MUHAMMED MANU v. THE STATE
(2019)LCN/13406(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/IB/88C/2017
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
MUHAMMED MANU Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE BURDEN OF PROOF IN CRIMINAL TRIALS
It is settled principle of law that in criminal trial the standard of proof required is that of proof beyond reasonable doubt. Section 135 (1) of the Evidence 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt. See Dibie v. State (2004) 14 NWLR (pt. 893) 284 and Itu v. State (2016) LPELR 26063 ? SC.
The commission of a crime is proved beyond reasonable doubt when the evidence against the accused is strong and cogent enough as to leave only a remote probability in his favour that can be dismissed with the sentence ?of course it is possible, but not in the least probable? that he committed the offence. However proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. See Iwunze v. FRN (2013) 1 NWLR (pt. 1334) 119, Afolalu v. State (2010) 16 NWLR (pt. 1220) 584 and Ebeinwe v. State (2011) 7 NWLR (pt. 1246) 402. For the prosecution to discharge the onus of proof, there are three ways or methods by which the commission of a crime can be established.
(1) By confessional statement.
(2) By Evidence of eye witness.
(3) By circumstantial evidence.
See State v. Gwangwan (2015) 63 NSCQR 1 at 45 and Adeyemo v. State (2015) 16 NWLR (pt. 1485) 311 at 329 SC. PER TALBA, J.C.A.
THE CRIMINAL OFFENCE OF CONSPIRACY
Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has infact been committed. See Obiakor v. The State (2002) 6 SC (pt. 11) 33 at 39 ? 40, Yakubu v. State (2014) 8 NWLR (pt. 1408) 11 at 123 ? 124 and Kaza v. State (2008) 7 NWLR (pt. 1085) 125 at 176.
The offence of conspiracy to commit robbery is created by Section 6 (b) of the Armed Robbery and Firearms (Special Provisions) Act Cap R II Laws of the Federation of Nigeria, 2004. The substance of the offence of conspiracy is the agreement between the parties to do an unlawful act or a lawful act by unlawful means. The actus reus of the offence of conspiracy is the agreement between at least two persons to do an unlawful act or a lawful act by unlawful means. See State v. Gwangwan (Supra), Taofeek Adeleke v. State (2013) 56 (pt. 2) NSCQR 1193 at 1229 and Maideribe v. FRN (2013) 56 (pt. 2) NSCQR 760 at 795.
In order to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. It is always difficult to prove the offence of conspiracy because it is often hatched in secrecy. It is usually inferred from the facts and evidence led. The Courts therefore usually tackle the offence of conspiracy as a matter of inference to be deduced from evidence of criminal acts or inactions of the parties concerned. See Semiu Afolabi v. State (2013) 54 (pt. 2) NSCQR 822 at 857 and Kayode v. State (2016) LPELR ? 40028 SC.
In the recent case of Olakunle v. State (2018) 6 NWLR (pt. 1614) 91 at 109 para B ? C the erudite jurist Eko JSC said:
?In law conspiracy can be interfered from acts of the accused where there is no direct evidence of an agreement between the accused. PER TALBA, J.C.A.
ELEMENTS OF THE OFFENCE OF CONSPIRACY
Conspiracy has been defined as the agreement of two or more persons to commit an unlawful act by means, the two or more persons must be found to have combined in order to ground a conviction for conspiracy. See Yakubu v. State (2012) 12 NWLR (pt. 1313) 131. For the offence of conspiracy to be in existence the following elements must be established.
(a) There must be consent of two or more persons.
(b) There must be an agreement which is an advancement of an intention concerned in the mind of each person secretly, that is mens rea.
(c) The secret intention must have been translated into an orient act or omission or mutual consultation and agreement that is actus reus. See Mohammed v. State (1991) 5 NWLR (pt. 192) 4381 and Iden v. State (1994) 8 NWLR (pt. 365) 719. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Oyo State High Court delivered on the 22nd day of December, 2014.
The Judgment is at pages 85-94 of the records. The Notice of Appeal was filed on the 17th February, 2017 pursuant to the order of this Court made on the 14th February, 2017, it is at pages 95-98 of the records.
?The Appellant brief was filed on the 29th day of March, 2017. The Respondent brief was filed on the 21st day of November, 2018 and it was deemed on the 22nd day of November, 2018. Both the Appellant and the Respondents brief contain statement of facts. I adopt that of the Respondents which is more elaborate. The Appellant was arraigned before the High Court of Justice Oyo Judicial Division on a two counts charge of Conspiracy to Commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act and Armed Robbery contrary to Section 1(2)(a) and (b) of same. It was alleged that the Appellant and two others now at large, on or about the 30th day of September, 2012 at about 23:00 hours conspired to commit Armed Robbery and they
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robbed one Abubakar Moshood at Gaa Osanmo, Iseyin within the jurisdiction of the lower Court. They armed themselves with dangerous weapons to wit: Cutlasses and Sticks. They forcefully gained entry into the victims home while he was sleeping with his family. They carted away the sum of Two Hundred Thousand Naira (N200,000:00) belonging to Abubakar Moshood. When the son of Abubakar Moshood tried to help his father, they inflicted a deep matchet cut on his head. With the help of their neighbours they were able to overpower and arrest the Appellant while the two others escaped. Abubakar Moshood thereafter reported the incident at the Police Station and the Appellant was arrested.
