellant. The learned counsel is right in that submission. By virtue of Section 29 (4) of the Evidence Act where more than one person are charged jointly for an offence, a confessional statement made by one of the accused persons shall not be considered against the other accused person except it is made in his presence and adopted by him.
Judicial authorities giving life to this statutory provision abounds. In AIKHADUEKI V STATE (Supra) the apex Court held:
“… In any case the Court is wary of an allegation in a statement of one accused person against another. It is trite law that allegations in a statement made by one accused against a co- accused will not constitute evidence against the co-accused unless the said co-accused has adopted the statement.”
I am therefore at one with the Appellant’s counsel on this point that the lower Court was wrong to have invoked against the 1st Appellant, the contents of exhibit B made by the 2nd Appellant. The law is trite that except the contents or any part of the contents of a confessional statement of a co-accused, such as exhibit B made by the 2nd Appellant is adopted by another co-accused such as the 1st Appellant, the contents of the confession are relevant only against its maker, in this case, the 2nd Appellant and not against the 1st Appellant. To that extent the learned trial judge was in error when he relied on Exhibit B in proof of the fact that 1st Appellant, as stated in exhibit B, was taken along with others to the scene of crime by the 2nd Appellant.
On exhibit C, it was also contended for the 1st Appellant that his confessional statement wherein he stated inter alia that the sum of N150, 000 stolen from PW4 was given to the 3rd accused was by the acknowledgement of the trial judge, involuntarily made and ought not to have been relied upon, I find this argument really amazing and one that cannot fly. There is no dispute that the statement was admitted in evidence without any objection by counsel who represented the 1st Appellant at the lower Court. The law which is now very elementary and has repeatedly been restated is that the right time to challenge the voluntariness of a confessional statement is at the time it is sought to be tendered. An objection to the voluntariness of a confessional statement after the statement has been admitted in evidence, is one too late. It is like an attempt to resuscitate or revive a dead horse. Such an effort will bear no fruit. My lord I T. MUH’D JSC in OSENI V STATE (2012) LPELR 7833 (SC) likened such an attempt to that of a person seeking a remedy to a dented or crucified matter which can hardly be survived.
At best, the effect of such denial of the voluntariness of a confessional statement which has been admitted without objection in that such a statement would be treated as the law consider such a statement as a retracted confessional statement which the Court is entitled, if satisfied with, to rely upon so long as it is direct, positive and unequivocal. It is however desirable that before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See BASSEY V THE STATE (1993) 7 NWLR (pt. 306) 469, 479.
In the case at hand, the direct and positive evidence of PW4 fixing the 1st Appellant at the scene of crime as one among the persons who attacked him and made away with the sum of N150, 000, is supported by the 1st Appellant’s statement, It is needleless to restate the law that even on the positive identification evidence of PW4 standing alone, the prosecution can sustain the conviction of the 1st Appellant for the offence of robbery. Additionally, the conviction can also be sustained or upheld by this confessional statement not withstanding that he resiled from it at the trial.
It is noted that in his evidence as DW1, the 1st Appellant resiled from his confessional statement and denied involvement in the commission of the crime. That he only went to the Police Station to enquire why his brother Mikailu, was arrested when he was also arrested at the Police Station. He also stated that when he was identified at the Police station by one man as being one of the robbers who attacked the man, he, the 1st Appellant denied the assertion. The lower Court considered all these defences but rightly in my view, disbelieved the 1st Appellant in view of the overwhelming evidence of PW4 whose cogent identification evidence added with his familiarity of the 1st Appellant, was unequivocal, thereby rendering the argument on the Appellant?s name not being Hussaiyu Aski, a mere storm in tea pot.
The lower Court was thus right in its finding that the prosecution proved a case of robbery against the 1st Appellant.
On the charge of conspiracy, conspiracy simply is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means.
Often, conspiracy to commit an offence is inferred from circumstantial evidence, and it is based on common intent or purpose of the parties. Once, as in the case at hand, there is evidence to commit the substantive offence, it does not matter whether the other conspirators are still at large or have been discharged. See OGUGU V STATE (1990) 2 NWLR (Pt 134) 539. Similarly, once there is evidence to commit the substantive offence, it does not matter that any of the conspirators did what. See SULE V STATE (2009) LPELR 3125 (SC). On these stated position of law, the 1st Appellant’s conviction for conspiracy, based on the evidence on record leading to our earlier conclusion on the proof of the substantive offence, also stands.
For the 2nd Appellant, the evidence against him consist of the evidence of PW4, PW5, exhibits B and E. The prosecution’s case against the 2nd Appellant is that he was arrested at the scene immediately after the commission of the offence and that he confessed in exhibit B, conveying the 1st Appellant and others with his motor cycle to the scene.
