MUKTARI v. STATE (2022)

MUKTARI v. STATE

(2022)LCN/17158(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, December 07, 2022

CA/ABJ/CR/1049/2021

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Raphael Chikwe Agbo Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Between

ABDULKADIR MUKTARI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN A REPLY BRIEF IS NECESSARY

Generally, a Reply Brief is only necessary when an issue of law or arguments raised in the Respondent’s brief call for a response, and that being so, a Reply Brief is expected to deal with new points arising from the Respondent’s brief. However, where there is no new point, a Reply Brief becomes absolutely unnecessary, and will serve no useful purpose in the determination of the appeal, and the Court is entitled to discountenance it in such a case. See SHUAIB V. MAIHODU (1993) 3 NWLR (PT. 284) 748. Where the issues covered by the Reply Brief were already argued in the Appellant’s Brief, then the Reply Brief is of little or no use at all, see OSUJI v. EKEOCHA (2009) 16 NWLR (PT. 1166) 81.
Where also, the Respondent has not introduced a new issue or point of law, a reply brief is unnecessary. The failure to file a Reply Brief can only be fatal to the case of the Appellant if there are new issues raised in the Respondent’s Brief which are weighty, substantial, competent and relevant in law. PER DONGBAN-MENSEM, J.C.A

THE POSITION OF LAW ON TRIAL WITHIN TRIAL

A trial within trial as the name implies is a criminal proceeding conducted during a criminal trial where the admissibility of a confessional statement of the Accused Person is being challenged on the ground of voluntariness. This trial within trial which is a separate and distinct proceeding is to test the veracity of the Accused Person’s claim that the confessional statement was not obtained from him voluntarily. In this proceeding, the onus falls on the Prosecution to proof beyond reasonable doubt to the lower Court, through evidence and witnesses that the confessional statement was obtained voluntarily while the Accused Person is expected to also prove that the confessional statement accorded to him was obtained through torture, under duress, an inducement or a promise. At the conclusion of the trial within trial, Parties file and adopt their written addresses, after which, the lower Court will pass its ruling either admitting the said confessional statement in evidence or rejecting the confessional statement for being made involuntarily. I am fortified by the decision in SULEIMAN V. STATE (2022) LPELR – 57577 (SC) thus;
“It is for this reason that where an accused person alleges that his confessional statement was not made voluntarily, the Court would conduct a trial within trial to determine whether this is so or not. A trial within trial is often described as a mini-trial and, as rightly submitted by learned counsel for the respondent, it is separate and distinct from the main trial. Its purpose is to determine the voluntariness of the confessional statement. If it is eventually admitted in evidence, it is the duty of the learned trial Judge, in the consideration of all the evidence before it, to determine the weight to be attached to it. See: Oguonzee Vs The State (1998) 4 SC 114; Auta vs The State (1975) LPELR-641 (SC); Ifaramoye vs The State (2017) 8 NWLR (Pt.1568) 457; (2017) LPELR-42031 (SC) AT 36-39 E -A.” Per KEKERE-EKUN, J.S.C. (Underlining mine for emphasis). PER DONGBAN-MENSEM, J.C.A

WHETHER OR NOT A PARTY WHO FAILS TO FILE AN APPEAL AGAINST THE RULING IS ESTOPPED FROM RAISING ISSUES ON THE VOLUNTARINESS OR ADMISSIBILITY OF THE SAID CONFESSIONAL STATEMENT

Since a trial within trial is a separate and distinct proceeding, any of the Parties dissatisfied with the ruling of the lower Court is required by law to challenge the said ruling by filing an interlocutory appeal. Any party who fails to file an appeal against the ruling is estopped from raising issues on the voluntariness or admissibility of the said confessional statement. In the case of SULEIMAN V. STATE (SUPRA) which bear similar facts to the instant case, the Apex Court, per PETER-ODILI, J.S.C. states thus;
“The appellant at this stage urges the Court to set aside Exhibit A which was admitted at the trial within trial in the lower Court.
The appellant needs be reminded that a trial within trial is separate and distinct from the main trial and therefore evidence used from the main trial cannot be imported or transplanted into an already concluded trial within trial. In IFARAMOYE v. STATE (2017) 8 NWLR (Pt. 1568) 457 at 494, it was held that:
“A trial within trial is a separate and distinct proceeding from the main trial thus evidence adduced therein cannot be transplanted, injected or imported into the main trial…
Therefore, instead of trying to transplant evidence from the main trial to a concluded trial within trial where voluntariness of Exhibit A was being considered, the proper course for the appellant to have followed was to have appealed against the ruling on the trial within trial which was conducted by the lower Court. It is in the trial within trial that the appellant must ensure that the confessional statement is not admitted into evidence and not during appeal. See the case of OSUAGWU V. THE STATE (2013) 5 NWLR (PT. 1347) P.389-390.” (Underlining mine for emphasis). PER DONGBAN-MENSEM, J.C.A.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The Appellant who was the 2nd Accused Person faced trial alongside 5 other Accused Persons before the High Court of Niger State for the offences of culpable homicide punishable with death, conspiracy and theft contrary to Sections 221, 97 and 288 of the Penal Code, Cap 89, Laws of Northern Nigeria, respectively.

The Amended Charge against the Accused Persons reads;
“1. That you Goni Tijani, Abdulkadir Muktari, Bashir Alhassan, Samaila Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this honourable Court caused the death of one Mustapha Goni Umar Bamanga by putting a rope on his neck and gripping it until he was dead you thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code to be read with Section 79 of the Penal Code Law.
2. That you Goni Tijani, Abdulkadir Muktari, Bashir Alhassan, Samaila Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this honourable Court conspire to cause the death of one Mustapha Goni Umar Bamanga and thereby committed the offence of conspiracy punishable under Section 97 of the Penal Code Law Cap 89 Laws of Northern Nigeria.
3. That you Goni Tijani, Abdulkadir Muktari, Bashir Alhassan, Samaila Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this honourable Court stole a truck filled with fuel thereby committed the offence of theft punishable under Section 288 of the Penal Code Law Cap 38 Laws of Northern Nigeria. ” (See page 51 of the Records).

The brief facts of the case leading to this appeal are that;
“The 6 Accused Persons were arrested at a village called Gada Biu along Gwagwalada Lokoja road while they were about to sell petroleum products inside a truck which was allegedly stolen at Tungan Maje NNPC Deport, Suleja. The truck was in custody of one Mustapha Goni Bamanga, a night before their arrest. The body of the said Bamanga was found in the morning where the vehicle was parked by him and the vehicle was taken away. The said truck was later found in possession of the Accused Persons with the petroleum products which they were about to sell and they were promptly arrested by the Police.” (See pages 268-269 of the Records)

At the trial, the Prosecution now Respondent called four (4) Witnesses who were the Police Officers that investigated the case and tendered Exhibits A – L. On 19/11/2020 when the matter came up for continuation of hearing, the Prosecution sought to tender as Exhibit, the statement of the 5th Accused Person (One Isah Sani) but the 1st and 3rd Accused Person’s Counsel objected to the admissibility of the said statement on the ground that it was not obtained voluntarily. At the trial within trial, the 5th Accused Person changed his mind and also objected to the admissibility of his confessional statement. The lower Court then conducted a trial within trial and on 08/02/2021, overruled the objection while admitting the statements of the 1st 3rd and 5th Accused Persons into evidence. (See pages 199, 200 and 212 of the Records). The Accused Persons testified for themselves and did not call any other witnesses nor did they tender any Exhibits.

