MUHAMMADU BELLO v. THE STATE
(2018)LCN/12503(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of May, 2018
CA/IL/C.92/2017
RATIO
EVIDENCE: FREE AND VOLUNTARY CONFESSION
“The law is that a free and voluntary confession of guilt made by an Accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession.
See: EFFIONG VS. THE STATE (1998) 8 NWLR (PT. 562) 362; ULUEBEKA VS. THE STATE (2000) 4 SC (PART 1) 203; IDOWU VS. THE STATE (2000) 7 SC (PT. 11) 50; ALARAPE VS. THE STATE (2001) 14 WRN 1 SC; OSENI VS. THE STATE (2011) 6 NWLR (PT. 1242) 138; IBRAHIM VS. THE STATE (2011) 1 NWLR (PT. 1227) 1; BRIGHT VS. THE STATE (2012) 8 NWLR (PT. 1302) 297; MUSA VS. THE STATE (2012) 3 NWLR (PT. 1286) 59…” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
MUHAMMADU BELLO Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of the High Court of Justice, Kwara State sitting in the ILORIN Judicial Division and delivered by His Lordship; Hon. Justice A. O. AKINPELU on the 19th day of January, 2017.
The Appellant was arraigned as 1st Accused along with one MUHAMMADU LIKITA JABI as 2nd Accused on 01/04/2014 for the offence of criminal conspiracy punishable under Section 6(B) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, LFN 2004, Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act, R.11, LFN 2004, Culpable Homicide contrary to Section 221 of the Penal Code and unlawful possession of firearms contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, LFN 2004.
The Appellant pleaded not guilty to the charge.
The Prosecution called three witnesses and tendered thirteen (13) Exhibits in proof of its case that the Appellant, the 2nd Accused and one other at large on the 8th August 2012 along Shigwaria – Kaiama Road, Kaiama Local Government Area of Kwara State conspired to rob and did actually rob one TAMINU INUWA and ZUWAIRAT ABDULKAREEM whilst armed with dangerous weapons which act also resulted in the death of the said TAMINU INUWA.
The Exhibits included Exhibits 8 and 12 which are confessional statements made by the Appellant at different times in Ilorin and Kaiama.
Exhibits 1 – 7 were tendered through PW1, the Exhibit Keeper whilst the other Exhibits were tendered through PW2 and PW3.
The Appellant denied making any statement to the Police in his testimony in defence. He claimed not to know anything about the statements in issue on the ground that he does not speak Hausa, the language in which the prosecution? witnesses claimed to have recorded his statements. That he only saw the Police Officers writing something which he was asked to sign. The Appellant claimed that on the day in issue, he was on errand for his boss who he named as one ALHAJI SHEHU when he was arrested along with three sons of his boss who were later bailed from Police custody by their father. Under cross-examination from the Prosecution, he said he was arrested on 08/08/2012 at about 12 Noon whereas by the evidence of PW3 the robbery took place in the evening of that day.
At the end of the trial, the learned trial Judge convicted the Appellant and the 2nd Accused person for all the offences as charged. In relation to the Appellant, the learned trial Judge held amongst others as follows:-
i. That it is not on record that the Appellant was denied the right to cross examine the Respondent’s two witnesses which makes the provisions of Section 36(6)(d) not apposite. That Cross examination is not compulsory. Section 215(1) of the Evidence Act provides that a witness will only be cross examined if a witness desires. That it is taken that the counsel to the Accused person did not so desire to cross examine the said witnesses whose testimonies essentially related to investigation. It therefore does not lie with the defence to complain when they failed to utilize that opportunity. (Pages 156-157 of the record)
ii. That the contents of the Appellant’s statements are positive and unequivocal. All the statements contain a smooth and flowing story which could only be rendered by an active participant in the events narrated therein. That the Appellant’s denial is an afterthought being inconsistent with the statements he had earlier made to the police. (Page 158 of the record)
iii. That the confession of the Appellant in his extra judicial statement is sufficient enough to infer conspiracy with one Muhammadu Likita Jabi and one Buba (who is at large). That there was an agreement between the two accused persons and one at large to carry out an illegal act. (Page 159 of the record)
iv. That the fact that no eye witness of the robbery operation testified before the Court will not avail the Appellant because it is trite that the prosecution is not bound to call a host of witnesses to prove its case. That the Court is not in doubt that there was a robbery, the robbers were armed and that the accused persons were the robbers on the day in question. (Page 161 of the record).
v. That by the combination of PW3’s testimony, the corroborative evidence in exhibits 10 and 11 as well as the confessional statements of the Appellant, the prosecution proved the offence of culpable homicide contrary to Section 221 of the Penal Code against the Appellant beyond reasonable doubt. (Page 165 of the record). Appellant is guilty of the offence of being in unlawful possession of fire-arms contrary to Section 3(1) of the Fire-arms Act. (Page 165 of the record).
vii. That based on the totality of available evidence, the Appellant’s defence is weak and lacking in credibility. His defence has not successfully rebutted the evidence of his guilt presented by the case of the Respondent. (Page 166 of the record).
Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal containing nine (9) Grounds of Appeal in this Court on 11/07/2017.
Appellant’s Brief of Argument dated and filed on 05/09/2017 is settled by Taiye Oniyide, Esq.
Respondent’s Brief of Argument dated and filed on 05/02/2018 but deemed filed on 22/02/2018 is settled by J. A. Mumini Esq., Director, Public Prosecution (DPP), Kwara State.
Learned Counsel for the Appellant nominated eight (8) Issues for determination. They are:-
1. Whether the learned trial Judge was right when after agreeing that the Respondent’s witnesses (PW2 and PW3) were not cross examined in the main trial, proceeded to hold that it is not on record that the Appellant was denied the right to cross examine the witnesses.
2. Whether the learned trial Judge was right when it admitted and subsequently relied on the Appellant’s extra judicial statements made in Hausa language to convict and sentence him to death when it is on record that the only language the Appellant understand is Fulfude.
3. Whether the learned trial Judge was right when it held that the Respondent proved the offence of criminal conspiracy against the Appellant as required by law.
4. Whether the learned trial Judge was right when he held that the Respondent proved the offence of unlawful possession of firearm against the Appellant as required by law.
5. Whether the learned trial Judge was right when he held that the prosecution proved the offence of culpable homicide against the Appellant as required by law.
6. Whether the learned trial judge was right when he disregarded the defence of alibi raised by the Appellant.
7. Whether the learned trial judge was right when he convicted and sentenced the Appellant to death without an identification parade.