The Appellant sustained injuries during the scuffle with Abubakar Moshood son. The Appellant was taken to the hospital by the Police.
The Appellant was thereafter arraigned on the 5th February, 2014 and he pleaded not guilty to the two counts charge. The Prosecution called three witnesses and tendered five (5) exhibits.
The Appellant gave evidence in his own defence without calling any other witness. The defence and the Prosecution Counsel filed and adopted their written
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address. In a considered Judgment delivered on the 22nd December, 2014, the learned trial Judge convicted the Appellant on the two counts charge. The Appellant was sentenced to five (5) years imprisonment with hard labour for the offence of Conspiracy and death sentence for the offence of Armed Robbery.
Being dissatisfied with the conviction and sentence, the Appellant filed the Notice of Appeal with four grounds of appeal. In the Appellants Brief of Argument the Appellant raised two issues for determination, distilled from the four grounds of appeal.
The two issues are:
1. Whether the Appellant was proved beyond reasonable doubt by the evidence adduced by the Prosecution as one of the members of the gang that actually committed the offence of Conspiracy and Armed Robbery at the house of the complainant.
2. Whether the learned trial Judge rightly relied on Exhibit C being the purported Confessional Statement of the Appellant when the interpreter of the Statement was not called to testify and when same was obtained during a question and answer session.
?
Equally in the Respondent?s Brief of Argument two issues were distilled for
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determination thus:
1. Whether there was any credible evidence outside Exhibit C linking the Appellant to the crime to justify his conviction.
2. Whether the learned trial Judge rightly relied on the Appellants Confessional Statement Exhibit C.
?
In the resolution of issues contained in the Briefs of Argument, an Appellate Court is not under a regimental duty to accept the issues formulated by the parties. An Appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity, if it appears what the issues they formulated are awkward or not well framed. As a matter of procedure an Appellate Court can formulate issues for determination and as long as the issues cover the grounds of appeal. The purpose of refraining issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. See
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Okoro v. State (1988) 5 NWLR (pt. 94) 255 and Latunde v. Lajinfin (1989) 3 NWLR (pt. 108) 177.
Furthermore in the interest of justice and for a just determination of an appeal, an Appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the Appellants Brief of Argument or that of the Respondent in the determination of an appeal. See.A.I.B Ltd v. I.D.S Ltd (2012) 17 NWLR (pt. 1328) 1 at 31 andSha (jnr) v. Kwan (2000) 8 NWLR (pt. 670) 685.
In view of the above settled principle of law it is my humble view that the only issue that would lead to a more judicious and proper determination of this appeal is thus:
Whether from the totality of the evidence before the Court, the prosecution has been able to establish its case against the Appellant beyond reasonable doubt.
?
The Appellants Counsel argued and submitted that the learned trial Judge relied on the evidence of Pw2 as well as Exhibit C in applying the elements of Conspiracy without taking into consideration
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the evidence of the Appellant. He said the Appellant testified during trial that they went to a place at Iapako Iseyin for a Marriage Ceremony on 30th September, 2012. They were three in number. At the party he called a girl and during discussions some guys met him there and started beating him. His other friend ran away. In the course of beating him he became unconscious. And that Pw3 gave evidence before the trial Court that the Appellant and his friends came to the camp to visit a girlfriend.
The Appellants Counsel submitted that from the testimony of the Appellant which was corroborated by the evidence of Pw3, it is crystal clear that the Appellant went to the camp for a Marriage Ceremony. There is nothing to suggest any inference of Conspiracy to warrant the Appellants conviction. He submitted that for the Prosecution to secure a conviction of Conspiracy, they must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. He relied on the case of Daboh v. State (1977) 5 SC. 122 and David Omoyola & Ors v. The State (2009) 7 NWLR (pt. 1139) 148.
?
The Appellants Counsel further
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submitted that the findings of the learned trial Judge at page 89 of the record of appeal that:
. From the totality of evidence before me Conspiracy may be inferred from the circumstances described above was not borne by the evidence before the lower Court.
Learned Counsel submitted that there is no evidence before the trial Court to the effect that the Appellant participated in the Armed Robbery as a result of the prior agreement amongst the Conspirators. He urged the Court to discharge and acquit the Appellant based on the first count of Conspiracy.