At the close of trial, the parties filed and adopted their various Written Addresses. In its judgment, the lower Court Coram Mohammed S. A. Mohammed (J.) delivered on 20/10/2021 found the Accused Persons guilty, convicted them and sentenced them to death by hanging and five years imprisonment to run concurrently.

The 2nd Accused Person at the lower Court shall simply be referred to as the Appellant in this appeal while the Prosecution at the lower Court shall simply be referred to as the Respondent.

Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal of nine (9) Grounds on 04/11/2021. The Record of Appeal was transmitted to this Court on 30/12/2021.

This appeal came up for hearing on 13/09/2022 wherein the Appellant and the Respondent adopted their various Briefs of Argument. The Appellant’s Brief of Argument dated 07/02/2022 was filed on the same date while the Respondent’s Brief of Argument dated 08/03/2022 was filed on the same date. The Appellant’s Reply Brief dated 18/03/2022 was filed on 17/03/2022.

From the Grounds of Appeal, the Appellant distilled six (6) issues for determination in its Brief of Argument prepared by Tochukwu Peter Tochukwu, Esq. to wit;
1. Whether the learned lower Court did not err in law when despite the uncontroverted evidence on the records – “The Superior officer told us that we should speak the truth or else they will shoot us on our feet…” “The police started beating us. The TWT is among the people that beat me. They were three- one recording and the other 2 were beating us…” at pages 204 and 207 of the Record of Appeal; the alarming evidence of PW1- “I was asking them of their names and where they lives (sic), and they where (sic) answering me and I was recording. That’s what I did throughout in the recording of their statement. (Page 193 of the Record of Appeal) it proceeded to overrule the Appellant’s objection to the voluntariness of the confessional statements? (Distilled from Ground 1 of the Notice of Appeal at page 160 of the Record of Appeal).
2. Whether the learned lower Court was not wrong when it admitted secondary evidence (English version) of the Accused Persons’ confessional statements without a production of the vernacular (original Hausa version) and same being tendered alongside the Anglophone translation in compliance with the waves of judicial dicta, constitutional requirement and the law of evidence? (Generated from Ground 3 of the Notice of Appeal at pages 161-162 of the Record of Appeal).
3. Whether there was any scintilla of evidence upon which the lower Court could find that the Prosecution, being the State, with all its resources and might, proved that the Appellant committed murder beyond reasonable doubt, and if there was none, whether the finding of the lower Court in that regard is not perverse in all the circumstances? (Culled from Grounds 4 and 6 of the Notice of Appeal at pages 163, 164, 166 & 167 of the Record of Appeal).
4. Whether the Court below paid due fidelity to the law and facts of the case when it ex-hypothesis found the Appellant guilty preliminarily, anterior to its final verdict- raising the defence of justification, when such was not deducible from the evidence on the records; jettisoning the defence of alibi which was predominant in all the testimonies of the Accused before the Court? (Formulated from Grounds 5 and 7 of the Notice of Appeal at pages 164, 165, 167 & 168 of the Record of Appeal).
5. Whether the lower Court was not wrong in its curious holding “There is a strong presumption that once a stolen property is found in somebody’s possession immediately after the theft, he is a thief.” When such finding was insupportable by evidence or the charge which was under Section 288 of the Penal Code Law? (Couched from Ground 8 of the Notice of Appeal at pages 168 & 169 of the Record of Appeal).
6. Whether having regard to the evidence on the records, the entire circumstances of the case, the learned lower Court was not wrong when it found that the Appellant was guilty of conspiracy to commit murder? (Emanates from Ground 9 of the Notice of Appeal at page 169 of the Record of Appeal).

From the Grounds of Appeal, the Respondent also distilled six (6) Issues for determination in its Brief of Argument prepared by Mohammed Awwal Yunusa, Esq. to wit;
1. Whether the Statement (Exhibit D) of the Appellant was not rightly held voluntary by the Honourable lower Court before it relied on it to convict the Appellant. (Distilled from Ground 1).
2. Whether the lower Court is not empowered by law to act on the English version of the confessional statement of the Appellant. (Distilled from Ground 3).
3. Whether the Respondent did not prove the commission of the offence of culpable homicide beyond reasonable doubt. (Distilled from Grounds 4 and 6).
4. Whether the lower Court was not empowered to consider various principles of law in arriving at a just decision. (Distilled from Grounds 5 and 7).
5. Whether the lower Court’s position on the doctrine of recent possession was not supported by the evidence before the lower Court. (Distilled from Ground 8).
6. Where the evidence adduced at the lower Court, the learned trial Judge was not right to have found the Appellant guilty of conspiracy to commit culpable homicide. (Distilled from Ground 9).

Before delving into the main appeal, it is pertinent to resolve the Preliminary Point raised by the Respondent.

The learned Counsel to the Respondent submits that from the nine (9) Grounds of Appeal raised by the Appellant, issues for determination were distilled from all the Grounds save for Ground two (2) and urged the Court to deem Ground two (2) as abandoned. Relies on IYOHO V. EFFIONG (2007) 11 NWLR (PT. 1044) 31, SALISU V. FRN (2018) 3 NWLR (PP. 1605) 161 and STATE V. OMOLEYE (2017) 1 NWLR (PT. 1547) 341.

In response to this preliminary point, the Appellant also affirmed that there is no issue in his brief challenging the Court’s jurisdiction as according to him, they intend to argue the appeal on the merit and he urged the Court to discountenance the Respondent’s Ground two (2) of the Notice of Appeal.

The law is unequivocal that where no argument is offered in support of a ground of appeal, the ground of appeal is deemed abandoned and is liable to be struck out. See UKIRI V. GECO-PRAKLA (NIG.) LTD. (2010) NSCQLR (VOL. 43) 268 AT 278-279. The Appellant having conceded to the submission of the Respondent, it is not necessary to further belabor the matter.
Ground two (2) of the Notice of Appeal is hereby struck out.

This appeal shall be determined on the issues distilled by the Appellant’s learned Counsel, even though they are poorly couched. Issues 2, 3, 5 and 6 will be taken together because they revolve around the same issue which is whether the Respondent proved the ingredients of the offences charged beyond reasonable doubt.

ISSUE 1
The learned Counsel to the Appellant submits that the lower Court’s decision to admit the confessional statement of the Appellant at trial is contrary to the provisions of Section 29 of the Evidence Act which explicitly renders unreliable any confession obtained by oppressions That the Prosecution is to prove beyond reasonable doubt whether the confessional statements in Exhibits A, B, C, D, E and F were not obtained under duress which is likely to render them unreliable.

Further submits that a confessional statement procured during a session of question and answer may be admissible if the interviewer reads the cautionary words indicating that the interrogation would be by question and answer and the Exhibits did not meet the elementary requirements. Refers to pages 193 of the Records; Section 29 of the Evidence Act and relies on MANU V. STATE (2019) LPELR-47744 (CA) and EGBE V. NIGERIAN ARMY (2020) LPELR – 50370 (CA).

