LAWAL v. STATE (2022)

LAWAL v. STATE

(2022)LCN/17026(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/96/C/2021

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

ADAMU LAWAL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE AN ACCUSED PERSON OBJECTS TO THE ADMISSIBILITY OF AN EXTRA-JUDICIAL STATEMENT

The trite position of the law is that when an accused objects to the admissibility of extra judicial statement on the ground as in the instant case that he did not make the statement or that it was not his statement, a trial within trial is unnecessary and improper in law. In such a situation, the statement ought to be admitted in evidence pending the consideration of weight to be given to it in the evaluation of evidence.
A confession does not become inadmissible merely because the accused person denied having made it and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the Appellant took the earlier opportunity to deny having made the statement may lend weight to his denial, but it is not itself a reason for ignoring the statement. See R. vs. John Agagariga Itule (1961) All NLR 462 (F.S.C) Per Brett Ag CJF at Page 465, R. vs. Omerewure Sapele and Anor (1957) 2 F.S.C. 24. PER OWOADE, J.C.A.

WHETHER OR NOT MERE RETRACTION OF A VOLUNTARY CONFESSIONAL STATEMENT BY AN ACCUSED PERSON RENDERS SUCH STATEMENT INADMISSIBLE

Perhaps, one can start the discussion of Appellant’s issue 3 from the trite position of the law that mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See Ihuebeka vs. State (2000) 4 SC (Pt. 1) 203, Idowu vs. State (2000) 7 SC (Pt. 11) 50, Dibie vs. State (2007) 9 NWLR (Pt. 1038) 30 SC, Oche vs. State (2007) 5 NWLR (Pt. 1027) 214. PER OWOADE, J.C.A.

DEFINITION OF CORROBORATIVE EVIDENCE

After all, corroborative evidence is defined as evidence given by an independent witness who confirmed in some material particular not only that a crime has been committed but also that it was committed by the accused person. SeeAmadi vs. State (1993) 8 NWLR (Pt. 314) 644 SC, Siwobi vs. C.O.P (1997) 1 NWLR (Pt. 482) 411. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of the High Court of Katsina State delivered on 04-06-2017 by Honourable Justice Ibrahim M. Bako.

The Appellant was charged with the offence of armed robbery punishable under Section 1(2)(b) of the Robbery and Firearms Special Provisions Act Cap. R.11 Laws of the Federation of Nigeria 2010.

The charge against the Appellant reads that on or about the 9th day of January 2013 while in company of others now at large at Unguwar Audi Village, Bakori Local Government Area robbed one Yusuf Mai Unguwa of Yaribori Village, Kafur Local Government Area, of his Bajaj Boxer Motorcycle Red in colour and at the time of the robbery you were armed with a cable wire with which you strangled him. …”

The Appellant pleaded not guilty to the charge. In proof of its case, the prosecution called five (5) witnesses including the victim of the offence as PW1. The prosecution also tendered Exhibits A and A1, B and B1 being alleged extra-judicial statements made by the Appellant at two different Police stations. The extra-judicial statements Exhibits A & A1, B & B1 were separately admitted in evidence after the conclusion of trial within trial on each occasion.

After a review of the evidence, the learned trial judge came to the conclusion that he was satisfied that the testimonies of the prosecution are clear, cogent and direct. Each of them corroborated the other and none has been, undermined or encroached upon in the course of cross-examination. He however expressed doubt about the use of a weapon more especially as the testimonies of witnesses on the use of a cable wire, which was not tendered were not clear and direct. In the circumstances, he invoked the provision of Section 218 of the Criminal Procedure Code (CPC) and convicted the Appellant of the lesser offence of robbery.

In his words:
“However, in view of the testimonies of the witnesses including DW1, it is my view that the prosecution has proved that there was robbery and that the accused person had participated in it. What is still hazy are not so clear is whether or not the said robbery is armed robbery in view of the fact that no threat of the use of any weapon had been employed in the commission of the alleged act and the cable wire used by the accomplice to the accused person has neither been tendered as an exhibit nor described by any of the witnesses beyond calling it a cable wire.
Consequently I am inclined to apply Sections 218 of the Criminal Procedure Code (CPC) to convict the accused person of committing Robbery (simpliciter) punishable under Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 Laws of the Federation of Nigeria 1990 which provides that:-
“Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.”
On this I rely on the Court of Appeal decision in the case of State Vs. Usman (2005) 1 NWLR (Pt. 906) P. 80 at page 144, paras. F – G.
Accordingly, I hereby convict you of Robbery under the provision state above.”

