MUHAMMAD v. THE STATE (2020)

MUHAMMAD v. THE STATE

(2020)LCN/14569(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/KN/220/C/2018

RATIO

PLEADINGS: BURDEN OF PROOF.

It is the law, that the burden of proving a criminal offence is on the prosecution and by Section 135 (1) Evidence Act, the proof must be beyond reasonable doubt. What this means, is that all the ingredients of the offence must be established by the prosecution by means of credible, cogent and admissible evidence. Once it discharges this responsibility, the defendant then has the burden of proving reasonable doubt – Section 135 (3) Evidence Act- DIBIE VS. STATE (2007) 3 SCNJ 160.

For the offence of armed robbery, the prosecution must establish the three ingredients thus:-
a. there was a robbery or series of robberies;
b. the robbery is an armed robbery; and
c. the defendant was one of the robbers or that he took part in it.
See ARUMA VS. STATE (1990) 6 NWLR (PT.155) 125 AND AJAYI VS. STATE (2013) 9 NWLR (PT.1360) 589. By the provision of Section 15 of the Robbery and Firearms (special provisions) Act, Laws of the Federation, “robbery” means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to it being stolen or retained. And “arms” means or includes firearms and other offensive weapons or instruments capable of creating in the mind of the victim, reasonable apprehension of fear that if used on him, would cause death or some grievous bodily harm or hurt. This includes an axe, a dagger, a knife, a machete, a spear, iron rod etc. See SOWEMIMO VS. STATE (2012) 2 NWLR (PT. 1284) 372. In the instant appeal, the first two ingredients of the offence of robbery, i.e. that there was a robbery and it was an armed robbery, have been established as conceded by learned counsel for the Appellant. There is therefore no issue joined in respect of the two ingredients. I have looked at the findings of the trial Court in respect of the two ingredients, and I agree that the prosecution has led credible and cogent evidence and has proved them beyond reasonable doubt.

In respect of the confessional statements of the Appellant in Exhibits A and B, it is obvious from page 11 of the record, that the Appellant objected to the admissibility as they offend Section 29(2)(a) of the Evidence Act 2011. This means that the objection was because, the Appellant was oppressed before he made it. In such a situation, the trial Judge was required to order a trial-within-trial, to establish that the statements were not made pursuant to the oppression, before he could allow them to be tendered in evidence – KAMILA VS. STATE (2018) LPELR – 43603 (SC) 33 – 34. This is an authority showing that a trial Court is bound to conduct a trial-within-trial, once the voluntariness of a confessional statement is in issue. See also IBEME VS. STATE (2013) LPELR – 20138 (SC) AND MOHAMMED VS. STATE (2006) LPELR – 7690 (CA). The trial Court here did not conduct a trial-within-trial before admitting the confessional statements of the Appellant. That was not fair to the Appellant. However, it is clear from the record that the trial Court did not infact make use of the said alleged confessional statements in arriving at its findings. For what it is worth therefore, the said Exhibits A and B are hereby expunged from the record.

What about the third ingredient of the offence of armed robbery – that the Appellant was the robber or took part in it?

The trial Court in its Judgment at pages 51–81 of the record, reviewed the evidence of PW4, the victim of the armed robbery, evaluated it and accorded it probative value. The relevant extracts of the evidence of PW4 read:-
“……I know the accused person in respect of this case.
On the 26th day of June, 2014 at about 8:30pm I was at home trying to start my generator. The accused person along with one another (now at large) attacked me with a gun, and the accused person said to me that he was sent to me, so if I did not co-operate with them they will shoot at me. I……..coorporated with the accused person and one person (now at large). From the accused person and one other forced me to lay down in the parlour….One of the accused persons (now at large) attacked me with a knife, while the accused person started conducting a search inside my house. Later when the accused person could not get anything, he came to me and demanded me to give him the sum of N1,000,000.00 from me. Therefore, I replied to the accused person that I lost my job, and I am jobless by then, where can I get that money? The only money that we have was the sum of N25,000.00. so the accused person collected the money (N25,000) from there, the accused person brought out 2 of my A.T.M. Cards from my bedroom requesting me to tell him my PIN Numbers and I told the accused person my 2 PIN Numbers.
……after this, the accused person pulled out my Plasma T.V Set from the wall……
Early in the morning, I was invited by the Police (DPO Mariri) for identification, where I identified the accused person at the police (C.I.D) Headquarters, Kano.”
Under cross-examination PW4, stated that:-
“I was invited before Mariri Police Station for an identification, and I cannot identify the accused person at that time due to fear and sleepless night……”

Learned counsel for the Appellant argued that the subsequent identification at the C.I.D at a later time stated by the PW4, is only an after thought and this Court should hold that there was no proper identification of the Appellant, as the person who committed the armed robbery or was part of it.

