ILIYASU SUMAILA v. THE STATE
(2012)LCN/5299(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of April, 2012
CA/A/94C/2010
RATIO
CRIMINAL LAW: INGREDIENTS OF PROVING THE OFFENCE OF ARMED ROBBERY
For the prosecution to prove the offence of armed robbery under Section 298(c) of the Penal Code, it must prove-
(a) That the accused committed the theft.
(b) That the accused caused or attempted to cause some persons (i) death, hurt or wrongful restraint or (ii) fear of instant death or instant hurt or instant wrongful restraint.
(c) That he did as above (i) in committing theft or (ii) in order to commit theft or (iii) in carrying away or attempting to carry away the property obtained by that theft.
(d) That he acted as in (b) above voluntarily or prove:-
(a) that the accused committed extortion
(b) that he was at the time of committing it in the presence of the person so put in fear, and
(c) that he committed it by putting that person or some other person in fear of instant death or of instant hurt or of instant wrongful restraint
(d) that he thereby induced the person to deliver up then and there the thing extorted. PER JIMI OLUKAYODE BADA, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIALS
It is settled law that in criminal trial the burden of proving the guilt of the accused rests squarely on the prosecution. See the following:-
– Dangari vs. The State (Supra);
– Amodu vs. The State (Supra);
– Awuse vs. Odili (Supra). PER JIMI OLUKAYODE BADA, J.C.A.
EVIDENCE: WHETHER CONFESSION BECOMES INADMISSIBLE BECAUSE THE MAKER DENIED MAKING IT
A confession does not become inadmissible merely because the maker denied his having made it. See SHITTU v. THE STATE (1970) 1 ALL NLR 228; BATURE v. THE STATE (1994) 1 SCNJ 1 AT 20; AYO v. THE STATE (2009) 8 WRN 134 AT 152-153. PER EJEMBT EKO, J.C.A.
WORDS AND PHRASES: MEANING OF DISCRETION
Discretion, as Onu, JSC put it in ARTRA INDUSTRIES (NIG) LTD v. N.B.C.I. (1998) 4 NWLR [pt.545] 1 at 35, means equitable decision of what is just and proper under the circumstance, or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. PER EJEMBT EKO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSIEN MUKHTAR Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
ILIYASU SUMAILA Appellant(s)
AND
THE STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Judgment of High Court of Justice, Okene, Kogi State in Charge No: HCO/01CR/2009 – The State vs. Iliyasu Sumaila delivered on the 13th day of November, 2009 wherein the Appellant was convicted of armed robbery contrary to Section 298(c) of the Penal Code and sentenced to twelve years imprisonment.
Dissatisfied with the Judgment the Appellant now appealed to this Court.
The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are set out as follows:-
(1) Whether on a calm and careful consideration of the legally admissible evidence adduced at the trial, the learned trial Judge was right to hold, as he did, that the prosecution had proved its case against the Appellant beyond reasonable doubt (Grounds 1, 2 and 3 of the Amended Notice of Appeal).
(2) Whether in view of the learned trial Judge’s failure to comply with Section 197 of the CPC, the sentence of twelve years imposed on the Appellant was not excessive (Ground 4 and 5).
The learned Counsel for the Respondent formulated three issues for determination. The issues are set out as follows:-
(1) Whether or not the learned trial Judge rightly found upon a careful review of the evidence that the prosecution has proved the case of armed robbery beyond reasonable doubt against the Appellant (Grounds 1 and 3).
(2) Whether or not there are contradictions in the case of the prosecution material or otherwise to warrant a reversal of the findings of guilt by the learned trial Judge against the Appellant (Ground 2).
(3) Whether or not there is non-compliance with the provision of Section 197 of the Criminal Procedure Code by the learned trial Judge and if so, whether or not it has occasioned a miscarriage of Justice against the Appellant to justify the reduction of the sentence of 12 years imprisonment imposed on the Appellant by the trial Court (Grounds 4 and 5).