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing seven (7) grounds of appeal dated 3-03-2021.

The Main Appeal
The relevant briefs of argument for the main appeal are:
1. Appellant’s Brief of Argument which was filed on 31/03/2021. It was settled by Habeeb A. Oredola.
2. Respondent’s Brief of Argument which was filed on 28/06/2021. It is settled by Shehu Wada Abdullahi Esq.
3. Appellant’s Reply Brief of Argument which was filed on 27/07/2021. It is settled by Habeeb A. Oredola.

Learned counsel for the Appellant nominated four (4) issues for determination of the appeal. They are:
“1. Whether having regard to the defective pieces of evidence put forward by the Respondent, the lower Court was right in convicting the Appellant of robbery when none of the elements of the offence was proved by the Respondent. (Grounds 1, 2 and 4)
2. Whether the learned trial judge properly evaluated the evidence during the trial within trial before admitting Exhibit A, A1, B and B1 as voluntary confessional statements? (Grounds 5 and 6).
3. Whether the weight attached to Exhibit A, A1, B and B1 is justifiable when the statements were not subjected to the necessary tests to determine its evidential value. (Ground 3)
4. Whether the decision of the trial Court ought to be set aside in view of the failure of the trial Court to properly evaluate the defence of the Appellant. (Ground 7)”

Learned counsel for the Respondent formulated a sole issue for determination of the appeal, to wit:
“Having regard to the fact of the case and the evidence led by the prosecution, whether the trial Court was not right in convicting the Appellant for the offence of robbery.”

This appeal will be decided on the issues nominated by the Appellant.

On issue 1, learned counsel for the Appellant submitted that the Respondent failed to establish a nexus between the Appellant and any purported robbery. That neither PW1, PW2, PW3, PW4 nor PW5 led credible evidence linking the Appellant to any robbery.

Learned counsel for the Appellant reproduced and reviewed excerpts from the evidence of PW1. He submitted that the PW1 despite being the only eyewitness to the alleged robbery, the summation of his testimony did not extinguish the doubt as to the identity or presence of the Appellant at the scene of the crime.

He referred amongst other cases to Sunday Ndidi v. State (2007) 5 SC P.75, Ikaria v. The State (2012) 12 SC (Pt. VI) page 1 and submitted that the testimony of PW1 ought not to have been accepted by the trial Court as tenable evidence capable of identifying the Appellant as one of the assailants who attacked PW1.

Learned counsel for the Appellant further submitted that since the testimony of PW1 – an eye witness to the alleged robbery has been shown to be devoid of evidential value in providing the guilt of the Appellant for the offence of robbery, it is not presumptuous to reach the conclusion that the testimony of PW2, PW3, PW4 and PW5 who lacked the opportunity of seeing or having any encounter with the assailants has no evidential value whatsoever.

Again, learned counsel for the Appellant reproduced excerpts from the testimonies of PW2 and PW3 that a rider with a motor cycle was apprehended by PW2 and PW3 speculated that the said rider was guilty of something and no other reason. PW2 and PW3 did not see the motor cycle rider committing any crime before they reached the hasty conclusion that the rider was guilty of a crime.

Appellant’s counsel reasoned that quite apart from the speculation imbedded in the testimony of PW2 and PW3, there is a missing link as to whether the person apprehended by PW2 and PW3 who was subsequently handed over to the police by the village head is the same as the Appellant.

He submitted that according to PW2, the motor cycle rider they apprehended was handed over to the village head who subsequently notified the police. But, that PW2(sic) PW3 stated that the police came to pick up the man he apprehended.

He submitted that the testimony of PW2 and PW3 when juxtaposed with the uncontroverted evidence of the Appellant shows there is reasonable doubt as to whether the Appellant and the motor cycle rider apprehended by PW2 and PW3 are one and the same.

