ISAH BALA USMAN v. KANO STATE
(2019)LCN/13382(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/K/138A/C/2017
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
ISAH BALA USMAN – Appellant(s)
AND
KANO STATE – Respondent(s)
RATIO
INGREDIENTS TO ESTABLISH THE GUILT OF AN ACCUSED PERSON
In criminal trials, the law is that the guilt of an accused person can be established by any or all of the following: –
a) The confessional statement of the accused
b) Circumstantial evidence
c) Evidence of an eye witness
See Emeka v State (2001) 14 NWLR Part 734 Page 666 at 683 Para G-H per Onu JSC. PER ADEFOPE-OKOJIE, J.C.A.
THE CRIMINAL OFFENCE OF CONSPIRACY
Conspiracy, unfortunately, is not always easy to prove, as the Courts have held in many cases that it is a matter of inference to be drawn from the acts or inactions of the parties concerned. See Shodiya v State (2013) 14 NWLR Part 1373 Page 147 per M.D. Muhammad JSC.
As also held by the Supreme Court in the case of Busari v State (2015) 5 NWLR Part 1452 Page 343 at 367 Para D-E, per Muntaka-Coomassie JSC: Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.”PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Jugdment): This appeal is against the conviction and sentence of the Appellant by the Kano State High Court, hereafter referred to as ?the Lower Court?, in a judgment delivered on the 25/2/15 by Hon. Justice S. B Na?Mallam.
The Appellant was the 1st accused at the lower Court and was arraigned along with five other accused persons on a two count charge of criminal conspiracy and armed robbery punishable under Sections 97 and 298 of the Penal Code Kano State, 1991 respectively.
The case of the prosecution was that the Appellant and the co-accused persons, numbering six (6), conspired to rob one Sami Murtala (PW1) at his residence in Zawachi Quarters 1000 Unit Housing Estate, Kano on the 18th November, 2010. On the said day, at 2:50am while armed with a gun, cutlass, knife, iron rod and other dangerous weapons they went to the house of PW1, forcefully gained entry into the house, and robbed him of the sum of N348,000.00 (Three Hundred and Forty-Eight Thousand Naira), a brief case containing vital documents, two handsets valued at N40,000 (Forty Thousand
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Naira) and a motor vehicle, Honda Accord 2000 brand with registration No. BL79 BWR valued at N1,050,000.00 (One Million, Fifty Thousand Naira only).
At the hearing of the case, the prosecution called 9 witnesses and tendered 16 exhibits. In his defence the Appellant was the sole witness and testified as DW1. The other accused persons similarly testified, calling no witnesses in their defence.
On 25/2/2015, the learned trial judge in a considered judgment found the Appellant guilty on both counts and so also some of the co-accused persons.
Aggrieved with the decision of the lower Court, the Appellant, with leave of this Court granted on 28/6/16, filed a three ground Notice of Appeal on 12/7/16.
Two issues for determination were distilled in the Appellant?s Brief of Arguments filed on 17/7/17 by the Appellant?s Counsel Rilwanu Umar Esq MCIarb namely;
1. Whether from the totality of evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant to secure the appellant?s conviction at the trial Court for the offence of armed robbery as provided for by the provision of Section 298 (2)
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Penal Code Law of Kano State?
2. Whether from the totality of evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant to secure the conviction at the trial Court of the offence of criminal conspiracy as provided for by the provision of Sections 97(1) of Penal Code Law of Kano State.
The Respondent, in its Brief of argument filed by its Counsel Amina Yusuf Yargaya, Director Legal Services, Kano State Ministry of Justice on 24/9/18 but deemed properly filed by this Court on 22/11/18, adopted the two issues formulated by the Appellant?s Counsel.
I shall accordingly adopt these issues.
The 1st issue for determination is:
Whether from the totality of evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant to secure the appellant’s conviction at the trial Court for the offence of armed robbery as provided for by the provision of Section 298 (2) Penal Code Law of Kano State?
?
On this issue, the learned Counsel to the Appellant contended that the prosecution has failed to prove its case against the Appellant on the commission of the offence of
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armed robbery beyond reasonable doubt to warrant the conviction of the Appellant. He argued that for an offence of armed robbery to be established, it is required of the prosecution to prove three ingredients namely:-
(1.) That there was a robbery,
(2.) That the robbery was an armed robbery,
(3.) That the accused was the armed robber or one of the armed robbers.