8. Whether the learned trial Judge was right when it relied on the Respondent’s weak, unsubstantiated and unproven evidence to convict and sentence the Appellant to death.
Learned Counsel for the Respondent adopts the Issues as formulated by the Appellant.
ISSUE ONE
On Issue One, learned Counsel for the Appellant submitted that the learned trial Judge was wrong when after agreeing that the Respondent’s witnesses (PW2 and PW3) were not cross-examined in the main trial, proceeded to hold that it is not on record that the Appellant was denied the right to cross-examine the witnesses.
Appellant’s Counsel urged us to observe that PW2 (Inspector Zakari UMAR) and PW3 (Ada Michael) did not appear in Court again after they testified in the trial within trial. That they did not appear during the hearing in the main trial in order to be cross-examined by the Appellant on the purported evidence already given by them. The learned trial Judge, said Counsel admitted this much in his Judgment at Pages 156 – 157 of the Record when he held thus:-
On the issue of cross examination of PW2 and PW3 in the main trial, I have examined the record of the Court confirming that the witnesses were not cross examined. It is however not on record that the accused persons were denied the right to cross examine both witnesses which makes the provisions of Section 36(6)(d) not apposite here. Cross examination of a witness is not compulsory. Section 215(1) of the Evidence Act provides that a witness will only be cross examined if any party so desires. Consequently, it is taken that the counsel to the accused persons did not so desire to cross examine the said witnesses whose testimonies essentially related to investigation…”
Appellant’s Counsel noted that the pattern of evidence of PW2 (Inspector Zakari Umar) at the trial Court is as follows:-
1. The Appellant was arraigned on 01/04/14. On that day, the Respondent commenced trial by calling two witnesses to wit: PW1- Eniolorunda Ernest (Exhibit keeper) and PW2- Inspector Zakari Umar (Investigating Police Officer). (Page 88 of the record.)
2. Towards the end of his testimony, Inspector Zakari Umar (PW2) sought to tender the purported extrajudicial statement made by the Appellant. (Pages 91 – 93 of the record).
3. The Appellant objected to the tendering of the said extra judicial statement on the ground of involuntariness. (Page 92 of the record).
4. The learned trial judge ordered a Trial within Trial and PW2 became PW1 in the Trial within Trial. PW2 testified on how he recorded the extra judicial statement. (Page 105 of the record)
5. PW2 was only cross examined on the involuntariness of the statement allegedly obtained by him during trial within trial without more. (Page 105 of the record).
6. After the trial within trial, the Respondent did not return PW2 to Court to give the Appellant the chance and the right to cross examine him on the other evidence given by him particularly regarding the investigations he claimed to have made and how he arrived at his findings. (Pages 130 – 132 of the record).
7. At Page 132 of the record, the Respondent eventually closed its case without calling PW2. The trial Court relied on PW2’s evidence to convict the Appellant.
In relation to PW3 (WCP Ada Michael), Appellant?s Counsel urged us to observe as follows:-
1. On 10/6/15, when the case was slated for continuation of hearing in the main trial, the Respondent called PW3 (WCP Ada Michael) as its witness. The extrajudicial statement allegedly made by the Appellant at Kaiama was sought to be tendered through PW3. (Pages 113 – 117 of the record).
2. The Appellant objected to the tendering on the ground of involuntariness. (Page 117 of the record).
3. The learned trial judge ordered trial within trial and PW3 became PW1 in the Trial within Trial. PW3 testified on how she recorded the extra Judicial statement sought to be tendered. (Page 119 of the record).
4. PW3 could only be cross examined by the Appellant on the involuntariness of the statement without more. (Page 119 of the record).
5. After the trial within trial, the Respondent did not return PW3 to Court. The Appellant was not given the chance to cross examine PW3 on the evidence given by her as to the investigations she claimed to have conducted and the trial Court relied on PW2’s evidence to convict the Appellant. (Pages 130 – 132 of the record).
He submitted that it is not on Record that PW2 and PW3 were brought back to the Court by the respondent to continue their evidence in the main trial or that the Appellant had the opportunity to cross examine them.
He argued that the learned trial Judge trivialized this weighty issue of absence of cross examination of the Respondent’s two major witnesses indicating that the Court had made up its mind to believe the story of the Respondent even before considering that of the Appellant.
He submitted that the Appellant was desirous of cross-examining PW2 and PW3 but was not availed the opportunity. This action/inaction breached his right to fair hearing under Section 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
He submitted that in a criminal trial particularly of this nature, it is essential to avail the Accused the opportunity to cross examine the adversary’s witnesses in order to test the veracity of their evidence except the Appellant specifically elect to waive such right. The Appellant in this situation was denied his right to thoroughly and comprehensively cross examine PW2 and PW3 (which he desired to do) before he was convicted and sentenced to death by hanging.
He submitted that it is the duty of the learned trial Judge to ensure that the evidence elicited by the prosecution? witness is carefully, meticulously and conscientiously scrutinized by the Appellant in the interest of fair hearing and justice which was not done in this situation. That the learned trial Judge erroneously convicted and sentenced the Appellant to death when he was denied his right and/or opportunity to cross examine the Respondent’s two witnesses.
Appellant’s Counsel submitted further that the above action/inaction of the trial Court denied the Appellant of his right to examine witnesses called by the Prosecution in Section 36(6)(d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
He referred amongst others to the cases of:
AL ‘MUSTAPHA VS. THE STATE (2013) 17 NWLR (PT. 1383) PAGE 365 at 409;
AYO VS. THE STATE (2015) 16 NWLR (PT. 1486) 538 at 548 – 549;
ESEU VS. THE PEOPLE OF LAGOS STATE (2014) 2 NWLR (PT. 1390) PAGE 114 at 141 – 142;
SHOFOLAHAN VS. THE STATE (2013) 17 NWLR (PT. 1383) 295 at 320 – 321;
OKAFOR VS. A.G., ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659;
ADIGUN VS. A.G., OYO STATE (NO. 1) (1987)
Through the above cited cases, Appellant’s Counsel submitted that the reliance of Court on the evidence of a witness whom the Accused has no opportunity to cross examine is in breach of his constitutional right. That the legal effect of breach of the said constitutional right is that the entire proceedings before the trial Court were all a nullity, no matter how well conducted.
He submitted that the decision of the learned trial Judge occasioned a miscarriage of justice and urged us to resolve the Issue in the Appellant’s favour.