He quoted what he termed the unchallenged testimony of the Appellant as shown on page 41 of the records thus:
“I would recall one Friday at about 10:00 am when my father Lawal assigned me to mix mud for some work to be done. As I was mixing the mud, some people came to me in plain clothes and suddenly got hold of me. I was then with my elder brother Aminu. The people handcuffed me, put me in their vehicle and drove me to the Bakori Police Station abusing me. . . . they were four in number and they used a police baton to me.”

By the Appellant’s testimony, said counsel, he was arrested on a Friday morning mixing mud. So, the question as to who was apprehended by PW2 and PW3 on the night of 9th January with a motorcycle remains unanswered and renders the entire testimony of PW2 and PW3 doubtful as to the identification of the Appellant and the motor cycle rider.

He added that since the Appellant was neither arrested at the locus criminis nor seen with any motor cycle, the testimony of PW2 and PW3 cannot be regarded as credible in establishing the identity of the Appellant as one of the assailants who allegedly attacked PW1.

Learned counsel for the Appellant relied on the case of Bozin v. State (1985) 2 NWLR (Pt. 8) 465 and submitted that the learned trial judge frequently overlooked the apparent doubts and uncertainty about identification of the Appellant in the testimony of PW1 – PW5. That these doubts and inconsistencies glaringly permeate through the testimony of the Respondent witnesses.

He urged us to hold that the Respondent failed to prove that the Appellant was one of the robbers who participated in the robbery of 9-01-2013. In response to Appellant’s issue 1 which borders on identification, learned counsel for the Respondent submitted that the Appellant volunteered his confession at two different places and that the PW1, PW2 and PW3 identified the Appellant as the culprit.

He submitted that at page 24 of the record, the Appellant confessed that:
“I took the motor cycle heading to the village with in tend to hide at corn stake hip. I was apprehended and he also escaped.”

Still on identification evidence, learned counsel for the Respondent specifically referred to line 18 of page 8 of the record of appeal where PW1 stated that:
“I have recognized the accused person”

Also, that in lines 8 – 11 of page 9 of the record of appeal, PW1 gave vivid explanation of the Appellant’s involvement of the crime, when he said that:
“…The accused person then rushed to the motorcycle and picked it up. The other person held me tight. I shouted over and over until the people of the nearby village got alerted. The accused started the motorcycle and rode off while his colleague ran away from the scene.”

Learned counsel for the Respondent submitted further that PW1 stated under cross-examination at page 9 of the record of Appeal that:
“I would not be surprised that the accused who went off with the motorcycle was caught because he headed towards the village and the people had been alerted to the scene… I know he was apprehended. He was apprehended with the motorcycle.”

That PW3 also stated in evidence thus at page 12 of the record of Appeal:
“…As the rider came there was a little bend and he applied brakes which made him fall down. He got up and took his heels. We followed him and caught him. We took him and the motorcycle to our wardhead Mai-unguwa Yohanna. At the same time we saw the victim reach us with his mouth bleeding. When he saw the motorcycle he told us it was his, that he had been hired by the accused person to take him to a village but as they were going he used the cable to injure his mouth while attempting to strangulate him. He gave us his hand set which we used to get in touch with his (cyclist’s) parents.”
(Emphasis mine)

Learned counsel for the Respondent submitted that from the evidence of PW1 and PW3 as stated above, it is apparent there is a nexus between the Appellant, the motorcycle and the victim. Moreso, said counsel as the Appellant copiously admitted same in his confessional statement that he was part of the two-man gang that robbed the victim.

In deciding, Appellant’s issue 1, quite apart from the Appellant’s confession of his involvement in the said robbery in Exhibits A and A1, B and B1, the direct evidence of identification of PW1 was adequately corroborated by the evidence of PW2 and PW3 who apprehended the Appellant soon after the robbery.

