MUSA v. STATE (2020)

MUSA v. STATE

(2020)LCN/14827(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/J/105/C/2020

RATIO

CRIMINAL PROCEDURE: WHETHER THE COURT IS AT LIBERTY TO CONVICT AN ACCUSED UNDER A DIFFERENT LAW FROM THE ONE THE ACCUSED WAS TRIED WITH

In Okobi v. State (supra) it was said by the apex Court (Obaseki, J.S.C., with his brothers Bello, Aniagolu, Nnamani and Uwais, JJ.S.C – as they all then were – concurring) at p. 19 LPELR, that:
“To enable the Court to utilize its powers under the Criminal Procedure Law to advantage, the offence should and must be charged under the two laws in the alternative. The Court is not a prosecutor but an adjudicator and it borders on persecution for the Court to invoke its powers under a law under which the prosecutor decided not to proceed or prosecute. The jurisdiction being exercised by the High Court of the State in the trial of persons for offences under the Armed Robbery and Firearms (Special Provisions) Act is the jurisdiction conferred upon the High Court by the Armed Robbery and Firearms (Special Provisions) Act. As the Act gave no jurisdiction to convict of offences other than those set out in the Act, the High Court cannot by the application of Section 179(1) of the Criminal Procedure Law exercise the jurisdiction conferred by the Act to convict of an offence not under the Act.”
With His Lordship adding further in concluding his judgment, at p.23 LPELR, that:
“I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under Robbery and Firearms (Special Provisions) Act permitting such a course of action. It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.”
Equally noteworthy is that the apex Court (Obaseki, J.S.C.) in the same Okobi’s case made it clear (at p.20 LPELR) that:
“Stealing is the only constituent lesser offence of robbery in respect of which a conviction could be entered by virtue of Section 179(1) of the Criminal Procedure Law. Obtaining by false pretence is not a constituent offence Neither is cheating a constituent offence of robbery although they carry less penalties and punishment.”
All the foregoing was reconfirmed in Mohammed Bello v. The State (2020) 3 NWLR (PT 1710) 72 @ p. 92-92 and p. 97-103 (particularly Eko, in lead judgment, and Nweze, JJ.SC), following Okobi’s case, in upturning the decision of this Court which had affirmed a similar conviction by the High Court of Kwara State of Mr. Bello on a so-called lesser state offence of receiving stolen property after it had acquitted him of the federal charge of armed robbery. Incidentally, like the instant case, the charge against Bello in that case also contained some other offences under the Penal Code of Kwara State, so it is even no answer (even as that argument was not canvassed by the State) that the charges laid by the State against appellant at the Bauchi State High Court also included charges under the Penal Code of Bauchi State. PER MOSES UGO, J.C.A.

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

YAKUBU MUSA APPELANT(S)

And

THE STATE RESPONDENT(S)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal and cross-appeal are against the judgment of the High Court of Bauchi State of 4th March 2020. Appellant/cross-respondent, Yakubu Musa, was charged before the High Court of Bauchi State on a three count charge of criminal conspiracy, abetment and armed robbery contrary to Section 97 and 83 of the Penal Code, and Section 1 (1) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria 2004, respectively. The particulars of the offences stated that:
i. That you YAKUBU MUSA of Bakaro Street, 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 this Hon.(sic) Court;
ii. That you YAKUBU MUSA of Bakaro ward, Bauchi L.G.A of Bauchi State sometime in the month of November 2017 or thereabout you gave one Ya’u Mohammed of Bonji Village a master key to go and steal motorcycles of which he went and stole several motorcycle and brought it to you, thereby committed an offence of Abetment contrary to Section 83 of the Penal Code and triable by this Hon. Court;
iii. That you YAKUBU MUSA of Bakaro Street, Bauchi L.G.A of Bauchi State on 22/01/2018 at about 0200hrs 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 punishable under Section 1 (2) (a) and (b) of Robbery and Firearms Act, LFN 2004 and triable by this Hon. (sic) Court”.

Appellant pleaded not guilty to the charges, the prosecution, opened its case and called a total number of 4 witnesses (PW1 PW4). Appellant subsequently

testified in his own defence as DW1.