He relied on the cases of OLANIPEKUN v. STATE (2012) ALL FWLR (pt. 607) pg. 762 Para C, ADEBAYO v. STATE (2014) ALL FWLR (pt. 743) pg. 2015 ? 2016 Paras H-A and SECTION 138 E-A 2011., ADAMU v. STATE (2016) ALL FWLR (pt. 826) pg. 1594 Paras E-F
Arguing these ingredients, learned Counsel submitted that there is nothing to show that the Appellant participated in any armed robbery nor was his name mentioned by PW1 and his wife, PW2, as one of those who robbed them. The mention of the Appellant is merely that he was their house help. The trial judge, he said, agreed with this position when on Page 114 of the record he held that none of the prosecution witnesses confirmed the actual participation of the Appellant at the scene of the incident.
Counsel submitted that based
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on the finding of the Court, the Respondent has failed to prove beyond reasonable doubt that the Appellant participated in the robbery and this should have created doubt in the mind of the Court to warrant the discharge of the Appellant. It is for the Respondent to lead evidence against the Appellant which must be implicating, strong and direct, without leaving any remote possibility that the Appellant actually committed the alleged offence beyond reasonable doubt, for the Court to safely rely on. He cited GONI v. STATE (2016) ALL FWLR Part 817 Pg. 661 PARAS A-B, further arguing that it is not the duty of the Court to do the prosecutions work but to strictly adhere to the principle of innocence as enshrined in the Constitution. He relied on Section 138(1) of the Evidence Act 2011, and the case of Ataloye V. STATE (2013) ALL FWLR (PT664)at 58, UGWU v. STATE (2013) ALL FWLR (Pt. 694) pg. 1178.
On the matter of the confessional statement, learned Counsel submitted that it is desirable for the trial Court to have, outside the confession, some evidence or circumstances which makes it probable that the confession was true. He referred to Sunday Onungwa V. State
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(1976) 2 SC 169, arguing further that the extra-judicial statement used by the trial Court to convict the Appellant was not made by the Appellant and no endorsement was made by a superior police officer to further confirm that the statement was truly made by the Appellant freely. It was also not recorded in the language the Appellant understands. He relied on OMADIARE v. A.G.F (2014) ALL FWLR (pt. 745) pg. 298 at 315 PARAS A-B, ABDULLAHI v. STATE (2017) ALL FWLR (pt. 869) pg. 900 and SECTION 2 OF THE ILLITERATE PROTECTION LAW KANO STATE.
He again argued that Exhibit K2 (the English translated version of Exhibit B) falls short of the provision of SECTION 104 of the Evidence Act as no fees were paid for its certification. He relied on TABIK INVESTMENT LTD v. G.T.B PLC (2011) ALL FWLR (pt.602) pg. 1607 -1608. He argued that Exhibit K2 relied upon by the trial Court to convict the Appellant is not admissible as same was not property certified.
In response, the Director of Legal Services, for the Respondent, agreeing with the ingredients cited by the Appellant?s Counsel to convict on armed robbery, submitted that the prosecution had proved beyond
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reasonable doubt all the ingredients required.
On the 1st and 2nd requirements of whether there was a robbery and that the robbers were armed, Counsel pointed to the evidence of PW1, corroborated by PW2 and PW3 and which incident was reported to the police. This evidence, she submitted, was not contradicted. On the requirement that the Appellant took part in the robbery, learned Counsel pointed to the evidence of PW1, combined with the confessional statements of the Appellant that he indeed participated in the armed robbery. She urged us to uphold the conviction and sentence of the Appellant, the prosecution having proved beyond reasonable doubt the offence of armed robbery, relying on the case of Mufutau Bakare v. the State (1987)1 I SCE 26 at 273.
Responding to submissions of the Appellant?s Counsel on the question of endorsement of the confessional statement, learned counsel submitted that the statement was before the superior officer himself and had passed the test laid down for receipt in evidence of the confessions. She cited MODIARY vs. AGF (2014) ALL FWLR (pt. 745) pg. 314. Counsel further stated that it is settled law that the police
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can record statements, translate same by any member of the team of investigators, the requirement of endorsement she said is subjective and does not invalidate or make extra-judicial statement inadmissible but it may affect the weight of evidence to be attached. She referred to the case of ABDULLAHI vs. THE STATE (2017) ALL FWLR (pt. 869) pg. 900.