At the hearing learned Counsel for the Appellant referred to the Appellant’s amended brief of argument filed on 19/9/2011.
He adopted the brief as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondent also referred to the Respondent’s amended brief of argument filed on 18/10/11. She adopted it as her argument in urging that the appeal be dismissed.
I have carefully examined the issues formulated for determination on behalf of the parties in this appeal and it is my view that the issues set out on behalf of the Appellant are considered relevant in the determination of this appeal.
ISSUE 1
The learned Counsel for the Appellant submitted that the burden of proving the guilt of the accused rest squarely upon the prosecution. The prosecution can only establish its case by adducing positive, direct and credible evidence. He relied on the following cases:-
– Dangari vs. The State (1968) 1 All NLR Page 249:
– Amodu vs. The State (2010) 2 NWLR Part 1177 Page 47 at 69;
-Awuse vs. Odili (2005) 16 NWLR Part 952 Page 416 at 476 Paragraph E.
He went further in his submission that the learned trial Judge was wrong to have relied on Exhibit ‘A’ to convict the Appellant. He went further in his argument that the evidence of PW1, PW2 and PW3 relied upon were unreliable.
He referred to Exhibit “A” which is a confessional statement made by the Appellant to the Police wherein he confessed to the offence alleged against him at the trial and in addition confessed to other robberies that he allegedly carried out with his gang. And on the basis of the confessions contained in the statement, he urged the Court to reject the said statement – Exhibit “A”. He relied on the following cases of:-
– R. vs. Otedia (1959) WNLR Page 43;
– R. vs. Thomas (1958) NSCC Page 22;
– Wilson vs. R (1959) NSCC Page 149 at 152.
He submitted that the learned trial Judge was wrong to have placed reliance on the said Statement Exhibit ‘A’ to arrive at his decision that the Appellant had committed the said offence.
He relied on the case of:-
– Lawal vs. The State (1966) NSCC Page 111 at 115-116
Further on Exhibit “A” it was submitted on behalf of the Appellant that before a trial Court can rely on a confessional statement to convict, it must first test the said statement in the light of other evidence and be satisfied that the statement is true. He relied on the following cases:-
-Obisi vs. Chief of Naval Staff (2002) 2 NWLR Part 751 Page 400 at 418 Paragraphs D-H;
– Moshood vs. State (2004) 14 NWLR Paragraphs D-G;
He argued further that the confessional statement Exhibit “A” is not consistent with other facts which has been proved at the trial. He went further in his argument that the evidence adduced by P1, PW2 and PW3 are contradictory. He referred to the evidence of PW1 where he stated that the Appellant was arrested riding the stolen motor cycle, whereas the Appellant stated that he was on another commercial motor cycle when he was arrested.
He argued that it behoves the prosecution to prove beyond reasonable doubt that the Appellant was actually arrested with the stolen motor cycle.
He finally urged that the appeal be allowed.
On his own part the learned Counsel for the Respondent submitted that the learned trial Judge rightly found that the prosecution has proved the case of armed robbery contrary to Section 298(c) of the Penal Code against the Appellant.
She referred to the testimony of the 1st, 2nd and 3rd prosecution witnesses and submitted that none of the witnesses was contradicted on all the material facts adduced by them at the trial.
She went further that the learned trial Judge reviewed the evidence of all the witnesses for the prosecution and defence one after the other.
The learned trial Judge found the Appellant guilty and he was convicted and sentenced.
It was further submitted on behalf of the Respondent that the prosecution has proved its case beyond reasonable doubt at the trial Court. She urged that this appeal should be dismissed.
For the prosecution to prove the offence of armed robbery under Section 298(c) of the Penal Code, it must prove-
(a) That the accused committed the theft.
(b) That the accused caused or attempted to cause some persons (i) death, hurt or wrongful restraint or (ii) fear of instant death or instant hurt or instant wrongful restraint.
(c) That he did as above (i) in committing theft or (ii) in order to commit theft or (iii) in carrying away or attempting to carry away the property obtained by that theft.