States that the Prosecution did not take the opportunity given by cross-examination to impugn the damning testimony of the defence witnesses. That judicial authorities point out that whenever a party who has the opportunity to impugn the testimony of a witness elects not to do so, the testimony of that witness is to be accepted as true and correct. Refers to Pages 204, 205 and 206 of the Records; SANI V. STATE (2020) LPELR-50436(CA) and CHIME & ORS V. CHIME & ORS. (2001) LPELR – 24858 (SC).

The learned Counsel to the Appellant further states that the Police proceeded to grill supposed confessions from the Accused Persons who were vulnerable people in the absence of any adult of their choice with the intention of using the admittance of guilt in the conviction in a Charge for murder. That from the facts in the Records, the investigation of the Charge by the Police started and ended with the confession gotten at the office of the Police which goes against the injunctions of judicial authorities. Refers to pages 100 and 220 of the Records; OWHORUKE V. COMMISSIONER OF POLICE (2015) ALL FWLR (PT. 801) 1401; OGU V. COP (2017) LPELR – 43832 (SC); AMOS V. STATE (2020) LPELR – 49663 (CA) and urges the Court to resolve this issue in favour of the Appellant.

Learned Counsel for the Respondent responds that the voluntariness or otherwise of Exhibit D, confessional statement of the Appellant is solely an issue of fact and the reference to Section 29 of the Evidence Act by the Appellant can only be resolved by the facts available to the lower Court at the point of tendering and as in the instant case, trial within trial. That the objection is an afterthought because the Appellant initially declined objecting to the admissibility of the confessional statement and that evidence of PW1 on how he took the confessional statement of the Appellant is in line with practice for administration of justice. Cites page 192 of the Records, F.R.N. V. IWEKA (2013) 3 NWLR (PT. 1341) 285, ISHAYA V. STATE (2010) 4 NWLR (PT. 1661) 76.

Submits that the Appellant’s argument that the confessional statement is done in a question and answer procedure is unsupported by the records and there was no evidence to prove the likelihood of oppression, torture, inducement, threats, promise or more. Relies on NAMSOH V. STATE (1993) 5 NWLR (PT. 292) 198. That the evidence of PW2 is being read out of context by the Appellant as it is obvious the investigation by PW2 is limited to the fact that the confessional statement of the Appellant was taken at the office of PW2 and from the testimony of PW3, the investigation did not commence and end at the police station. Cites pages 216-220 of the Records.

The Respondent’s learned Counsel further submits that the lower Court rightly admitted the confessional statement of the Appellant upon being satisfied that the statements of the other Accused Persons were voluntary after the trial within trial which afforded the Appellant the opportunity to also challenge Exhibit D but he failed to do so. That there was no appeal against the ruling of the lower Court from the trial within trial and it behooves on the Appellant to challenge the voluntariness of the Exhibit at the point it was sought to be tendered and not after. Relies on HASSAN V. STATE (2017) 5 NWLR (PT. 557)1, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) PAGE 397, BOUWOR V. STATE (2016) 4 NWLR (PT. 1502) 295, AJIBOYE V. FRN (2018) 13 NWLR (PT. 1637) 430 and ALAO V. STATE (2015) 9 NWLR (PT. 1464) 238.

RESOLUTION OF ISSUE 1
Generally, a Reply Brief is only necessary when an issue of law or arguments raised in the Respondent’s brief call for a response, and that being so, a Reply Brief is expected to deal with new points arising from the Respondent’s brief. However, where there is no new point, a Reply Brief becomes absolutely unnecessary, and will serve no useful purpose in the determination of the appeal, and the Court is entitled to discountenance it in such a case. See SHUAIB V. MAIHODU (1993) 3 NWLR (PT. 284) 748. Where the issues covered by the Reply Brief were already argued in the Appellant’s Brief, then the Reply Brief is of little or no use at all, see OSUJI v. EKEOCHA (2009) 16 NWLR (PT. 1166) 81.
Where also, the Respondent has not introduced a new issue or point of law, a reply brief is unnecessary. The failure to file a Reply Brief can only be fatal to the case of the Appellant if there are new issues raised in the Respondent’s Brief which are weighty, substantial, competent and relevant in law.

A cursory look at the Appellant’s Reply Brief reveals that the Appellant is only using its Reply Brief as an opportunity to elaborate on the issues already argued in its Brief of Argument, which is likened to trying to have another bite on the cherry already bitten by the Appellant.

A trial within trial as the name implies is a criminal proceeding conducted during a criminal trial where the admissibility of a confessional statement of the Accused Person is being challenged on the ground of voluntariness. This trial within trial which is a separate and distinct proceeding is to test the veracity of the Accused Person’s claim that the confessional statement was not obtained from him voluntarily. In this proceeding, the onus falls on the Prosecution to proof beyond reasonable doubt to the lower Court, through evidence and witnesses that the confessional statement was obtained voluntarily while the Accused Person is expected to also prove that the confessional statement accorded to him was obtained through torture, under duress, an inducement or a promise. At the conclusion of the trial within trial, Parties file and adopt their written addresses, after which, the lower Court will pass its ruling either admitting the said confessional statement in evidence or rejecting the confessional statement for being made involuntarily. I am fortified by the decision in SULEIMAN V. STATE (2022) LPELR – 57577 (SC) thus;
“It is for this reason that where an accused person alleges that his confessional statement was not made voluntarily, the Court would conduct a trial within trial to determine whether this is so or not. A trial within trial is often described as a mini-trial and, as rightly submitted by learned counsel for the respondent, it is separate and distinct from the main trial. Its purpose is to determine the voluntariness of the confessional statement. If it is eventually admitted in evidence, it is the duty of the learned trial Judge, in the consideration of all the evidence before it, to determine the weight to be attached to it. See: Oguonzee Vs The State (1998) 4 SC 114; Auta vs The State (1975) LPELR-641 (SC); Ifaramoye vs The State (2017) 8 NWLR (Pt.1568) 457; (2017) LPELR-42031 (SC) AT 36-39 E -A.” Per KEKERE-EKUN, J.S.C. (Underlining mine for emphasis).

Since a trial within trial is a separate and distinct proceeding, any of the Parties dissatisfied with the ruling of the lower Court is required by law to challenge the said ruling by filing an interlocutory appeal. Any party who fails to file an appeal against the ruling is estopped from raising issues on the voluntariness or admissibility of the said confessional statement. In the case of SULEIMAN V. STATE (SUPRA) which bear similar facts to the instant case, the Apex Court, per PETER-ODILI, J.S.C. states thus;
“The appellant at this stage urges the Court to set aside Exhibit A which was admitted at the trial within trial in the lower Court.
The appellant needs be reminded that a trial within trial is separate and distinct from the main trial and therefore evidence used from the main trial cannot be imported or transplanted into an already concluded trial within trial. In IFARAMOYE v. STATE (2017) 8 NWLR (Pt. 1568) 457 at 494, it was held that:
“A trial within trial is a separate and distinct proceeding from the main trial thus evidence adduced therein cannot be transplanted, injected or imported into the main trial…
Therefore, instead of trying to transplant evidence from the main trial to a concluded trial within trial where voluntariness of Exhibit A was being considered, the proper course for the appellant to have followed was to have appealed against the ruling on the trial within trial which was conducted by the lower Court. It is in the trial within trial that the appellant must ensure that the confessional statement is not admitted into evidence and not during appeal. See the case of OSUAGWU V. THE STATE (2013) 5 NWLR (PT. 1347) P.389-390.” (Underlining mine for emphasis).