When an eye witness says he saw the person committing the offence charged, he should, if he knows his name, give it to the police at the earliest opportunity. If he does not know his name, he should identify or describe him to the police at the earliest opportunity he gets to do so. Where he fails to do so, a Court would be careful in accepting his evidence of identifying the accused person later, unless he furnishes satisfactory explanation- ISAH VS. STATE (2008) 18 NWLR (PT. 119) 285. In the instant appeal, PW4 never stated that he knew the Appellant or knew his name before the robbery, which is different from many cases such as BOZIN VS. STATE (1985) 2 NWLR (PT. 8) 465 AND WILLIAM IDAHOSA & ORS. VS. THE QUEEN (1965) NMLR 85, where the victim as PW3, stated that she knew the 2nd Appellant well as she knew his name, his residence and his nature of employment. Yet she did not at the earliest opportunity, give the police the name of the 2nd Appellant. Infact even in Court when she was testifying, she referred to the 2nd Appellant as a “tall man”. That is not the position in the instant appeal. Here, PW4 explained why he failed to identify the Appellant at Mariri police station in the early morning following the armed robbery which occurred the previous night. He however identified him at the C.I.D office. He attributed his failure to identify the Appellant at Mariri police station, to his fear and sleepless night. PW4 was not taken up on this under cross-examination and the explanation he gave is satisfactory and quite probable, for a person who went through the traumatic experience of being a victim of an armed robbery, and may not have been in a frame of mind to exercise his full senses to identify the Appellant. Later at C.I.D office, when obviously he had calmed down, he identified the Appellant as the one who attacked him with a gun, spoke, threatened him, searched his house and demanded for N1,000,000, robbed him of N25,000, his 2 A.T.M. Cards and demanded for the PIN numbers. It is clear that they had spent some time in the company of each other, albeit in a frightening situation, and PW4 had the opportunity to see him and so identify him. The trial Judge accepted his evidence showing that he had identified the Appellant positively. Evaluation of evidence and ascription of probative value to same, are the duties of a trial Court which is well placed to undertake that onerous duty. An appellate Court lacking that opportunity, will not normally interfere with such findings unless they are perverse, which has not been established here –ISONG VS. STATE (2011) LPELR – 9081 (CA). PW4 knew and recollected that it was the co-accused who attacked him with a knife, not the Appellant. He knew who threatened him and robbed him of the money and the other items – the Appellant. He could therefore distinguish clearly who perpetrated what. His knowing that the Appellant was one of the robbers and the role he played is clear, cogent, direct and unequivocal. The trial Judge therefore had no difficulty and rightly on being satisfied with the explanation for not identifying the Appellant at Mariri Police Station, accepted his evidence and believed him that the Appellant was one of the robbers. His identity had therefore been clearly established.

That PW4 did not describe the money robbed from him is not correct. He described it by stating the amount in Naira. That he did not identify it (Exhibit C4) is not material as it tallied with the amount he stated was robbed from him. On the issue of the inventory containing the items recovered from the search in the Appellant’s house being in English and the Appellant being an illiterate, it is my view that there is nothing in the record to show that the Appellant is an illiterate or cannot speak English. Learned counsel submitted that the Appellant only signed the inventory but did not read it. That he did not read it, is not synonymous with saying he could not read it. He never stated that he did not read it because he could not read it. It is not also shown on the record that he thumb-printed it, so the Illiterate Protection Law of Kano, does not apply. Since the Appellant did not deny that the said items were recovered from his house, it is of no moment that the inventory/search report was not identified. There is evidence through PW3 that the N25,000.00 was recovered in the house of the Appellant. That evidence was believed by the trial Judge and it proves that the money, by inference was the same money robbed from PW4. There is no other possible or contrary explanation to this. There is also nothing in the record to show that “Hotoro Tsamiyar Mashaya” as the house of the Appellant where the search was conducted is different from what the Appellant described his house to be “Limawa in Hotoro Quarters Tarauni Local Government Area Kano.” “Hotoro” is common to both, the others are only differences in details. At any rate, the evidence of PW3 accepted by the trial Court is that it was the house of the Appellant that was searched and the stated items recovered. The Appellant did not also dispute that it was his house that was searched! On alleged alteration of the search warrant report from “eight” to twenty-five thousand” it is not shown that it was done after the parties had duly signed. Section 160 of the Evidence Act is not applicable, as it is not shown that Ibrahim Aliyu (PW3), the other police officers who took part in the search of the premises, the Appellant and his sister who was a witness to the search and who all signed the search warrant report, which is prescribed to be correct and representing what transpired, signed it before the alleged ‘alteration’. The Appellant has not said so and he has not disassociated himself from it. He did not also call his sister who was present during the search to distance her from the search warrant/report. Likewise, it is immaterial that the prosecution did not call her as a witness. Once the prosecution can discharge its onus of proving the offence beyond reasonable doubt by calling even one witness of quality to establish the offence, the failure to call others is not material – BABUGA VS. STATE (1996) 7 NWLR (PT. 460) 279.