On the issue of certification, learned Counsel contended that confessional statements do not need certification before they can be admitted, as decided by the Apex Court in a series of cases. It is therefore settled that an original confessional statement from the Police diary does not need certification before it can be admitted.
Counsel denied the applicability of the Illiterate Protection Law, not being a civil transaction and as the statements of the Appellant were in compliance with the law. In addition, the words of caution were administered, signed and countersigned by the IPO and their admission without objection is enough to ground conviction. He cited ABASI v. THE STATE (1992) 8 NWLR (PT. 260) PG 383 at 398, AKPAN V THE STATE (2000) 12 NWLR (PT. 682) AT 622, NWACHUKWU V. THE STATE (2007)11 MJSC 212
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at 45-48, LASISI V. THE STATE (2011) ALL FWLR (PT. 601), HABIBU MUSA V. THE STATE (2013) LPELR 19932.
Case law has identified three constitutive ingredients of the offence of armed robbery, namely:-
1. There was a robbery;
2. That the robbers were armed with dangerous weapons
3. That the accused was one of the robbers.
See Busari v State (2015) 5 NWLR Part1452 Page 343 at 378 Para e-F per Okoro JSC; Olayinka vs. The State (2007) 9 NWLR Part 1040 Page 561 at 582 Para G-H per Tobi JSC; Afolalu v. The State (2010) 16 NWLR Part 1220 Page 554 at 610 Para A-C per I.T. Muhammad JSC.
In order therefore to secure the conviction of an accused person for the offence of armed robbery, the prosecution must satisfy the requirement of these ingredients beyond reasonable doubt. Where this is not done, the case must fail. Put differently, it is the prosecution?s proof of these ingredients beyond reasonable doubt that would warrant a guilty verdict from the Court of trial. See Afolalu vs. The State (supra), Osuagwu v State (2016) 16 NWLR Part 1537 Page 31 at 55 Para A-E per Nweze JSC.
?
In the instant case, the evidence of the armed robbery
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was given by PW1, 2 and 3.
The evidence of PW1, Sami Murtala Ahmad, is that while they were asleep on 18/11/2010, at around 2.50am, about 4 persons came into his house. One of them, wearing what looked like a police uniform, beamed a torch light in his face. They demanded for money. He directed them to where it was. The 4th accused asked him for the keys of his car, which he surrendered. One of the robbers had a gun, while others had matchetes and hoe handles. They locked him up in his room and drove away with his car. On his report to the Police, the Police retrieved the weapons that the robbers left, cutlass, matchetes, sticks and handles.
PW2, his wife, Hafsat Mahmoud Mohammed, confirmed the visit by the armed robbers. Her evidence is that they came to her room but she pretended to be asleep. She saw one of them climbing over the wall and another handing them weapons like cutlasses and matchetes. One wore what looked like a police uniform. After they left her room, she jammed her door. They tried to enter in but could not. The 3rd witness to the robbery was the house girl, PW3, Amina Yau. Her evidence is that they entered the room where she was
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sleeping with the children of the house. They tried to rape her but she resisted. One was wearing a police uniform and held a gun.
PW4, Cpl. Juliana Ishayaku of Nigeria Police, Kumbotso LG, Kano, to whom the matter was reported, in her investigation of the premises, discovered that the security lights had been disconnected and the main gate of the house tampered with. She recovered cutlasses, iron rod and three hoe handles, which were transferred to the State CID.
The evidence of these witnesses on the robbery attack was not challenged. The questions asked under cross examination were in challenge of the identity of the robbers and not as to whether there was an armed robbery. I accordingly hold the trial Judge right to have held that the Respondent had proved beyond reasonable doubt the 1st and 2nd ingredients, that there was a robbery and that the robbery was carried out with dangerous weapons.
?
The 3rd ingredient is whether the Appellant was one of the armed robbers. As rightly submitted by the Appellant?s Counsel, the evidence of the witnesses, PW1, PW2 and PW3 was that they did not see the Appellant at the scene of the incident. The
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evidence of PW1, however, is that his suspicion was aroused when the Appellant, who had been his house-boy for about a year, stopped coming to the house immediately after the robbery incident. All calls by him and PW2 to the phone of the Appellant went unanswered. The Appellant was, however lured by a phone call from one of the suspects who had been apprehended and traced to his brother?s house where he had escaped to. He initially denied to the Police and PW1 seeing the calls from PW1 and PW2, alleging that he swapped his line. When told that his story on the swapping of the line would be verified from the MTN server, he succumbed, confessing that he was one of the robbers that robbed PW1. He named the other persons who participated in the robbery. He was thereupon arrested and made confessional statements to the Police.