In response to Appellant’s Issue One, learned Counsel for the Respondent in agreement with the position of the learned trial Judge referred to the provision of Section 215 (1) of the Evidence Act 2011 and submitted that cross – examination by an adversary party is not a matter of compulsion but one of desirability which the party who has the right can abandon. He submitted that in the instant case, there is nothing on the record of the learned trial Judge showing that PW2 and PW3 were ever requested by Counsel to the Appellant for cross-examination. That there was also nothing on record to show either verbal or written application for a recall of the witnesses by Counsel for the Appellant for the purposes of cross-examining the witnesses.
Respondent’s Counsel submitted that it is equally instructive to note that despite the fact that the Appellant knew of his right to recall the Prosecution witnesses, he deliberately refused or neglected to make use of that right in his favour.
He submitted that it is too late in the day for the Appellant herein to complain of a right which he chooses to abandon on his own and blame the learned trial Judge for his self-inflicted misfortune.
Respondent’s Counsel invited us to also observe that the Appellant adequately cross-examined these two witnesses in trial within trial but deliberately neglected and or refused to cross-examine them in relation to the evidence given at the main trial.
He argued that what is expressly omitted in law is impliedly unintended. That it is apparent that the Appellant deliberately refused and or neglected to cross-examine these witnesses with the intention to fault the Judgment of the trial Court.
He submitted that it is not the duty of the learned trial Judge to conduct trial for parties. And, therefore, that there was no denial of the Appellant’s right to cross-examine by the learned trial Judge as canvassed by the Appellant?s Counsel.
He submitted that the cases of:
AL ‘ MUSTAPHA VS. THE STATE (2013) 17 NWLR (PT. 1383) 365 at 409; and
AYO VS. THE STATE (2015) 16 NWLR (PT. 1486) 538 at 548 – 549
referred to by the Appellant are not only inapposite to the case at hand, but also irrelevant to the Issue at stake.
He submitted that in AL’ MUSTAPHA’s case (Supra) Ahmed Fari Yusuf – the Police Officer who testified as PW4 refused to turn up for cross-examination. He was absent on 23rd November, 2010, the Court adjourned again to 20/12/2010 and it was after several other adjournments that the Court foreclosed the Prosecution’s case on the 14th March, 2011.
Respondent’s Counsel submitted that was not the case before the trial Court in this case. That at no time from the Record did the Appellant demanded to cross-examine the witnesses of the Prosecution nor was a recall of these witnesses made before the trial Court.
He urged us to resolve the Issue in favour of the Respondent.
In deciding Appellant’s Issue One, it is important to refer to the events that occurred during the trial. The Appellant made two different allegedly confessional statements. In the course of the main trial, PW2 gave evidence of investigation into the Appellant’s alleged offences. When he was about to tender the Appellant’s statement purportedly made to the Police in Ilorin, there was an objection as to the voluntariness of the statement. By this, the main trial shifted to a trial within trial (TWT).
After the admission of the statement, the Court went back to the main trial and PW3 was called to give evidence. Again, PW3 was about to tender the statement made by the Appellant in Kaiama, the defence again raised an objection which led to another trial within trial (TWT). Thereafter, the Court proceeded again with the main trial and the Appellant and the 1st Accused gave evidence in defence.
Apparently, the Respondent (Prosecution) got all they needed from PW2 and PW3 before the commencement of each of the trial within trial and perhaps also in the course of the trial within trials.
The defence undoubtedly also had a field day and cross-examined PW2 and PW3 during the trials within trials.
The question posed in Appellant’s Issue One is that the Appellant now claims that he did not have the opportunity to cross-examine PW2 and PW3 on the subject of each of their evidence rendered before the trials within trials.
It seems to me that the learned trial Judge gave an appropriate answer to this question when he held at Pages 156 – 157 of the Record thus:-
‘On the issue of cross examination of PW2 and PW3 in the main trial, I have examined the record of the Court confirming that the witnesses were not cross examined. It is however not on record that the accused persons were denied the right to cross examine both witnesses which makes the provisions of Section 36(6)(d) not apposite here. Cross examination of a witness is not compulsory. Section 215(1) of the Evidence Act provides that a witness will only be cross examined if any party so desires. Consequently, it is taken that the counsel to the accused persons did not so desire to cross examine the said witnesses whose testimonies essentially related to investigation…”
It is only in the realm of imagination and not law nay the adversary system of criminal justice that the learned Counsel for the Appellant would expect the Respondent (Prosecution) to recall PW2 and PW3 to be cross-examined on a particular subject matter after the Respondent (Prosecution) had so to say gotten all they required from the witnesses in Examination-in-Chief.
The provision of Section 215(1) of the Evidence Act 2011 equally relied on by the learned trial Judge is quite clear on this point. It says:-
‘215 (1) – Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then if the party calling him so desires, re-examined.’
By the above provision, it would seem that the constitutional right of the Accused under Section 36(6)(D) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to cross-examine witnesses is subject to a correlate duty of the Accused person to desire and or demand such right.
Clearly, and even from Hohfeld’s philosophy – Right is a correlative to duty, where there is no duty there can be no right. But the converse is not necessarily true as there may be duties without rights.
The practical way in which the Appellant could have achieved the idea of cross-examining PW2 and PW3 on the subject matter of their respective evidence of investigation given before the trial within trial would be to ask the Respondent (Prosecution) through the Court to recall the witnesses for cross-examination by virtue of the provision of Section 210 of the Evidence Act.
As rightly pointed out by the learned Counsel for the Respondent, the cases of:
AL’ MUSTAPHA VS. THE STATE (2013) 17 NWLR (PT. 1383) 365 at 409; and
AYO VS. THE STATE (2015) 16 NWLR (PT. 1486) 538
relied upon by the learned Counsel for the Appellant to promote the breach of the Appellant’s constitutional right to cross-examine Prosecution witnesses are distinguishable from the instant case and clearly inapposite and irrelevant to the present Appeal.
In the AL ‘MUSTAPHA’s case, (supra) the Prosecution failed to present the witness needed by the Defence for cross-examination.
The Court of Appeal (Lagos Division) considered this failure as vital to the case of the Prosecution as it renders the evidence of the witness to be of no value, irrelevant for consideration to the case as well as constituting a breach of the Appellant’s right to fair hearing.
In AYO VS. THE STATE (Supra) the Court of Appeal (Akure Division) presided over by OWOADE, JCA, in a lead Judgment by Abiriyi, JCA considered that the Ruling of the trial Court admitting the extra judicial statement of the Appellant delivered after the close of the cases of both parties prevented learned Counsel for the Appellant from cross-examining PW2 through whom it was tendered on it.