Similarly, in the case of OKEREMUTE V. STATE (2021) LPELR-55335 (SC), the Apex Court held thus;
“It is pertinent to note that the ruling on the trial within trial was delivered on 11/2/2014. There is no appeal against that decision. It is too late in the day for learned counsel to raise the issue of voluntariness of the statement at this stage. It has not been shown that the findings of the two lower Courts that it was the act of the appellant that caused the death of the deceased, are perverse. They are endorsed by me.“ Per KEKERE-EKUN, J.S.C. (Underlining mine for emphasis).
In the instant appeal, the ruling of the lower Court in the trial within trial admitting the confessional statements of the 1st, 3rd and 5th Accused Persons was delivered on 08/02/2021 while the final judgment was delivered on 20/10/2021. These are two separate decisions and the Notice of Appeal in the instant appeal specifically states that it is challenging the decision of the lower Court of 20/10/2021. It is expedient to state that the Appellant who was the 2nd Accused Person at the lower Court never challenged the admissibility of his confessional statement (Exhibit D), his statement was admitted without any objection from his learned Counsel. It is curious that the Appellant is now raising issue of a trial within trial that he failed to initiate nor participate in. In any case, I have combed through the entire Record of Appeal transmitted to this Court and have failed to see where any of the Accused Persons at the lower Court filed an appeal against the ruling of the lower Court in the trial within trial. In fact, the said ruling of the lower Court did not form part of the Records transmitted to this Court. The case of OLANREWAJU V. STATE (2022) LPELR – 57788 (SC) is instructive in instances like this thus;
“Most unfortunately, however, for reasons best known thereto, the Appellant did not deem it expedient to appeal against the two rulings of the lower Court, thereby resulting in admitting Exhibits C and D. There being no appeal against the admission of Exhibits C and D, the Appellant cannot now in the eleventh hour be allowed to question the veracity of the lower Courts decision in the two rulings regarding the two trials within trials in question. See TUNDE ASIMI VS. THE STATE (2016) ALL FWLR (pt. 857) 468 AT 487 paragraphs C-E, ONYEMECHI VS. THE STATE (2016) LPELR-40656(SC) AT 11-12 paragraphs F-B; et al.” Per SAULAWA, J.S.C. (Underlining mine for emphasis).
“Learned counsel for the appellant had a grouse over the admission of Exhibits C and D after the trial within trial. The appellant did not appeal against the admission of Exhibits C and D after the trial within trial.
It follows that in the absence of an appeal from the ruling on the trial within trial by the Appellant, the Appellant cannot be heard, with respect, to argue or complain on the evidence led during the conduct of the trial within trial at the Court and the admissibility of Exhibits C and D and/or to submit that the learned Justices of the Court of Appeal ought to have disturbed the findings of the lower Court on the voluntariness of Exhibit C and D.” Per PETER-ODILI, J.S.C. (Underlining mine for emphasis).
This Court is bound by these decisions. Having failed to appeal against the ruling of the lower Court in the trial within trial or seek the leave of this Court to appeal against the ruling out of time and also incorporate it into the main appeal, the Appellant is estopped from challenging the admissibility of his confessional statement (Exhibit D) on the ground of voluntariness.
Issue 1 is resolved against the Appellant.

ISSUES 2, 3, 5 AND 6
The learned Counsel to the Appellant submits that the Constitution points to the duty of the Police to have all statements of an accused person recorded in the language that he understands, as primary evidence of any subsequent translation. That PW1, PW2, PW3 and PW4 expressed their candid difficulty in grasping the vocabulary of Hausa language, yet the lower Court disregarded the constitutional injunction in the material respect of the need for an interpreter to be called and a vernacular version of their confession recorded. Refers to Pages 193, 203, 204, 216, 222, 251 and 285 of the Records; Section 1 (3), 35(3) and 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended);ADAMU V. STATE (2019) LPELR – 46902 (SC); ADEYEMI V. STATE (2013) 3 NWLR (PT. 1340) 78; WAZIRI V. STATE (1997) 3 NWLR (PT. 496) 689 and OLANIPEKUN V. STATE (2016) 13 NWLR (PT. 1528) 117.

Further submits that a Court must not willy-nilly jump one of the ingredients to determine the next as that would lead to pre determination of the guilt of an accused and that it was wrong for the Court to gloss over the second element relating to the cause of death and jump to the third element on intention to cause death. That there is no evidence before the Court relating to the cause of death and PW1 – PW4 failed to tell the Court the cause of death of the deceased. States that the lower Court evinced much difficulty in evaluating the evidence upon which the finding could rest upon but in a hush manner tiptoed to the intention of the accused persons. That the lower Court placed undue reliance on confessions that were in two versions, veered off the lane to hold that the scene of the murder was Gada Biu and there was no production of autopsy report. Refers to Pages 15, 24, 193 and 216 of the Record; AJOSE V. STATE (2002) 7 NWLR (PT. 766) 302; ABUBAKAR V. STATE (2014) LPELR – 47393 (CA); ADELEYE V. STATE (2019) LPELR – 23063 (CA); AHMADU V. STATE (2014) LPELR – 23974 (CA) and EDUN V. FRN (2019) 13 NWLR (PT. 1689) 326.

The learned Counsel to the Appellant states that the lower Court’s finding was outside the Charge preferred by the Prosecution. That the offence under Section 288 of the Penal Code can only be committed by dishonestly taking in or from a building, tent, vessel, railway carriage, lorry, omnibus or aircraft and not committed by taking the building, tent, vessel, railway carriage, lorry, omnibus or aircraft. Submits that the lower Court’s conviction of the Appellant for theft of the truck is in respect of an offence unknown to the Section under which the charge was predicated. That central to the offence of theft is the element of “dishonestly taking” and the Prosecution failed woefully to establish the ingredients of “dishonestly taking” against the Appellant. Refers to Pages 216, 220, 224 and 290 of the Records; Section 286 and 288 of the Penal Code; IDRIS V. FRN (2018) LPELR – 44713 (CA); BABAGANA V. STATE (2020) LPELR – 51431 (CA); AJIBOYE V. FRN (2018) LPELR – 44468 (SC) and urges this Court to resolve this issue in favour of the Appellant.

