MUHAMMAD ALIYU & ORS v. THE STATE (2014)

MUHAMMAD ALIYU & ORS v. THE STATE

(2014)LCN/7503(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of November, 2014

CA/S/33C/2014

RATIO

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHEN DOES THE DEFENCE OF ALIBI COLLAPSES

It is implied that the learned trial Judge did not believe his defence of alibi. If the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the court accepts the alibi naturally collapses. The learned trial Judge accepted the evidence of the prosecution witnesses. The defence of alibi of the 1st appellant therefore collapses. See SUNDAY V STATE [2010] 18 NWLR (PT 1224) 223; IKEMSON & ORS V THE STATE (1989) NWLR (PT 110) 455 NDUKWE V THE STATE (2009) 37 NWLR (PT 1139) 43. per. TUNDE O. AWOTOYE, J.C.A.

CRIMINAL LAW: CONSPIRACY; THE TEST TO APPLY IN PROOF OF THE OFFENCE OF CONSPIRACY

What test should be applied in proof of the offence of conspiracy?
Fatayi – Williams JSC (as he then was) answered it thus in HARUNA & ORS V THE STATE (1972) 8-9 SC. 108.
“The test must always be do these acts considered together portray any continuity of purpose? If they do, all the charges relating to them will be considered as having arisen out of the same transaction” Ogwuegbu JSC in ERIM V STATE (1994) 6 SCNT 104 had this to further say:
“In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. In deed one conspirator may be in one town and the other in another town and they may never have seen each other but there would be acts on both sides which would lead the jury or the Judge sitting alone to the inference”. per. TUNDE O. AWOTOYE, J.C.A.

JUSTICES

PAUL A. GALINJE Justice of The Court of Appeal of Nigeria

AHMAD O. BELGORE Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

Between

MUHAMMAD ALIYU & ORS Appellant(s)

AND

THE STATE Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of an appeal against the judgment of Kebbi State High Court of Justice Birnin Kebbi Division wherein the appellants were found guilty, convicted and sentenced to death by hanging for the offences of Criminal Conspiracy Contrary to Section 97 of the penal code Armed Robbery contrary to section 1(2) (a & b) of the Robbery and Fire Arms (Special Provision) Act.
The charge against the accused persons read as follows:-

“CHARGE 1
That you Moh’d ‘M’, Nasamu Usman ‘M’, Umaru Aliyu ‘M’ and Abdullahi Aliyu ‘M’ on or about the 20th day of February, 2012 at about 18:00hrs in Libba village of Maiyama Local Government area Kebbi State and within the jurisdiction of Kebbi State High Court of Justice conspired among yourselves and attacked and killed one Salihu Buzu a watchman to a Filling Station under construction by shooting him on the chest and inflicting injuries on his shoulder and thereby committed an offence Punishable under section 97 of the Penal Code.

CHARGE 2
That you Moh’d Aliyu “M”, Nasamu Usman ‘M’. Umaru Aliyu ‘M’ and Abdullahi Aliyu ‘M’ on or about the 21st day of February, 2012 at about 04:00hrs in Libba village of Maiyama Local Government area Kebbi State and within the Jurisdiction of Kebbi State High Court of Justice committed the offence of armed robbery by attacking and robbing Salihu Buzu (now deceased) the sum of N71,000.00 (Seventy One Thousand Naira) brought to him for safekeeping by his wife Maryam Salihu in the presence of Nasamu Usman and thereby committed an offence under section 1(2)(A)(B) of the Robbery and Firearms Act Cap 589 Laws of the Federation.

CHARGE 3
That you Moh’d Aliyu “M”, Nasamu Usman ‘M’. Umaru Aliyu ‘M’ and Abdullahi Aliyu ‘M’ on or about the 21st day of February, 2012 at about 04:00hrs in Libba village of Maiyama Local Government area Kebbi State and within the Jurisdiction of Kebbi State High Court of Justice committed the offence of Culpable Homicide Punishable with death to wit while you where armed with guns and matchet, shot Salihu Buzu on the chest and inflicted injuries on his shoulder which resulted into excessive bleeding that led to his death with the knowledge that death would be the likely consequence of your act and thereby committed an offence punishable under section 221 (A) of the Penal Code.”

The charge was read to the accused persons. Each pleaded not guilty to each of the counts.