Learned counsel for the Appellant has also raised a grouse on the failure on the part of the police to confront the Appellant to explain the source of the N25,000. The Law is clear. There is a presumption of law, that an accused person is the robber, where items alleged to have been robbed, are found in his possession – Section 167 (a) Evidence Act. In SUMAILA VS. STATE (2012) LPELR – 19724 (CA) where the Appellant was identified as the one who robbed PW1. Some six hours after the robbery, the Appellant was found in possession of the robbed motorcycle and the telephone set. This Court held that “there could be no better instance of the doctrine of recent possession in Section 167(a) Evidence Act, 2011 than this. The doctrine runs thus; the man who is in possession of stolen goods soon after the theft is either the thief or is receiver of stolen goods knowing them to have been stolen, unless he gives proper account on how he came into possession of the goods. This is a presumption of facts, and is rebuttable.” It is thus clear, that it is the possession of the stolen goods that raises the presumption, that he is the robber or participated in it. It is therefore the onus on that accused person to explain away how he came by the stolen goods. In the instant appeal, the onus fell on the Appellant to explain how he came by the N25,000 said to have been the money robbed from PW4. This was less than twenty-four hours from the armed robbery. He failed to give any explanation as to how he came by the money. It is therefore safe to infer guilt on the part of the Appellant. It was not for the police to begin to search answers for him. It is certainly not the duty of the trial Court to ask the Appellant about it. The onus was on him to proffer the explanation once he was found in possession of the stolen N25,000. His failure to explain same was what nailed his coffin, and it was sufficient to prove beyond reasonable doubt, without more, the third ingredient of the offence. It is also clear from the evidence of PW1 and PW2, that the Appellant had gone back to the area where he and his co-accused had committed the robbery to trace his phone which he must have dropped whilst running away, as he did not want to be traced by it. He stated that he was a member of the JTF who had assisted the community. In his evidence, he never stated that he is a member of the JTF. All these are relevant facts that have combined to point him as an untruthful witness. The trial Court did not, going by the record, believe him. It was right.

The prosecution had thus proved all the ingredients of the offence against the Appellant and the trial Court was right when it believed the evidence led, both direct and circumstantial and convicted him as charged. We see no reason to interfere. Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS:WHERE A PARTY OR AN ACCUSED PERSON DESIRES TO EXCLUDE ANY EVIDENCE FROM BEING TENDERED ON THE GROUND THAT IT IS INADMISSIBLE, HE IS BOUND TO RAISE THAT OBJECTION, AT THE POINT AN APPLICATION IS MADE TO THE COURT TO TENDER THE SAID EVIDENCE.

Now the law is clear on procedure. Where a party or an accused person desires to exclude any evidence from being tendered on the ground that it is inadmissible, he is bound to raise that objection, at the point an application is made to the Court to tender the said evidence – CHINEDU OKOYE VS. NWACHUKWU OKONKWO & ORS. (2017) LPELR – 42855 (CA). If he does not do so at that stage and the document is admitted, he should at least cross-examine the witness through whom it is sought to be tendered, to bring out the nature of the objection, since the Court in its judgment can still look at the issue of its admissibility and expunge it, if it was inadmissible in the first place. There is no record that PW3 was taken up on it under cross-examination. In the instant appeal, at page 12 of the record, “Objection” is stated, by Miss Usman for the Appellant on a question by the Court if there was any objection to the tendering of the said items. No reasons for the “objection” are stated in the record. Counsel for the Appellant was only speculating as to what happened, i.e. whether the defence counsel was not allowed by the trial Court to voice out the reasons for the objection, or that the trial Court refused to record those reasons given by counsel for the Appellant then. This is nothing but conjecture, after all, it is also possible that no reasons were given at all for the objection, by the defence counsel. There is no way an appellate Court will decide on the basis of conjecture in the absence of what is contained in the record of appeal. Counsel for the Appellant should have challenged the record of appeal to show that it does not reflect the true position of the proceedings of the trial Court on the relevant date. He has not done this. As it is, we only have the record showing that although there is the word “objection”, no reasons for the objection are stated therein. The trial Court could not second-guess what the reasons for the objection were. Certainly, this Court cannot and is not in a position to know the reasons for the objection if any. We hold that on the record, since no reasons for the objection are stated, the trial Court was entitled to admit and rely on them. Again, PW3 who tendered the items, is not shown to have been cross-examined, after they were admitted in evidence to bring out their inadmissible nature.