(d) That he acted as in (b) above voluntarily or prove:-
(a) that the accused committed extortion
(b) that he was at the time of committing it in the presence of the person so put in fear, and
(c) that he committed it by putting that person or some other person in fear of instant death or of instant hurt or of instant wrongful restraint
(d) that he thereby induced the person to deliver up then and there the thing extorted.
It is settled law that in criminal trial the burden of proving the guilt of the accused rests squarely on the prosecution. See the following:-
– Dangari vs. The State (Supra);
– Amodu vs. The State (Supra);
– Awuse vs. Odili (Supra).
The learned Counsel for the Appellant contended that the learned trial Judge was wrong to have relied on Exhibit “A” which is the statement of the Accused/Appellant to the Police. The statement according to Counsel is a confessional statement and in addition the Appellant confessed to other robberies that he allegedly carried out with his gang. It was contended on behalf of the Appellant that the learned trial Judge ought to have rejected the said statement on the ground that the confession to other robberies will prejudice his mind.
He relied on the case of R vs. Otedia (Supra) which was based on the interpretation of Section 47 of the Evidence Ordinance Cap 63 Laws of Nigeria.
My response to the above submission is that Section 47 of the Evidence Ordinance has been repealed and there is no equivalent of such a Section in the Evidence Act 2011 (as amended).
Therefore the submission of the learned Counsel for the Appellant in that regard lacks substance.
Learned Counsel for the Appellant also submitted that before a trial Court can rely on confessional statement to convict, it must test the statement in the light of other evidence and be satisfied that the statement is true. He went further in his submission that where a confessional statement that was retracted is not consistent with the facts ascertained at the trial, the trial Court should not use the statement.
A careful examination of the record of appeal would reveal that the PW1 gave a graphic account of how he was robbed at gun point by the Appellant (see pages 16 to 17 of the record of appeal). He gave evidence of how the Appellant lured him to a place where he forcefully collected his motorcycle, handset and money at gun point. He also testified that the Appellant was arrested at 9.00 pm on the day of the incident i.e. about six hours after the incident with the motorcycle and the handset.
The Appellant testified at the trial but did not call any witness. He resiled from his confessional statement contained in Exhibit “A” setting up a different account as to his encounter with the PW1 on the day of the incident.
The learned trial Judge believed and accepted the evidence of the prosecution witnesses, particularly that of the victim of the said armed robbery, PW1. He disbelieved the evidence of the defence and thereafter found the Appellant guilty.
There is no dispute about the fact that the evidence of one credible witness accepted and believed by the Court is sufficient to justify a conviction, unless such a witness is an accomplice in which case his testimony would require corroboration. See the following cases of:-
– E. Nkebia & 1 Other vs. The State (2010) 5 NWLR Part 1188 Page 471:
– Igbo vs. State (1975) 9-11 S.C. Page 129;
– Onafowokan vs. State (1987) 3 NWLR Part 61 at 538;
– Effiong vs. State (1998) 8 NWLR Part 562 at 362.
The PW1 who happened to be the victim in the robbery incident was the only witness who had first hand knowledge of the robbery and he testified and gave a vivid account of the robbery incident.
It is therefore my view that proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution.
Everything depends on the quality of the evidence tendered by the prosecution.
See the following cases:-
– Akalezi vs. The State (1993) 2 SGNJ Page 19 at 29 to 30;
– Adelumola vs. State (1988) 1 NWLR Part 73 at Page 683.
The learned Counsel for the Appellant also contended that there are contradictions in the case of the prosecution.
My view on this is that only contradiction which will totally affect the case of the prosecution is one which is material and goes to the root of the case. See the case of:-
– Alani vs. State (1993) 7 NWLR Part 303 Page 112 at 120 Paragraph B to C.
The simple question here is was there a robbery incident on the day of the incidence?
Whether robbery was carried out by one person or more than one person it has not changed the fact that there was a robbery incident.