After hearing the parties and their respective witnesses, the learned trial Judge found as follows:

“In this case, the totally (sic) of the evidence adduced by the prosecution is in my view cogent, compelling and leads irresistibly to the conclusion that the accused persons and no one else committed the offences and leaves no room for reasonable doubt.

The burden of proof beyond reasonable doubt is discharged if at the conclusion of trial on evaluation of the entire evidence, the court is left with no doubt that the offence was committed by the accused person. See BELLO V STATE (2007) 10 NWLR (1043) 564.
In conclusion, and leaving regards to the reasons stated, I found the accused guilty as charged and convict them of the offences of conspiracy, armed robbery and culpable homicide contrary to sections 97 of the Penal Code section 1(2)(a & b) of the Robbery and Firearms (Special Provision) Act and section 221(a) of the Penal Code respectively.”

Dissatisfied with the judgment of the trial court, the 1st and 3rd accused persons at the trial court filed Notice of Appeal containing two grounds of appeal. The grounds (excluding the particulars) are:-

“GROUND 1
The learned trial Judge erred in law when held that
“in this case the accused persons failed to furnish enough details of their whereabouts and they did not deem it necessary to call witnesses to prove their where about at the time of the commission of the offence to establish their alibi. The 1st, 2nd and 3rd accused persons in their statements with the police said that they were at home and they did not go anywhere when the offences were alleged to have been committed, but did not bother to call any witness to establish their claims. The 4th accused person did not tell the police where he was at the time of the commission of the offence to assist the police to make meaningful investigation of the alibi.”

GROUND 2
The trial Judge misdirected himself in law when he held as follows:
“In this case, the totality of the evidence adduced by the prosecution is in my view cogent, compelling and leads irresistibly to the conclusion that the accused persons and no one else committed the offences and leaves no room for reasonable doubt.”

GROUND 3
The judgment of the trial court in it (sic) entirely (sic) unreasonable regard being heard (sic) to the evidence on record.”

After transmission of record of appeal to this court the appellants on the one hand and the respondent on the other filed their respective briefs of argument.

The appellant’s brief of argument settled by Lagalo Dan Lagalo was filed on 2/4/2014. The Respondents’ brief of argument was settled by Kabir Aliyu, the Director Public Prosecution, Ministry of Justice Kebbi State and filed on 2/5/2014.

The appellant’s counsel formulated two issues for determination in this appeal. They are: –

1. “Whether from the totality of the evidence adduced at the lower court the Respondent proved the offences of criminal conspiracy Armed Robbery and Culpable homicide punishable with death contrary to sections 97 of the Penal Code, section 1 (2) (a & b) of the Robbery and Firearms (Special Provision) Act and section 221 (a) of the Penal Code beyond reasonable doubt against the appellants.
2. Whether from the fact and circumstances of this case the defence of Alibi availed the 1st Appellant.”

On issue No.1 learned appellant’s counsel submitted that the Respondent failed to prove the guilt of the accused persons beyond reasonable doubt. He referred to s. 135 (1 & 2) of the Evidence Act. STATE V SALAWU [2012] 16 NWLR 1 and other cases.

He submitted further that on criminal conspiracy the respondent must show credible evidence of the meeting of the minds of the conspirators to perpetrate an unlawful act or unlawful act by an unlawful means.
He relied on OSUAGWU V STATE [2013] 1MJSC (Pt. 11) 30 at 135.
Learned appellants’ counsel argued that none of the witnesses or the evidence by the prosecution fixed the appellants to the scene of the crimes they were convicted of. He referred to CHUKWU V STATE [2013] 12 MTSC (PT 11) 1 at 7-8.

He referred to the evidence of the prosecution and submitted that the accused persons were not seen or arrested at the scene of the incident.

Learned counsel argued that the evidence of PW3 contained on page 44 lines 19 – 23 of the record of proceedings that Salihu Buzu (the deceased) called to inform her that he saw the appellants and the other convicts in his vicinity. He submitted that hearsay evidence was not admissible in law. He referred to NKWOCHA V STATE (2012) 17 WRN 131 at 39. He submitted further that the statement of the deceased before he was found dead did not amount to dying declaration.
Learned counsel pointed out that the testimonies of DW1 and DW3 were not challenged by the Respondent.