Learned counsel for the Appellant has also attacked the irregularity in the search and the search warrant (Exhibit D), saying that it was issued by the registrar in-charge of Magistrate Court Complex. This is not correct. It is only the construction learned counsel gave to Exhibit D. On its face, there is a stamp of “IN CHARGE OF CMC, R.O COMPLEX ZUNGERU RD, KANO” and a signature. I have not seen the words “Registrar In-Charge of Magistrate Court Complex” as counsel for Appellant has submitted. Good care should be paid to documents and processes. Is the person in charge of the CMC R.O Complex Zurgeru RD Kano, the Registrar or the Chief Magistrate? We cannot speculate. By Section 102(a)(iii) of the Evidence Act 2011, Exhibit D is a public document and by Section 168(1) and (2) of the Evidence Act. there is a presumption of validity and regularity to it. This presumption has not been rebutted.
At any rate, proceeding on the footing of learned counsel for the Appellant that Exhibit D, the search warrant was irregularly obtained, it is still admissible in evidence, pursuant to Section 14 of the Evidence Act 2011, which provides that evidence obtained improperly or in contravention of a law; or in consequence of an impropriety or of a contravention of a law, is admissible;
“unless the Court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.”
By Section 15 Evidence Act 2011, the matters a Court shall take into consideration for the purpose of Section 14, include-
“a. the probative value of the evidence;
b. the importance of the evidence on the proceeding;
c. the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
d. the gravity of the impropriety or contravention;
e. whether the impropriety or contravention was deliberate or reckless;
f. whether any other proceeding (whether or not in a Court) has been or is likely to be taken in relation to the impropriety or contravention; and the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.”
The Pistol and the four rounds of the 9 mm ammunition were recovered from the house of the Appellant, in the presence of his sister. This has been established from the evidence of PW3, the IPO. His evidence was believed by the trial Court. His evidence on this was not challenged at all under cross-examination. In his evidence before the trial Court as DW1, the Appellant admitted at page 20 of the record, that his house was indeed searched and as “a result of the search, some items were recovered from my house. I don’t know what the police recovered, but I only signed. I did not bother to go through before I signed.” It is not in keeping with normal behavior, for a person’s house to be searched in his presence, items recovered and he remains unconcerned about what was recovered, and yet sign the inventory without reading it! His story does not have a ring of truth to it. However the fact remains that items were recovered and by the evidence of PW3, they include a Pistol and four rounds of 9 mm ammunition. It was relevant evidence and important concerning the nature of the offence charged – possession of fire arms. So even if the items had not been tendered in evidence, the evidence of PW3 is sufficient to prove the offence against the Appellant, coupled with the fact that he said he obtained a search warrant from the Magistrate Court. Again, if the Appellant contests the recovery of the said items from his house (he doesn’t), he could have called his sister who was present during the search to state so. He did not. I am satisfied that the prosecution had proved the offence beyond reasonable doubt and the trial Court was right when it convicted him in that vein. This issue is resolved in favour of the Respondent, and against the Appellant. Per ABUBAKAR DATTI YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

MUSA MUHAMMAD APPELANT(S)

And

THE STATE RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): On the 20th December, 2017, Kano State High Court delivered a Judgment in Charge No. K/38C/2015 wherein the Appellant herein, as the accused person before the trial Court, was convicted of the offences of Robbery, and Possession of Fire-arms contrary to Section 1(2)(a) and 3(1) of the Robbery and Firearms (special provisions) Act, respectively. He was sentenced to death by hanging and a fine of N20,000.00. Dissatisfied with the decision, he appealed to this Court on two grounds of appeal viz:-
GROUND 1
The trial Court erred in law when it convicted the Appellant for armed robbery and sentenced him to death.
PARTICULARS OF ERROR
a. The Appellant was not correctly linked to the offence.
b. The prosecution did not establish all the elements of the offence.
c. The victim could not recognize or identify the Appellant.
d. The prosecution did not prove the Appellant’s guilt beyond reasonable doubt.
e. The learned trial Judge convicted the Appellant for the offence of Armed Robbery without any evidence establishing his guilt before the Court.

GROUND 2
The trial Court erred in law when it convicted the Appellant for illegal possession of firearms.
PARTICULARS OF ERROR
a. The learned trial Judge convicted the Appellant for the offence of possession of illegal firearms.
b. The prosecution did not prove the Appellant’s guilt beyond reasonable doubt.
c. All the elements of the offence were not sufficiently established.
d. Being in possession alone does not amount to guilt of the crime considering the job of the Appellant.

The facts as gleaned from the record, are that the Appellant and one other person, attacked the complainant (PW4) in his house whilst armed with a gun and a knife on 26th June, 2014 at about 8:30pm. They threatened to shoot him if he did not co-operate. They forced him to lie down and then robbed him of the sum of N25,000, two A.T.M cards and his Plasma Television set and went away with them. The Appellant was later on in the morning the following day, arrested and taken to the police station. His house was searched by the police and items recovered therein, are a local barrel pistol, four rounds of point 9mm ammunition, a sharp

knife, N25,000.00, and some military wares. In a bid to prove its case, the prosecution called four witnesses and tendered seven exhibits. At the end of the trial, the Appellant was convicted and sentenced.

The Appellant’s brief was filed by his counsel M. L. Garba on 4th May, 2018 but deemed filed on 9th July, 2020, wherein he identified the following two issues:-
1. Whether the Appellant was rightly convicted and sentenced to death for the offence of armed robbery.
2. Whether the Appellant was rightly convicted and sentenced for illegal possession of fire-arms.

The Respondent’s brief was filed by S.A Ma’aji, Deputy Director of Public Prosecution on 19th November 2018, but was deemed filed on 9th July 2020. He adopted the two issues identified by the Appellant.

ISSUE NO. 1
Whether the Appellant was rightly convicted and sentenced to death for the offence of armed robbery.

In contending that the Appellant was wrongly convicted of the offence of armed robbery, learned counsel for the Appellant referred to the case of ADAMU VS. THE STATE (2017) 1 SCNJ (PT.1) AT 8 on the ingredients. Counsel submitted that the

“trial Court rightly held that the (a) and (b) ingredients (that there was a robbery or series of them; that each of the robberies was an armed robbery) were proved through the evidence of PW4, especially because they were not disputed.” Learned counsel also submitted that the finding of the trial Court at page 81 of the record, that the evidence of PW4 (the victim) saying that he could not identify the Appellant at Mariri police station, is fatal to the case of the prosecution. He argued that the victim had good memory of the incident whilst he was at Mariri police station, yet he could not identify the Appellant. His subsequent identification of the Appellant at the State C.I.D at a later time, could only be an after thought.