And the PW1 (the victim) gave a vivid account of how the robbery took place.
The learned Counsel for the Appellant contended that the evidence of PW1 contradicted that of PW2 to the extent that PW1 testified that he was robbed by the Appellant while PW2 testified that he gathered from PW1 that he was robbed by more than one person. The alleged evidence is hearsay evidence which is not admissible.
On the whole, it is my view that the alleged contradiction does not go to the root of the charge therefore it is not material.
In the circumstance, it is my view that the prosecution has proved its case beyond reasonable doubt at the trial Court. And the learned trial Judge was right when he convicted and sentenced the Appellant to 12 years imprisonment.
This issue No. 1 is therefore resolved in favour of the Respondent against the Appellant.
ISSUE NO. 2
The learned Counsel for the Appellant stated that the trial Court convicted the Appellant of armed robbery contrary to Section 298(c) of the Penal Code. He also referred to the post trial proceedings on page 35 of the record of appeal.
He stated that on the delivery of the Judgment, the accused was not invited to adduce evidence of character to mitigate the punishment to be meted out to him. He relied upon Section 197(1) of the Criminal Procedure Code. It was submitted on behalf of the Appellant that he was not given the opportunity to bring fact that would have been in his favour, and that if the learned trial Judge had taken evidence of character the trial Court would have imposed a lesser term of imprisonment.
The learned Counsel for the Appellant also submitted that where a trial Court fails to take mitigating factors into consideration in passing sentence the appellate Court will interfere to reduce the sentence. He relied on:
– Agbanyi vs. State (1995) 1 NWLR Part 369 Page 1.
The learned Counsel for the Respondent on her own part conceded that the learned trial Judge did not specifically put the question to the convict as to whether or not he intends to call any witness as to his character or say something in mitigation of sentence as envisaged by Section 197(1) of the Criminal Procedure Code.
He however submitted that this failure does not prejudice the convict/Appellant having regard to the post conviction proceedings at the lower Court.
He submitted further that the Appellant has a duty by virtue of Section 382 of the CPC, not only to show non-compliance but to go further to show how this omission has occasioned a miscarriage of justice.
He finally urged that this issue be resolved in favour of the Respondent and to dismiss the appeal.
In this appeal under consideration, the trial Court convicted the Appellant of armed robbery contrary to Section 298(c) of the Penal Code.
The contention of the learned Counsel for the Appellant was that on the delivery of the Judgment, the accused was not invited to adduce evidence of character to mitigate the punishment to be meted out to him in accordance with Section 197 of the Criminal Procedure Code.
In a trial of this nature, it is trite that in determining what sentence to impose, the Court must consider many factors such as the seriousness or otherwise and the prevalence of the offence, the remorse shown by the convict and whether the convict is a first offender and the prevailing attitude of the public to the offence.
In this appeal under consideration and in view of the post Judgment proceedings, is it possible to conclude that the accused was not allowed to adduce evidence in mitigation of the punishment meted out to him?
I do not think so, because a careful perusal of the ALLOCUTUS on page 35 of the record of appeal which is hereby set out as follows showed that:-
“ALLOCUTUS
Cosmos Esq: Grateful for this comprehensive Judgment. Wish however to urge the Court to temper Justice with mercy. The convict has been in custody since February 2007, from the proceedings it is also clear that the accused is responsible for taking care of his ailing mother and for the sake of those who depend on him. Urge the Court to be merciful in the sentence.
Jamil Esq: No record of any previous conviction of the convict. We have nothing to say in contradiction but to say that armed robbery is a very serious offence. Urge the Court to look at the totality of the case and especially the confession of the convict in coming to a sentence.
Court: I have listened to the plea of the learned Counsel for the convict in mitigation of sentence and also the submission of the learned Assistant Director,
………………………………………….
………………………………………….
………………………………………….
………………………………………….
Accordingly I hereby sentence you, Iliyasu Sumaila to a term of 12 years in prison for the offence of armed robbery contrary to Section 298(c) of the Penal Code
…………………………………………..