On the ingredients of Armed Robbery, the learned Counsel referred to page 89 of the record of appeal where the learned trial Judge sets out the ingredients of Armed Robbery to wit:
a) That there was robbery.
b) That the robbers were armed with Firearms or offensive weapons.
c) That the accused person participated in the robbery.
He referred to the cases of Bozin v. The State (1985) 2 NWLR (pt. 8) 465; Alabi v. The State (1993) 7 NWLR (pt. 307) 511 and Bello v. State (2007) 10 NWLR (pt. 1047) 564.
The Appellants Counsel submitted that for the
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Prosecution to succeed in proof of the offence of Armed Robbery there must be proof beyond reasonable doubt of those ingredients. He submitted that the trial Judge held that the Prosecution has proved that there was robbery incident in which the Appellant was caught on the spot though the other members of the group managed to escape.
He said contrary to the holding of the trial Judge that the Appellant was caught at the spot it is in evidence that the Appellant was arrested at his hut in the camp. He said Pw2 at page 42 lines 23 of the record of appeal had this to say:
?The accused was arrested in front of his hut by neighbours.”
And Pw3 at page 45 of the record of appeal he stated that:
?The accused was arrested on that day, his hut after the complainants hut.?
The leaned Counsel submitted that the investigation Police Officer at Iseyin Police Station who is the Pw1 did not conduct any investigation rather his findings was as a result of what he saw on the statement which he recorded from the Appellant. He referred to page 41 of the record of appeal last paragraph where Pw1 stated thus:
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?My findings are not based on what Abu and Moshood told me but on his Confessional Statement.?
He submitted further that the said Appellants statement was rejected by the Court in its ruling delivered on the 12th day of February, 2014, after an objection raised by the Appellants Counsel. Therefore the entire evidence of Pw1 ought to have been discarded by the lower Court.
Learned Counsel referred to the evidence of Pw2 at page 42 lines 11 of the record of appeal where Pw2 stated thus:
?I know the accused. On the day of the incident around 3am some people came which we were sleeping at our camp. The accused and two other people came to our camp on 30th September, 2012. They took the money meant for my daughter?s Marriage. Neighbour who heard the noise came.”
The leaned Counsel paused a question thus: how did the Pw2 get to know the Appellant?
?
The Pw2 gave evidence at page 42 line 24 of the record that ?I have never seen the accused before.? And Pw2 evidence that, ?neighbours who heard the noise came? was debunked by the Pw3 when he testified in evidence at page 45 line 21 of the record of
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appeal that:
?Apart from the complainant and his son there is no other eye witness.”
The learned Counsel submitted that the Pw2 did not have the opportunity of seeing the Appellant during the robbery incident.
He said the Pw3 just like the Pw1, he did not speak from facts which he knew. He referred to page 45 lines 16 of the record of appeal where Pw3 said ?I told the Court what I was told by the complainant.?
Learned Counsel submitted that from the piece of evidence and in the apparent contradictions in the Prosecution witnesses, it goes to show the truth of what happened on the 30th day of September, 2012 was not disclosed.
Learned Counsel submitted that the contradiction in the evidence of Pw2 and Pw3 affects the proper identification of the Appellant as one of the robbers who robbed Pw2. He relied on the case of Tanko v. The State (2006) 18 NWLR (pt. 1114) 591 where the Court held:
?That being so where the identity of an accused person as a participant in the crime charged is in issue, a trial Court is enjoined to warn itself and thus be cautious and meticulous in the examination of the evidence
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adduced, so as to see whether there are weaknesses in the evidence capable of engendering any allegation that the accused was sufficiently identified by the witnesses at the time of the commission of the offence charged. This requirement is more desirable in situations where the offence charged is Armed Robbery as in this case where the penalty is the highest known to our law, which is death.”
The learned Counsel submitted further that it was not established by evidence that the Appellant used Exhibit A (the cutlass) to commit Armed Robbery. Pw3 said at page 44 lines 24 that a cutlass was also handed over to him for investigation, apart from the case file and the accused person.
?
But Pw3 never told the trial Court the outcome of his investigation regarding Exhibit A. Whether Exhibit A was obtained from the Appellant or not is not known. The learned Counsel submitted that there is contradiction in the evidence of Pw1 and Pw2 with respect to his neighbours. At page 18 line 1 of the record of appeal Pw1 said, the complainant and other available witnesses made statements. While Pw2 during Cross Examination, he said only Abubakar and himself went to
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the station to report the incident. The neighbours came out when the Police visited the scene though none of them followed them to the Police Station. There is contradiction in the testimonies of Pw1 and PW2 regarding whether Pw2?s neighbor went to the Police Station and wrote a statement.
As to who arrested the Appellant the learned Counsel submitted that Pw2 testified that his neighbours arrested the Appellant. But Pw3 stated that there is no statement by the complainants neghbour in the case file transferred to them at Oyo. The learned Counsel submitted further that Pw3 in his evidence at page 45A lines 10 of the record of appeal he stated that: ?I was told by the complainant that the accused is alleged to have committed robbery.”