In criminal trials, the law is that the guilt of an accused person can be established by any or all of the following: –
a) The confessional statement of the accused
b) Circumstantial evidence
c) Evidence of an eye witness
See Emeka v State (2001) 14 NWLR Part 734 Page 666 at 683 Para G-H per Onu JSC.
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In the instant case, the Appellant made five statements to the Police. In two of the statements, he denied participation in the robbery. In the three subsequent statements, Exhibits ?B?, ?M? and ?J? and however, he admitted his involvement and named the other participants in the robbery.
In Exhibit ?B?, dated 1/01/2011, tendered through PW4, Cpl. Julianah Ishayaku, one of the investigators, which statement was written by the Appellant in Hausa Language and translated into English in Exhibit ?K2?, the Appellant stated:
?I of the above name and address I am giving additional statement as follows: the stealing that happened at Sani Murtala?s house, I am aware of it on 18/11/2010 at around 2am in the mid night because Abubakar took the keys from me, they came in the night and woke me up and ask me to lead them to the house, I refused it , but they forced me that I must lead them to the house, then I said to them if you reach the house for the sake of God please don?t kill him. Then Abbas replied me that there will be no killing.
After I took them, I explained to them on how to do it.
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After they took everything they left in a car and I went to the house and slept in an uncompleted building, then in the morning I went home. That?s how it happened, those who do those things comprise:
(1) Danzamani; (2) Abbas; (3) Nura and (4) Abubakar.
On the issue of his house wiring that was disconnected when they entered they disconnected it because they don?t want to be identified on the issue of making phone calls to be sincere I didn?t pick his calls because I don?t want to hear his voice because I am not honest to him because he regard me as a son, the remaining one I could not remember his name, his name is manager that?s what I know on what happened.?
In a subsequent statement made by him on 7/1/2011, Exhibit M, he again admitted going with the other accused persons to the house of PW1. He alleged that he initially did not want to go, ?then Abbas brought out gun from his body and put in on my head, and said we shall go. I agree and follow them, that if we reach there they should not kill him. When we reach the entrance Nura climb the wall and drop inside the house and disconnect one wire of
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electric after that he ask us to come in, then about seven of them enter inside, while I stop and hide outside the house. On this I just heard the broken of the main gate then they came out with his motor vehicle, they push the gate back but they did not lock it. It is Wada that drive the car all of them enter the motor and left me there. Then I went to one uncompleted building and sleep inside because it is already night
This statement was recorded by PW9 Sgt. Ismail Ibrahim in English Language, with words of caution and stated to have been translated by him to the Appellant, who signed the same. The witness testified that in view of its confessional nature, the statement was taken to his ?superior officer? the O/C SARS, DSP Ishaq and that ?I read the statement in the presence of the SPI and the accused confirmed that it was his statement. I then signed and the 1st accused also signed.?
The 3rd confessional statement is Exhibit ?J? recorded also by PW9 on 19/1/2011 in English language after words of caution. It was stated to have been translated to the Appellant in Hausa Language. Both PW9 and the
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Appellant signed the statement, which was taken to and endorsed by Inspector Ossaini Abdul, PW6. In this statement, he alleged that the other accused persons tried to prevail on him to disclaim their participation in the robbery. He however insisted that they all participated in the robbery.
The lower Court, at Page 218-219 of the record, held:
?Having now seen the circumstances of how the first accused was linked to this robbery in question which is through a cogent and unequivocal circumstantial evidence which leaves no doubt as to the circumstances in which the first accused was involved juxtaposed along with Exhibit “B” (statement of the 1st accused at Panshekara division) dated the 1/1/2011, in Hausa and its English Translation marked as Exhibit “K2”; Exhibit “M” statement of 1st accused dated the 7/1/2011 and Exhibit “J” additional statement of the 1st accused dated 19/1/2011 strengthened the evidence led by the prosecution that the first accused no doubt is among those that participated in the robbery against the complainant.?