And, that in the circumstance, the lower Court deprived the Appellant of his right to fair hearing by relying on a statement which the Appellant?s Counsel did not have the benefit of cross-examining the witness on.
Nothing in the instance case is comparable to the facts and circumstances presented in the cases of AL ‘MUSTAPHA VS. THE STATE (supra) and AYO VS. THE STATE (supra).
The learned trial Judge was not wrong when after agreeing that the Respondent’s witnesses (PW2 and PW3) were not cross-examined in the main trial, proceeded to hold that it is not on record that the Appellant was denied the right to cross-examine the witnesses.
Issue One is resolved against the Appellant.
ISSUE TWO
On Issue Two, learned Counsel to the Appellant submitted that the learned trial Judge was wrong, when he admitted the Appellant’s extra judicial statements made in Hausa language in evidence when it is on record that the only language the Appellant understands is Fulfude and it is also wrong to have relied on the said extra judicial statement to convict and sentence the Appellant to death.
Appellant’s Counsel quoted various passages from Pages 89, 95, 96, 100, 127, 134 and 135 of the Record which would suggest from the Appellant’s perspective that the only language he (Appellant) understands is Fulfude. He also quoted in part and out of con from the evidence of Inspector Zakari Umar, PW1 at the trial within trial of the Appellant which could suggest that the Appellant does not understand Hausa language.
He submitted that the Appellant does not understand the content of the purported extra judicial statement admitted by the learned trial Judge as Exhibits 8 and 12.
That in his Judgment at Page 157 of the Record, the learned trial Judge held as follows:-
‘The Accused persons cannot therefore approbate and reprobate at the same time concerning the statements which they claimed not to have made in their various defences. If they did not make the statements in the first instance, then the language in which the statements were taken from them cannot arise.’
Learned Counsel for the Appellant submitted it is on record that the Appellant retracted his statement which was translated to him in a language he did not understand. He submitted that the learned trial Judge supplied a missing link to the case of the Respondent as he failed to properly determine whether the Appellant actually made the confessional statement and that there was no basis for his admission of the purported extra judicial statements (Exhibits 8 and 12) tendered by the Respondent after the Appellant emphatically denied making any such statements.
He referred to the provision of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the case of MFA VS. INONGHA (2014) 4 NWLR (PT. 1397) 350 at 375 to come to the conclusion on
Issue Two that any proceeding conducted in breach of a party?s right to fair hearing is a nullity.
In answer to Issue Two, learned Counsel for the Respondent referred copiously to the evidence of Inspector Zakari Umar (PW2) who acted PW1 in the trial within trial at Page 95 of the Record.
He submitted that the evidence of the said PW1 in the trial within trial (TWT) was corroborated by PW2 in the trial within trial (TWT) at Page 98 of the Record.
Respondent’s Counsel submitted that when one considers that the evidence of the said PW1 and PW2 narrated the events that took place at the Police Station, the argument by the Appellant that his statement was taken other than in the language spoken by him fizzles out and goes to no issue.
He submitted that the fact that the Appellant insisted to have the Court proceeding interpreted to him in Fulfude does not translate to the fact that he does not speak or understand Hausa language. He submitted that the evidence of PW1 in trial within trial was also corroborated with the incisive evidence of PW2, PW3 and PW4 in the trial within trial as contained on Pages 98 to 101 of the Record.
He submitted that the learned trial Judge has not violated the provision of Section 36(6) (a) of the 1999 Constitution as the Appellant was informed in the language he understood on his arrest by the Police.
He referred to the cases of:
GABRIEL VS. THE STATE (2010) 6 NWLR (PT. 1190) 280 at 290;
IKO VS. THE STATE (2001) 14 NWLR (PT. 732) 22
and submitted that the learned trial Judge was right to have relied on the said extra judicial statements to convict the Appellant.
I do agree with the learned Counsel for the Respondent that the evidence of all the Prosecution? witnesses that testified in the trial within trial corroborated themselves as to the fact that the Appellant speaks Fulfude and Hausa languages.
The full content of the evidence of Inspector Zakari Umar as PW1 in the trial within trial (TWT) is hereby reproduced from Pages 94 to 96 of the Record.
PW1: In trial within trial – affirms to speak the truth.
My name is lnspector Zakari Umar. I remember I earlier testified before the Court that I recorded the statement of the accused person. This is the circumstance that I recorded the statement of the first accused.
When the accused was arrested. He was brought for discreet investigation to our station – i.e. State CID. When the accused was brought, I put word of caution to him in English Language and equally interpreted to him in Hausa Language which he thumb printed to have understood the cautionary word. I later recorded the statement in English language and interpreted to him in Hausa Language which he thumb printed to have understood the statement and I counter signed. The statement was taken in the afternoon in the charge room where many people stay. Thereafter, I took him to my superior officer since he confessed to the charge. The statement was read over to him by the officer and he agreed that it is his statement. He equally thumb printed, signed and I equally signed.
Cross – Examination
I speak Hausa.
I took the statement around 12 noon. I can’t remember the precise date. The statement was taken in English Language and was interpreted to him in Hausa Language. I recorded and at the same time interpreted the statement to the accused. The 1st accused is Fulani by tribe but he understands Hausa. I agree that the statement was not recorded in the Language that the accused understands. I do not agree that he does not understand Hausa, the language in which I interpreted to him. I so (sic) do not agree that I recorded the statement by question and answer. The format I adopted was that I read the first statement he made in Kaiama, where the case was referred to Ilorin to him and he admitted that that was what he wrote. I further inquire about what happened and he thereafter narrated how the incident happened. Some officers were there which include Cpl Abdulmumini and Pc Ezekiel Aliya. It is normal for Fulani to confess to crime, they are upright in their regard. It is not true that I beat the 1st accused during the interrogation.
Re Examination – Nil
The learned trial Judge was thus right to have accepted the evidence of the Respondent?s witnesses who were present at the Police Station at the time of arrest of the Appellant and was equally justified to view the rejection and the retraction of the confessional statements by the Appellant as an afterthought.
See:
GABRIEL VS. THE STATE (2010) 6 NWLR (PT. 1190) 280 at 290;
IKO VS. THE STATE (2001) 14 NWLR (PT.732)22.
Indeed, it is trite law that mere retraction of a voluntary confessional statement by an Accused person does not make such statement inadmissible or worthless and untrue in considering his guilt.
See:
SILAS IKPO VS. THE STATE (1996) 1 NILR 59 (SC);
ULUEBEKA VS. THE STATE(2000) 4 SC (PT. 1) 203; and
IDOWU VS. THE STATE (2000) 7 SC (PT. 11) 50
Finally, on this point, confession of an Accused person to the commission of a crime plays a major part in the determination of his guilt and a Court of law is entitled to convict on the confession as in the instant case if it comes to the conclusion that the confession is voluntary.