He said the evidence remains a mere speculation and no evidence to prove that the Appellant was one of those who took part in the Robbery. He relied on the case of State v. Salawu (2012) ALL FWLR (pt. 614) and State v. Ajayi (2016) 14 NWLR (pt. 1532) 196.
On Exhibit C the Confessional Statement of the Appellant, the Appellants Counsel submitted that at page 44 of the record of appeal Pw3 testified
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as follows:
?The accused statement was taken and the scene of crime visited. I also took the complainant statement Sgt. Ayandayo Aayantunde interpreted the accused statement in my presence. This is the accused statement I recorded.”
Learned Counsel submitted that from the above piece of evidence it is crystal clear that Sgt. Ayandayo Aayantunde interpreted the accused statement from English Language to Hausa Language. And Sgt. Ayandayo Aayantunde was not called to testify as a witness. And that failure to call Sgt. Ayandayo Aayantunde was fatal to the case of the Prosecution.
The learned trial Judge ought not to have relied on the statement to convict the Appellant on the principle of law that where an interpreter is used in the recording of the statement of an accused person, such statement is in law inadmissible in evidence unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same, he relied on the case of Nwaeze v. State (1996) 2 NWLR (428) 1 and FRN VS. Usman (2012) 8 NWLR (pt. 1301) 141.
?
Still on Exhibit C the Confessional
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Statement, the learned Counsel submitted that Exhibit C was obtained by Pw3 during a question and answer session. He referred to page 45A line 7 of the record of appeal where Pw3 stated that:
?Before I recorded Exhibit C he was cautioned it was a question and answer session.”
The learned Counsel submitted that where a statement is the product of a question and answer session between the accused and the Police Officer such a statement cannot be regarded as free and voluntary. He cited the case of Namsoh v. State (1993) 5 NWLR (pt. 292) 129 SC to buttress his argument.
He submitted further that for a statement of an accused person to be admissible in evidence, it must have been made voluntarily. He relied on the case of Sunday Ihuebeka v. The State (2000) FWLR (pt. 11) 1827.
Learned Counsel submitted that the learned trial Judge should have discountenanced Exhibit C in his Judgment being a product of question and answer session. He said if Exhibit C is expunged from the record there would be no legal evidence which is required for the Appellant to be convicted of the Offences with which he had been convicted. The Appellants
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Counsel urged the Court to resolve the issues in favour of the Appellant and discharge and acquit him.
The Respondents Counsel argued and submitted that from the evidence of Pw2 and the Appellants Confessional statement, the Appellant and his cohorts armed themselves with the intention of robbing the inhabitants of the camp they invaded. The residents of the camp fought back hence the Appellant was arrested. The learned Counsel submitted that a trial Court may infer Conspiracy from a set of facts through which a common purpose is achieved. He cited the case of Sowemimo v. State (2012) 2 NWLR (pt. 1284) 372.
The learned Counsel submitted further that the act of arming themselves and jointly carrying out the attack on Pw2 with other two at large is the proof of the Conspiracy formulated by the Appellant.
On the charge of robbery the learned counsel submitted that the evidence given by the prosecution witnesses is substantially corroborated by the Appellant himself. Pw2 testified that he was in his house sleeping when three armed men with cutlasses and sticks broke down his door and forcefully gained entry into his abode.
?
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The Appellant in Exhibit C stated that: ?Three of us came to the camp with cutlasses and sticks of rearing cattle?. Pw 2 stated further that his son who tried to protect him was attacked and several matchet cuts were inflicted on his head, causing him grievous harm. The Appellant further states in Exhibit C ?one among the people we entered into their house started to pursue us and met me, he then used his stick to hit me on my head and I fell down while he was trying to hold my neck I used my cutlass to matchet him on his head?.
The Respondent?s counsel also referred to the evidence of Pw1 where he stated that ?At the scene we met the accused person in pool of blood for matchet cuts. The accused was taken to Fadock Private Hospital Iseyin for treatment?. And Pw2 had earlier testified that some neighbor inflicted matchet cuts on the Appellant. When, Pw2 was robbed he was able to, with the help of their neighbours Apprehend the Appellant who was later arrested by the police at the scene of the crime, there is therefore no mistaken identity. The Appellants story that he came for a marriage ceremony and while he stood talking to a
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girl people came and started beating him is a mere after thought the Appellant himself confessed his intention at the camp in Exhibit C. The Appellant admitted that the matchet Exhibit A found at the scene of the crime belongs to him. The learned counsel submitted that there is no contradiction in the testimony of Pw1 and Pw2. Only Pw2 and his son went to report that incident in the first instance. He said it is trite that a party need only call material witnesses in proof of his case and need not call all available witnesses to testify. He relied on the case of Afolalu v. State (2010) 16 NWLR (pt. 1220) 584.