Learned Counsel to the Appellant has impugned the statements on the
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ground that they were retracted, yet admitted by the lower Court. The lower Court, I hold, was however right to have admitted them, as the law is that the retraction of a confessional statement or a denial by an accused person of his having made the statement, does not ipso facto render it inadmissible in evidence. The Court, upon its admission, should, before acting on it, test the veracity thereof by seeking other evidence, no matter how slight, of circumstances which make it probable that the confession is true. The denial is only a matter to be considered in deciding the weight to attach to the confession. See Sunday v State (2018) 1 NWLR Part 1600 Page 251 at 271 Para D-F per Peter-Odili JSC; Garba Adamu v State (2017) 16 NWLR Part 1592 Page 353 at 390 Para B-D per M.D. Muhammad JSC; Natsaha v State (2018) 18 NWLR Part 1596 Page 38 at 71 Para C-D per Kekere-Ekun JSC; Iliyasu v State (2015) 11 NWLR Part 1169 Page 26 at 54 Para B-C per Nweze JSC.
It is however desirable to have outside the confession some evidence, be it slight, of circumstances which make it probable that the confession was true. See Busari v State Supra at 367 Para A-C per
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Muntaka-Coomassie JSC; Bello v COP (2018) 2 NWLR Part 1603 Page 267 at 319 Para C-H per I.T. Muhammad JSC; Iliyasu v State (2015) 11 NWLR Part 1169 Page 26 at 56 Para G-H per Nweze JSC.
Providing this evidence, PW6, Inspector Ossaini Abdul attached to SARS of SCID and head of the investigation team, testified, that following the statement made by the Appellant, all the accused persons were taken to the scene of the crime.
His evidence is that:
?The next day the scene of the crime was visited where the 1st accused show (sic) a ladder which they used in climbing over the fence to the house. The first accused disproved the alibi raised by the 6th accused person….?
In addition, the sudden disappearance of the Appellant from the house of PW1 immediately after the robbery and his refusal to pick any calls from him or his wife, only to pick the call of his friend who tricked him into disclosing his location, is further evidence of the truth of his complicity, I hold.
?
The Appellant?s Counsel has alleged that the confessional statement was not countersigned by a superior police officer and therefore inadmissible. Also that
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the one taken in English language was similarly inadmissible as the language of the Appellant is Hausa.
Exhibit ?B?, whose English translation is Exhibit ?K2?, and which by the evidence of PW4, the Investigator, was written by the Appellant in his own writing, following words of caution by her, was taken to the DCO who read over the Statement to the Appellant and both of them signed, thus rendering this statement admissible, I hold.
Similarly Exhibit J, recorded also by PW9 on 19/1/2011 in English language after words of caution, was endorsed by Inspector Ossaini Abdul, PW6.
These statements were thus signed by officers senior to the recording officer.
In any event, there is nothing sacrosanct about countersigning of a confessional statement by a senior police officer. The Supreme Court in Edhigere v. The State (1996) 8 NWLR Part 464 Page 1 at 7 Para F-G held, per Uthman Mohammed JSC, reading the lead judgment, held as follows:-
?This Court has said it several times in reported cases that the administrative practice of confirmation of confessional statements before a senior police officer is not a legal
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requirement which if not complied with would render the statement unreliable. No general rule has been laid out that the practice must be observed.?
It is thus merely good practice and would at best go to the weight to be attached to the confession. See also Abdullahi v State (2017) All FWLR Part 869 Page 8969 at 915 Para C-E per Oyemenam JCA.
Counsel has again contended there was no sum stated on Exhibit ?K? as the cost of certification of the interpreted document, contrary to Section 104 of the Evidence Act. This is however a puerile argument, as this document was translated at the instance of the Court. The document came about, as following the admission of Exhibit ?B? in evidence by the Court, at its proceedings of 22/10/12, the Court directed that the document, being in Hausa language, be translated into the language of the Court. This was done by PW8, Abdulkadir Dahuru, an employee of the State Judiciary Kano, attached to the Appeals and Translation Section. The witness personally tendered the English translation of Exhibit ?B? as Exhibit ?K2?. Exhibit ?K2? was stated as having
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been certified and marked ?Official?.
It is common knowledge that official documents do not attract filing fees, so the absence of filing fees does not invalidate this document, I hold.
Again, Appellant?s Counsel complains of one of the confessional statements that was recorded in English language, arguing that it should have been recorded in the language of the Appellant. I agree that the prosecution should as much as possible record statements in the language they were given, in order to avoid misrepresentations.