Further states that there is no shred of evidence upon which the lower Court found the Appellant guilty of conspiracy to commit murder and the Prosecution failed to establish any overt act done by the accused in furtherance of the alleged murder. That the failure of the Prosecution to establish a casual relationship between the actions of the accused and the death of the deceased obviates the existence of any conspiracy. Submits that there was nothing on the records in form of admissible evidence pointing to anything said or done in furtherance of the plan to murder the deceased and the confessional statement relied on were all inadmissible piece of evidence. That if the evidence are expunged, the finding of the lower Court automatically becomes perverse and a nullity. Refers to Pages 216, 221 and 224 of the Records, ABACHA V. STATE (2002) LPELR-16 (SC) and PATRICK V. STATE (2019) LPELR – 47798 (CA) in urging this Court to resolve this issue in favour of the Appellant and allow this appeal.

Responding, the learned Counsel to the Respondent submits that a confessional statement is the best form of evidence and where there is an interpretation that has led to translation from vernacular to English, the interpreter must be called to give evidence on the point at the trial of the accused otherwise the contents of the statement will be hearsay and the statement inadmissible. That it does not opine that where one investigator records a statement in English upon receiving it in vernacular the statement will be inadmissible. NWEZE V. STATE (1996) 2 NWLR (PP. 428) 1; OBARO V. STATE (2022) 3 NWLR (PT. 1816) 105 and ALI V. STATE (2019) 14 NWLR (PT. 1692) 314 were relied upon.

Further submits that the facts in ADAMU V. STATE (SUPRA) relied on by Appellant are quite distinguishable from this appeal. Counsel cited MUSA V. STATE (2019) 2 NWLR (PT. 1655) 140 and submits that Exhibit D clearly provides in detail actions of the Appellant, thus satisfying the provision of law. That the death of Mustapha Goni Bamanga whose body was found on the road and subsequent discovery of the truck with the Accused Person seems to establish the conclusion that the Appellant was involved in the act.

States that the confessional statement, Exhibit D of the Appellant as well as circumstantial evidence established the commission of the offence and meet the prerequisite for securing the conviction of the Appellant for offence of culpable homicide. Cites KADA V. STATE (1991) 8 NWLR (PT. 208) 138 and MAIGARI V. STATE (2010) 16 NWLR (PT. 1220) 349. That PW2 confirmed that he did not understand hausa as well as his indigenous language, but did not say he did not understand hausa and never doubted the Appellant’s statement that he had taken down. That PW2 had the capacity to receive and record the statement of the Appellant.

Further states that from the evidence before the Court, investigation had commenced from Kwali to Suleja and finally to Minna and the fact that the witnesses called by the Respondent were not the initial investigating officers does not affect the investigations of the police. That there is no law which requires that the topmost investigating police officer must be called, other officers or supporting officers can easily testify as to the part they played. He cited AKALONU V. STATE (2002) 2 NWLR (PT. 643) 165 and SANMI V. STATE (2019) 13 NWLR (PT. 1690) 551.

On the autopsy report, the Respondent submits that the weight of the evidence against the Appellant is so strong that the report was not useful and cannot affect the Respondent’s case. Cites OLADIPO V. STATE (2020) 7 NWLR (PT. 1723) 238.

Learned Counsel to the Respondent states that the charge clearly shows that the Appellant was charged with theft of the truck containing fuel, thus the wordings of the Charge are clear enough to sustain the conviction. That it is not enough to consider the elements of an offence and not consider the principles that govern proof of the offence. That the Appellant clearly failed to account for his possession of the fuel and truck, thus the lower Court was right to draw the inference and the doctrine of recent possession can be invoked even where there is no direct evidence to establish guilt. Relied on EHIMIYEIN V. STATE (2016) 16 NWLR (PT. 1538) 173; TAIYE V. STATE (2018) 17 NWLR (PT. 1647) 115 AT 132; AREMU V. STATE (1991) 7 NWLR (4201) 1 and ISIBOR V. STATE (2002) 4 NWLR (PT. 758) 741.

Citing KAREEM V. STATE (2021) 17 NWLR (PT. 1806) 503, Counsel submits that the confessional statement of the Appellant and DW1 shows a unity of purpose which is to sell the fuel in the truck thereby revealing conspiracy. That Appellant’s testimony of not knowing the other Accused Persons cannot stand as it is not necessary that the conspirators should know each other, all that is required is that they knew of the existence and the intention or purpose of the conspiracy. He relied on MUSA V. STATE (2018) 13 NWLR (PT. 1638) 307; OFORDIKE V. STATE (2019) 5 NWLR (PT. 1666) 395; ODAY V. STATE (2019) 2 NWLR (PT. 1655) 97.

RESOLUTION OF ISSUES 2, 3, 5 AND 6
The Appellant was tried alongside 5 other Accused Persons for the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code, Conspiracy under Section 97 of the Penal Code and Theft under Section 288 of the Penal Code. Before delving into determination of whether or not the Respondent proved its case against the Appellant beyond reasonable doubt, it is expedient to first outline the ingredients of the offences charged.

The ingredients for the offence of Culpable Homicide punishable with death have been enumerated in a plethora of cases thus;
(1) that the deceased died;
(2) that his/her death was caused by the accused; and
(3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. See MAIGARI V. STATE (2013) 6-7 MJSC (PT. 11) 109, 125, OCHEMAJE V. THE STATE (2008) SCNJ 143; DANIEL V. THE STATE (1991) 8 NWLR (PT. 443) 715; OBUDU V. STATE (1999) 6 NWLR (PT. 1980) 433; GIRA V. STATE (1996) 4 NWLR (PT. 428) 1 and ILIYASU V. STATE (2015) LPELR – 24403 (SC).

The ingredients for the offence of conspiracy are;
1. There must be an agreement of two or more persons, i.e the meeting of two or more minds.
2. The persons must plan to carry out an unlawful or illegal act, which is an offence.
3. Bare agreement to commit an offence is sufficient.
4. An agreement to commit a civil wrong does not give rise to the offence, as Section 97 (1) of the Penal Code provides only for criminal conspiracy.
5. One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
6. A conspiracy is complete if there are acts on the part of an accused person which lead the lower Court to the conclusion that he and others were engaged in accomplishing a common object or objective. See KAZA V. STATE (2008) LPELR – 1683 (SC), MARTINS V. STATE (2019) LPELR – 48889 (SC), KAYODE V. STATE (2016) LPELR – 40028 (SC), OGEDENGBE V. STATE (2014) LPELR – 23065 (SC), OGOGOVIE V. STATE (2016) LPELR – 40501 (SC) and BOUWOR V. STATE (2016) LPELR – 26054 (SC).

The ingredients for the offence of theft are as follows:
1. That the property in question is movable property.
2. That the property was in the possession of a person.
3. That the accused person moved the property whilst in the possession of the person.
4. That he did so without the consent of that person.
5. That he did so in order to take the property out of the possession of that person.
6. That he did so with the intent to cause wrongful gain to himself or wrongful loss to that person. See BABAGANA V. STATE (2020) LPELR-51431(CA) and GREMA V. STATE (2020) LPELR – 51432 (CA).