…………………………………………..
…………………………………………..”
In view of the Allocutus made by learned Counsel for the Appellant set out above it is my view that the Appellant was not prejudiced in anyway and the failure to observe the provisions of Section 197 of the CPC has not occasioned any miscarriage of Justice.
It has to be appreciated that we are dealing with the offence of armed robbery contrary to Section 298(c) of the Penal Code which is punishable with life imprisonment or any less term.
Where the law provides for a maximum and minimum sentence upon conviction the trial Judge is required to exercise his discretion judicially and judiciously.
After considering the totality of the case, the learned trial Judge did not impose the maximum sentence, he only imposed 12 years imprisonment which he further mitigated by pronouncing that the period already spent in prison custody shall be reckoned with as part of the sentence passed.
Furthermore, as stated earlier in this Judgment that there was no miscarriage of Justice, the non-compliance with the provisions of Section 197 of the Criminal Procedure Code has been saved by the provisions of Section 382 of the Criminal Procedure Code which is hereby set out as follows:-
“Subject to provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission, or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal Procedure Code unless the appeal Court or reviewing authority thinks that a failure of justice has been occasioned by such error, omission or irregularity.”
See Sani vs. The State (1993) 4 NWLR Part 285 Page 99 at 120 Paragraphs H-B.
Consequent upon the foregoing, it is my view that the 12 years imprisonment meted out to the accused/Appellant is not excessive.
This issue No. 2 is resolved in favour of Respondent.
In the final analysis I hold that this appeal lacks merit and it is dismissed. The Judgment of the High Court of Justice, Okene, Kogi State delivered on the 13th day of November 2009 in Charge No: HCO/OICR/2009 including the conviction and sentence of the Appellant, is hereby affirmed.
HUSSEIN MUKHTAR. J.C.A.: I have had the privilege of reading in advance the leading judgment of my learned brother BADA, J.C.A. before today. He has fully set out the facts of the case and eloquently discussed all the issues raised in the appeal. I am in complete agreement with his reasons therein and the conclusion that the appeal is bereft of merit and deserves to be dismissed. I hereby order that the appeal be dismissed for lacking in substance, and subscribe to the consequential order made in the judgment.
EJEMBT EKO, J.C.A.: This appellant had confessed to the robbery charged and several others in the extra judicial statement, Exhibit ‘A’, made before the commencement of his trial. At the trial he resiled out of the confession and put up a completely different story.
I find as desperate and not ingenuous the submission of the appellant’s counsel to the effect that; since the appellant had confessed, in Exhibit ‘A’, to other robberies he had committed, the trial Judge ought to have rejected the said exhibit ‘A’ on the ground that the confession to other robberies would prejudice his mind. On the contrary, in my view, the confession to other robberies reinforces his confession to the particular robbery for which he stands charged. It was an effort, on the part of the appellant, to convince his hearers that he had a vocation in robbery and this admission is coming from the base of his heart. I am not convinced, in the least by counsel’s argument.
The fact that the appellant subsequently, at the trial, retracted his confession in Exhibit ‘A’ confession does not make the statement inadmissible. A confession does not become inadmissible merely because the maker denied his having made it. See SHITTU v. THE STATE (1970) 1 ALL NLR 228; BATURE v. THE STATE (1994) 1 SCNJ 1 AT 20; AYO v. THE STATE (2009) 8 WRN 134 AT 152-153.
I agree with the opinion of my learned brother, J.O. BADA, JCA, in the judgment just delivered, that the appellant was properly convicted and sentenced for robbery charged. The appellant was arrested at 9.00 pm, about 6 hours after P.W.1 was robbed of his money, motorcycle and telephone handset. The P.W.1 identified the appellant as one of those who robbed him. Six hours after the robbery the appellant was found with the motorcycle and the telephone handset. There could be no better instance of the doctrine of recent possession in section 149 (a) of the Evidence Act (now section 167 (a) Evidence act, 2011 than this. The doctrine runs thus; the man who is in possession of stolen goods soon after the theft is either the thief or is a receiver of stolen goods knowing them to have been stolen unless he gives proper account of how he came into possession of the goods. This is a presumption of fact, and it is rebuttable. See EZE v. THE STATE (1985) NWLR [pt.13] 429. This appellant has not given proper account of the stolen goods found with him. The P.W.1 identified him as the robber.