At the close of the case for the defence, counsel to the parties addressed the Court, following which the trial judge, Usman, J., in his judgment of 4th March 2020, acquitted appellant/cross-respondent of all three charges but proceeded pursuant to Section 214 of the Criminal Procedure Code Law of Bauchi State to convict him for a lesser offence of Dishonestly Receiving Stolen Property, i.e. stolen motorcycle, under Section 317 of the Penal Code.
Appellant is aggrieved by that decision of the High Court and has lodged this appeal on a single ground of appeal complaining that the trial judge erred in law in convicting him of the lesser offence of Dishonestly Receiving Stolen Property. He gave the particulars of that error thus:
i. The elements of the offence of were not proved beyond reasonable doubt.
ii. The elements of the offence charged and those in the lesser offence for which he was convicted are not the same.
iii. The trial Court lacked jurisdiction to convict appellant on the lesser offence.

From that sole ground of appeal, he went on to frame a single issue for determination thus:

Whether the trial Court had jurisdiction to convict for the lesser offence of dishonestly receiving stolen property from the evidence before it.

The State, while contented with the trial judge’s decision that it did not prove the charge of armed robbery against the appellant, is also not persuaded by the verdict of that Court that it did not also prove the charges of criminal conspiracy and abetment against appellant beyond reasonable doubt. It is of the opinion that the trial judge did not give sufficient consideration to the evidence of its fourth witness, (P.W.4), who happened to be the police officer that investigated the case. It has therefore also cross-appealed on two grounds, complaining that the learned trial judge erred in law when he failed to gave value to the testimony of the PW4 and discharged the accused (cross-appellant) on the charges of criminal conspiracy and abetment and thereby occasioned a miscarriage of justice. It framed an issue each from its two grounds of appeal asking in the main whether on the totality of the evidence adduced by it the trial Court was right in holding that it did not prove beyond reasonable double all the

ingredients of criminal conspiracy and abetment against appellant.

First things first, so I shall deal with the main appeal of appellant Yakubu Musa before turning to the cross-appeal of the State.

The MAIN APPEAL
Appellant anchored his complaints on his sole issue on three fronts as particularized in his ground of appeal.

First, appellant argued, through his counsel Mr. Kelechi Obi, that the trial judge lacked jurisdiction to convict him for the offence of dishonestly receiving stolen property under Section 317 of the Penal Code, a State Law, in substitution for the offence of armed robbery, an offence created by a Federal statute, the Robbery and Firearms (Special Provisions) Act, that he was charged and acquitted of. He argued that the criminal laws of this country make a dichotomy between federal and state laws; that armed robbery, for which the trial Court discharged him, is a federal offence so the learned trial judge was wrong and even lacked jurisdiction to convict him for dishonestly receiving stolen property under Section 317 of the Penal Code, a State Law, so we should discharge and acquit him. In support of that, he referred

us to the decisions of the Supreme Court in Okobi v. The State (1984) LPELR-2453 (SC) and Mohammed Bello v. The State (2020) 3 NWLR (PT 1710) 92 and my lead judgment of Ahmed Muhammed v. The State in Appeal No. CA/J/66/C/2020 delivered on 17/7/2020.

On a second front, appellant argued that the State, which had an un-shifting burden to prove his guilt beyond reasonable doubt regarding the offence of dishonestly receiving stolen property, failed to discharge that burden by proving the ingredients of that offence, which are that stolen property was received by appellant knowing that it must have been stolen. He said by his evidence in his defence, he was able to give a true account of how the Boxer Motorcycle alleged stolen came into his possession so it was incumbent on the State to debunk that evidence but it failed to do that. Had the trial judge properly evaluated the evidence, he argued, his verdict would have been different.

On his last and final front, Mr. Obi for appellant citing Amadi v. State (2019) LPELR-47041 submitted that for the Court to convict for a lesser offence than the offence charged it must be shown that the particulars and

facts of the original charge are the same or similar to the lesser offence. Learned counsel once again reproduced the elements of dishonestly receiving stolen property and submitted that its ingredients are different from a charge of armed robbery the elements of which are that there was indeed an armed robbery or series of robberies, the robbers were armed with dangerous weapons, and that the accused person was the robber or one of them. That, he submitted, was not the case here so appellant’s conviction for was again wrongful and deserved to be upturned.