On convicting the Appellant because the sum of N25,000 was found and recovered from the Appellant’s apartment, counsel argued that it was not shown, that the N25,000 recovered, was the one stolen from PW4, after all, PW4 never described, identified or mentioned the denominations of the money stolen from him. He argued that if the A.T.M cards and the plasma t.v set had been found in the house of the Appellant, that

could have changed matters. Counsel referred to the case ofBANJO VS. STATE (2013) 16 NWLR (PT.1381) 455 relied upon by the trial Court and submitted that it is not applicable here because (i) PW4 did not describe the money robbed from him and did not identify it (Exhibit C4); (ii) the inventory containing the items allegedly recovered is not reliable as it is written in English when the Appellant is an illiterate and he said he signed it without reading it and it is not shown that it was translated to him as required by Section 2 of the Illiterate Protection Law of Kano State; the inventory/search report (annexed to Exhibit D) was not identified by any witness to show it was the report of the recovered items at the house of the Appellant, and its purpose not shown – LUMATRON NIG. LTD & ANOR. VS. FCMB (2016) LPELR – 41409 (CA) 12 – 16; (iii) the inventory/search report is in respect of search at “Hotoro Tsamiyar Mashaya” and not the Appellant’s residence at “Limawa Quarters, Hotoro”; (iv) the search report/inventory was fundamentally altered in that “eight” was cancelled and “twenty-five

thousand naira” inserted, which is fundamental because the identity of the money recovered is in issue – Section 160(1) Evidence Act 2011; and failure to call the sister of the Appellant who was present when the items were allegedly recovered, to confirm matters, is fatal. On failure to explain how the money got to his possession, counsel argued that, there is no evidence that the police confronted the Appellant to explain its source, the prosecution had also failed to confront the Appellant as to how he came by the money if it was not his; the Court itself did not ask the Appellant about it. These he argued, have raised doubt as to whether any money was recovered from the Appellant’s apartment and that it was the money that was robbed from PW4. The doubts should be resolved in favour of the Appellant he argued.

Learned counsel also submitted that the Appellant was convicted based on circumstantial evidence. He referred to AHMED VS. NIGERIAN ARMY (2011) 1 NWLR (PT. 1227) 89 AT 115; IGABELE VS. STATE (2006) 6 NWLR (PT. 975) 100 AT 130; OMOGODO VS. STATE (1981) 5 S.C. 5 AND OKORO VS. STATE (2012) ALL FWLR (621) 1471 AT 1497 C-D.

He is of the view that since the Appellant was convicted based on the erroneous recovery of the N25,000, there is no further evidence to justify his conviction as (i) the evidence of PW1 and PW2 is contradictory as they are also not eyewitnesses; that the two statements of the Appellant (Exhibits A and B) were admitted in evidence wrongly as the trial Court did not conduct a trial-within-trial despite an objection to their voluntariness – OJEGELE VS. THE STATE (1988) LPELR – 226/1986 SC (1988 NWLR PT. 71, 414); that the Appellant made the statement in Hausa language but was recorded in English, a fundamental error as held in OLANIPEKUN VS. THE STATE (2016) LPELR – 40440 (SC) 8 B-D. Although they were not relied upon by the trial Court, they should be expunged from the record.

Learned counsel for the Appellant also faulted the trial Court for its failure to consider the evidence of the Appellant as DW1 and that of his witness DW2, which he argued, are clear, probable, consistent and unchallenged and uncontroverted by direct admissible evidence or discredited during cross-examination. The evidence ought to have been relied upon he argued –

ISITOR VS. FAKARODE (2008) 1 NWLR (PT. 1061) 601 AT 606. He urged us to resolve the issue in favour of the Appellant.

Mr. S.A Ma’aji, counsel for the Respondent, replied, referring to Section 139 of the Evidence Act 2011 and the cases of YAKUBU VS. STATE (2014) 2 SCNJ 254 AT 259, BAKARE VS. STATE (1987) NSC AND OKOH VS. THE STATE (2014) 6 SCM 176 on the duty of the prosecution to prove its case beyond reasonable doubt. He referred to AFOLALU VS. STATE (2010) VOL. 6-7 MJSC 187 AT 215 on the ingredients of the offence of armed robbery and submitted that the prosecution had led eye witness evidence as well as confessional statements of the Appellant, in proving the offence against the Appellant. On the first ingredient, he referred to the evidence of PW4 at pages 17-18 of the record. On 2nd and 3rd ingredients of the offence, that it was an armed robbery and the Appellant was one of those who participated in it, he referred to the materials relied upon by the trial Court in Exhibits C1 (a pistol), C2 (a sharp knife) C4 (N25,000) D (search warrant execution report) and the evidence of PWS 3 and 4. He agreed that the trial Court did not rely upon Exhibits

A and B to arrive at its decision.

Learned counsel submitted that the trial Court indeed considered the testimonies of the Appellant and DW2 before finding that the Appellant did not give satisfactory explanation on the sum of N25,000 recovered from his residence – page 83 of the record. He argued that at any rate, the evidence of the Appellant and DW2 was not relevant to the charges against the Appellant.