On Exhibit C the learned counsel submitted that it is a confessional statement which the Appellant tried to deny making it. But facts like his state of origin and the where about of his wife and children were rightly stated in it. The Appellant admitted that: ?Three of us came to the camp with cutlasses and sticks of rearing cattle?. And Pw2 testified that they were attacked by men armed with sticks and cutlasses. And when his son tried to rescue him the assailant struck his son on the head with a matchet.
?The Appellant also stated
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in Exhibit C that: ?—– one among the people we entered into their house started to pursue us and met me then used his stick to hit me on my head and I fell down while he was trying to hold my neck I used my cutlass to matchet him on his head?.
Learned counsel submitted that the statement of the Appellant was recorded by Pw3 in a question and answer session. And during trial the Appellant said it was not his thumb print on Exhibit C. It is trite law that a Court can convict an accussed person based on his confessional statement provided the following conditions are satisfied:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Was the prisoner one who has the opportunity of committing the crime?
(e) Is his confession possible?
(f) Is it consistent with other facts which have been ascertained and have been proved?
See Haruna v. AG Federation (2012) 9 NWLR (pt. 1306) 419 and Ogoala v. The State (1991) 2 NWLR (pt. 175) 509.
?The learned counsel submitted that it is enough
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if the Court is satisfied that the evidence before the Court has proved the ingredients of the offence and is sufficient to establish the guilt of the Accused. The onus of proving a Criminal case beyond reasonable doubt does not require the prosecution to prove the guilt of the accused beyond all shadow of doubt.
See Abokokuyanro v. The State (2012) 2 NWLR (pt. 1285) 530 at 562 and Ben v. The State (2005) 11 NWLR (pt. 936) 335.
The learned counsel urge the Court to dismiss the appeal and affirm the judgment of the lower Court.
It is settled principle of law that in criminal trial the standard of proof required is that of proof beyond reasonable doubt. Section 135 (1) of the Evidence 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt. See Dibie v. State (2004) 14 NWLR (pt. 893) 284 and Itu v. State (2016) LPELR 26063 ? SC.
The commission of a crime is proved beyond reasonable doubt when the evidence against the accused is strong and cogent enough as to leave only a remote probability in his favour that can be
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dismissed with the sentence ?of course it is possible, but not in the least probable? that he committed the offence. However proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. See Iwunze v. FRN (2013) 1 NWLR (pt. 1334) 119, Afolalu v. State (2010) 16 NWLR (pt. 1220) 584 and Ebeinwe v. State (2011) 7 NWLR (pt. 1246) 402.
For the prosecution to discharge the onus of proof, there are three ways or methods by which the commission of a crime can be established.
(1) By confessional statement.
(2) By Evidence of eye witness.
(3) By circumstantial evidence.
See State v. Gwangwan (2015) 63 NSCQR 1 at 45 and Adeyemo v. State (2015) 16 NWLR (pt. 1485) 311 at 329 SC.
Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has infact been committed. See Obiakor v. The State (2002) 6 SC (pt. 11) 33 at 39 ? 40, Yakubu v. State (2014) 8 NWLR
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(pt. 1408) 11 at 123 ? 124 and Kaza v. State (2008) 7 NWLR (pt. 1085) 125 at 176.
The offence of conspiracy to commit robbery is created by Section 6 (b) of the Armed Robbery and Firearms (Special Provisions) Act Cap R II Laws of the Federation of Nigeria, 2004. The substance of the offence of conspiracy is the agreement between the parties to do an unlawful act or a lawful act by unlawful means. The actus reus of the offence of conspiracy is the agreement between at least two persons to do an unlawful act or a lawful act by unlawful means. See State v. Gwangwan (Supra), Taofeek Adeleke v. State (2013) 56 (pt. 2) NSCQR 1193 at 1229 and Maideribe v. FRN (2013) 56 (pt. 2) NSCQR 760 at 795.
In order to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. It is always difficult to prove the offence of conspiracy because it is often hatched in secrecy. It is usually inferred from the facts and evidence led. The Courts therefore usually tackle the offence of conspiracy as a matter of inference to be deduced from evidence of
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criminal acts or inactions of the parties concerned. See Semiu Afolabi v. State (2013) 54 (pt. 2) NSCQR 822 at 857 and Kayode v. State (2016) LPELR ? 40028 SC.
In the recent case of Olakunle v. State (2018) 6 NWLR (pt. 1614) 91 at 109 para B ? C the erudite jurist Eko JSC said:
?In law conspiracy can be interfered from acts of the accused where there is no direct evidence of an agreement between the accused?
The Appellant in this case was charged with conspiracy to commit Armed Robbery. The prosecution are required by law to adduce evidence to establish the fact that the Appellant agreed with some other person or persons to commit Armed Robbery.