One might say that there are some discrepancies especially in the evidence of PW2, who at the beginning of his examination in chief denied knowledge of the Appellant but later gave vivid descriptions of how they (PW2, PW3) apprehended the Appellant and how the Appellant was handed over on the same night to the village head. These discrepancies are normal and expected. It is instructive in this respect to note that during cross-examination, the PW2 had this in addition to say at pages 6 – 7 of the record of appeal:
“I was not present when the accused person snatched the motorcycle. It was dark at the material time. Even though it was dark we used torchlights to see the accused person clearly before taking him to the village head.
We apprehended him at about 7.30 pm.
Yes, I saw the motorcycle very well and I can recognize it.
It was a brand new red motorcycle.”

Similarly the PW3, who had earlier identified the Appellant at the beginning of his examination in chief, responded as follows in cross-examination at pages 7 – 8 of the record of Appeal:
“We handed the accused person and the motorcycle over to the ward head after 7.30 pm (to – eight p.m.). I cannot recall the date.
The motorcycle is red, Bajaj brand. I cannot recall the colour of the cloth worn by the accused person.
Of course we identified the accused.
I was not present when the motorcycle was snatched…”

Learned counsel for the Appellant attempted to make heavy weather of the fact that PW2 and PW3 were not present when the motorcycle was snatched from PW1 but only apprehended him as he took to his heels. To my mind, the Appellant’s argument here is in the circumstances very weak. Indeed, the event of 9-01-2013 between the snatching of the motorcycle from PW1 and the “arrest” of the Appellant by PW2 and PW3 was a continuum that provided the necessary nexus to show that it was the Appellant and his co-assailant that snatched the motorcycle from PW1.

In the instant case, the unequivocal evidence of PW1, PW2 and PW3 which indeed corroborated one another has destroyed the defence, if any of the Appellant because the evidence has tied him to the locus in quo as one who committed the offence.
See Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515 SC, Ojukwu v. State (2002) 4 NWLR (Pt. 756) 80.

The evidence of PW1, PW2, PW3 and Exhibits A & A1, B and B1 were sufficient for the trial Court to have convicted the Appellant of the offence of robbery.

Issue 1 is resolved against the Appellant.

On issue 2, learned counsel for the Appellant queried the evaluation of evidence by the learned trial judge during the trial within trial which brought in Exhibits A & A1 and later Exhibit B and B1.

In particular, learned counsel for the Appellant submitted that the rulings of trial within trial delivered on both 9-12-2015 and 16/1/2017 were flawed by lack of proper evaluation of the evidence tendered by the Respondent and the Appellant at each of the trial-within-trial.

Learned counsel for the Appellant referred to several authorities to make the point that both in the ruling of 9-12-2015 and 16-1-2017 the learned trial judge:
(i) shifted the burden of proving the voluntariness of the Appellant’s extra-judicial statements to the Appellant. That the burden of proving the voluntariness of confessional statement lies with the Respondent prosecution.
(ii) that the learned trial judge did not consider the copious evidence of torture and intimidation adduced by the Appellant in the course of each of the trial-within-trial.
(iii) that the Appellant gave unchallenged evidence of his torture by the police in the different police stations where Exhibit A & A1 and B & B1 were taken, which according to Appellant’s counsel amounted to admission by the Respondent as the Appellant was not cross-examined on his evidence.

In coming to these conclusions, the learned counsel for the Appellant referred us to a number of decided cases including the cases of Borishade v. F.R.N. (2012) LPELR 45726 (CA), Ikuomola v. Oniwaya (1990) 7 SC (Pt. II) P.1, Oforlete v. State (2000) LPELR – 2270 (SC), Oludamilola v. State (2010) LPELR – 2611 SC, MWT Nig. Ltd. v. PTF (2007) 15 NWLR (Pt. 1058) 451, Alashe & Ors v. Olori-ilu & Ors (1964) 3 N.S.C.C. 297 at 302.

He urged us to expunge Exhibit A & A1 and B & B1 as improperly admitted on the ground that they were voluntarily signed by the Appellant.

In response to Appellant’s issue 2, learned counsel for the Respondent submitted that while objecting to his confessional statements, the Appellant stated in lines 6 – 8 of page 14 of the record of appeal that “he was thoroughly beaten and forced to sign the statement”. The counsel thereafter called for a trial within trial.