On failure to identify the Appellant at Mariri police station by PW4, counsel referred to the case of BANJO VS. STATE (2013) 16 NWLR (PT. 1381) 455 AT 457 relied upon by the trial Court, to submit that it was unnecessary to conduct any identification parade. He urged us to resolve this issue in favour of the Respondent.

Section 135 (3) Evidence Act- DIBIE VS. STATE (2007) 3 SCNJ 160.

In the instant appeal, the first two ingredients of the offence of robbery, i.e. that there was a robbery and it was an armed robbery, have been established as conceded by learned counsel for the Appellant. There is therefore no issue joined in respect of the two ingredients. I have looked at the findings of the trial Court in respect of the two ingredients, and I agree that the prosecution has led credible and cogent evidence and has proved them beyond reasonable doubt.

bound to conduct a trial-within-trial, once the voluntariness of a confessional statement is in issue. See also IBEME VS. STATE (2013) LPELR – 20138 (SC) AND MOHAMMED VS. STATE (2006) LPELR – 7690 (CA). The trial Court here did not conduct a trial-within-trial before admitting the confessional statements of the Appellant. That was not fair to the Appellant. However, it is clear from the record that the trial Court did not infact make use of the said alleged confessional statements in arriving at its findings. For what it is worth therefore, the said Exhibits A and B are hereby expunged from the record.

What about the third ingredient of the offence of armed robbery – that the Appellant was the robber or took part in it?

along with one another (now at large) attacked me with a gun, and the accused person said to me that he was sent to me, so if I did not co-operate with them they will shoot at me. I……..coorporated with the accused person and one person (now at large). From the accused person and one other forced me to lay down in the parlour….One of the accused persons (now at large) attacked me with a knife, while the accused person started conducting a search inside my house. Later when the accused person could not get anything, he came to me and demanded me to give him the sum of N1,000,000.00 from me. Therefore, I replied to the accused person that I lost my job, and I am jobless by then, where can I get that money? The only money that we have was the sum of N25,000.00. so the accused person collected the money (N25,000) from there, the accused person brought out 2 of my A.T.M. Cards from my bedroom requesting me to tell him my PIN Numbers and I told the accused person my 2 PIN Numbers.
……after this, the accused person pulled out my Plasma T.V Set from the wall……
Early in the morning, I was invited by the Police

(DPO Mariri) for identification, where I identified the accused person at the police (C.I.D) Headquarters, Kano.”
Under cross-examination PW4, stated that:-
“I was invited before Mariri Police Station for an identification, and I cannot identify the accused person at that time due to fear and sleepless night……”

PW4 never stated that he knew the Appellant or knew his name before the robbery, which is different from many cases such as BOZIN VS. STATE (1985) 2 NWLR (PT. 8) 465 AND WILLIAM IDAHOSA & ORS. VS. THE QUEEN (1965) NMLR 85, where the victim as PW3, stated that she knew the 2nd Appellant well as she knew his name, his residence and his nature of employment. Yet she did not at the earliest opportunity, give the police the name of the 2nd Appellant. Infact even in Court when she was testifying, she referred to the 2nd Appellant as a “tall man”. That is not the position in the instant appeal. Here, PW4 explained why he failed to identify the Appellant at Mariri police station in the early morning following the armed robbery which occurred the previous night. He however identified him at the C.I.D office. He attributed his failure to identify the Appellant at Mariri police station, to his fear and sleepless night. PW4 was not taken up on this under cross-examination and the explanation he gave is satisfactory and quite probable, for a person who went through the traumatic experience of being a victim of an armed robbery, and may not have been in a

frame of mind to exercise his full senses to identify the Appellant. Later at C.I.D office, when obviously he had calmed down, he identified the Appellant as the one who attacked him with a gun, spoke, threatened him, searched his house and demanded for N1,000,000, robbed him of N25,000, his 2 A.T.M. Cards and demanded for the PIN numbers. It is clear that they had spent some time in the company of each other, albeit in a frightening situation, and PW4 had the opportunity to see him and so identify him. The trial Judge accepted his evidence showing that he had identified the Appellant positively. Evaluation of evidence and ascription of probative value to same, are the duties of a trial Court which is well placed to undertake that onerous duty. An appellate Court lacking that opportunity, will not normally interfere with such findings unless they are perverse, which has not been established here –ISONG VS. STATE (2011) LPELR – 9081 (CA). PW4 knew and recollected that it was the co-accused who attacked him with a knife, not the Appellant. He knew who threatened him and robbed him of the money and the other items – the Appellant. He could

therefore distinguish clearly who perpetrated what. His knowing that the Appellant was one of the robbers and the role he played is clear, cogent, direct and unequivocal. The trial Judge therefore had no difficulty and rightly on being satisfied with the explanation for not identifying the Appellant at Mariri Police Station, accepted his evidence and believed him that the Appellant was one of the robbers. His identity had therefore been clearly established.

