MUHAMMED v. STATE (2020)

MUHAMMED v. STATE

(2020)LCN/14415(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/J/66/C/2020

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

AHMED MUHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE FUNDAMENTAL RIGHT OF AN ACCUSED PERSON TO BE INFORMED IN DETAIL OF THE CHARGE HE IS TO BE TRIED FOR

In fact Section 36 (6) (a) of the 1999 Constitution of this country guarantees his right to be informed ‘in details’ of the charge he is to be tried. That provision runs thus:
Every person who is charged with a criminal offence shall be entitled to-
(a) To be informed promptly in the language he understands and in detail of the nature of the offence.
It is in compliance with this provision that the Penal and Criminal Procedure Laws of the various States of this country and even the Administration of Criminal Justice Acts and Laws all require that a formal charge be always drafted and laid before the Court by the prosecution informing the accused person in details of the charge against him which he is to defend himself. That is also the point made by this Court per our brothers Daniel-Kalio, JCA, in Samodu Daropale v. The State CA/I/137/2004 (Unreported); Abiriyi, JCA in Bito Semaka v. The State (2018) LPELR-44001(CA) and Terhila Embarga v. The State (2018) LPELR-44085(CA) cited to us by Mr. Obi in the appellant’s brief of argument. PER UGO, J.C.A.

FUNDAMENTAL RIGHT TO FAIR HEARING

When the evidence shows such deviation the remedy of the prosecution is to apply for amendment, in which case the accused person also has the right to object to it. Even where the Court grants amendment against the accused person’s objection, and even where he does not object to the amendment, he still has a further right to recall witnesses or at least redirect its mind on the nature of the witnesses he needs to call to meet the amended charge. Besides, it is perfectly within his right to keep quiet, if the prosecution veers away from the allegation against him, and raise the issue at address stage. It is thus a grave violation of an accused person’s right to fair hearing under Section 36(6)(a) of the 1999 Constitution of this country to charge him for one specific act of criminal conspiracy and convict him for another one he was not charged as happened in this case. Such a judgment must not be allowed to stand. In saying so, I think I am on the same page with my brothers in Samodu Daropale v. The State CA/I/137/2004 (Unreported), Bito Semaka v. The State (2018) LPELR-44001(CA) and Terhila Embarga v. The State (2018) LPELR-44085(CA). PER UGO, J.C.A.

INGREDIENTS OF THE OFFENCE OF POSSESSION OF FIREARMS UNDER THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT

The ingredients of the offence of possession of firearms under the Robbery and Firearms (Special Provisions) Act which are (1) that in the possession of the accused person were firearms, (2) that the firearms were within the meaning of the Robbery and Firearms (Special Provisions) Act, and (3) whether the accused person had a valid licence issued under the Robbery and Firearms (Special Provisions) Act to possess the firearm. Here there is no controversy that the firearms – AK47, AK49, Pistol and other lethal weapons – that were found in the Vectra Car, which the lower Court imputed possession to appellant, were firearms within the meaning of the Robbery and Firearms (Special Provisions) Act. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Bauchi State, Bauchi Judicial Division of 4th December 2019 finding appellant guilty of the offences of criminal conspiracy and unlawful possession of firearms. Appellant was upon conviction sentenced to death for conspiracy and 10 years imprisonment for possession of firearms.

Appellant was the sole accused person before the Court on a three count charge of criminal conspiracy, armed robbery and unlawful possession of firearms which charges read thus:
1. That you AHMED MUHAMMED of Bakaro Ward, Bauchi L.G.A of Bauchi State belong to a group that committed several armed robberies across the States of this federation including the one (sic) took place on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda Ward, Bauchi LGA of Bauchi State within the Jurisdiction of this Honourable Court; where you and your colleagues while armed, agreed among yourselves to rob the residents of Yalwan Village, Yuguda Ward of Bauchi LGA, of their motorcycles and monies and thereby committed and offences of criminal

conspiracy, punishable under Section 97 of the Penal Code and trial by his Hon. Court.
2. That you AHMED MUHAMMED of BAKARO ward, Bauchi L.G.A of Bauchi State on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda Ward, Bauchi LGA of Bauchi State within the jurisdiction of this Honourable Court, you and your colleagues while armed, robbed the residents of Yalwan Village, Yuguda Ward of Bauchi LGA, their motorcycles and monies and thereby committed an offence of Armed Robbery and Firearms Act, LFN 2004 and triable by this Hon. Court.
3. That you AHMED MUHAMMED of BAKARO ward, Bauchi L.G.A of Bauchi State on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda Ward, Bauchi LGA of Bauchi State within the jurisdiction of this Honourable Court, found in your possession firearms to wit: two AK47 Guns, AK49, Pistol and other lethal weapons thereby committed the offence contrary to Section 3 of the Armed Robbery and Firearms Act, LFN 2004 and triable by this Hon. Court.