For the State, Mr. H.I. Magaji of the Bauchi State Ministry of Justice against the consistent stand of this Court and the apex Court that issues for determination must never be more than the grounds of appeal and two issues should not framed from a ground of appeal managed to frame two issues for determination from appellant’s single ground of appeal. He first framed a purely academic question (thus breaching the rules of framing of issues further) asking “whether the lower had powers under the Criminal Procedure Code to convict the appellant on a different charge than the one he was

charged with, and secondly whether on the totality of the evidence adduced on the record the lower Court was right in finding appellant guilty of the offence of dishonestly receiving stolen property.

On its academic issue one as to whether the lower Court had powers under the Criminal Procedure Code to convict the appellant on a different charge than the one he was charged with, Mr. Magaji for the State simply reproduced the provisions of Section 317 of the Criminal Procedure Code Law of Bauchi State and affirmed that it had if from the evidence adduced before it, it appears that an accused person committed an offence different from the one he was charged with, so the lower Court was correct in convicting appellant for dishonestly receiving stolen property as it did.

Coming to the State’s issue 2, Mr. Magaji argued that given the manner the motorcycle, which the lower Court also found was robbed on 20/10/2018 was found in the possession of appellant the following day (21/10/2018), a fact appellant also admitted, Section 167(a) of the Evidence Act 2011 and its rebuttable presumption that appellant was its thief or he received it knowing that it

had been stolen applied, especially in the absence of any proper explanation from appellant as to how it came into his possession, so he was properly convicted by the lower Court.

Mr. Obi in appellant’s Reply brief first responded that the State did not respond to appellant’s argument of kindred offences and lack of jurisdiction in the lower Court to convict appellant under the Penal Code after acquitting him of armed robbery so it is deemed to have conceded to that argument.

Learned counsel in the same Reply brief also argued appellant’s motion on notice objecting to the second issue the State framed from appellant’s one ground of appeal. Counsel citing the decision of this Court (Tsammani, J.C.A) in the civil appeal of Oluwole v. Margaret (2012) 13 NWLR (PT 1318) argued that issues for determination cannot outnumber grounds of appeal filed so we should strike out issue 2 of appellant.

On the merits of the State’s arguments regarding the correctness of appellant’s conviction for the offence of dishonestly receiving a stolen property, Mr. Obi submitted that the State’s argument that the stolen

motorcycle was recovered from the possession of appellant was at variance with the records. He said the records, particularly appellant’s testimony, show that the motorcycle was rather recovered by the police from one Musa who appellant claimed sold it to him after he (appellant) had made part-payment, unlike the cases cited by the State where the stolen item was recovered from the possession of the accused person himself thus making applicable Section 167(a) of the Evidence Act and its rebuttable presumption that the person from whom a stolen property was recovered so soon after its theft is the thief or that he received it with knowledge that it was stolen.

Resolution of Issue
In response first to appellant’s objection to issue 2 of respondent, this being a criminal appeal against conviction and sentence without fine that touches on the liberty of appellant, and given also that the two issues of respondent are in reality one issue unnecessarily split into two, I shall overlook the error of the State and consider its arguments on its merits: Nwankwo v. Yar’adua & Ors (2010) 12 NWLR (PT 1209) 518. That is even more so as there

is also the larger interest of justice, including that of society (represented by the State) to be protected from the activities of criminals.

Coming to the merits of the argument of appellant, it appears to me that this issue of the correctness of the lower Court’s conviction of appellant for receiving stolen property under Section 317 of the Penal Code Laws of Bauchi State in place of the armed robbery under Section 1(a) and (b) of the Robbery and Firearms Act Laws of the Federation 2004, a federal statute can be resolved on the short point of whether a person charged for a federal offence like armed robbery can be convicted for a state offence like dishonestly receiving stolen property after he is acquitted of armed robbery. That question, which respondent did not even bother to answer and so is deemed to have conceded (Okongwu v. NNPC (1989) 4 NWLR (PT 115) 296; Nwankwo v. Yar’ Adua (2010) 3 SCNJ (PT 1) 244 @ 265) has been answered at least twice by the apex Court, first in 1984 in Okobi v. State (1984) LPELR-2453 (SC), (1984) 7 S.C 47 and more recently in 2019 in Mohammed Bello v. State (2020) 3 NWLR (PT 1710) 72, both times in the