On the Appellant’s attack on the admissibility of Exhibits A & A1 and B & B1 at the trial within trial for lack of evaluation, Respondent’s counsel submitted that the Respondent called 3 witnesses during the trial within trial while the Appellant testified for himself.

He added that the prosecution having established and the trial Court satisfied that the confessional statements were voluntarily taken the Court can rely on the said admissible statements.

Appellant’s issue 2 deals with the propriety or otherwise of admitting Exhibits A & A1 and B & B1.

It would be recalled that on the occasions that the Respondent Prosecution sought to tender Exhibits A & A1 and B & B1 Accused counsel objected as follows:
“(After conferring) we object to the admissibility of the statement. The accused alleged that he was thoroughly beaten and forced to sign the statement.”

The above stance of the then counsel for the prosecution was acknowledged by the defence counsel both at trial and by Appellant in this appeal. Furthermore, in the two rulings delivered on trial within trial, the learned trial Judge himself acknowledged the basis of objection to admissibility of the Appellant’s confessional statements by the then counsel to the accused.

In these circumstances, what the Appellant was then saying as accused in the Court below was:
“the statement is not mine”
“I was forced to sign a prepared statement” “non est factum” “it is not my deed.”

By these, the learned trial Judge was in fact in error to have entertained a trial within trial for the admissibility of Exhibit A & A1 and B & B1.

The trite position of the law is that when an accused objects to the admissibility of extra judicial statement on the ground as in the instant case that he did not make the statement or that it was not his statement, a trial within trial is unnecessary and improper in law. In such a situation, the statement ought to be admitted in evidence pending the consideration of weight to be given to it in the evaluation of evidence.

A confession does not become inadmissible merely because the accused person denied having made it and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the Appellant took the earlier opportunity to deny having made the statement may lend weight to his denial, but it is not itself a reason for ignoring the statement. See R. vs. John Agagariga Itule (1961) All NLR 462 (F.S.C) Per Brett Ag CJF at Page 465, R. vs. Omerewure Sapele and Anor (1957) 2 F.S.C. 24.

In the instant case, Exhibits A & A1, B & B1 are nevertheless admissible. Thus, the learned trial Judge was right to have admitted the Exhibits in evidence albeit for the wrong reasons.

Issue 2 is resolved against the Appellant.

On issue 3, learned counsel for the Appellant submitted that the trial Court did not rely on any independent and corroborative evidence to test the veracity of Exhibits A, A1, B & B1. He referred to the case of Lawrence Oguno & Anor. vs. The State (2013) LPELR – 20623 (SC).

He submitted that the lower Court did not subject Exhibit A, A1, B, B1 to the six way test to ascertain whether there is anything outside the confession to show that it is true. He submitted that all the Respondent’s witnesses failed to corroborate any of the facts in Exhibit A, A1, B and B1 suggesting that the Appellant committed the crime for which he has now been convicted for.

He concluded issue 3 by saying the lower Court ought not to have placed much reliance on Exhibit A, A1, B and B1 in convicting the Appellant.

In response to issue 3, learned counsel for the Respondent submitted that the Appellant through Exhibits A and A1 confessed to the alleged offence and also gave the name of his accomplice as Yusuf Gungume (alias Tumbi) of Unguwar Dan Birni. That the two confessional statements of the Appellant are direct, clear and unequivocal. He referred to the cases ofGabriel vs. State (2014) LPELR – 23109 (CA), Ega vs. FRN (2019) LPELR – 47453 (CA).

For the view that a confession validly proved at the trial may be sufficient, either alone or along with other facts to prove the guilt of an accused person.

He further submitted that a Court can convict on the retracted confessional statement as long as the trial Court has been able to evaluate the confession and testimony of the accused and all other evidence available. The denial or retraction of a confessional statement is a matter to be taken into consideration in deciding the weight to be attached to it.

On the above, he referred to the cases of Kanu & Anor vs. King (1952) 14 WACA P. 30, Mbenu vs. State (1988) 3 NWLR (Pt. 84) P. 615, Egboghonome vs. State (1993) 7 NWLR (Pt. 306) 383, Dibie vs. State (2007) 9 NWLR (Pt. 1038) 30, Nwaebonyi vs. State (1994) 5 NWLR (Pt. 343) 138.