The burden of proving the above mentioned ingredients of the offences charged in order to secure a conviction against the Accused Person rests squarely on the Prosecution. This is by virtue of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which raises the presumption of innocence in favour of an Accused Person. The presumption of innocence guarantees the right of an Accused Person to remain silent while it mandates the Prosecution to prove beyond reasonable doubt every ingredient constituting the offence charged. See ABIDOYE V. FRN (2013) LPELR – 21899 (SC) and IGABELE V. STATE (2006) LPELR – 1441 (SC).
The standard of proof required from the Prosecution is proof beyond reasonable doubt. This Court succinctly expounded this principle in the case of JIBRIN V. NIGERIAN ARMY (2021) LPELR – 55398 (CA) thus;
“For the Prosecution to succeed in its case against an Accused Person and ground a conviction, the Prosecution must prove its case against the Accused Person beyond reasonable doubt. By virtue of the provisions of Section 138(1) of the Evidence Act, 2011, the burden of proof on the Prosecution is to prove its case against the Accused Person beyond reasonable doubt. In the unreported case of CHUKWUNONSO ANIGBOGU V. THE STATE delivered on 08/11/18 per Dongban-Mensem, JCA in the Enugu Division of the Court of Appeal, it was held thus;
“It is required in law that in order for a Prosecution to succeed in its case and to ground a conviction against an Accused person, it must prove its case beyond reasonable doubt. It is also the requirement that the standard of proof be beyond reasonable doubt but does not mean beyond a shadow of doubt. See OGUNDIYAN V. THE STATE (1991) LPELR-2333(SC), NKWUDA EDAMINE V. THE STATE (1996) LPELR-1002(SC), MORUFUBOLANLE V. THE STATE (2009) LPELR-788(SC) and THE STATE V. FEMI OLADOTUN (2011) LPELR-3226(SC). Where there is any doubt at all, this doubt must be resolved in favour of the Accused person. This has been the decision of the Apex Court in a plethora of cases. See AFOLALU V. THE STATE (2010) 16 NWLR (Pt. 1220) 584, OKPUTUOBIODE & ORS V. THE STATE (1970) LPELR-2524(SC), JOHN OKONJI V. THE STATE (1987) LPELR-2479(SC), THE STATE V. IDAPU EMINE & ORS. (1992) LPELR-3218(SC). ” Per DONGBAN-MENSEM, JCA.
There are three methods available to the Prosecution to use in proving an offence, they are;
(a) Evidence of eyewitness or witness account.
(b) Through confessional statement of the Accused Person.
(c) Through circumstantial evidence. See ILODIGIWE V. STATE (2012) 18 NWLR (Pt. 1331) 1, IJEOMA ANYASODOR V. THE STATE (2018) LPELR – 43720 (SC); LEKAN OLAOYE V. STATE (2018) LPELR – 43601 (SC); EMEKA V. STATE (2001) 6 SC 227; OHUNYON V. STATE (1996) 3 NWLR (PT.436) 264; BRIGHT CHIBUIKE & ANOR. V. THE STATE (2010) LPELR 3911; IGRI V. THE STATE (2010) 7 WRN 47 and OGBA V. STATE (1992) 2 MLR (PT.222) 146.

On the first ingredient of the offence Culpable Homicide, it is not in dispute that the deceased died, the evidence of all the witnesses at the trial including the Appellant affirms that the deceased died. Moreso, where death is instantaneous as in this case, the need to prove death of the deceased by way of tendering a medical certificate or Doctor’s report becomes unnecessary. See AIGUOREGHIAN & ANOR. V. STATE (2004) LPELR – 270 (SC).

On the other ingredients of the offence of Culpable Homicide, Conspiracy and Theft, in his confessional statement which was tendered and admitted in evidence without any objection by the Appellant, the Appellant confessed to how he and the other Accused Persons committed the heinous act of killing the deceased, stealing the deceased’s truck and attempting to sell off the content of the truck (Petroleum products). The Appellant stated that Bashir Alhassan, the 3rd Accused Person called him to come to Abuja from Lagos because he has a job for him, upon their arrival to Tungan Maje, they lodged there, ate and slept. That early hours of the next morning, they went to the truck where the deceased was and tied him with rope. That they stood beside the truck while the 1st Accused Person went back into the truck to finish off the job of killing the deceased and they drove off with the truck. That the 1st and 3rd Accused Persons found some black marketers who were willing to buy the fuel and the Police came and arrested them while they were trying to sell off the petroleum products inside the truck. See pages 15-16 of the Records.

The law remains well established that a conviction can be grounded solely on the confessional statement of the Accused Person without corroboration where it is positive, direct and properly obtained. See STATE V. IBRAHIM (2019) LPELR – 47548 (SC), SIMON V. STATE (2017) LPELR – 41988 (SC) and FABIYI V. STATE (2015) LPELR-24834 (SC).

The Appellant’s confessional statement gives a step-by-step narrative of all that transpired between the deceased and all the Accused Persons and establishes that the Appellant together with the other Accused Persons conspired and killed the deceased in order to steal his truck, sell the petroleum products inside the truck and make money off the sale. These facts duly establish the remaining two ingredients of the offence of Culpable Homicide, all the ingredients of the offence of conspiracy and all the ingredients of the offence of theft.

The Appellant’s learned Counsel submits that the lower Court’s conviction of the Appellant for theft of the truck is in respect of an offence unknown to the Section under which the charge was predicated. That central to the offence of theft is the element of “dishonestly taking” and the Prosecution failed woefully to establish the ingredients of “dishonestly taking” against the Appellant. For ease of reference, the law the Appellant was charged for theft is Section 288 of the Penal Code which provides thus;
“Whoever commits theft from or in or from any building, tent or vessel, which building is used as a human dwelling or used for custody of property or in or from any railway carriage lorry omnibus or aircraft used for the conveyance of passengers or goods shall be punished with imprisonment for a term which may extend to seven years or with fine or with both. “

From Section 288 of the Penal Code reproduced above and the ingredients of the offence of theft reproduced in the earlier part of this judgment, it is abundantly evident that both the case law and statute do not contain the phrase “dishonestly taking” as alleged by the Appellant’s Counsel which makes one wonder how the Appellant’s Counsel came about this line of argument which is not applicable to the facts in the instant appeal.

The argument by the Appellant’s Counsel that the Respondent ought to have recorded the confessional statement of the Appellant in vernacular before translating it to English is of no moment in the instant appeal. This is because the law stipulates that where the confessional statement of the Accused Person was taken in any other language apart from the language of the Court which is English, it would be deemed properly recorded and admissible where the interpreter who interpreted the said confessional statement to the Accused Person testifies in Court. PW1 who recorded the Appellant’s confessional statement and interpreted same to him testified in Court. See ASUQUO V. THE STATE (2016) LPELR – 40597 (SC).

The submission of the learned Counsel to the Appellant that the Prosecution Witness (PW1) that recorded the confessional statement of the Appellant is not conversant with the Hausa language is a deliberate attempt to mislead this Court despite the Records of Proceedings which are duly before this Court. Nowhere in the testimony of PW1 was it ever stated that PW1 does not understand Hausa. See pages 192 and 193 of the Records.

Due to the “hush-hush” nature of the offence of conspiracy, it is oft difficult if not impossible to prove conspiracy by direct evidence but by circumstantial evidence and inference from acts of the Accused Persons. Since conspiracy meetings (if any) are usually shrouded in secrecy, it is left for the lower Court to deduce conspiracy from the conduct of the Accused Persons and the circumstantial evidence adduced. See YAKUBU V. STATE (2014) LPELR – 22401 (SC) and STATE V. FAFURU (2022) LPELR – 58482 (SC).