?
In this instant case, the learned trial judge made findings and concluded at pages 88 ? 89 of the records of appeal as follows:
?The 1st count against the accused person is conspiracy. Conspiracy has been defined as the agreement of two or more persons to commit an unlawful act by means, the two or more persons must be found to have combined in order to ground a conviction for conspiracy. See Yakubu v. State (2012) 12 NWLR (pt. 1313) 131.<br< p=””
</br<
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For the offence of conspiracy to be in existence the following elements must be established.
(a) There must be consent of two or more persons.
(b) There must be an agreement which is an advancement of an intention concerned in the mind of each person secretly, that is mens rea.
(c) The secret intention must have been translated into an orient act or omission or mutual consultation and agreement that is actus reus. See Mohammed v. State (1991) 5 NWLR (pt. 192) 4381 and Iden v. State (1994) 8 NWLR (pt. 365) 719.
Pw2 who is the victim of the alleged crime gave evidence that the accused and two others now at large armed with cutlass robbed him of the sum of N200,000:00k and the accused in his statement Exhibit C mention one Danjuma and Mumini.
It is trite law that conspiracy can be found by direct evidence or inference to be drawn from criminal acts of parties. See Balogun v. A.G. Ogun State (2002) FWLR (pt. 78) 1144 at 1159.
?From the totality of evidence before me conspiracy may be inferred from the circumstances described above more so. The accused himself stated that he was not invited but came with two of his friends
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to the neigbourhood around 11:00 pm.
Based on the evidence led in this case, I hold that the prosecution has established the guilt of the accused person as charged in count 1. I accordingly find him guilty as charged.”
From the findings and the conclusion arrived at by the learned trial judge, it is clear that he relied on three piece of evidence thus;
1. The evidence of Pw2 the complainant and victim of the alleged crime.
2. The evidence of the Appellant at the trial.
3. Exhibit C the confessional statement of the Appellant.
The Appellant?s counsel has argued and submitted that there is a contradiction in the evidence of Pw2 and Pw3 which affects the proper identity of the Appellant. He also submitted that there are contradictions in the evidence of Pw1 and Pw2 with respect to his neighbours. I have critically examined the evidence of Pw1, Pw2 and Pw 3 and I am unable to see any material contradiction. It is not every contradiction in the oral evidence of witnesses that can impeach their credibility but the contradiction which can discredit any witness must be on a material fact.
In Sele v. The State
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(1993) NWLR (pt. 269) 276 at 288 Belgore JSC (as he then was) stated thus:
?Contradictions to be fatal to the prosecution?s case must go to the substance of the case and not be a minor nature. If every contradiction however trivial to the overwhelming evidence before the Court will vitiate a trial, then human faculty to miss some minor details due to lapse of time and error in narration in order of sequence will make nearly all prosecution fail.”
It should be noted that the wisdom behind this principle of law is that, it is not possible for any two witnesses to narrate the same story in exactly the same way and there may be some discrepancy in their evidence. As a matter of fact extreme similarity in the oral evidence of two or more witnesses may raise the suspicious of a concocted story or schooled witness.
The Appellants counsel has also challenged the admissibility of Exhibit C the confessional statement of the Appellant on two grounds. One is that the statement was obtained as a result of a question and answer session and therefore it is inadmissible in evidence. At page 45A line 7 of the record of Appeal, Pw3 testified that:
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?Before I recorded Exhibit C he was cautioned. It was a question and answer session.”
It is settled principle of law that where a statement is the product of a question and answer session between the accused and the police officer such a statement cannot be regarded as free and voluntary.See Namsoh v. State (1993) 5 NWLR (pt. 292) 129.
For a confessional statement to be admissible in evidence it must have been made voluntarily, hence only voluntary confessional statement are relevant and admissible. The burden of proving that a confessional statement is voluntary rests on the prosecution. Therefore where a police officer admits that the confessional statement was a question and answer session, such a statement cannot in the eyes of the law be regarded as free and voluntary and it is rendered inadmissible in evidence.
In Namsoh v. State(Supra), the Supreme Court held thus:
?Where a piece of evidence which is inadmissible at all in law is wrongly admitted in evidence the proper thing to do would be to discountenance it completely when writing its Judgment.”
In this instance case, the learned trial Judge has
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failed to discountenance Exhibit C which is a product of question and answer session. It is therefore the duty of the appellate Court to exclude any inadmissible evidence wrongly admitted and deal with the case on the remaining legally admitted evidence.
Equally, the Appellant?s counsel has challenged Exhibit C the confessional statement on the grounds that Pw3 testified as follows:
?The accused statement was taken and the scene of the crime visited. I also took the complainants statement Sgt. Ayandayo Aayantunde interpreted the accused?s statement in my presence. This is the accused?s statement I recorded.”