negative. In Okobi v. State (supra) it was said by the apex Court (Obaseki, J.S.C., with his brothers Bello, Aniagolu, Nnamani and Uwais, JJ.S.C – as they all then were – concurring) at p. 19 LPELR, that:
“To enable the Court to utilize its powers under the Criminal Procedure Law to advantage, the offence should and must be charged under the two laws in the alternative. The Court is not a prosecutor but an adjudicator and it borders on persecution for the Court to invoke its powers under a law under which the prosecutor decided not to proceed or prosecute. The jurisdiction being exercised by the High Court of the State in the trial of persons for offences under the Armed Robbery and Firearms (Special Provisions) Act is the jurisdiction conferred upon the High Court by the Armed Robbery and Firearms (Special Provisions) Act. As the Act gave no jurisdiction to convict of offences other than those set out in the Act, the High Court cannot by the application of Section 179(1) of the Criminal Procedure Law exercise the jurisdiction conferred by the Act to convict of an offence not under the Act.”
With His Lordship adding further in concluding

his judgment, at p.23 LPELR, that:
“I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under Robbery and Firearms (Special Provisions) Act permitting such a course of action. It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.”
Equally noteworthy is that the apex Court (Obaseki, J.S.C.) in the same Okobi’s case made it clear (at p.20 LPELR) that:
“Stealing is the only constituent lesser offence of robbery in respect of which a conviction could be entered by virtue of Section 179(1) of the Criminal Procedure Law. Obtaining by false pretence is not a constituent offence Neither is cheating a constituent offence of robbery although they carry less penalties and punishment.”
All the foregoing was reconfirmed in

Mohammed Bello v. The State (2020) 3 NWLR (PT 1710) 72 @ p. 92-92 and p. 97-103 (particularly Eko, in lead judgment, and Nweze, JJ.SC), following Okobi’s case, in upturning the decision of this Court which had affirmed a similar conviction by the High Court of Kwara State of Mr. Bello on a so-called lesser state offence of receiving stolen property after it had acquitted him of the federal charge of armed robbery. Incidentally, like the instant case, the charge against Bello in that case also contained some other offences under the Penal Code of Kwara State, so it is even no answer (even as that argument was not canvassed by the State) that the charges laid by the State against appellant at the Bauchi State High Court also included charges under the Penal Code of Bauchi State. The course taken by the lower Court can only be justified if appellant was charged in the alternative for receiving stolen property which is incidentally also an offence under Section 5 of the same Robbery and Firearms (Special Provisions) Act. For that fact (1) that the State did not so charge appellant; (2) dishonestly receiving stolen property being not a lesser offence properly

so called of armed robbery as the two do not share the same ingredients, which means that appellant’s right to fair hearing would have been and was actually infringed with his conviction for the offence of dishonestly receiving stolen property when he had no opportunity of contesting that charge; and (3) the federal penal statute of Robbery and Firearms (Special Provisions) Act under which appellant was charged not having any provision for punishment of lesser offence, appellant’s conviction by the lower Court for the offence receiving stolen property was wrong. The result is that his appeal against his conviction for dishonestly receiving stolen property under Section 317 of the Penal Code Laws of Bauchi State and sentence to seven years imprisonment by the High Court of Bauchi State in its judgment of 04/03/2020 in Charge No. BA/44C/2019 has merit and is hereby allowed and the said judgment and sentence set aside.

CROSS-APPEAL
(The STATE v. YAKUBU MUSA)
In support of the State’s two issues in its cross-appeal, the State as cross-appellant asked whether on the totality of the evidence adduced by it the trial Court was right

in holding that it did not prove beyond reasonable doubt all the ingredients of criminal conspiracy and abetment against appellant/cross-respondent.

Background
On 20/10/2018, armed robbers invaded Yalwan Kadara, Yuguda village, Bauchi State and robbed two motorcycles. One of the motorcycles was sighted the following day by PW3 (Adamu Dawai), a commercial motorcycle rider in Bauchi, while it was being ridden by a third party. That person, by P.W.3’s admission under cross-examination, was not appellant/cross-respondent. In fact, the strange rider of the motorcycle was not even called by the prosecution, even as the police, by the prosecution’s story through P.W.3, also arrested him. P.W.4, a police officer, testified that in the course of investigating a case involving the use of a Vectra car by some three suspected robbers from whom dangerous weapons were recovered, which case by his evidence had been pending with the police for some time, two of the suspects told him that they were in Bauchi on the invitation of one Yakubu Adamu of Bakalo Bauchi, in collaboration with one Alhaji Sani Gwabba, with a view to proceeding to Gwarimpa, Abuja in

