MUSA v. STATE
(2022)LCN/17069(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, April 25, 2022
CA/K/79C/C/2020
Before Our Lordships:
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
MASA’UDU MUSA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
ELEMENTS TO PROVE THE INGREDIENTS OF ARMED ROBBERY
To succeed in a charge of armed robbery, the prosecution must prove the following ingredients:
(a) That there was a robbery or series of robberies;
(b) That the robbery was carried out with offensive weapons; and
(c) That the accused person participated in the robbery.
See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Alabi v. State (1993) 7 NWLR (Pt. 307) 511, Bello v. State (2007) 10 NWLR (Pt. 1043) 564 and Adekoya v. State (2017) NWLR (Pt. 1565) 343. PER AMADI, J.C.A.
FACTOR THAT MUST BE PRESENT FOR A CONFESSION TO BE RELEVANT AND ADMISSIBLE TO GROUND A CONVICTION
It is settled that for a confession to be relevant, admissible or ground a conviction it must be voluntary, positive, direct and unequivocal. See Afolabi v. COP (1961) 1 All NLR 654 and Njovens v. The State (1973) 5 SC 17.
At the point of objection on the ground of retraction of the voluntariness of the confessional statement the trial Court is bound to conduct a mini-trial to ascertain the voluntariness or otherwise of the said confessional statement. See Nwangbomu v. The State (1994) 2 NWLR (Pt. 327), Igri v. State (2009) LPELR 4373. PER AMADI, J.C.A.
KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kastina State High Court delivered on 5/10/2017, coram: Hon. Justice Baraka Iliyasu in Charge No: KTH/27C/2016.
The appellant together with 3 (three) other persons were charged for Armed Robbery punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004. The appellant was the 2nd (second) defendant. At the close of trial, the trial judge convicted all the accused persons and sentenced them to 21 years imprisonment.
Aggrieved by his conviction and sentencing, the appellant filed a Notice of Appeal on 7/2/2020. And by an Amended Notice of Appeal dated the 28/4/2021 but filed on the 16/06/2021, the appellant raised 2 (two) grounds of appeal as follows:
GROUND ONE:
That the learned trial Judge erred in law and occasioned a miscarriage of justice when he relied on the alleged confessional statement of the Appellant to convict the Appellant in spite of the Appellant’s denial of ever making the confessional statement and the absence of corroborative evidence outside the confession.
GROUND TWO:
The decision of the learned trial Judge is unreasonable and cannot be supported having regard to the weight of evidence.
The appellant’s brief of argument dated 28/4/2021 was filed on 16/6/2021 and deemed properly filed and served on 27/09/2021.
The learned counsel for the respondent by a Motion on Notice filed on 2/11/2021 was granted an extension of time for 14 days within which the respondent may file its respondent’s brief of argument. However, the 14 days extension elapsed and the respondent did not file any brief of argument. Consequently, the appeal was heard on the 26/1/2022 on the appellant’s brief of argument only.
The learned counsel for the appellant Olujoke Aliu in the appellant’s brief of argument raised a sole issue for determination thus:
Whether having regard to the evidence led at the trial, there was reasonable doubt as to the alleged robbery and the appellant’s participation in the same.
In arguing this sole issue, counsel submitted that the trial Court relied heavily on the confessional statement of the appellant and his co-accused persons. But that the said confessional statements were retracted whereupon the trial Court sought for evidence outside the confession and in doing so, strongly relied on certain exhibits which PW7 (the exhibit keeper) had tendered as weapons allegedly found in the house of the accused persons.
In respect of the confessional statement of the appellant exhibit F and F1 (Hausa and English Conversion) counsel, submitted that it was not reliable as (a) there was evidence that it was not voluntary and (b) the evidence shows that the appellant did not have the opportunity to commit the robbery and (c) there were material discrepancies between the confessional statement and evidence outside of the confession, including evidence of the prosecution.
Counsel argued that at the point of tendering the said confessional statement of the appellant, objection to its admissibility was raised on the ground of retraction yet the Court overruled this objection admitted it and relied heavily on it to convict the appellant. Counsel submitted that the said confessional statement was not voluntarily made by the appellant. That there was evidence that the appellant was tortured and beaten to make the statement. That even the prosecution witness admitted the physical assault on the appellant.