Perhaps, one can start the discussion of Appellant’s issue 3 from the trite position of the law that mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See Ihuebeka vs. State (2000) 4 SC (Pt. 1) 203, Idowu vs. State (2000) 7 SC (Pt. 11) 50, Dibie vs. State (2007) 9 NWLR (Pt. 1038) 30 SC, Oche vs. State (2007) 5 NWLR (Pt. 1027) 214.
In the instant case, the confessional statements of the Appellant were corroborated by the direct evidence of PW1, PW2 and PW3 which pinned the Appellant as one of the assailants of the victim – PW1.
The learned trial Judge was right when he held at page 53(41) of the record of Appeal that:
“I am satisfied that the testimonies of all the witnesses presented by the prosecution are clear, cogent and direct. Each of them corroborated the other and none has been undermined or encroached upon in the course of cross-examination.”

After all, corroborative evidence is defined as evidence given by an independent witness who confirmed in some material particular not only that a crime has been committed but also that it was committed by the accused person. See Amadi vs. State (1993) 8 NWLR (Pt. 314) 644 SC, Siwobi vs. C.O.P (1997) 1 NWLR (Pt. 482) 411.

In the instant case, Exhibit A, A1, B and B1 were corroborated by the evidence of PW1, PW2 and PW3.

Issue 3 is resolved against the Appellant.

Appellant’s issue 4 is a recapitulation of his issues 1, 2 and 3.

Learned counsel for the Appellant referred to the case of Osung vs. State (2012) 18 NWLR (Pt. 1332) 256 and submitted that in spite of the unchallenged and uncontroverted evidence of the Appellant on the narration of events that led to his arrest, the learned trial Judge dismissed the Appellant’s defence as implausible.

On issue 4, learned counsel for the Respondent submitted that the Appellant in putting his defence resiled from his earlier confessional statement and stated at page 41 of the record of Appeal, thus:
“I would recall one Friday, at about 10.00am when my father Lawal assigned me to mix mud for some work to be done. As I was mixing the mud some people came to me in plain clothes and suddenly got hold of me. I was then with my elder brother Aminu. The people hand cuffed me, put me in their vehicle and drove me to the Baroki Police Station abusing me. They explained the allegation to me at the police station. I denied committing any armed robbery.”

He submitted that the Appellant deliberately gave a totally different story in his examination before the trial Court in order to mislead the Court. He added that the law is that an accused person’s prevarication or lying/inconsistent statement in Court shall not ordinarily be taken as evidence of guilt but may in appropriate cases as in this case operate to deny such an accused the benefit of credibility.

I adopt my decisions on issues 1, 2 and 3 for the resolution of issue 4. It is not the case as the Appellant’s counsel would want us to believe that the learned trial Judge did not advert his mind to the defence of the Appellant which in fact was in the nature of a belated alibi.

At page 53(41) of the record of appeal, the learned trial Judge observed thus:
“The accused person completely denied his participation in the robbery. He merely stated that he had been arrested from his home as he was mixing mud with his brother Aminu, for their father. He did not however state the date he did that. He did not also call Aminu to confirm that story. He only said he did that on one Friday at about 10:00a.m he did not claim to do it on the fateful date i.e. 9th day of January, 2013 which happened to be a Wednesday and not Friday as stated by the accused person (DW1). Therefore, DW1 must have been testifying on a different episode altogether that took part on that Friday.”

In any event, where an accused is unequivocally pinned to the locus in quo as the one committing the offence, as in this case, the defence of alibi, no more avails him. See Sowemimo vs. State (2004) 11 NWLR (Pt. 885) 515 SC, Archibong vs. State (2004) 1 NWLR (Pt. 855) 488.

Issue 4 is resolved against the Appellant.

The Appellant in this case has nominated four (4) issues for determination of the appeal, all the four (4) issues were resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed.

The Cross-Appeal
On 1-11-2021, the Respondent cross Appellant filed a Cross-Appeal containing only one ground of appeal in this Court.