the Federal Capital Territory to rob a politician’s house. P.W.3 said he and his team arrested the said three occupants of the Vectra car, whereupon one of them called on phone Yakubu Adamu, who he this time identified as appellant/cross-respondent, and told him to come and meet him at a place he simply called Multipurpose. PW4 claimed his team of policemen went with the three men to Multipurpose in the same Bauchi where the pointer pointed out appellant/cross-respondent to him and they arrested him. Upon arrest, he was searched by PW4 and they found in his possession two master keys. Appellant/cross-respondent was then taken to PW4’s superior officer, O/C, who, according to PW4, interrogated him and appellant/cross-respondent mentioned that every day the gang went to rob in Bauchi without a car it was his car they used for their operations. That, he said, was all he knew about the case.

In his defence, appellant/cross-respondent said he is a commercial driver and lived in Bakaro Street in Bauchi; that he was arrested at his place of work by the police who accused him of theft of motorcycle. He said in the morning of the day of his arrest by

the police, he bought a Boxer brand motorcycle from the person who came with the police to arrest him. Upon his arrest, he said, the police took him to its State C.I.D. Bauchi, where they asked him how he got the motorcycle and he told them that it was someone who sold it to him. That person, he said, is one Musa Isa whom he had not sighted since he has been attending the proceedings of the lower Court. Under cross-examination, he said he made half payment of ₦40,000 for the motorcycle and he was to pay the balance of ₦15,000 at 2.00 pm that same day when he was arrested by the police. He said the seller did not hand over the motorcycle to him; that the seller went back with it after he made part-payment and was later arrested by the police. He claimed to have bought the motorcycle for his son.

It is worth mentioning that it was the recovery of that motorcycle, which by the evidence of P.W.1 and PW2 is one of two motorcycles that was robbed by the robbers that invaded their residences in Yelwan Kadara the previous night that led to the arrest of appellant/cross-respondent. PW1 and 2 who were the victims of the robbery all admitted under

cross-examination that they did not recognize the people who robbed them of the motorcycles in the night.

It was on account of the foregoing that the State charged appellant/cross-respondent on three counts of conspiracy to rob under Section 97 of the Penal Code of Bauchi State, abetment under Section 83 of the Penal Code of Bauchi State, and robbery under Section 1 (1) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria 2004 respectively, all of which the trial Judge found not proved but convicted him, wrongly, as has been shown already, of a State offence of Dishonestly Receiving Stolen Property contrary to Section 317 of the Penal Code Law of Bauchi State. The learned trial judge reasoned thus, among others, in holding the three charges not proved:
“In the instant case the prosecution has failed to link the accused person with robbery that took place at YalwanKadara village. The question is that, it is safe for me to convict the accused person based on the fact that he was found to be in possession of the robbed motorcycle not withstanding that he said he bought it from a 3rd party and more

especially when the prosecution has refused failed to called the pointer and testify before the Court that it was actually the accused person that brought the motorcycle. Another important omission made by the prosecution is their failure to call the IPO to testify in this case and render the statement of the accused if any, failure to call the pointer and IPO are fatal to the prosecution case.”

The State’s main argument in its cross-appeal is that the trial judge did not give sufficient ‘cognizance’ and ‘value’ to the testimony of PW4 in his judgment. After making reference to page 19 of the records where Pw4 said he and his team recovered from the occupants of the Vectra car two AK47 riffles, two magazines loaded with 64 live ammunitions and one locally made pistol, Mr. Magaji for the State argued that that, added to PW4’s evidence that it was his car the robbers normally used for their robbery operation within Bauchi, showed that appellant/cross-respondent was in agreement with the said unknown robbers so the trial judge was wrong in finding otherwise.

Learned Counsel, who incidentally also personally

prosecuted appellant/cross-respondent at the trial High Court, also relied on the same evidence of PW4 regarding the recovery of the weapons from the Vectra car and submitted that the offence of abetment under Section 83 of the Penal Code was proved beyond reasonable doubt against appellant/cross-respondent by the State so the lower Court should have convicted him for that offence too and his decision declining to do so was wrong.

Mr. Obi for appellant/cross-respondent gave several reasons why the decision of the trial judge holding these two charges not proved is correct and prayed us not to interfere with it.