This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus.
See: OKEKE VS. THE STATE (2003) 15 NWLR (PT. 842) 25 (SC).
Issue Two is resolved against the Appellant.
ISSUE THREE
On Issue Three, learned Counsel for the Appellant quoted the conclusions of the learned trial Judge on the offence of criminal conspiracy on Pages 159 and 166 of the Record.
He submitted that the Appellant denied conspiring with any person to commit the offence levied against him and that he (Appellant) was not cross-examined on his evidence in relation to this Issue. He submitted that the learned trial Judge erroneously convicted the Appellant for the offence of criminal conspiracy as same was not proved by the Respondent as required by Section 135(1) of the Evidence Act 2011.
He referred to the cases of:
JIMOH VS. THE STATE (2012) 3 NWLR (PT. 1286) 147 at 175 – 176;
OBASANJO VS. THE STATE (2007) 1 NWLR (PT. 1020) 94 at 113;
USUFU VS. THE STATE (2007) 1 NWLR (PT. 1020) 94 at 113 to explain the meanings and ingredients of conspiracy. He added that to prove conspiracy, the Prosecution must prove specifically that each of the Accused individually participated in the conspiracy.
He submitted that it is a legal impossibility which cannot stand that an Accused person will conspire with himself.
He referred to the cases of:
GARBA VS. C.O.P. (2007) 16 NWLR (PT. 1060) 378 at 405; and
THE STATE VS. AJAYI (2016) 14 NWLR (PT. 1532) 201 at 220.
He submitted that the Respondent did not establish the specific role or part played by the Appellant in the alleged conspiracy throughout trial. The Appellant denied conspiring with the 2nd Accused person, Muhammadu Likita Jabi during trial and one Buba who is alleged to be at large. He (Appellant) stated that the first time he met the said Mohammed Likita Jabi was at the Police Station. The Respondent, said Counsel, did not contradict the material fact.
He submitted further that the Respondent did not establish a common intention between the Appellant and others to commit crime. The Appellant’s evidence denying his involvement was resolute and remained so under cross-examination and throughout the trial. There is no circumstantial evidence on record which allowed the inference of conspiracy against the Appellant.
He urged us to resolve the Issue in favour of the Appellant.
Learned Counsel for the Respondent also went through the ingredients of criminal conspiracy pursuant to Section 6(b) of the Robbery and Firearms Act, through the cases of:
THE STATE VS. SALAWU (2012) ALL FWLR (PT. 614) 1 at 29;
ADEKUNLE VS. THE STATE (1989) 12 SCNJ 184;
NWOSU VS. THE STATE (2004) ALL FWLR (PT. 218) 916 and submitted that it is not mandatory for the Prosecution to establish that conspirators met before carrying out their nefarious activities or the crime in question.
He submitted that the offence of conspiracy is sustained by leading evidence from which the Court can deduce inference of certain criminal acts of the Accused person done in pursuance of an apparent criminal purpose in common between them.
He further submitted that to sustain conspiracy all that the prosecution is required to do is to prove the inchoate or rudimentary nature of the offence and the inference of meeting of minds of the Accused persons. In other words, conspirators in law need not be in direct communication in respect of the offence charged.
A Court of law, said Counsel, can infer conspiracy from the criminal acts of the parties including evidence of complicity.
He referred to the cases of:
IKWUNNE VS. THE STATE (2000) 5 NWLR (PT. 658) 550 at 560 – 561;
OSONDU VS. F.R.N. (2000) 12 NWLR (PT. 682) 483 at 501 – 502.
He submitted that the contents of Exhibits 13, 9, 12 and 8 elucidate in clear terms the way and manner the appellant and his cohort in crime conspired to commit the offences for which they were convicted by the trial Court. These (sic) evidence taking together with the testimonies of the prosecution witnesses fully established an inference from which the trial Court rightly inferred an agreement to commit the act of armed robbery. These confessions were properly corroborated by the evidence of PW1 on (Page 105 of the record) who was the investigating police officer into the case.
He further submitted that a community reading of the evidence of PW1, PW2, PW3 and the contents of Exhibits 8, 9, 13 and 12 will lead this Honourable Court to only one conclusion that the Appellant herein and his cohort in crime, one MUHAMMADU LIKITA JABI conspired to rob the deceased on the 8th of August, 2012.
He further submitted that the Court over the years have developed a way to establish conspiracy by way of inference since direct evidence of agreement in most cases is almost impossible. What the Court therefore looks for in a case of conspiracy is the criminal acts of the conspirators which infer a prior agreement. He referred to the decision of the Supreme Court in ONYENYE VS. THE STATE (2012) ALL FWLR (PT. 643) 1810 at 1832 – 1833 and added that the testimonies of the Appellant as contained in the extra judicial statements were neither challenged nor denied at the trial.
Respondent’s Counsel submitted that the extra judicial statements of the Appellant sufficiently outlined the role played by him in the commission of the crime in question.
That where the Prosecution has led sufficient evidence indicting the person or an Accused as in this case, the law expects the Accused to lead evidence in rebuttal of the prosecution?s case against him.
On this, he referred to the case of ADENIYI VS. THE STATE (2001) FWLR (PT. 51) 809 and added that to merely give a terse denial like ‘I don’t know anything about conspiracy’ I don’t know anything about the allegation against me’ to weighty allegations and confessions as contained in Exhibits 8, 9, 12 and 13 fall short of the requirements of a proper defence by the Appellant.
In deciding Issue Three, the Appellant as 1st Accused person said in Exhibit 8:-
‘On 08/08/2012 at about 1400 hrs., I was at Aboki Village when my friend Buba and one Likita met me that we should go and block Road to rob people of their belongings
Also in Exhibit 12, which is the Appellant?s statement made at Kaiama Divisional Police Station, he said:
‘On 08/08/2012 at about 2000 hrs., myself, Buba and Likita went to Shingbe riua Village for operation.’
The above expression of the meeting of the minds of the Appellant, the 2nd Accused person and one Buba at large which eventually culminated into the actual act for which the prosecution alleged the Appellant and the 2nd Accused was sufficient to ground the offence of conspiracy.
Indeed, the offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects.
The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators.
See:
ODUNEYE VS. THE STATE (2001) 13 WRN 88 (SC);
NWOSU VS. THE STATE (2004) 15 NWLR (PT. 897) 466.