Apart from the foregoing, counsel pointed out some discrepancies in the said confessional statement with other facts of the case, as follows:
While the PW1 and PW2, the victim of the robbery and his wife gave evidence that the robbers were 2 (two) persons, 4 (four) persons were charged and convicted. Secondly, that while the victim of the robbery’s name in the confessional statement was one ‘usher’ the victim gave his name as Gambo Mallam Ya’u and the PW2, that is the wife of the PW1 gave his name as Basiru Ya’u.
Thirdly, that in the confessional statement, the appellant was said to be in Dankama Village Kaita LGA while in his testimony in Court he lives at Farin Taro in Kaita LGA.
Fourthly, that while the charge says that the robbery took place in Dankama Village, the PW1 (the victim) and his wife gave evidence that the robbery took place in their house at Dankaba. That Dankaba and Dankama are 2 (two) different and separate villages with miles apart. Counsel urged the Court to discountenance this purported confessional statement.
In respect of the exhibits, counsel argued that while the PW1, the victim of the robbery said that the robbers were armed with sticks, matches and horn. The exhibits by PW7 (exhibit keeper) recovered now were 6 sticks, 4 knives, 2 swords, 1 cutlass with curved head, 1 mask, 2 turbans, 2 dark eye glasses, some charms, 1 animal horn, some amount of cash and one motorcycle.
Also, while PW5 claimed that N65,000 and 5000 Sefa were recovered from the search of the houses of the accused persons PW7 (the exhibit keeper) said that he was handed over N65,000 and 10,000 sefa.
More importantly, counsel argued that the evidence of the PW7 was that the exhibits were registered with him on 14/8/2016 while the robbery took place on 5/9/2016 meaning that the exhibits were registered with the exhibit keeper 3 weeks before the robbery took place. Counsel submitted that these exhibits are no way connected with the said robbery. Counsel urged the Court to allow this appeal, set aside the conviction and sentence of the appellant and acquit and discharge him of the offence of Armed Robbery as charged. Counsel relied on the following cases:
1. State v. Sani (2018) 9 NWLR (Pt. 1624) 278 AT 294;
2. Ogbaga v. The State (2016) LPELR–40950 CA,
3. Adamu v. The State (2013) LPELR (20770) 1 & 36–37;
4. Uwa v. The State (2015) 4 NWLR (Pt. 1450) 438 AT 457;
5. Aliu v. State (2015) 2 NWLR (Pt. 1442) 78–79;
6. Musa v. The State (2012) 3 NWLR (Pt. 1286) 89,
7. State v. Gwangwan (2015) 13 NWLR (Pt. 1477) 608 AT 625;
8. Abraham v. State (2017) LPELR–2873 CA;
9. Almu v. The State (2009) 10 NWLR (Pt. 1148) 31.
RESOLUTION:
I have stated above that this appeal was heard on the appellant’s brief of argument only; consequently, I adopt the sole issue for determination raised by counsel for the appellant that is
Whether having regard to the evidence led at the trial, there was reasonable doubt as to the alleged robbery and the appellant’s participation in the same.
To succeed in a charge of armed robbery, the prosecution must prove the following ingredients:
(a) That there was a robbery or series of robberies;
(b) That the robbery was carried out with offensive weapons; and
(c) That the accused person participated in the robbery.
See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Alabi v. State (1993) 7 NWLR (Pt. 307) 511, Bello v. State (2007) 10 NWLR (Pt. 1043) 564 and Adekoya v. State (2017) NWLR (Pt. 1565) 343.
In this case, from the evidence of PW1 Gambo Ya’u and PW2 (his wife) Basira Ya’u, there was robbery in their house at about 3: am on Monday 5/9/2016. The robbers were armed with sticks, matchet and horn. They used the stick to hit the PW1 and raised a knife to attack him when he followed them. They dispossessed him of N205,000 and 2500 Sefa. These facts were established. I therefore, hold that the 1st and 2nd ingredients of the offence of armed robbery were firmly established.
Now to the 3rd ingredient, that is; that the appellant participated in the robbery. It is on record that the PW1 and PW2 were the only eye witnesses to the robbery. It is further on record that they gave evidence clearly that they cannot recognize the robbers because they wore a turban mask and it was very dark in the night. It is also on record that the robbers escaped or left the scene without any chase and no arrest made at the scene of the robbery. The first question to ask here is how did the appellant link to this robbery incident. The PW6 Insp. Sunday Apeh who was the only witness to testify directly against the appellant gave evidence that he did not arrest him but that he was transferred from Divisional Police Headquarters Kaifa to SCID for direct investigation, see page 18 of the record. In the absence of any direct evidence from the prosecution on how the appellant was linked to this robbery, I hold that his version of his arrest by the police on his way back home after work on a certain Wednesday night is the truth about his link to this case of robbery.