He submitted that unchallenged evidence was best evidence in proof of a fact in dispute and that the court was enjoined to rely on same. He referred to NSITFMB V KLIFCO (NIG) LTD [2010] 43NSCQR 380 at 385
Appellant’s counsel argued further that the lower court based its conclusion on speculation imagination and suspicion adding that suspicion no matter how strong could not occasion criminal responsibility. He relied on C O P V UDE [2011] 17 WRN 120 at 126 and CLARK V THE STATE (1986) 4NWLR (Pt 35) 381 at 394.
He finally urged the court to resolve issue No.1 in favour of the appellants.

On Issue No.2, Lagalo Dan Lagalo for the appellant referred several portions of the evidence contained in the record of appeal and submitted that the police did not investigate the defence of alibi raised by the 1st appellant in the face of the evidence of PW3 on page 44 line 11 – 12 of the Record of Appeal.

He submitted that failure to investigate the defence of alibi raised by the 1st appellant was fatal to the prosecution case. He relied on KOLAWOLE V STATE (2012) 11 WRN 83.

He added that it was not the duty of the accused to call witnesses to prove his whereabouts as expressed by the lower court. He relied on NWATURUOCHA V STATE (2011) 4SNSQ 278 at 289 & ORUWARI V OSLER [2013] 22 WRN 1 at 14.

He finally urged the court to quash the conviction and sentence of the appellants and discharge and acquit them.

The Respondent’s brief of argument, settled by Kabir Aliyu was filed on 2/5/14. Learned Respondents’ counsel adopted the two issues formulated by the appellant’s counsel.

On Issue No.1, the Respondent’s counsel submitted that ingredients of the offence of conspiracy were established by the prosecution. He cited OMOTOLA V STATE 4NCC 134 and BRIGHT V STATE (2012) 1SCNJ 300 at 320.

Learned DPP (Kebbi State) further submitted that the prosecution at the lower court established the ingredients of the offence of armed robbery. He referred to several portions of the record of proceedings and submitted that the lower court was right in arriving at the conviction of the appellants. He relied on ADEPETU V THE STATE (1998) NWLR (Pt 565) 185 at 223.

He submitted that the circumstances of the commission of the offence were positive direct and unequivocal and irresistibly led to the inference that it was the accused persons that committed the offenses.

He cited SHAZALI V STATE (1988) 12 SC (Pt 11) 58 and CHUKWU V STATE (2013) 12 MJS O (Pt 11) 1 at 7-8

On issue No.2, learned Respondent’s counsel submitted that the position of the law regarding alibi raised by an accused was that if the prosecution could lead strong and positive evidence which fixed the accused person which evidence the court accepted the defence of alibi would collapse. He relied on the following cases SUNDAY V STATE (2010) 6 NCC 78; AHMED V STATE 8 NSCQR 299; He pointed out that the accused persons were very well known to the prosecution witnesses before the commission of the offences.

He finally urged the court to dismiss the appeal as lacking in merit and affirm the conviction and sentence passed by the trial court.

I have carefully considered the submissions of learned counsel on both sides.

In determining this appeal, I have reminded myself of the fact that this is an appellate court and that findings of fact are within the province of the trial courts.

According to Ogundare JSC. EGESIMBA V ONUZURUIKE [2002] 15 NWLR (PT 791) 466,
“The attitude of an appellate court to findings of fact made by a trial court has been stated in a number of decisions both of this court and of the Court of Appeal.
It is now well settled that an appellate court will not likely set aside findings of fact made by a trial court unless such findings are perverse.”
See also OJO & ORS V THE GOVERNMENT OF OYO STATE & ORS [1989] NWLR (PT 95) 1.

What is a finding of fact? This question was answered by the Supreme Court in EGBE V ADEFARASIN (1987) 1 SC. 1 OPUTA JSC on pages 31 – 32 of the report stated thus;
“A finding is a result of the deliberation of a jury or a court. It is a decision upon a question of fact reached as a result of a judicial examination or investigation by a court jury referee, carrier etc. it is more appropriately called a finding of fact and as the name implies it is a determination from the evidence of a case concerning facts averred by one side and denied by the other side.
Findings of facts are thus results of reasoning from evidentiary facts. They are conclusions drawn by the trial court from the facts without the application of law or the exercise of legal judgment. A trial court must first find the facts or make appropriate findings of fact on the issues in dispute before drawing from the facts as found inferences of facts and finally applying the relevant and applicable law. Findings of fact fall within the peculiar preserve of the trial judge. Conclusions or inference from those facts can be drawn by any court including appellate courts: BANMAX V AUSTIN MOTOR CO. LTD (1955) AC 370 ar 375; (1955) 1 ALLER 326 at pp. 327-328.”