Issue Three is resolved against the Appellant.
ISSUE FOUR
On Issue Four, learned Counsel for the Appellant submitted that the learned trial Judge was wrong when he convicted and sentenced the Appellant for the offence of being in unlawful possession of firearms. He submitted that it is on record that the Appellant was not arrested at the scene of crime and no gun let alone live cartridges (Exhibits 1, 3A and 3B) were found on him.
He submitted that the Appellant denied being in possession of firearms or of owning any firearm or other offensive weapon and that this piece of evidence was not contradicted by the Respondent. The Respondent did not prove the ingredients of the offence of unlawful possession of firearms at the trial Court. And, that the learned trial Judge adopted the unproven element of the offence of being in unlawful possession of firearms to convict and sentence the Appellant.
He submitted that none of the Respondent?s witnesses said that the Appellant was in possession of firearms. The onus on the Respondent that the Appellant was in possession of firearms, said Counsel, was not discharged.
Appellant’s Counsel went through the ingredients of the offence of being in unlawful possession of firearms through the cases of:
BILLE VS. THE STATE (2016) 15 NWLR (PT. 1536);
THE STATE VS. OLADOTUN (2011) 10 NWLR (PT. 1256) 543 at 560 – 569;
MOMODU VS. THE STATE (2008) ALL FWLR (PT. 447) 67.
He submitted that the learned trial Judge based his findings and conclusions on the offence on mere speculative assumptions not borne out of evidence on record. Also, that there is no justification for the conviction and sentence of the Appellant.
Learned Counsel for the Respondent on the other hand submitted that the Respondent was able to establish via the confessional statement of the Appellant the following salient facts:-
a) That the Appellant and his cohort were armed with gun in the course of the robbery operation.
b) That the Appellant and his cohort admitted they killed the deceased by shooting him with a gun at the scene of the robbery operation.
c) The Appellant and his cohort are not licensed to carry firearms.
He referred to the case of STATE VS. FEMI OLADOTUN (2011) 10 NWLR (PT. 1256) 560-569 and concluded that the combination of the above salient facts led sufficient credence to the conviction of the Appellant for the offence of illegal possession of firearm.
The essential ingredient of the offence of unlawful possession of firearms is the fact of being found in possession of firearms within the meaning of the Act and the lack of license to possess same.
See:
BILLE VS. STATE (2016) 15 NWLR NWLR (PT. 1536);
THE STATE VS. OLADOTUN (2011) 10 NWLR (PT. 1256) 543 AT 560-569;
MOMODU VS. STATE (2008) ALL FWLR (PT. 447) 67.
I am in agreement with the learned Counsel for the Respondent and indeed the learned trial Judge that the combination of the Appellant?s confessional Statements EXHIBITS 8 AND 12 as well as Exhibits 9, 13, 1, 3A & 3B, 10 and 11 are sufficient to ground the Appellant?s conviction for the offence of being in unlawful possession of firearms.
The learned trial Judge was thus right when he held at Page 165 of the Record that:-
‘The last offence for which the accused persons are charged is unlawful possession of firearms contrary to Section 3(1) of Firearms Act. The case of the prosecution through PW3 is that a short single barrel locally made gun was recovered in connection with this case which was tendered and admitted as Exhibit 1. The fact of the accused persons being in possession of guns during the robbery incident for which they are charged is corroborated in all the confessional statements of the accused persons. The circumstantial evidence exposed through Exhibits 10 and 11 confirms that the Accused possessed firearms which were capable of discharging an explosive unlawfully. The accused persons have not told the Court in their various defences that they were duly licensed to possess the firearms. I therefore find that the offence in issue has been proved beyond reasonable doubt against the accused persons.’
Issue Four is accordingly resolved against the Appellant.
ISSUE FIVE
On Issue Five, learned Counsel for the Appellant submitted that the learned trial Judge was wrong when he held that the Respondent proved the offence of culpable homicide against the Appellant beyond reasonable doubt.
He submitted that there is a clear denial on the part of the Appellant who was not even arrested at the scene of the crime. This piece of evidence, said Counsel, was not controverted by the Respondent. The Respondent did not discharge the burden on it that the Appellant killed the deceased as required by law.
He submitted that the standard of proof in criminal actions has always been that of proof beyond reasonable doubt. That it is the duty of the Respondent to establish all the ingredients of the offence charged in tandem with the dictates of Section 138 of the Evidence Act 2011 and Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
He referred to the cases of:
ISMAIL VS. THE STATE (2008) 15 NWLR (PT. 1111) 593 at 620;
AJAYI VS. THE STATE (2014 )9 NWLR (PT. 1360) 616
Appellant’s Counsel also reiterated the ingredients of the offence of culpable homicide through the case of ALI VS. THE STATE (2015) 10 NWLR (PT. 1466)PAGE 6 – 7 and 23 – 24 and submitted that the learned trial Judge was wrong when he committed and sentenced the Appellant when the only eye witness to alleged crime, who ought to be the Respondent’s most vital witness, did not testify before the trial Court.
He submitted that Zuwairat AbdulKareem named in the proof of evidence at Page 6 of the Record, the alleged fiance of the deceased at the time of the crime was not called by the Respondent.
He referred to the case of OCHIBA VS. THE STATE (2011) 17 NWLR (PT. 1277) 669 at 694.
Appellant’s Counsel then submitted that the trial Judge based his decision that the Appellant caused the death of the deceased on the hearsay evidence given PW2 (Inspector Zakari Umar) and PW3 (WCPL Ada Michael) as opposed to the direct oral evidence or testimony of a witness who saw, heard and believed the event.
On this, Counsel referred to the cases of:
OMOTAYO VS. THE STATE (2013) 2 NWLR (PT. 1338) 242 at 255 – 256;
AYO VS. STATE (2015) 16 NWLR (PT. 1486) 538 at 548 – 549;
BASSEY VS. THE STATE (2012) 12 NWLR (PT. 1314) 209 at 232
He submitted that the Respondent did not adduce any other evidence relating to the death of the deceased outside the Appellant’s alleged confessional statements. Appellant’s Counsel referred to the cases of:
STATE VS. ISAH AND 2 ORS. (2012) 7 SC (PT. 111) 93 at 110 – 111;
IKARIA VS. THE STATE (2014) 1 NWLR (PT. 1389) 649 at 653 – 654 and submitted that there is no basis for the learned trial Judge’s findings that the death of the deceased was caused by the act of the Appellant.
He submitted that the prosecution has the onus to provide such proof that precludes every reasonable hypothesis being proved which is only consistent with the guilt of the Defendant and inconsistent with natural conclusions.