Appellant pleaded not guilty to the charges and the prosecution presented its case by calling four witnesses. It also tendered his

confessional statement which was marked exhibit 1.

Appellant testified alone in his defence as DW1, at the close of which parties exchanged written addresses.

In its judgment of 4th December 2019, the trial High Court acquitted appellant of the offence of armed robbery but found him guilty of the offence of criminal conspiracy to rob people in Gwarimpa in Abuja (as opposed to agreement to rob people residents of Yalwan Village of Yuguda Ward in Bauchi that the charge alleged was their agreement) and also for unlawful possession of firearms and sentenced to death for the offence of criminal conspiracy and to ten years imprisonment for unlawful possession of firearms. Appellant is aggrieved by that decision hence this appeal.

From four grounds of appeal filed by him, appellant identified the following two issues for determination by this Court:
1. Whether having regard to the evidence before the Court, the Learned Trial Judge was right to have convicted him of the offence of criminal conspiracy.
2. Whether the prosecution proved the charge of unlawful possession of firearms beyond reasonable doubt against him to warrant his

conviction.

Respondent employed slightly different words to frame the same two issues thus:
1. Whether the prosecution established its case of criminal conspiracy to commit an armed robbery against appellant beyond reasonable doubt.
2. Whether the prosecution proved the charge of unlawful possession of firearms beyond reasonable doubt against the appellant to warrant his conviction.

On issue 1, appellant reproduced the trial judge’s decision on it, particularly where he held that: “I find the accused guilty of the offence of criminal conspiracy to commit armed robbery at Gwarimpa, Abuja, contrary to Section 96 of the Penal Code and punishable under the Section 6(b) of the Robbery and Firearms (Special Provisions) Act and convict him accordingly’ and argued, through his counsel Mr. Kelechi Obi, that the trial judge was incorrect as the charge of criminal conspiracy as laid related to a conspiracy by him to rob people of Yalwan Village Bauchi State of their money and motorcycles, and not a conspiracy to rob in Gwarimpa in Abuja for which the Court convicted him. He argued too, that there was no evidence linking him to the

count of conspiracy; that the conspiracy he confessed committing is not the one he was charged before the Court so his admission in Exhibit 1 is not an admission to warrant his conviction, the two offences being different. To buttress his contention that a person cannot be charged for one offence and convicted for another or confess to one offence and be convicted for a different one, learned counsel cited dictum of our brothers (Daniel-Kalio, JCA) in Samodu Daropale v. The State CA/I/137/2004 (Unreported), (Abiriyi, JCA) Bito Semaka v. The State (2018) LPELR-44001(CA), and (Omoleye, JCA) in Terhila Embarga v. The State (2018) LPELR-44085(CA). Since appellant was convicted for an offence different from the one he was charged and for a confession that was also different from the one he confessed to, he submitted, the trial judge’s decision was perverse and justice was miscarried so his conviction is liable to be quashed by this Court.

Mr. Magaji of the Bauchi State Ministry of Justice in response submitted that appellant failed to properly comprehend the count of criminal conspiracy that was laid against him by the State hence his argument that he

was convicted for a different offence from the one he was charged. Learned counsel then reproduced the opening part of Count 1 of the Charge where it was alleged that “That you AHMED MUHAMMED of Bakaro ward, Bauchi L.G.A of Bauchi State belong to a group that committed several armed robberies across the States of this Federation including the one that took place on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda Ward, Bauchi LGA of Bauchi State..” and, laying emphasis on the words ‘including the one that took place on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda Ward, Bauchi LGA of Bauchi State,’ argued that the said words did not limit appellant’s participation in criminal conspiracy to only the armed robbery that took place in Bauchi but demonstrates his conspiracy to commit a series of armed robberies including the one that took place in Yalwan Kadara village in Bauchi.