The relevant Briefs of Argument are:
1. Cross-Appellant’s Brief of Argument which was filed on 15-11-2021. It is settled by Shehu Wada Abdullahi Esq.
2. Cross-Respondent’s Brief of Argument which was filed on 10-5-2022. It is settled by Habeeb A. Oredola Esq.

Learned counsel for the Cross-Appellant nominated a sole issue for determination of the Cross-Appeal. It is:
“Whether the weapon used in committing armed robbery is required by law to be tendered as evidence for the Court to convict the Cross-Respondent for the offence of armed robbery as charged.”

The learned counsel for the Cross-Respondent also submitted a sole issue to wit:
“Whether the lower Court was right when it reached a finding that the failure of the prosecution to tender weapons in the alleged robbery when combined with the speculative evidence adduced in respect of the alleged weapon is fatal to the charge of armed robbery?”

On the sole issue, learned counsel to the Cross-Appellant referred to the statutory definition of a ‘weapon’ or ‘offensive weapon’ as contained in Section 11 of the Robbery and Firearms (Special Provisions) Act as:
“Offensive weapon” means any article (apart from a Firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.”

That in the instant case, it was in evidence that the Cross-Respondent was armed with a wire/cable/rope. The said rope or cable or wire has been shown to be capable of being used to cause injury, and indeed caused injury to the PW1. This, counsel said was sufficiently established by the testimony of PW1 at pages 8 – 9 of the records:
“I have recognized the accused person.
On the 9th January, 2013 I picked them (the accused and his brother) on my motorcycle from Tsiga town to Unguwar Shudi at a slope, I shove down to cross the slope, then suddenly the accused person and his colleague used a cable (wire) and attempted to strangle me. I quickly used my hand and held the cable but they pulled it violently and it…”
PW1 continued from lines 1 – 4 of page 9 of the Records of Appeal that:
“… hooked my mouth and broke one tooth therefrom. It’s the lower left side tooth and the Court can see the space.
Court: Sees the space as the witness opens his mouth.
There is an empty hole there.”

He submitted that for the avoidance of any doubt, PW1 showed the Court the injury he sustained from the weapon i.e cable wire used on him by the Cross-Respondent.

Counsel reasoned that it is manifestly convincing that the cable wire used by the Cross-Respondent in robbing the PW1 is capable of causing injury and indeed, did cause injury to the PW1.

He contends that the cable wire used by the Cross-Respondent is fully qualified as a weapon under the Robbery and Firearm (Special Provisions) Act.

Learned counsel for the Cross-Appellant queried the portion of the judgment that says “….the cable wire used by the accomplice to the accused person has neither been tendered as an exhibit nor described by any witnesses beyond calling it a cable wire.”

On this, learned counsel for the Cross-Appellant referred to several authorities including the cases of Mathew vs. State (2021) LPELR – 52839, State vs. Fadezi (2018) LPELR – 44731 (SC), Akanji vs. State (2020) LPELR – 49531, Adisa vs. State (2018) LPELR – 46340 (SC) all to buttress the position of the law that the prosecution need not tender weapons of armed robbery before an accused can be convicted.

He urged us to hold that the learned trial Judge was wrong when he convicted the Appellant for the lesser offence of robbery on account of the failure of the prosecution to tender the weapon used in robbery.

Learned counsel for the Cross-Respondent submitted that the reason for holding that the Cross-Appellant failed to establish that the alleged robbery was armed is because of the speculative and inconsistent evidence of the description of the alleged weapons and not because the weapon was simply not tendered in evidence.

He submitted that the cogent reason for the reduction of the charge of armed robbery is that the evidence adduced in respect of the allegation of armed robbery against the Cross-Respondent is hazy, speculative and unclear. The reduction of the charge, said counsel is certainly not because the Cross-Appellant failed to tender the alleged weapon used in the attack of PW1.

He submitted that having entertained doubts on the quality of evidence presented by the Cross-Appellants in support of the charge of armed robbery, the lower Court in accordance with established principles of law rightly dismissed the charge and consequently held that the Cross-Appellant did not prove same. The law is settled that if there is any inconsistency in the prosecution’s case as to cast a doubt on the guilt of the accused, the accused should be given the benefit of doubt. He referred to the case of Nwaze vs. The State (1996) 2 SCNJ P. 42.