He referred to the cases of:
OMOLEYE VS. THE STATE (2014) 3 NWLR (PT. 1394) 232 at 253;
UBANI VS. THE STATE (2009) 4 NWLR (PT. 807) 51 at 64;
IKUMONIHAN VS. THE STATE (2014) 2 NWLR (PT. 1392) 564 at 591;
THE STATE VS. AZEEZ (2008) ALL FWLR (PT. 424) 1423 at 1451 – 1452;
NNAJIOFOR VS. THE PEOPLE OF LAGOS STATE (2015) LPELR 24666;
OCHIBA VS. THE STATE (2011) 17 NWLR (PT. 1277) 668 at 693.
He submitted that the learned trial Judge based his findings and conclusions on mere speculative assumptions not borne from evidence on record.
That there is no circumstantial evidence on record which allows the inference of culpable homicide against the Appellant. And finally, that the learned trial Judge was therefore wrong when he held that the Respondent proved the offence of culpable homicide under Section 221 of Penal Code against the Appellant beyond reasonable doubt.
Learned Counsel to the Respondent reiterated the ingredients needed for the prosecution to succeed in a charge of culpable homicide through the case of ABOKOKUYANRO VS. THE STATE (2016) ALL FWLR (PT. 849) 807 at 836.
He submitted that a clinical perusal of the evidence of PW3 on Pages 113 – 117 of the Record and the contents of Exhibits 10 and 11 together with the confessional statements of the Appellant will lead to the following unassailable conclusions:-
a) That the Appellant and his cohort attacked the deceased, TANIMU INUWA in the course of a robbery operation wherein the deceased Bajaj Motorcycle was collected.
b) That the said Tanimu Inuwa died in the course of the robbery attack.
c) That the Appellant and his cohort were responsible for the death of the deceased as they willingly confessed to the killing.
He submitted that from the above settled facts the learned trial Judge was right to have arrived at the conclusion that the Appellant and the 2nd Accused person are guilty of culpable homicide pursuant to Section 221 of the Penal Code.
One notable thing that runs through the gamut of this case and in favour of the Respondent is the relevance and weight of the confessional statements – Exhibits 8 and 12 made by the Appellant.
The law is that a free and voluntary confession of guilt made by an Accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession.
See: EFFIONG VS. THE STATE (1998) 8 NWLR (PT. 562) 362; ULUEBEKA VS. THE STATE (2000) 4 SC (PART 1) 203; IDOWU VS. THE STATE (2000) 7 SC (PT. 11) 50; ALARAPE VS. THE STATE (2001) 14 WRN 1 SC; OSENI VS. THE STATE (2011) 6 NWLR (PT. 1242) 138; IBRAHIM VS. THE STATE (2011) 1 NWLR (PT. 1227) 1; BRIGHT VS. THE STATE (2012) 8 NWLR (PT. 1302) 297; MUSA VS. THE STATE (2012) 3 NWLR (PT. 1286) 59;
In this respect and as it relates to Issue Five, I do agree with the learned trial Judge when he held at Page 165 of the Record that:
‘By the combination of the testimony of a witness in this case, particularly PW3, the corroborative evidence in Exhibits 10 and 11 as well as the confessional statements of the accused persons, I find that the prosecution has proved beyond reasonable doubt the offence of culpable homicide contrary to Section 221 of the Penal Code against the accused persons.’
Issue Five is resolved against the Appellant.
ISSUE SIX
On Issue Six, learned Counsel for the Appellant submitted that the Appellant told the Court that on 08/08/2012 he was sent on errand by his boss, one ALHAJI SHEHU and as he was rearing cattle, he was arrested by Vigilantes at about 12 Noon.
Counsel submitted on the above that the Appellant raised his defence of alibi with the Police timeously but the Police refused to investigate it as required by law. That the Appellant maintained his defence before the learned trial Judge and that again his defence was discarded on the ground that the Police were not confronted with the facts of the alibi.
He submitted that it is trite law that once an Accused person raised a defence of alibi, the burden of disproving it rests on the prosecution. That it suffices to say that where an Accused person sets up alibi in answer to a charge he therefore does not assume responsibility of proving the answer. The onus lies on the prosecution to prove beyond reasonable doubt that the Accused person was not only at the scene of crime but that he committed the offence.
He referred to the cases of:
IREGU VS. THE STATE (2013) 12 NWLR (PT. 1367) 92 at 128 – 129;IDEMUDIA VS. THE STATE (2015) 17 NWLR (PT. 1488) 385 – 397; ANI VS. THE STATE (2001) 16 NWLR (PT. 1168) 443 at 460 – 461;
AMODU VS. THE STATE (2010) 2 NWLR (PT. 1177) 47 at 460 – 461.
He submitted further that it is trite that where the defence of alibi put forward by the Accused person is not properly and adequately investigated, a conviction reached thereof must be quashed.
He referred to the cases of:
ANYANWU VS. THE STATE (2012) 16 NWLR (PT. 1326) 222 at 289;
EKE VS. THE STATE (2011) 3 NWLR (PT. 1235) 589 at 606;
JEREMIAH VS. THE STATE (2012) 14 NWLR (PT. 1320) 248 at 281
and concluded that the learned trial Judge did not consider the defence of alibi raised by the Appellant contrary to the well settled position of the law in this regard.
On Issue Six, learned Counsel for the Respondent submitted that the Appellant did not furnish any reasonable alibi worthy of consideration either to the Police or before the trial Court.
He submitted that it is not only that the defence was not timeously raised but also that the Appellant failed to provide particulars that would have necessitated any check by the Police.
He referred to the cases of:
SOWEMIMO VS. THE STATE (2004) 11 NWLR (PT. 885) 515; and
UDOEBRE VS. THE STATE (2001) FWLR (PT. 59) 1244 – 1259
and urged us to resolve the Issue in favour of Respondent.
On Issue Six, I readily agree with the observation of the learned Counsel for the Respondent that the Appellant in this case did not furnish any reasonable alibi worthy of consideration either to the Police or before the trial Court.
The learned trial Judge considered and rejected the said alibi of the Appellant as 1st Accused on Pages 162 – 163 of the Record; first on the ground that a consideration of the evidence available including that of the prosecution witnesses makes the suggestion of the Appellant that he was arrested for the offence on 08/08/2012 before the commission of the offence to be incredible. More so, when the Appellant admitted at cross-examination from the prosecution that none of his relations knew he worked for an ALHAJI neither were they aware of his where about.