Mr. Magaji also make the trite submission, which I shall revisit in due course, that conspiracy to commit an offence is a separate and distinct offence and independent of the actual commission of the

offence to which the conspiracy is related. He added that once there is evidence of common intent and purpose and there is evidence to commit the substantive offence, it does not matter what any of the conspirators did; that the proper approach to an indictment that contains a conspiracy count and a substantive offence is to first deal with the substantive offence and then proceed to see if the conspiracy count was made out. To buttress these arguments, learned counsel cited the cases of Sule v. State (2009) 17 NWLR (PT 1169) 33, Ajuluchukwu v. State (2014) 13 NWLR (PT 1425) 641, Osetola v. State (2012) 17 NWLR (PT 1329) 251, Jimoh v. State (2014) 10 NWLR (PT 1414) 105 and Agugua v. State (2017) 17 LPELR-42021 (SC). He submitted that the prosecution led sufficient evidence to prove its charge of criminal conspiracy against appellant and the lower Court properly evaluated that evidence in coming to its conclusion convicting appellant so we should not interfere.

Resolution of issue
To resolve this issue, recourse must naturally be made to Count 1 of the Charge of criminal conspiracy: for it is that charge and what it alleged that appellant was

arraigned for and pleaded to. In fact Section 36 (6) (a) of the 1999 Constitution of this country guarantees his right to be informed ‘in details’ of the charge he is to be tried. That provision runs thus:
Every person who is charged with a criminal offence shall be entitled to-
(a) To be informed promptly in the language he understands and in detail of the nature of the offence.
It is in compliance with this provision that the Penal and Criminal Procedure Laws of the various States of this country and even the Administration of Criminal Justice Acts and Laws all require that a formal charge be always drafted and laid before the Court by the prosecution informing the accused person in details of the charge against him which he is to defend himself. That is also the point made by this Court per our brothers Daniel-Kalio, JCA, in Samodu Daropale v. The State CA/I/137/2004 (Unreported); Abiriyi, JCA in Bito Semaka v. The State (2018) LPELR-44001(CA) and Terhila Embarga v. The State (2018) LPELR-44085(CA) cited to us by Mr. Obi in the appellant’s brief of argument.
So exactly what offence was appellant charged by the

prosecution at the lower Court with conspiring with his co-conspirators to commit? At the risk of appearing repetitive, I again reproduce Count 1 of the said Charge which read thus:
That you AHMED MUHAMMED of Bakaro ward, Bauchi L.G.A of Bauchi State belong to a group that committed several armed robberies across the states of this federation including the one took place on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda Ward, Bauchi LGA of Bauchi State within the Jurisdiction of this Honourable Court; where you and your colleagues while armed, agreed among yourselves to rob the residents of Yalwan Village, Yuguda Ward of Bauchi LGA, of their motorcycles and monies and thereby committed an offence of criminal conspiracy, punishable under Section 97 of the Penal Code and triable by his Hon. (sic) Court.
Clearly, the particular conspiracy alleged by this charge runs from the words ‘agreed among yourselves’ to the end of the charge, after all the offence of conspiracy lies in the agreement of two or more persons to carry out an unlawful act or carry a lawful act in an unlawful manner. And contrary to the contention

of Mr. Magaji for the State, the first part of the charge alleging that appellant “belong to a group that committed several armed robberies across the States of this Federation including the one took place on 22/01/2018 at about 0200hrs or thereabout at Yalwan Kadara village, Yuguda” rather relates to the substantive offence of armed robbery, which appellant was also charged for but acquitted by the lower Court. That allegation of armed robbery, as Mr. Magaji also submitted correctly, is distinct, separate and independent of the offence of criminal conspiracy: see Balogun v. A.G. of Ogun State (2002) 2 S.C. (PT 11) 89 @ p. 96 – 97.
Conspiracy to commit robbery in far away Gwarimpa in Abuja not being the charge that was laid by the prosecution and prosecuted by Mr. Magaji against appellant, appellant cannot be convicted for it without amending its charge. The charge against an accused person for which he prepares his defence cannot allege one form of conspiracy only for the Court to convict him for a different conspiracy simply because evidence adduced at the trial showed the latter. When the evidence shows such deviation the remedy of