It was held by the Supreme Court in the case of Olanipekun v State (2016) 13 NWLR Part 1528 Page 100 at 118 Para B-C per Kekere-Ekun JSC, as follows:
?Statements should be, wherever practicable, recorded in the language in which they are made. This is a practical wisdom directed to avoid technical arguments which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by accused persons.?
This requirement is thus a rule of practice, to ensure accuracy and does not render inadmissible any statement taken down in a language other than
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that spoken of the accused, I hold.
In the instant case, the accuracy of this statement was ensured by PW9, Inspector Ismaila Ibrahim, whose evidence, as aforesaid, is that he recorded the statement in English and translated it into Hausa Language, following words of caution, and in view of its confessional nature, took both the Appellant and the statement to his superior officer, DSP Ishaq who verified the same. The Statement, I note, indeed has the endorsement of the DCO who stated thereon that the IPO brought the suspect before him, who ?read the confessional statement to his hearing and understanding and which the suspect confirmed to have made freely and voluntarily without threat, duress nor any kind of promise.?
There was thus confirmation from DSP Ishaq that the confessional statement was interpreted to and understood by the Appellant, who signed the same.
Indeed, I note that this confession was admitted without objection from the Appellant?s Counsel and shall accordingly be given its full weight.
?
There has been full compliance, I hold, with the protection afforded to illiterates in the Illiterate Protection Law. I
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might also add that the fact that a person speaks Hausa does not make him an illiterate. The Appellant by his statements to the police attended primary and Junior Secondary School, though he did not complete Senior Secondary School. He was thus in a good position to verify the statement made in English language.
The confessional statements of the Appellant were rightly admitted by the lower Court, I hold and I cannot fault its findings, having relied on credible evidence before it in convicting the Appellant. The Respondent has proved beyond reasonable doubt the offence of armed robbery, I further hold, having linked the Appellant to the crime through his confessional statements and the circumstantial evidence.
I hold, in consequence, that the confessional statements were properly given the weight they deserved.
I accordingly resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination, is:
WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED, THE PROSECUTION HAS PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT TO SECURE THE CONVICTION AT THE TRIAL COURT OF THE OFFENCE OF CRIMINAL CONSPIRACY AS
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PROVIDED FOR BY THE PROVISION OF SECTION 97(1) OF PENAL CODE LAW OF KANO STATE.
Learned Counsel to the Appellant has submitted that the Respondent failed to prove its case against the Appellant for the offence of criminal conspiracy, as provided for by SECTION 96(1) and punishable under SECTION 97(1) of the Penal Code Law of Kano State, beyond reasonable doubt to warrant the conviction of the Appellant, as the onus lay on the prosecution to prove the guilt of the accused. He referred to SECTION 138 EVIDENCE ACT 2011 and SECTION 36 (5) OF THE CONSTITUTION 1999 as amended and the cases of OLATINWO v. State (2013) ALL FWLR (pt. 685) pg. 333 PARAS A-B,ODUNEYE v. STATE (2001) FWLR (pt. 38) pg. 1203 and Aigbadion v. State (2000) 7 NWLR (pt. 666) 687 of 704 PARAS A-B.
He submitted that from the evidence adduced by the Respondent it failed to prove the ingredients of conspiracy to commit armed robbery against the Appellant in relation to his co-accused and that the Respondent needs to prove that there exists agreements amongst the convicts to commit an illegal act. He cited FRN vs. SANI (2015) ALL FWLR (pt. 763) pg. 1885 PARAS A-D OKOH v. STATE (2014) 6 SCM
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pg. 184 PARAS A-C, submitting that having failed to establish a nexus between the Appellant and the co-accused persons the Respondent failed to discharge the burden placed on it. He urged the Court to resolve this issue in favour of the Appellant and discharge and acquit him, or in the alternative to reduce the conviction and period of sentence to a lesser one.
In her response, the Director of Legal Services, for the Respondent, submitted that the prosecution had adduced enough evidence to prove beyond reasonable doubt the ingredients of the offence of criminal conspiracy as were enumerated by the Supreme Court in the case of SODIYA vs. THE STATE (2011) ALL FWLR (pt. 560). She stated that conspiracy may not always be proved by direct evidence as it is generally a matter of inference deduced from certain criminal acts and conduct of the accused, which was done or carried out in pursuance of an apparent criminal purpose common between them. She cited the cases of IKEMSON Vs. STATE (1989) 6 SC (pt.1)114 or (1089)B NWLR (pt. 110) at 544 and SHODIYA vs. STATE (1992)3 NWLR (pt. 230) at 472, ERIM vs. THE STATE (1994) NWLR (pt. 346) 522 at 533, OBIAKOR v. STATE
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(2002) 10 NWLR (pt. 776) pg. 616 at 628 PARAS 61, and FRN vs. SANI (2015) ALL FWLR (pt. 763) pg. 1885 PARAS A-C.