See page 44 lines 15 of the record of appeal. The learned counsel submitted that it is Crystal Clear that Sgt. Ayandayo Aayantunde interpreted for the Appellant from English Language to Hausa Language, while Pw3 was obtaining Exhibit C. he said the interpreter was not called as a witness and failure to call the interpreter to testify as a witness is fatal. The lower Court ought not to have relied on the statement (Exhibit C) to convict the Appellant. The learned counsel relied on the following cases
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Nwaeze v.State (1996) 2 NWLR (pt. 428) 10 to 20 and F.R.N v. Usman (2012) 8 NWLR (pt. 1301) 141 where the Supreme Court held thus:
?Where an interpreter had to be used in taking down a cautioned statement of an accused person, the statement remains inadmissible unless and until the person who served as interpreter in taking down the statement is called as a witness as well as the person who wrote down the statement. Such a statement recorded through interpreter remains hearsay and therefore inadmissible and can only be confirmed by the evidence of interpreter as to the questions put to the accused person by the interpreter and the answers given to him.”
This trite principle of law was restated by the Supreme Court in the recent case ofDajo v. State (2019) 2 NWLR (pt. 1656) 281 at 298 para D ? E.
But however the Appellant?s counsel failed to cross examine Pw3 on the vexed issue of interpretation of the Appellant?s statement. The Appellant?s counsel did not raise any objection to the admissibility of Exhibit C. And when the Appellant testified he told the Court that: “The police at SARS Oyo put my thumb print
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on Exhibit C.? No issue was raised as to who the interpreter of Exhibit C was. But however the Appellant?s counsel raised the issue of failure of the prosecution to call the interpreter of the Appellant?s Statement at the lower Court in his final address. But the learned trial judge did not make any pronouncement. As a general rule every Court has a duty to pronounce on all issues before it. In other words, a Court has a duty to consider all the Defence raised by an accused person especially where the punishment is death penalty.
In this instant case the failure by the prosecution to call Sgt. Ayandayo Aayantunde who served as interpreter in taking down the statement of the Appellant renders the statement (Exhibit C) as hearsay and therefore inadmissible in evidence.
Consequent to the above findings Exhibit C is hereby discountenanced. Now what is left is the evidence of Pw1, Pw2 and Pw3. Both Pw1 and Pw3 are investigation police officers. While Pw2 is the victim of the Robbery incident.
Pw2 Moshood Abu, he gave evidence as follows:
?I live at osomo via Iseyin. I am a farmer and I rear cattle. I know Abu Abubakar he is
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my son. I know the accused.
On the day of the incident, around 3 am some people came while we were sleeping at our camp.
The accused and two other people came to our house on 30 September, 2012. They took the money meant for my daughters Marriage Neighbors who heard the noise came. I was sleeping when they came. They came around 3 am. The other two group ran away. I only know of the cutlass in possession of the accused person. They took N200,000 from me and some properties.
Neighbours were able to arrest the accused. Abubakar came to my rescue when the accused attacked me. Abubakar sustained injury on the head. The accused inflicted matchet cut on his head. The accused was arrested in front of his hut by neighbours. The matter was reported to the police at Iseyin. The police took the accused and Abubakar to fadick Hospital Iseyin. I have never seen the accused before Abu and the accused used cutlass and stick to fight. No money was recovered from the accused. The police recorded my statement at the police station. I was invited to SARS Oyo later. I made statement to SARS too. Abubakar has been indisposed since I have taken him to
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Ilorin.”
From the above piece of evidence, it has been established that there was a robbery incident which took place on the 3th September, 2012 at Iseyin around 3 am. And the robbery was an Armed Robbery hence they used cutlasses and sticks. The robbery was committed by the Appellants and two others who are at large. While the Appellant was arrested shortly after the robbery incident.
Pw1 Cpt. Friday Sule in his evidence he stated thus:
?I live at Iseyin attached to Iseyin police station. I am a policeman. I am an investigator. I know the accused. I also know Alhaji Moshood Abu. I also know Abubakar, he is Alhaji Moshhod son. On the 1/10/12, I was on duty when the complainant Alhaji Moshood in company of his son came to the station at about 11:15 am to report a case of armed robbery. I was detailed to investigate. Upon receipt of the complainant a team of four police men led inspector Henvono Omogbofue went to the scene of the incident. The team members are myself, Mr. Taiye Ajayi and PC Olabode fatai.
?At the scene we met the accused in pool of blood for matchet cuts. The accused was taken to Fadock Medical, a private
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hospital Iseyin for treatment.”