the prosecution is to apply for amendment, in which case the accused person also has the right to object to it. Even where the Court grants amendment against the accused person’s objection, and even where he does not object to the amendment, he still has a further right to recall witnesses or at least redirect its mind on the nature of the witnesses he needs to call to meet the amended charge. Besides, it is perfectly within his right to keep quiet, if the prosecution veers away from the allegation against him, and raise the issue at address stage. It is thus a grave violation of an accused person’s right to fair hearing under Section 36(6)(a) of the 1999 Constitution of this country to charge him for one specific act of criminal conspiracy and convict him for another one he was not charged as happened in this case. Such a judgment must not be allowed to stand. In saying so, I think I am on the same page with my brothers in Samodu Daropale v. The State CA/I/137/2004 (Unreported), Bito Semaka v. The State (2018) LPELR-44001(CA) and Terhila Embarga v. The State (2018) LPELR-44085(CA). In Terhila Embarga v. The State (2018) LPELR-44085(CA) our brother

Omoleye, JCA also had this to say:
“It is crystal clear that facts upon which the appellant was convicted and sentenced are at variance with the particulars of the charge for which he was tried. The learned trial judge completely ignored this very sharp point of law in his judgment the subject of this appeal. This is a flagrant infraction of the fundamental human right of the appellant to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. The appellant was charged and tried for criminal conspiracy and robbery which was alleged committed on 4th February 2010 along Mai-Magani Village in Donga Local Government Area, whereas appellant’s conviction and sentence passed were based solely on his alleged confessional statement wherein he confessed to the commission of the offence of armed robbery at an unspecified location. This is a very grave gap. … This decision of the trial Court in the instant case is a classic example of a perverse decision must be penalized with an order setting same aside.” (Italics mine)
In the event, I resolve in favour of appellant this issue of the

correctness of his conviction by the lower Court for criminal conspiracy. I hold that his conviction was perverse and liable to be quashed.

Issue 2:
In issue 2, appellant argues that the prosecution did not prove that he was in possession of the firearms the police recovered from the Vectra car in issue so the trial judge was again wrong to convict him for their possession. While conceding that possession of firearms is strict liability offence and only a licence can exculpate a person accused of being in possession of forearms, he argues that it is the duty of the prosecution to prove that he was in possession of the firearms recovered from the said Vectra car where they were recovered. He referred us to his Confessional Statement (Exhibit 1) where he said he did not know anything about the guns loaded inside the said motor vehicle and also directed our attention to the testimony of the I.P.O (P.W.4) where he said he led the police team to where the remaining robbers were arrested and the firearms recovered from the Vectra in their possession. He said that confirms that the firearms were not found in his possession and neither was the

Vectra car in which they were found in his control. He submitted that merely acting as a pointer to the other persons from who the firearms were recovered does not constitute having a firearm in his possession or under his control within the meaning and intendment of the Robbery and Firearms (Special Provisions) Act so the learned trial judge was wrong in imputing their possession and control to him and convicting him on that ground. He also questioned the legality of the action of the trial judge who had disbelieved his confessional statement (Exhibit 1) in respect of the allegation of armed robbery turning around to rely on the same statement to convict him for possession of firearms. For all these reasons, he prayed us to also quash his conviction by this lower Court on this count and enter a verdict of not guilty in his favour and discharge and acquit him.

In response, Mr. Magaji submitted that the trial judge was conscious of and actually directed his mind to the ingredients of the offence of possession of firearms under Section 3 of the Robbery and Firearms (Special Provisions) Act, which ingredients are (1) that in the possession of the accused

person were firearms, (2) the firearms found were within the meaning of the Robbery and Firearms (Special Provisions) Act, and (3) whether the accused person had a valid licence issued under the Robbery and Firearms (Special Provisions) Act to possess the firearm. All these counsel submitted the prosecution proved so appellant was properly convicted.