Just like conspiracy, proving Culpable Homicide via direct evidence is almost impossible because dead men tell no tales and there are hardly any eye witnesses to the act. Hence, the Prosecution relies on either confessional statement and/or circumstantial evidence to prove its case. Circumstantial evidence has been defined in the case of ESSEYIN V. STATE (2018) LPELR – 44476 (SC) thus;
“My Lords, given the above circumstances, I, entirely, agree with the lower Court, that the Prosecution proved its case against the appellant beyond reasonable doubt. Surely, where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igabele v State [2004] 15 NWLR (pt 896) 314.
The category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State (1965) NMLR 119; Ukorah v State (1977) 14 SC 167; Lori v State (1980) NSCC 269; Onah v State [1985] 3 NWLR (pt 12) 236; Ebenehi v State [2009] All FWLR (pt 486) 1825, 1832-1833; Ijioffor v State [2001] 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v State (supra) 385.
The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person,Idiok v State [20081 All F WLR (pt 421) 797, 818.
Put simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State [2009] 7 N WLR. (pt 1139) 148, 178; (2009) LPELR -2663 (SC) 42-43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, wills on Circumstantial Evidence [Seventh edition] 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178.
Such was the circumstance in the instant case.” Per NWEZE, J.S.C. See also MADU V. STATE (2012) LPELR – 7867 (SC) and AMALA V. STATE (2004) LPELR – 453 (SC).

Apart from the confessional statement of the Appellant, the Appellant and the other Accused Persons were arrested during an attempt to sell off the petroleum products in the stolen truck; they were found in possession of the deceased’s missing truck filled with petroleum products. The long existing doctrine of recent possession postulated by Section 167(a) of the Evidence Act, 2011 provides thus;
“The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.” (Underlining mine for emphasis).
The above cited Statute has found application and interpretation in a plethora of judicial precedents such as STATE V. EKANEM (2016) LPELR – 41304 (SC), OKIEMUTE V. STATE (2016) LPELR – 40639 (SC), STATE V. NNOLIM & ANOR. (1994) LPELR – 3222 (SC), KOLAWOLE V. STATE (2015) LPELR – 24400 (SC), ADESINA & ANOR. V. STATE (2012) LPELR – 9722 (SC), EHIMIYEIN V. STATE (2016) LPELR – 40841 (SC) and AFOLABI V. STATE (2013) LPELR-20700 (SC).
I find particularly instructive the dictum in OGOGOVIE V. STATE (2016) LPELR – 40501 (SC) reproduced anon;
“The learned counsel for the appellant in his brief of argument, rightly in my view, listed the ingredient of the above provisions for a lower Court to be guided in applying those provisions, to include the namely: (a) That the goods are stolen (b) That the accused must be in possession of the goods. (c) The goods must be found in his possession soon after the theft, and (d) That the accused was unable to account for his possession of the goods recently stolen. The learned appellant’s counsel conceded that the prosecution now respondent, had led credible evidence to establish items (a), (b) and (c) above, but had failed to prove item (d) above. I will come to that later, but suffice it say, that this interpreted the above provisions in some of its decided authorities few of which I shall highlight below…
Taken alongside the tested confessional statement, Exhibit ‘E’, the identification of the appellant and tallied with that of the accused/appellant and the report of the investigation of the police witnesses. Indeed there is just more than enough upon which it can safely be said the proof of the offences has been made beyond all reasonable doubt.” Per SANUSI, J.S.C.

The 1st Accused Person, in a lame attempt to justify how he came to be in possession of the truck testified that his brother-in-law (deceased) had called directing him to supply the petroleum products in the truck on his behalf because he was not feeling well. Was there any evidence adduced to support this? No. Having failed to secure the lower Court’s acceptance of this explanation or justification for being in possession of a recently stolen property, I do not see how the Appellant who conspired with the 1st Accused Person and others could have escaped the conviction which followed. It is curious that the Appellant and all the other Accused Persons who had ties with Lagos were either allegedly heading to Lagos or coming from Lagos but did not have transport money to complete the journey.

In its evaluation of evidence, the lower Court found that;
“From the evidence before me, it is not in doubt that one Mustapha Goni Bamanga is dead. The next question is who caused the death of Mustapha Goni Bamanga.
The answer to the above question can be deduced from both the circumstantial evidence and the statement of the accused persons. It is not in doubt that the accused persons were arrested at Gada Biu while attempting to sell the fuel in the truck where late Mustapha was killed. Mustapha was last seen inside that truck at Tunga Mage a night before the incident and the body was found lying at where the vehicle was stolen with its contents. The reasonable inference is that the accused persons killed the deceased and stole the truck with its contents, i.e. the petroleum products. The accused persons have failed to tell the Court how they lawfully came about the vehicle and its contents. Although the 1st accused person said that his sister’s husband late Mustapha Goni Bamanga called him to come and assist him to deliver fuel to somebody for him on ground of ill health he has failed to tell the Court what happened to the said Goni and the fuel except that he was travelling to Gada Biu. There is a heavy burden on him to explain the whereabouts of the person that he said called him and the vehicle and its contents. Evidence revealed that the same in-law was found dead and the vehicle was stolen with its contents until it was found in possession of the accused persons in Gada Biu while they were attempting to sell the fuel.
Circumstantial evidence has been held to be good evidence which is very a foundation for conviction…
The circumstantial evidence is very overwhelming and it is resolved against the accused person. “(See Pages 271-273 of the Records).

I agree with the above findings, the Appellant was arrested in circumstances that prove beyond reasonable doubt that he committed the offences charged. It is noteworthy to state that in the sister appeals emanating from the instant case, this Court per GEORGEWILL, JCA also agreed with the above findings of the lower Court and affirmed its judgment. (See the unreported cases of GONI TIJANI V. THE STATE, Appeal No. CA/ABJ/CR/1052/2021, BASHIR HASSAN V. THE STATE, Appeal No. CA/ABJ/CR/1054/2021 and YUSUF MUKTARI V. THE STATE, Appeal No. CA/ABJ/CR/1053/2021; all delivered on 15/07/2022 at the Abuja Division).
I hereby resolve issues 2, 3, 5 and 6 against the Appellant.

ISSUE 4
The learned Counsel to the Appellant submits that the lower Court raised an alien defence for the Appellant; the defence of justification, which was not borne out of the evidence at the trial. That a person who pleads justification admits the commission of the offence in dispute but maintains that the law excuses him having regard to the circumstances and that it did not lie in the mouth of the Court to raise the defence. States that the defence of alibi was raised in the extra-judicial statement of one of the Accused Persons and this evidence is in harmony with all the evidence of the Accused Persons at the trial. That the Police shelved this evidence in their bid to churn out confession from the Accused and the lower Court ignored the vital defence and considered the defence of justification. States that the failure of the Police to investigate the defence of alibi, the inability of the Prosecution to lead a counter evidence to the contrary and the total failure of the lower Court to consider the defence of alibi occasioned a miscarriage of justice. Refers to Pages 24, 233 and 234 of the Records in urging this Court to resolve this issue in favour of the Appellant, allow this appeal and upturn the verdict of the lower Court.