This piece of evidence has corroborated the evidence of Pw2 to the extent that there was a robbery incident which was reported at Iseyin Police Station and the Appellant was arrested at the scene of the robbery incident. What is more the Appellant himself gave evidence in his own defence and he stated thus:
?My name is Mohammed Manu. I live at Ipako Iseyin. I am a cattle rearer. On 30th September, 2012 there was a marriage ceremony at a place at Ipako, Iseyin. We were three in number. At the party I called a girl, during discussion some guys met me there and started beating me. The other friend of mine ran away. In the course of the beating, I got unconscious. The party place is the Fulani camp at the back of Ipako. I woke up from unconsciousness at the police station.
I don?t know Alhaji Moshood Abu, I went to the party with Danjuma and Mumini ?..?
Here the Appellant has accepted or rather admitted the fact that they were at the scene of the robbery himself and two others whom he gave their names as Danjuma and Mumini. He also admitted that he was
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arrested at the scene though he was unconscious and he woke up at the police station. His explanation is that they went to the scene for a marriage ceremony which they were not invited. And while he was discussing with a girl some guys met him and started beating him. Then the other two ran away. The logical question to ask is that why should anybody beat him because he was discussing with a girl?. And why should the other two persons ran away? This is an unbelievable story. I am of the humble view that the Appellant story that they were at the scene for marriage ceremony is a mere after thought therefore apart from the statement of the Appellant Exhibit C which has been discountenanced there are other sufficient evidence to support the conviction. SeeDominic Onteocha v. The State (1977) 3 FCA1.
Before a trial Court can convict in a criminal trial, the prosecution does not have to call a host of witnesses, the Court can convict on the evidence of one witness, if the Court is satisfied on cogent reasons with that evidence in preference to that of the defence. See Sunday Ndidi v. The State (2005) 17 NWLR (pt. 953) 30.
?
The Appellant counsel raised the
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issue of identification of the Appellant. The identity of a suspect would not be an issue when the offender was caught at the scene of the crime or soon after at a nearby place. In this instant case, the Appellant was arrested at the scene of the crime and therefore the issue of identification does not arise.
No doubt the prosecution proved all the essential ingredients of the offence of conspiracy to commit robbery and Armed Robbery contrary to Section 6 (b)and 1 (I) and 2 (b) of the Robbery and Firearms (Special Provisions) Act Cap R II Laws of the Federation of Nigeria, 2004. It was idle to have argued to the contrary See Alabi v. The State (1993) 7 NWLR (pt. 307) 511 at 523 and Abogede v. The State (1996) 5 NWLR (pt. 44) 270 at 276.
In view of the foregoing, the sole issue is resolved in favour of the Respondent and against the Appellant.
On the whole, I find that the appeal is devoid of merit. It is hereby dismissed. The Judgment of Oyo State High Court delivered on the 22nd day of December, 2014 is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the judgment delivered by
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my learned brother, Abubakar Mahmud Talba, JCA.
The evidence on record show beyond reasonable doubt that the Appellant was rightly convicted. No doubt the alleged confessional statement of the Appellant was inadmissible same have been the product of question and answer session between the Appellant and the investigating police officer who recorded same. Furthermore, the interpreter of the interaction between the Appellant and the recorder of the statement ought to have been called as a witness. Failure to call the interpreter rendered the statement inadmissible, as being hearsay.
However, the Appellant having been arrested at the scene of crime made the issue of his identity as one of the persons who committed the offence a non-issue. His effort to extricate himself from culpability only served to tighten the noose round his neck the more.
I therefore agree with my learned brother that the appeal lacks merit and is accordingly dismissed.
NONYEREM OKORONKWO, J.C.A.: A criminal case can be established by the prosecution by various means or modes including (i) by confession (ii) by direct evidence of eye witness
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and (iii) by circumstantial evidence. These three means are not mutually exclusive but could overlap. Indeed one mode only if successful is enough to sustain a charge for the prosecution.
The lead judgment of my learned brother Abubakar Mahmud Talba, JCA has demonstrated the above principle clearly. I am in agreement with the lead judgment.
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Appearances:
D. A. Awosika, Esq. with him, M. I. Omojola, Esq.For Appellant(s)
Oluseun Abimbola, Esq. (H.A.G & C.J, Oyo State Ministry of Justice) with him, O.O. Ogundele, Esq. (Asst. Director, Oyo State Ministry of Justice), O.O. Abu Okolo, Esq. (Asst. Director L.D.P.C, Oyo State Ministry of Justice) and O.R Yusuf, Esq. (Chief State Counsel, Oyo State Ministry of Justice)For Respondent(s)
Appearances
D. A. Awosika, Esq. with him, M. I. Omojola, Esq.For Appellant
AND
Oluseun Abimbola, Esq. (H.A.G & C.J, Oyo State Ministry of Justice) with him, O.O. Ogundele, Esq. (Asst. Director, Oyo State Ministry of Justice), O.O. Abu Okolo, Esq. (Asst. Director L.D.P.C, Oyo State Ministry of Justice) and O.R Yusuf, Esq. (Chief State Counsel, Oyo State Ministry of Justice)For Respondent