I shall determine this appeal in the light of the above.

I shall also adopt the two issues formulated by the counsel in this appeal.

Some facts are clear in this appeal.
1. The victim of the crime, Salihu Buzu, a watchman to the filling station under construction was killed on 21/2/2012 at about 4am at Libba village
2. None of the prosecution witnesses witnessed the crime
3. The accused persons denied any involvement in the crime and did not make confessional statement.
4. The trial court resolved the oath against oath of witnesses who gave evidence before it. The learned trial judge found the evidence adduced by the prosecution as cogent and compelling (see page 97 of record of appeal)

Do I have reason to disturb the above finding of fact of the trial court in resolving the issues as formulated by the parties? In other words, are the findings of facts of the lower court or the conclusion drawn therefore perverse? I shall now review the evidence before the court.
PW1 Cpl Isuwa Hamidu attached to Maiyama Division was on duty on 21/4/2012 when a case of conspiracy armed robbery and culpable homicide was reported. He joined a team of policemen to the scene of incidence and met the deceased lying dead in an uncompleted petrol station. He noticed gun shot wounds on his chest. Not more than five meters away he found another dead body. The two dead bodies were conveyed to the General Hospital Maiyama for post mortem examination.

PW2 was the employer of Buzu now dead. He could identify the second dead body found at the locus in quo.

He had earlier on 20/2/2012 around 6:30pm seen him with the 1st and 4th accused persons along with other person at Andarai. According to him the man now dead was wearing the same dress he saw him with on inner shirt and an overcoat.

The PW3, was the wife of the deceased. She said in evidence inter alia;

“On 20/2/2012, it was a Monday and I went to the petrol station to see my husband and give N71,000 sales from my mattresses business, it was 4pm of that day. 2nd accused person met us and we commiserated with him on the court case that they were involved in. After I gave him the money, 2nd accused left before I left. However, 2nd accused was present when I gave my husband the money. I went home.”

PW4, Saidu Umaru Libba in his evidence said on 21/2/2012 at around 4am he saw the 1st accused standing beside the open door along the road. He said further;

“Along the road we met 1st accused person standing beside the open door his motor vehicle Toyota popularly name called First Lady Ash colour, I saw him and he saw me but did not know whether there were others in the car. But immediately I turned back.”

PW5, Alhaji Sani Ladabi knew the accused persons as well as Salihu Buzu, now dead. He gave evidence thus, “On 21/2/2012 around 4am, I remember I was being conveyed on the motor bike of PW4 on our way –
to the bush quarry for stones for building on approaching our quarry site we noticed ahead of us a vehicle with 1st accused person standing by the open door of the vehicle although it was in the night, it was a brightly sky. I could clearly recognize the 1st accused person…. I visited the scene the distance between the scene and where we noticed the car and the 1st accused is about a kilometer.”

PW6, Adamu Aliyu Libba did not witness the crime. He only visited the scene after the incident.

PW7, was the police officer who took the statement of 4th accused.
PW8, Inspector Moh’d Garba gave evidence as to the exhibits recovered – namely the Toyota Corolla car ash colour with reg. no. AA-655-GW and a broken down gun.

The accused persons after the close of prosecution’s case gave evidence. Each denied the charge. The DW2, the 2nd accused person denied being in Libba or knowing any uncompleted petrol station at Libba town. He even denied ever having been to Libba. Each of the accused denied any involvement in the crime. Their respective statements were tendered and admitted in open court. The 1st accused in his statement, Exhibit 1A raised the defence of alibi thus

“And then on Monday I with my father went to and bought 7G/can and came back home at 3:00hrs when we came home we came to Maiyama and gave the same N8,500 to Alhaji Roju being the money charge on us by court………… and we go back home from that time that I entered house I did not come out until today.”