The learned Counsel to the Respondent responds that DW1 by his testimony sought to justify selling the fuel in the tanker, that assuming without conceding the defence of justification was not contemplated, a Court has the liberty to invoke the provision of any law it finds relevant to the determination of a suit. He relied on STATE V. OSLER (1991) 6 NWLR (PT. 199) 576; GBARI V ILORY (2002) 14 NWLR (PT. 786) 78 and KAZA V. STATE (2008) 7 NWLR (PT. 1085) 125.

Further responds that the evidence indicting the Appellant and other Accused Persons was so weighty to allow the flimsy resort to alibi by the Appellant to affect the judgment of the Court. Cites MOHAMMED V. AG FED (2021) 3 NWLR (Pr. 1764) 37. That, the defense of alibi when raised must be verified but the Accused must call evidence to prove that he was elsewhere. Relied on USUFU V. STATE (2007) 3 NWLR (PT. 1020) 94; IBE V. STATE (1992) 5 NWLR (PT. 224) 642; ESANGBEDO V. STATE (1989) 4 NWLR (PP. 113) 57; BOUWOR V. STATE (2016) 4 NWLR (Pt. 1502) 295 and AKEEM V. STATE (2017) 18 NWLR (PT. 1597) 311.

It is the Respondent’s Counsel’s submission that assuming without conceding that the Respondent failed to conduct any investigation of the defence of alibi, where there is positive evidence which cancels the alibi, the failure will not be fatal to the conviction. ODU V. STATE (2001) 10 NWLR (PT. 722) 688 and ATTAH V. STATE (2009) 15 NWLR (PT. 1164) 284 were cited.

RESOLUTION OF ISSUE FOUR
The Appellant contended that the lower Court raised the defence of justification on behalf of the Appellant suo motu and failed to consider the defence of alibi raised by the Appellant.

I agree with the finding of the lower Court at page 288 of the Records that it behoves on the Court to consider any defence available to an Accused Person which is disclosed in the evidence before the Court. This duty is laden on the Court whether or not it is raised by an Accused Person. See OWOLABI KOLADE V. THE STATE (2017) LPELR – 43262 (SC), NSE UDO NTITA V. THE STATE (2008) ALL FWLR (PT. 397) 1 and SHALLA V. THE STATE (2008) ALL FWLR (PT. 397) 25.

The defence of alibi simply means elsewhere which makes it physically impossible for the Accused Person to have committed the offence because he has been placed in a different location other than the crime scene. It is pertinent to state that in raising the defence of alibi, the Accused Person merely claiming that he was somewhere else and not at the crime scene would not suffice. It is the responsibility of the Accused Person who has all the information to furnish the Police with the time, date, place and possibly the people he was with in order to successfully plead alibi.

At page 289 of the Records, the lower Court specifically stated that;
“None of the accused persons raised any defence known to law.” (Underlining supplied for emphasis).

The argument of the Appellant’s learned Counsel runs foul to the above finding of the learned trial Judge who clearly averted his mind to all the possible defences raised by the Appellant as stipulated by the law. I agree with the above finding of the lower Court. I have carefully studied the Records before this Court, I have failed to see where the Appellant raised the defence of alibi as alleged and heavily argued by the Appellant’s Counsel. The learned Counsel to the Appellant contends that the Appellant raised an alibi which was neither investigated by the Respondent nor considered by the lower Court.

For ease of reference, Paragraph 7.6 at page 24 of the Appellant’s Brief is reproduced anon;
“The above piece of evidence is in harmony with all the evidence of the accused persons at the trial. The evidence of DW2 in open Court was that-
“I was travelling from Lagos to Zamfara but I branched Ogene. I was informed that there is no vehicle to Zamfara State except to Niger. On our was (sic) we reached a garage near the depot… ln the morning I saw Goni Tijani (1st Accused) in front of his vehicle, I requested him to drop me at Dikko Junction… At Gwagwalada, the 1st accused told me that the vehicle developed problem… “See pages 233-234 of the Record of Appeal. “

I do not see how the defence of alibi was raised in the above testimony. The learned Counsel to the Appellant is grossly mistaken as to concept of alibi. The defence of alibi does not avail the Appellant because he was arrested with the other Accused Persons while they were trying to sell the fuel which is also a crime scene. The law remains unequivocal that where an Accused Person is arrested at the scene of the crime or caught red-handed in the act, the Accused Person is completely barred from raising the defence of alibi. In a situation such as in this case where an Accused Person is fixed at the scene of crime, the fact that the Prosecution did not investigate the defence of alibi is very much irrelevant as such an investigation would be a complete waste of time; a worthless exercise. It follows therefore that where an Accused is fixed at the locus criminis, which evidence is believed by the lower Court, no reasonable doubt is created for the benefit of the Accused Person if the Prosecution failed or neglected to investigate a claim of an alleged alibi put up by the Accused Person. I call in aid the case of SADIKU V. STATE (2013) LPELR – 20588 (SC) where the Apex Court affirmed the decision of the lower Courts invoking the doctrine of recent possession to defeat the defence of alibi thus;
“The plea of alibi though timeously raised was rightly rejected because the appellant was found in the vicinity of the crime shortly after the robbery and not only that he was found in possession of the stolen items. Having been found in possession of the stolen goods, the learned trial Judge was right to invoke Section 167(a) Evidence Act to presume that the appellant was either the robber or knew that the goods were stolen when he came into possession.” Per AKAAHS, J.S.C. (Emphasis supplied). See also VICTOR V. STATE (2013) LPELR – 20749 (SC), EHIMIYEIN V. STATE (2016) LPELR – 40841 (SC), CHUKWUNYERE V. STATE (2017) LPELR – 43725 (SC), STATE V. EKANEM (2016) LPELR – 41304 (SC) and OPEYEMI V. STATE (2019) LPELR – 48764 (SC).

Merely stating where the Appellant was coming from (Lagos) and his destination (Zamfara), cannot be interpreted by any stretch of imagination as he was somewhere else and could not have committed the offences charged considering the Appellant was arrested while in possession of the stolen truck and fuel. I find that the defence of alibi was not raised in any way at the lower Court by the Appellant.
Issue four is resolved against the Appellant.

Having resolved all the issues in this appeal in favour of the Respondent and against the Appellant, I find that this appeal lacks merit and is hereby dismissed.

The judgment of the lower Court Coram Mohammed S. A. Mohammed (J.) delivered on 20/10/2021 in Charge No. NSHC/MN/2C/2020 is hereby affirmed. The Appellant remains convicted and sentenced to death.

RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance, the lead judgment of my learned brother Dongban-Mensem, PCA and I agree with both his reasoning and conclusions. I join him in dismissing the appeal.

PETER OLABISI IGE, J.C.A.: I have read in advance, the comprehensive and lucid judgment of my Noble Lord the Hon. the President of the Court of appeal and I am of the firm opinion also that the Appellant’s appeal be dismissed.

I agree in toto with the reasoning and conclusion contained in the said judgment.