The evidence of PW4 runs thus:
“The mobile police and the vigilante group members surrounded our area. It was then the 2nd accused who was trying to escape by a motorcycle was arrested in front of our house. Then Yahuza, 2nd accused said the police and vigilante group should stop that he was not alone until Hussaiyu was seen …”
The evidence of PW5 is that:
“We learnt that the Vigilante group surrounded the whole area when one of robbers was arrested. I heard that and I came out to the gate of our father’s house within the area and saw him arrested by the vigilante group. It was only one house between our house and the house of our father. It was the robber arrested on the spot that showed the other robbers …”
Instructively, however the witness stated further:
“I don’t know the name of the person who was arrested by the vigilante group near the house of our father. I was confused at them (sic) but I think he is not one among the accused persons”
(Underlining added for emphasis)
“Further to this, he admitted in cross-examination, that he was not around at the time of the arrest of the accused persons but met with them at the Police Station Zuru. ”
It is clear that PW5 did not witness the arrest of the 2nd appellant at the scene, but only met with the accused persons at the Zuru Police Station. PW4 who testified that the 2nd appellant was arrested in front of their house while trying to escape, stated that the arrest was effected by the vigilante members who surrounded the area. This was the evidence relied upon by the learned trial judge in arriving at his finding and conclusion that the 2nd Appellant was arrested at the scene of crime. However, the evidence of PW5 that the arrested person was not among the accused persons in the Court, is too significant and material to be dismissed with a wave of hand or swept under the carpet. Rather, it calls not only for a due consideration by the Court but also for the prosecution to have taken a step further by producing at least one of the vigilante members or the police who effected the arrest of the 2nd Appellant to give account of the identity of the person arrested, how and where he was arrested and the circumstances leading to the arrest. Evidence to provide all these questions ought to have been offered but was not so offered.
That notwithstanding the paramount question to address is the effect of such omission on the prosecution?s case and this depends on the other pieces of evidence available before the Court.
The learned trial judge relied on the confessional statement of the 2nd Appellant, exhibit B and the evidence of PW4 to conclude not only that the 2nd Appellant conveyed the other accused persons to the venue of the crime, but also that he was one of them and was the person arrested at the scene. This is what the 2nd Appellant said in exhibit B:
“… I was doing Kabukabu with one Hamisu Sahabi motor cycle without registration No. One Hussaiyu Garba (2) Dan Asabe Bala (3) Habibu and Dan buku all “M” of various address in Zuru that I should carried them from senior to Zango at the rate of N1000.00k which. I complied at the place of where robbery took place… I have the knowledge that Hussaiyu Garbe is a well-known (Theft) thieve …”
“The reproduced portion of Exhibit B, in my view, is only an admission that the 2nd Appellant, a commercial motorcycle rider- kabu-kabu, conveyed the other accused persons to the place where the robbery took place but is not an admission that he was one of the robbers. ”
The law is trite that the mere presence at the scene of crime does not, as a matter of law render the person so present guilty of the crime. There must be clear evidence that either prior to or at the time of the commission of the offence, the person present did something or omitted to do any act such as aiding or abetting to facilitate the commission of the offence. See ADE TOKUNBO OGUNLANA V THE STATE (1995 5 SCNJ 189.
Merely conveying the other accused persons to the crime venue without any strong or cogent evidence of the 2nd Appellant’s involvement or participation in the crime is not enough to pin him to the crime.
Furthermore, for heavy reliance to be placed on exhibit B, it is desirable, the 2nd Appellant having resiled from the statement, that the retracted confessional statement be corroborated by some evidence outside the statement which would make it probable that the confession was true. In the case at hand, the evidence of PW4 which would have provided the corroboration is whittled down by the evidence of PW5 who stated that the arrested person was not one of the 1st and 2nd Appellants in the Court, added to the absence of any evidence by any person or persons who actually arrested the 2nd Appellant at the scene of crime. These gaps create doubt in the mind of the Court as to whether the 2nd Appellant was the person arrested at the scene of crime and who participated at the commission of the offence, more so, that his evidence was that he was arrested on the road in the course of his kabu-kabu business after his morning payers.
The law is settled that where at the close of the case for the prosecution a reasonable doubt is created in the mind of the Court, as it is here created, the doubt should of necessity be resolved in favour of the accused. Our law reports both electronic and print are replete with judicial authorities on this cardinal principle of Criminal Law. See for examples KALU & ORS VS THE STATE (1988) 4 NWLR (PT. 90) 503; CHUKWU VS THE STATE (1996) 2 NWLR (PT. 463) 687.
On the whole and in conclusion, the sole issue is resolved against the 1st Appellant and in favour of the 2nd Appellant. In effect, the appeal of the 1st Appellant lacks any merit and is accordingly dismissed. The judgment of the lower Court together with the conviction and sentence of the 1st Appellant stand and are affirmed.
In respect of the 2nd Appellant, the appeal succeeds and is hereby allowed. The conviction and sentence of the 2nd Appellant as contained in the judgment of the lower Court delivered on 5/7/2006 are hereby set aside. The 2nd Appellant is discharged and acquitted.
HUSSEIN MUKHTAR, J.C.A.: I had the privilege of reading, in draft, the judgment of my learned brother Amina Audi Wambai, JCA. I fully agree with the eloquent reasons therein and the conclusion that the sole issue be resolved against the 1st Appellant but in favour of the 2nd Appellant to the effect that the 1st Appellant?s appeal lacks substance and ought to be dismissed. I subscribe to the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by the consequential orders made by Court.
Appearances:
Hussaini Zakariya’u, Esq.For Appellant(s)
Shamsudeen Jaafar, Esq. (A.D.P.P, A.G. MOJ, Kebbi Statae)For Respondent(s)