Secondly, the learned trial Judge also rejected the defence of alibi of the Appellant and his 2nd Accused for their stories relate to the time each of them was arrested and not to the time of the commission of the offence in question. As a matter of law, it is the bounden duty of an Accused person to raise the defence of alibi timeously and/or at the earliest available opportunity and usually on first contact with the Police. This is to enable the Police to carry out their own imperative duty of investigating such defence of alibi. Failure of an Accused to raise the defence of alibi timeously vitiates the defence.
See:
NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170;
RASAKI VS. THE STATE (2011) 16 NWLR (PT. 1273) 251; and
ADEYEMI VS. THE STATE (2011) 5 NWLR (PT. 1239) 1;
It is also incumbent on an Accused who wishes to say he was not at the scene of crime (alibi) to furnish full particulars and details of his where about on the date and time in question to the Police, so that the Police would not go astray in carrying out their duty of investigating the defence of alibi.
See: NWATURUOCHA VS. THE STATE (supra)
In the instant case, beyond the fact that the so called alibi of the Appellant was raised for the first time at the trial or that sufficient details were not furnished or even that other facts admitted by the Appellant rendered the ?alibi? contradictory and inconsistent ? the bigger question is whether the Appellant had put up a defence of alibi properly so called.
The learned trial Judge was right to have held inter alia at Page 163 of the Record that:
‘It is surprising that the Accused persons were concerned about the places where they were allegedly arrested rather than where they were when the offence was being committed.’
and also to have refused such a plea by the Appellant.
Issue Six is resolved against the Appellant.
ISSUE SEVEN
On Issue Seven, learned Counsel for the Appellant urged us to observe that the Respondent did not call the only eye-witness (Zuwairat AbdulKaremm) who is the only person that can identify the real perpetrator of the crime.
He referred to the cases of:
OKANLAWON VS. THE STATE (2015) 17 NWLR (PT. 1489) 445 at 473 – 474;
ARCHIBONG VS. THE STATE (2004) 1 NWLR (PT. 855) 488 at 509
to demonstrate the essentiality of identification parade in certain circumstances especially where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence.
He submitted that in armed robbery cases and/or in trial of this nature where the Appellant has been sentenced to death, identification parade ought to be conducted.
He referred to the cases of:
ANI VS. THE STATE (2009) 16 NWLR (PT. 1168) 443 at 460;
MARTINS VS. THE STATE (1997) 1 NWLR (PT. 481) 355 at 370
He concluded that the failure of the Respondent to conduct a proper Identification Parade occasioned a miscarriage of justice on the Appellant.
Learned Counsel for the Respondent submitted that the case falls within the class of cases in which there was no need for an Identification Parade. He urged us to recall that on his arrest, the Appellant confessed orally to PW3 before making a written confession on how he and the 2nd Accused executed the robbery.
He submitted that the community reading of the evidence of PW3 with both oral and written confessions of the Appellant gives an exception to the need for an Identification Parade.
It is trite law that where as in the instant case, an Accused person by his confession has identified himself, there would be no need for any further Identification Parade.
See:
ARCHIBONG VS. THE STATE (2004) 1 NWLR (PT. 855) 488 at 509
USUNG VS. THE STATE (2009) ALL FWLR (PT. 462) 1203
Issue Seven is resolved against the Appellant.
ISSUE EIGHT
On Issue Eight, learned Counsel for the Appellant submitted that the Respondent’s witnesses gave several weak, unsubstantiated and unproven evidence before the trial Court. Those examples which he said the learned trial Judge wrongly relied on include:-
1) PW2 (Inspector Zakari Umar) under his cross examination admitted that the alleged statement tendered through him was not recorded in the language the Appellant understands and admitted that the Appellant is Fulani by tribe.
2) PW2 (Inspector Zakari Umar) whose only duty was to record the statement of the Appellant admitted at page 92 of the record said that he travelled to the scene of the crime 3 days after the crime was committed.
3) At page 113 of the record, PW3 (Ada Michael) admitted that she never met any of the perpetrators of the crime on getting to the scene of the crime.
4) PW2 and PW3 did not have the opportunity to observe the features of whoever committed the crime.
5) None of the Respondent’s witnesses linked the Appellant with the offences he was charged with let alone the exhibits tendered at the trial.
6) The Respondent did not link the Appellant with any other person as having committed the offence with which he was charged throughout the course of trial.
He submitted that it is the duty of the prosecution to prove its case beyond reasonable doubt and as such, where doubts exist in the case of the prosecution, same must be resolved in favour of the Accused.
He referred to the cases of:
AL ‘MUSTAPHA VS. STATE (2013) 17 NWLR (PT. 1303) PAGE 365 at 409, IKUMONIHAN VS. THE STATE (2014) 2 NWLR (PT. 1392) 564 at 591; He submitted that the learned trial Judge wrongly evaluated the evidence before it and that the decision of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
Learned Counsel for the Respondent adopted all the arguments in respect of the submissions made under the preceding Issues and urged us to resolve this Issue in favour of the Respondent.
Appellant’s Issue Eight is an omnibus recapitulation of the preceding Issues in this Appeal.
I adopt my decisions on Issues One to Seven in resolving Issue Eight against the Appellant.
Having resolved the Eight (8) Issues in this Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.
The Judgment, conviction and sentence of the Appellant by Hon. Justice A. O. AKINPELU on the 19th day of January, 2017 in the case No. KWS/4C/2014 is hereby affirmed.
HAMMA AKAWU BARKA, J.C.A.: The facts germinating this appeal has been eloquently set out in the lead judgment of my learned brother MOJEED ADEKUNLE OWOADE PJ/JCA.
His resolution of the eight issues identified, is agreeable to me as well as the conclusions reached. I also agree that the appellant failed to satisfy me as why the well conducted judgment of the lower Court should be tempered with, and I accordingly join in dismissing the appeal for want of merit. Hence I affirm the decision of the lower Court delivered in suit No. KWS/4C/2014 on the 19th of January, 2017, per A.D. Akinpelu J.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother MOJEED ADEKUNLE OWOADE, J.C.A., and I agree with his reasoning and conclusion. I also see no merit in the appeal and accordingly dismiss it.
Appearances:
Taiye Oniyide, Esq. with him, Alex Owoeye, Esq.For Appellant(s)
Jimoh Adebimpe Mumini, Esq. Director, Public Prosecution, (DPP) Kwara State Ministry of Justice with him, M. J. Orire (Mrs.) Principal State Counsel, (PSC); and AbdulMumeen Busari, Esq. Senior State Counsel, (SSC)
For Respondent(s)