Section 96 of the Penal Code of Kano State defines Criminal Conspiracy as:
(1) When two or more persons agree to do or cause to be done-
(a) an illegal act: or
(b) an act which is not illegal by illegal means,
such an agreement is called criminal conspiracy.
(2) Notwithstanding the provisions of subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
In consequence, not only must there be an agreement to do or cause to be done an illegal act, the agreement must be followed by an act to give effect to the agreement. See Muhammed V. State (2014) ALL FWLR Part 335 Pg. 403.
Conspiracy, unfortunately, is not always easy to prove, as the Courts have held in many cases that it is a matter of inference to be drawn from the acts or inactions of the parties concerned. See Shodiya v State (2013) 14 NWLR Part 1373 Page 147 per M.D. Muhammad JSC.
?As also held by
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the Supreme Court in the case of Busari v State (2015) 5 NWLR Part 1452 Page 343 at 367 Para D-E, per Muntaka-Coomassie JSC:
?Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.”
The lower Court set out the definition and requirements for the proof of conspiracy and, applying the law to the facts of the case, held:
?It is not in doubt and beyond any dispute that the prosecution?s case shows that the co-conspirators are more than two therefore satisfying the first requirement of at least two or more persons being involved in conspiracy, in other words there is a meeting of the minds which consists of their intention to do the unlawful acts which is the robbery against the complainant. As it is the case these findings can be inferred from the
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circumstances of the case as presented by the prosecution. As can be seen that all the accused are connected knowing each other as gleaned from the confessional statements of the first accused which was tendered as Exhibits before the Court and also the statement of the sixth accused, fourth accused and second accused?there is a common factor showing that the accused knew each other before the incidence and when this is put in con of the confessional statements of the first accused, the testimonies of the witnesses particularly PW1, 2 and 3 and the commission of the substantive offence which has been proved the conclusion is for the Court to draw inferences as to the guilt of the accused persons of conspiracy to rob the complainant and that each of them have participated. From the circumstances it can be seen that first accused stood guard outside during the robbery as being known to the victims he will not venture to expose himself being seen. The defence put up by the first accused that he was coerced to participate in the robbery by the sixth accused is not tenable in law as there is nothing to show that his senses are impaired? all the
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elements and ingredients of the offence of conspiracy were proved to have existed and proved ?This Court is of the view that the prosecution has proved beyond all reasonable doubt the issue of the conspiracy under Section 96(1) which was punishable under Section 97(1) of the Penal Code Law
I have no reason to fault this finding by the lower Court. The confessional statements of the Appellant proved clearly the agreement between the Appellant and the other accused persons to commit the offence in question. In furtherance of this agreement, they carried out the act of armed robbery. I again resolve the 2nd issue for determination against the Appellant.
There was no appeal against the length of the sentence. Even if there was, a heinous act was perpetrated on the night in question, which, in the twinkling of the eye could have turned deadly. Indeed the Appellant is fortunate that he was not charged under the Robbery and Firearms Act, which would have attracted a mandatory sentence of not less than 21 years imprisonment.
?
The lower Court has done a commendable job, I hold. It is a settled principle of law that where a trial
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Court has carried its assignment out satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v. Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T. Muhammad JSC.
In consequence, this appeal fails and is hereby dismissed. The conviction and sentence of the lower Court is accordingly affirmed.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA. affirming the judgment of the lower Court. I agree with my lord?s reasoning and judgment and I have nothing extra to add.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read before its delivery, the judgment of my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I adopt the reasoning and conclusion on all the vital issues canvassed by both counsel in this appeal. I have no iota of doubt in my mind that the appeal is devoid of merit, and deserves a resounding dismissal. I hereby do so, and in consequence, affirm the conviction and sentence of
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the Appellant by the lower Court.
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Appearances:
Mustapha OseniFor Appellant(s)
Respondent UnrepresentedFor Respondent(s)
Appearances
Mustapha OseniFor Appellant
AND
Respondent UnrepresentedFor Respondent