1st accused gave evidence in court. He said on 21/2/2012 around 4 O’clock he was at home. He did not elaborate on the alibi. It needs be pointed out that each of the accused persons were cross-examined by the prosecution. This is contrary to the submission of appellant’s counsel that their respective evidence was not challenged by the prosecution.
The learned trial judge saw the witnesses for the prosecution who saw the 1st accused persons. The PW2 saw the 1st accused with the man whose corpse was later found with that of Buzu. The appellants in this appeal were the 1st and 3rd accused persons at the lower court. The lower court believed the evidence of the prosecution witnesses but even at that I find it difficult to see any incriminating evidence against the 3rd accused, now the 2nd appellant. None of the prosecution witnesses mentioned him. I find the finding that the 2nd appellant was guilty therefore perverse.

On the 1st appellant his conviction was based on circumstantial evidence. Circumstantial evidence where cogent, conclusive and strong conviction thereon can be sustained leaving no room for other explanation except the accused person’s guilt see NWEKE V THE STATE [2001] 4NWLR (PT 704) 588.

According to Aderemi JSC in MUSTAPHA MOHAMMED & ANOR V THE STATE (2007) 11 NWLR PT (1045) 303
“Circumstantial evidence in criminal law is often decribed as the narration of surrounding circumstances which by undersigned coincidence is capable of proving with clear – cut accuracy the guilt of the person.” It was the 1st appellant that was seen with the man whose corpse was seen with the dead body of Buzu (The 4th accused was with them). It was the 1st appellant who was seen around 4am on 21/2/2013, shortly after the incident with his car parked along the road leading to the locus in quo. All those who saw him were apprehensive because of his reputation (see the evidence of PW4 and PW5). According to the secretary of Maiyama Local Government where the 1st accused person lived, PW6:

“A week to the date of the incidence the joint patrol arrested the accused trying to mount a robbery road block in the area. Upon their arrest, the 1st accused PW4 of being the cause of his arrest in my presence. Since the arrest of the accused, there has been no robbery in our area for the last 1 year.”

And under cross-examination PW6 said further, “I am the secretary of Maiyama Local Government. I know that accused person were arrested for mounting road block and were taken to the magistrate court and filed. The 1st accused was also arrested in Yauri by the joint security patrol.”

The trial Judge who saw and heard the witnesses believed them. That is his province. I will not disturb this.

On the defence of alibi, the learned trial Judge believed the evidence of the two witnesses who saw him on the road to the locus in quo shortly after the incident.

It is implied that the learned trial Judge did not believe his defence of alibi. If the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the court accepts the alibi naturally collapses. The learned trial Judge accepted the evidence of the prosecution witnesses. The defence of alibi of the 1st appellant therefore collapses.
See SUNDAY V STATE [2010] 18 NWLR (PT 1224) 223; IKEMSON & ORS V THE STATE (1989) NWLR (PT 110) 455 NDUKWE V THE STATE (2009) 37 NWLR (PT 1139) 43.

The appellants counsel had contended that the court of conspiracy was not proved.

This offence is contained in count 1 of the charge. I respectfully disagree with the learned counsel for the appellants.

PW2 saw the 1st accused (1st appellant) and 4th accused with the man whose dead body was later found at the scene of the crime. Earlier on 16/2/2012, PW3 was warned by 4th accused not to call 1st and 2nd accused thief again.

What were the 1st appellant and 4th accused doing together with the strange man whose corpse was later seen at the scene of crime? It is reasonable to infer that they belonged to the same group of evil doers and their meeting at Andaria was to further plan the execution of the robbery on 17/2/2012. The circumstantial evidence adduced by the prosecution points directly to the fact that they conspired together. I therefore hold that the contention of appellant’s counsel that conspiracy was not proved hold no water.

In the light of all the above, I resolve the two issues formulated for determination in favour of the respondent in respect of the 1st appellant.
This appeal in respect of the 2nd appellant is allowed. His conviction and sentence are hereby set aside. He is discharged and acquainted.
On the 1st appellant, appeal fails as it lacks merit. His conviction and sentence by the lower court are hereby affirmed.

PAUL ADAMU GALINJE, J.C.A.: I agree.

AHMAD O. BELGORE, J.C.A.: I agree.

Appearances

Lagalo Dan Lagalo Esq.For Appellant

AND

Kabiru Aliyu Esq. DPP Kebbi with Abubakar Moh’d SCIFor Respondent