That PW4 did not describe the money robbed from him is not correct. He described it by stating the amount in Naira. That he did not identify it (Exhibit C4) is not material as it tallied with the amount he stated was robbed from him. On the issue of the inventory containing the items recovered from the search in the Appellant’s house being in English and the Appellant being an illiterate, it is my view that there is nothing in the record to show that the Appellant is an illiterate or cannot speak English. Learned counsel submitted that the Appellant only signed the inventory but did not read it. That he did not read it, is not synonymous with saying he could not read it. He never stated that he

did not read it because he could not read it. It is not also shown on the record that he thumb-printed it, so the Illiterate Protection Law of Kano, does not apply. Since the Appellant did not deny that the said items were recovered from his house, it is of no moment that the inventory/search report was not identified. There is evidence through PW3 that the N25,000.00 was recovered in the house of the Appellant. That evidence was believed by the trial Judge and it proves that the money, by inference was the same money robbed from PW4. There is no other possible or contrary explanation to this. There is also nothing in the record to show that “Hotoro Tsamiyar Mashaya” as the house of the Appellant where the search was conducted is different from what the Appellant described his house to be “Limawa in Hotoro Quarters Tarauni Local Government Area Kano.” “Hotoro” is common to both, the others are only differences in details. At any rate, the evidence of PW3 accepted by the trial Court is that it was the house of the Appellant that was searched and the stated items recovered. The Appellant did not also dispute that it was

his house that was searched! On alleged alteration of the search warrant report from “eight” to twenty-five thousand” it is not shown that it was done after the parties had duly signed. Section 160 of the Evidence Act is not applicable, as it is not shown that Ibrahim Aliyu (PW3), the other police officers who took part in the search of the premises, the Appellant and his sister who was a witness to the search and who all signed the search warrant report, which is prescribed to be correct and representing what transpired, signed it before the alleged ‘alteration’. The Appellant has not said so and he has not disassociated himself from it. He did not also call his sister who was present during the search to distance her from the search warrant/report. Likewise, it is immaterial that the prosecution did not call her as a witness. Once the prosecution can discharge its onus of proving the offence beyond reasonable doubt by calling even one witness of quality to establish the offence, the failure to call others is not material – BABUGA VS. STATE (1996) 7 NWLR (PT. 460) 279.

Learned counsel for the Appellant has also raised

a grouse on the failure on the part of the police to confront the Appellant to explain the source of the N25,000. The Law is clear. There is a presumption of law, that an accused person is the robber, where items alleged to have been robbed, are found in his possession – Section 167 (a) Evidence Act. In SUMAILA VS. STATE (2012) LPELR – 19724 (CA) where the Appellant was identified as the one who robbed PW1. Some six hours after the robbery, the Appellant was found in possession of the robbed motorcycle and the telephone set. This Court held that “there could be no better instance of the doctrine of recent possession in Section 167(a) Evidence Act, 2011 than this. The doctrine runs thus; the man who is in possession of stolen goods soon after the theft is either the thief or is receiver of stolen goods knowing them to have been stolen, unless he gives proper account on how he came into possession of the goods. This is a presumption of facts, and is rebuttable.” It is thus clear, that it is the possession of the stolen goods that raises the presumption, that he is the robber or participated in it. It is therefore the onus on that accused

person to explain away how he came by the stolen goods. In the instant appeal, the onus fell on the Appellant to explain how he came by the N25,000 said to have been the money robbed from PW4. This was less than twenty-four hours from the armed robbery. He failed to give any explanation as to how he came by the money. It is therefore safe to infer guilt on the part of the Appellant. It was not for the police to begin to search answers for him. It is certainly not the duty of the trial Court to ask the Appellant about it. The onus was on him to proffer the explanation once he was found in possession of the stolen N25,000. His failure to explain same was what nailed his coffin, and it was sufficient to prove beyond reasonable doubt, without more, the third ingredient of the offence. It is also clear from the evidence of PW1 and PW2, that the Appellant had gone back to the area where he and his co-accused had committed the robbery to trace his phone which he must have dropped whilst running away, as he did not want to be traced by it. He stated that he was a member of the JTF who had assisted the community. In his evidence, he never stated that he is a member

of the JTF. All these are relevant facts that have combined to point him as an untruthful witness. The trial Court did not, going by the record, believe him. It was right.

ISSUE NO. 2
Whether the Appellant was rightly convicted and sentenced for the offence of illegal possession of fire arms.

Learned counsel for the Appellant submitted that the Appellant was convicted on the evidence of PW3 (IPO) and the tendered Local Barratt Pistol and four rounds of ammunition, recovered from the house of the Appellant. He argued that the Exhibits – C1 – C4 (one barratt pistol, sharp knife, four rounds of 9 mm ammunition and N25,000 of N1,000 denomination, were wrongly admitted and wrongly relied upon, leading to miscarriage of justice. He referred to pages 15 – 16 of the record, to submit that although the

learned counsel for the Appellant had voiced objection to the tendering of the exhibits, the trial “Court did not allow the defence counsel to argue her reasons/basis for objection before going ahead to admit the materials”, or that the “Court refused to record the argument of the defence counsel challenging the admissibility of the materials”. He termed that, a fundamental breach of fair hearing, since the exhibits formed the basis for the conviction of the Appellant. He placed reliance on NWOKOCHA VS. A.G. IMO STATE (2016) LPELR – 40077 (SC) AND AMANECHUKWU VS. F.R.N (2009) 8 NWLR (1144) 475 AT 486.