Resolution of issue(s)
In holding these two counts of criminal conspiracy and abetment not proved against appellant/cross-respondent, this is what the trial judge said, first in respect of the conspiracy count:
“To prove the offence of criminal conspiracy against the accused person as I stated earlier in the course of this judgment, the prosecution must prove that there is an agreement between the accused person and one other person. In this case, such evidence was not led. In the circumstances, the prosecution has failed to

prove count 1 of the charge and I hereby acquit the accused person of the offence of criminal conspiracy.”

Immediately thereafter, he proceeded to the abetment charge and said thus on it:
“Let me now consider Count 2 to wit: the offence of abatement. The prosecution has not been able to lead evidence to show that the accused person has encouraged or facilitated the commission of the offence. The accused person is also discharged and acquitted.”

On the evidence on record before the Court I cannot also see how it can be said that the State either through the evidence of PW4 or those of P.W.1, 2 and 3 made out even the slightest case, not to talk of one beyond reasonable doubt, against appellant/cross-respondent to secure his conviction for criminal conspiracy and abetment. I note, in the first place, that it was not the State’s case, at least not by the evidence of its witnesses, that the persons P.W.4 claimed he and his team caught with dangerous weapons and who allegedly phoned appellant/cross-respondent were the same persons who robbed P.W.1 and 2 of their motorcycles at Yelwan Kadaran the previous night. Besides, even

the evidence of P.W.4 regarding what he claimed appellant/cross-respondent admitted before his O/C at the State C.I.D is clearly hearsay. One even wonders why the O/C at Bauchi State C.I.D. who P.W.4 claims appellant/cross-respondent admitted that it was his car robbers usually used for robbery was not called. What is more, even the extra-judicial statement of appellant/cross-respondent was not tendered by the prosecution. Even the man from whom the motorcycle in issue was recovered and who PW3 said he raised alarm and police arrested and took to their headquarters (see p.17 of the records) was not called by the prosecution to tell the Court what he knew about the issue and if appellant/cross-respondent actually knew more about the robbery in Yelwan Kadaran than his denials suggested. Whatever statement that man made to the police, if at all he made one, was not also tendered. Even the suspected robber who by P.W.4’s evidence made the phone call to appellant/cross-respondent that led to his arrest was not called. Even his name was not disclosed.

In fact, there were too many holes in the case of the prosecution that I do not see any other verdict

than acquittal that the trial judge could have properly returned on the three charges. In the event, I uphold the judgment of the High Court of Bauchi State acquitting appellant/cross-respondent of the said two charges of criminal conspiracy and abetment.

In summary:
1. Appellant Mr. Yakubu Musa’s appeal against his conviction for dishonestly receiving stolen property under Section 317 of the Penal Code Laws of Bauchi State and sentence of seven years imprisonment by the High Court of Bauchi State in its judgment of 04/03/2020 in Charge No. BA/44C/2019 succeeds and is hereby allowed and the said judgment and seven years imprisonment sentence imposed on him are hereby set aside.
2. The cross-appeal of the State against the decision of the Bauchi State High Court discharging appellant/cross-respondent Yakubu Musa of the charges of criminal conspiracy and abetment fails and is hereby dismissed.

TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, J.C.A. My learned brother has thoroughly dealt with the appeal and the cross appeal in the case. I have nothing

useful to add.

I agree with the conclusion reached.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading before now the lead judgment by my learned brother, BOLOUKUROMO MOSES UGO, JCA on both the main appeal and the cross-appeal.

I agree with the reasoning and conclusions reached thereat allowing the main appeal and dismissing the cross-appeal for failure to discharge the burden of proof in criminal trial which in essence is proof beyond reasonable doubt. The onus is on the prosecution to proof its case beyond reasonable doubt. Where the judex has any doubt at all, he must give the accused person the benefit of that doubt. See the case of OKPUTU OBIODE AND ORS V THE STATE (1970) 1 ALL NLR 35.

For the foregoing and the fuller reasoning contained in the lead judgment of my learned brother I also allow the main appeal and set aside the conviction and sentence of the Appellant by the trial Court.

In addition, I also agree that the cross-appeal is meritless and I also dismiss it.

I abide by the consequential orders in both the main appeal and the cross-appeal respectively.

Appearances:

Kelechi Obi, Esq. For Appellant(s)

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