Resolution of issue
The ingredients of the offence of possession of firearms under the Robbery and Firearms (Special Provisions) Act which are (1) that in the possession of the accused person were firearms, (2) that the firearms were within the meaning of the Robbery and Firearms (Special Provisions) Act, and (3) whether the accused person had a valid licence issued under the Robbery and Firearms (Special Provisions) Act to possess the firearm. Here there is no controversy that the firearms – AK47, AK49, Pistol and other lethal weapons – that were found in the Vectra Car, which the lower Court imputed possession to appellant, were firearms within the meaning of the Robbery and Firearms (Special Provisions) Act. The only issue in dispute between appellant and the prosecution

is whether the said firearms which were recovered from the Vectra car of the other two persons who appellant admitted were in agreement with him to proceed to Gwarimpa in Abuja to commit robbery can be properly imputed as being in his possession and control too as the lower Court did.
It appears to me that the lower Court was correct. To appreciate what the lower said on this issue of possession, I deem it necessary to first reproduce the evidence of the Investigating Police Office (PW4). PW4 said:
“On 22/01/2018 at about 0930 hours, I led a team of patrol. We arrested the accused opposite Mulitipurpose Indoor Sport Hall, Bauchi after we got information against him that he concluded a plan with some of his member who are sindicat (sic) gang of robbers to meet here in Bauchi in order to move down to Abuja in order to rob somebody’s house at Gwarimpa.
“When we arrested him, he led us to where the remaining sindicat (sic) were. We arrested three of them and recovered certain exhibits in their vehicles as follows:
1. Two AK45 rifles
2. One locally made pistol
3. One cartridge
4. Two magazine loaded

with 61 life animation (sic), 7.62mm caliber.”
It is in reaction to this evidence, coupled with appellant’s confession in his extrajudicial statement (exhibit 1) that he was part of a gang of robbers that had planned to go and rob at Gwarimpa in Abuja that the Court made its finding of possession of appellant of the same firearms recovered from the vehicle of his fellow thieves appellant himself led the police to. The trial Judge found as follows in his judgment:
“It logically follows from the above testimony of PW4 that the accused is a member of a gang of syndicate of robbers that own a Vectra car for the furtherance of their culpable objectives in which two AK45 rifles, one locally made pistol, one cartridge, two magazine loaded with 61 life ammunitions of 7.65mm caliber were found. This means that the said firearms are under the control of the entire gang including the accused. Control of this sort translates to the meaning that each of the member of the gang including the accused can be separately held to be in possession of the firearms.”…
“The accused suggested in his confessional statement that

he did not know anything about the guns loaded inside the said car and he did not know the people whom Yakubu Musa invited for the robbery. Whether or not he knows the people the fact remains that the accused was set and ready to go to Abuja with them to commit robbery together. Again, I do not believe the accused when he said he did not know about the guns loaded in the car. This is because the general trend in n Nigeria is for robbers and kidnappers to use firearms in executing their culpable mission. The robbery the accused and his gang intended to unleash in Abuja is by no means an exception. I therefore find and hold that the accused did not tell the truth when he suggested in his confessional statement that he did not know anything about the guns loaded inside the said car and he did not know the people whom Yakubu Musa invited for the robbery. Furthermore, by Section 79 of the Penal Code when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Therefore, since some of the members of the gang to which the accused confessed

to be a member have possessed firearms in furtherance of the common intention of all members to go to Abuja and commit robbery, then each of the members of the gang, including the accused, is liable for being in possession of the firearms in the same manner as if they were possessed by him alone.”
This is evaluation of the evidence and findings made on it by the trial judge. The law presumes that such findings are correct thus throwing on the person alleging their incorrectness, namely appellant, the duty proving of displacing that presumption: see Ogbechie v. Onochie (1988) 1 NSCC 237 @ 244, Williams v. Johnson (1937) WACA 253. Unless there is made out a case of misdirection, an appellate Court will not come to a different conclusion from the trial Court on the evidence: Ogbechie v. Onochie supra. Appellant has not shown in this case that the trial judge’s finding that he was equally in possession of the said firearms, which firearms were found with his fellow thieves for their admitted armed robbery operation that was to take place in Gwarimpa, was wrong. In the event, I resolve this issue against appellant and uphold the finding of the

trial judge.

The result of all the foregoing is that the appeal succeeds partly and:
(1) Appellant’s conviction and sentence to death for the offence of criminal conspiracy is hereby set aside and quashed and he is discharged on that count.
(2) His appeal against his conviction for possession of firearms and sentence of ten years fails and the judgment of the lower Court on it is affirmed.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA.
I agree with the reasoning and conclusion reached thereat and I abide by the consequential orders therein made.

Appearances:

Kelechi Obi, Esq. For Appellant(s)

I. Magaji, Esq. Deputy Director of the Bauchi State Ministry of Justice For Respondent(s)