Learned counsel for the Respondent in reply, argued that the items recovered from the house of the Appellant, were rightly admitted in evidence and was not denied fair hearing and he did not deny being in possession of the Pistol and the rounds of ammunition.

On Exhibit D, learned counsel submitted that it is the official record of a public officer which can be tendered from the Bar – Section 102 of the Evidence Act and was tendered without objection. This is sequel to the position of the counsel for the Appellant,

that Exhibit D is the product of irregularity and illegality as it was issued by a Registrar in-charge of Magistrate Court complex, who is not a Magistrate or a Justice of the peace. That PW3 a police officer could do this, smacks of untruthfulness and should not be believed.

question by the Court if there was any objection to the tendering of the said items. No reasons for the “objection” are stated in the record. Counsel for the Appellant was only speculating as to what happened, i.e. whether the defence counsel was not allowed by the trial Court to voice out the reasons for the objection, or that the trial Court refused to record those reasons given by counsel for the Appellant then. This is nothing but conjecture, after all, it is also possible that no reasons were given at all for the objection, by the defence counsel. There is no way an appellate Court will decide on the basis of conjecture in the absence of what is contained in the record of appeal. Counsel for the Appellant should have challenged the record of appeal to show that it does not reflect the true position of the proceedings of the trial Court on the relevant date. He has not done this. As it is, we only have the record showing that although there is the word “objection”, no reasons for the objection are stated therein. The trial Court could not second-guess what the reasons for the objection were. Certainly, this Court cannot and is not

in a position to know the reasons for the objection if any. We hold that on the record, since no reasons for the objection are stated, the trial Court was entitled to admit and rely on them. Again, PW3 who tendered the items, is not shown to have been cross-examined, after they were admitted in evidence to bring out their inadmissible nature.

there is a presumption of validity and regularity to it. This presumption has not been rebutted.
At any rate, proceeding on the footing of learned counsel for the Appellant that Exhibit D, the search warrant was irregularly obtained, it is still admissible in evidence, pursuant to Section 14 of the Evidence Act 2011, which provides that evidence obtained improperly or in contravention of a law; or in consequence of an impropriety or of a contravention of a law, is admissible;
“unless the Court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.”
By Section 15 Evidence Act 2011, the matters a Court shall take into consideration for the purpose of Section 14, include-
“a. the probative value of the evidence;
b. the importance of the evidence on the proceeding;
c. the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
d. the gravity of the impropriety or contravention;
e. whether the impropriety

or contravention was deliberate or reckless;
f. whether any other proceeding (whether or not in a Court) has been or is likely to be taken in relation to the impropriety or contravention; and
g. the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.”
The Pistol and the four rounds of the 9 mm ammunition were recovered from the house of the Appellant, in the presence of his sister. This has been established from the evidence of PW3, the IPO. His evidence was believed by the trial Court. His evidence on this was not challenged at all under cross-examination. In his evidence before the trial Court as DW1, the Appellant admitted at page 20 of the record, that his house was indeed searched and as “a result of the search, some items were recovered from my house. I don’t know what the police recovered, but I only signed. I did not bother to go through before I signed.” It is not in keeping with normal behavior, for a person’s house to be searched in his presence, items recovered and he remains unconcerned about what was recovered, and yet sign the inventory without reading it! His

story does not have a ring of truth to it. However the fact remains that items were recovered and by the evidence of PW3, they include a Pistol and four rounds of 9 mm ammunition. It was relevant evidence and important concerning the nature of the offence charged – possession of fire arms. So even if the items had not been tendered in evidence, the evidence of PW3 is sufficient to prove the offence against the Appellant, coupled with the fact that he said he obtained a search warrant from the Magistrate Court. Again, if the Appellant contests the recovery of the said items from his house (he doesn’t), he could have called his sister who was present during the search to state so. He did not. I am satisfied that the prosecution had proved the offence beyond reasonable doubt and the trial Court was right when it convicted him in that vein. This issue is resolved in favour of the Respondent, and against the Appellant.

The result is that this appeal lacks merit in toto and I dismiss it. I affirm the judgment of the trial High Court Kano, delivered on 20th December, 2017 in CHARGE NO.K/38C/2015, which convicted and sentenced the Appellant to death

by hanging for the offence of armed robbery and N20,000 for the offence of illegal possession of firearms.

HABEEB ADEWALE OLUWUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.

I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Kano State in Charge NO K/38C/2015 delivered by Honorable Justice Ibrahim Umar on the 20th of December, 2017, along with the conviction of and the sentences passed on the Appellant therein.

AMINA AUDI WAMBAI, J.C.A.: I have read the judgment delivered by my learned brother, A. D. YAHAYA JCA. I am in agreement with his reasoning and conclusion that there is no merit in this appeal. I adopt same in dismissing the appeal and abide by the consequential order affirming the judgment of the lower Court delivered on 20/12/2017 in charge No. K/38C/2015

Appearances:

L. Garba with him, Z.A. Tata

For Appellant(s)

S.A Ma’aji DPP, MOJ Kano with him, Bashir Sale CSC & M.M. Jibril SSC For Respondent(s)