In the judgment of the lower Court, the appellant together with the other accused persons were convicted based on their “confessional statement” to the police and the recovered exhibits. The Court held that “it is also on record that PW7 informed the Court how exhibit A–F2 and M1 and M2 were recovered from the house and premises of the 1st accused person by means of search warrant”, see page 19 of the judgment and page 72 of the record. The implication of that holding is that all the exhibits were recovered from the house of the 1st accused and none specifically recovered from the house of the appellant.
Even at that, the PW7 (Exhibit Keeper) gave evidence that the exhibits were brought to him for registration on 14/08/2016. See page 21 of the record) that is about 22 days before the date of the said robbery on 6/9/2016; clearly the aforesaid exhibits had no link, connection or relationship with the said robbery.
From the foregoing therefore, it is only the “confession” of the appellant as contained in exhibit F and F1 that is Hausa and English version of the said statement that is remaining. The appellant gave detailed evidence of the torture and beatings given to him by the Police to extract the said “confession”. The PW1 also gave evidence how upon hearing that those that robbed him had been arrested, he immediately rushed to the Police station and met them being beaten”. (Underlining mine for emphasis.) There is evidence that the appellant retracted his said voluntary “confessional” statement during trial. The Court overruled his objection to the tendering of the document on the ground that the “reason for objection is not sufficient” to reject the document. Thereafter, and very importantly, the Court held thus:
“It is surprising that all the accused persons were making retraction/denying their statements on the allegation of torture and threat. The Court did not determine the voluntariness of the confessional statement at the proper point in time because there was no such application which would have granted the Court the opportunity to look at the circumstances under which the statements were made” see 2nd paragraph of page 72 of the record of appeal.
From the foregoing, the trial Court had doubts about the voluntariness of the purported confessional statement. The trial Court had earlier in the judgment reproduced the evidence of torture and beaten given to the appellant by the Police, with the greatest respect to the learned trial Judge, the law does not require specific application by an accused or counsel on his behalf to request for mini trial or trial within trial to determine the voluntariness of a purported voluntary “confessional” statement. It is settled that for a confession to be relevant, admissible or ground a conviction it must be voluntary, positive, direct and unequivocal. See Afolabi v. COP (1961) 1 All NLR 654 and Njovens v. The State (1973) 5 SC 17.
At the point of objection on the ground of retraction of the voluntariness of the confessional statement the trial Court is bound to conduct a mini-trial to ascertain the voluntariness or otherwise of the said confessional statement. See Nwangbomu v. The State (1994) 2 NWLR (Pt. 327), Igri v. State (2009) LPELR 4373.
In this case, therefore, the trial Court having failed to determine the voluntariness of the confessional statement retracted on ground of involuntariness and the ground that counsel for the defendant did not ask for such, it cannot be said that the prosecution has proved its case beyond reasonable doubt. It has been shown that the appellant’s link to this case was his arrest on his way back to his house on that particular Wednesday after close of work. It was equally shown that no exhibit was recovered from the appellant’s house. Most importantly, there is evidence that the exhibits tendered before the Court in this matter were obtained and registered with the exhibit keeper about 22 days before the robbery in this case. And finally, the trial Court failed to determine the voluntariness of the confessional statement of the appellant upon retraction of same on that ground. It is not in doubt that the lower Court failed in properly evaluating the evidence before it. This appeal is highly meritorious. It ought to succeed and it has succeeded. The conviction and sentence of the appellant for 21 years in Charge No: KTH/27C/2016 on 5/10/2017 is hereby set aside. The appellant is to be released from correctional (prison) custody forthwith. This appeal is allowed.
Judgment entered accordingly.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, KENNETH IKECHUKWU AMADI, JCA. I entirely agree with his reasoning and conclusion that the appeal is meritorious and it is allowed by me. I abide by the consequential order(s) in the lead judgment.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Kenneth Ikechukwu Amadi, JCA, just delivered, I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
OLUJOKE ALIU, ESQ. For Appellant(s)
S.N. MALANTA, ADPP MINISTRY OF JUSTICE KATSINA STATE. For Respondent(s)