Even without Exhibit ‘A’ the conviction of the appellant can still be sustained by the evidence of P.W.1, the victim of the robbery. The law emphasizes not the quantum, but the quality, of the evidence that proves any issue in dispute.
It was submitted for the appellant that there was some contradiction between the evidence of PW.1 and PW.2. The PW.2 was not eyewitness.
The eye witness was the P.W.1. His evidence was not discredited. The mere fact that P.W.2 failed to correctly narrate what the P.W.1 told him about the robbery does not constitute any material contradiction on which the evidence of P.W.2 could render the evidence of PW.1 unreliable. The law on contradiction can not be stretched to the level when a hearsay evidence can render unreliable a credible evidence that is direct and positive. Section 77 of the Evidence Act (now section 126 Evidence Act, 2011) directs that oral evidence in all cases must be direct. And if it refers to a fact which could be seen, it must be the evidence of the person who says he saw that fact, and not that person who says he was told by the person who saw that fact. See YAHAYA v. OPARINDE (1997), 10 NWLR [pt.523] 126.
On Appellant’s issue 2, formulated from grounds 4 and 5, I ask: what makes the sentence excessive, is it non compliance with section 197 of the Criminal Procedure Code, or what? I think the excessiveness of a sentence of imprisonment depends on many factors or circumstances. One of them is the sentence prescribed as penalty for the offence by the enabling penal statute. That is the minimum or maximum prescribed by the law creating the offence. The other comprises the facts or circumstances of the case, which include the conduct of the prisoner. Under this, the fact that the prisoner lives on crime as a vocation may be relevant. In this case the appellant himself in Exhibit ‘A’, had confessed to other robberies. The trial Judge, in matters of sentence, has discretion. That can not be denied. And it also settled that an appellate court will not readily interfere with the sentence imposed by a trial Judge unless it is manifestly excessive or wrong in principle. See STEPHEN v. THE STATE (CA/C/117 /2007 of 10th December, 2008); T.S.A. INDUSTRIES LTD v. KEMA INVESTMENT LTD (2006) 1 SC [pt.3] 9 (2006) 2 NWLR [pt.964] 1.
This is a trial wherein the appellant was, throughout, represented by a legal practitioner of his choice. The lawyer knows the law, including the rules of criminal procedure, under the CPC, that governed that trial. At page 35 of the Record there was an Allocutus after the conviction and before the sentence; the purpose of which was the mitigation of the sentence. The allocutus was an appeal, by the appellant’s counsel, to the discretion of the trial Judge. Discretion, as Onu, JSC put it in ARTRA INDUSTRIES (NIG) LTD v. N.B.C.I. (1998) 4 NWLR [pt.545] 1 at 35, means equitable decision of what is just and proper under the circumstance, or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. I have not seen how the learned trial Judge acted either manifestly in excess of his powers in relation to the maximum sentence prescribed for the offence of robbery by section 298 (C) of the Penal Code, or wrongly in the principle of sentencing in this case.
I will not disturb the conviction and sentence of the appellant for robbery by the learned trial Judge. For these and the reasons in the judgment of my learned brother, J. O. BADA, JCA; I hereby dismiss appeal in its entirety and affirm the conviction and sentence of the appellant in the judgment delivered in the case No HCO/01CR/2009 on 13th November, 2009.
Appearances
Mr. A. M. AliyuFor Appellant
AND
Mrs. H. E. Yusufu (Deputy Director Public Prosecution, Ministry of Justice Kogi State)For Respondent