Also, in the case of Umani vs. State (1988) 2 SC (Pt. 1) P. 88, the Court held as follows:
“If there is any doubt whatsoever as it relates to the guilt of the accused, the benefit of it must be given to the accused person.”

Surely said counsel it cannot be the position of the law that the Court can proceed to convict an accused person after a specific finding has been made that the evidence on record is uncertain and equivocal.

He concluded that the varying description of the alleged weapon by the Cross-Appellant’s witnesses amount to doubt and speculations which was rightly resolved in favour of the Cross-Respondent.

He referred to the cases of Anyigor vs. State (2019) 14 NWLR (Pt. 1691) 45, Aruna & Anor vs. The State (1990) 9 – 10 SC P. 87 and urged us to resolve the sole issue in favour of the Cross-Respondent.

In deciding the sole issue in the cross-appeal, I am in total agreement with the learned counsel for the Cross-Respondent that the learned trial Judge did not decide any such things as that “the accused could not be convicted of the offence of armed robbery” merely because the prosecution did not tender the weapon used” which unfortunately was the basis of Appellant’s ground of appeal and the only issue in the Cross-Appeal.

The learned trial Judge merely expressed doubt from the evidence of the Cross-Appellant as to the nature and or description of the “cable wire” said to have been used in the commission of the offence. The learned trial Judge expressed his doubt thus:
“…the cable wire used by the accomplice to the accused person has neither been tendered as an exhibit nor described by any of the witnesses beyond calling it a cable wire.”
Even if the above learned trial Judge’s view of the uncertainty of the nature or description used is related or juxtaposed with the provision of Section 11 of the Robbery and Firearms (Special Provisions) Act earlier referred to by the Cross-Appellant the following picture ensues: “when a weapon or firearm which does not fall amongst the ones specifically mentioned under the provision is made or adopted for use for causing injury, it becomes a matter of evidence for the learned trial Judge to come to the conclusion that a particular type of weapon was made or adopted for use for causing injury” put in another way, “the learned trial Judge ought to see or have a clear description of any weapon outside the ones specifically mentioned under the provision of Section 11 Robbery and Firearms Act to come to the conclusion that the particular weapon was made or adopted for use for causing injury.”

The insistence of the learned trial Judge for a clear description of the weapon used or perhaps to see same has nothing to do with the fact that PW1 allegedly showed up with a mouth injury allegedly caused by the said weapon.
The state of the evidence the learned trial Judge was confronted with was like asking a pathologist to declare the cause of death in the absence of the corpus delicti. The weapon said to be used is not one of those specifically mentioned under the definition of “weapon” or “firearms” in Section 11 of the Robbery and Firearms (Special Provisions) Act. Such a weapon requires a cogent and reliable description or its production as real evidence for the learned trial Judge to come to a conclusion that a weapon was used in the course of the robbery. In the absence of such, the learned trial Judge was right to have convicted the Cross-Respondent for the lesser offence of robbery.

The only issue in the cross-appeal is resolved against the Cross-Appellant.

The cross-appeal is devoid of merit and it is accordingly dismissed.

Conclusion
Both the appeal and the cross-appeal in this case were dismissed. The judgment and orders of the Katsina State High Court per Ibrahim M. Bako J. sitting at Funtua delivered on the 4th February, 2016 in Suit No. KTH/FT/22C/2014 are hereby affirmed.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother, MOJEED A. OWOADE JCA. I agree with his reasons and conclusion that both the main appeal and the cross-appeal are devoid of merit and in dismissing both. I adopt same in also dismissing both the main appeal and the cross-appeal and in affirming the judgment of the lower Court delivered on 4/2/2016 in suit KTH/FT/22C/2014.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother, M. A. Owoade, PJCA. My brother in the lead judgment has painstakingly analysed and reviewed the facts and evidence adduced in support thereof in the appeal and the cross-appeal and reached the inevitable conclusion that both the appeal and the cross-appeal lacks merit and dismissed them accordingly. I adopt the finding and conclusion reached by my learned brother in the lead judgment as mine and also dismiss this appeal and cross-appeal.