NAFIU YUSUF v. THE STATE (2018)

NAFIU YUSUF v. THE STATE

(2018)LCN/11910(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of July, 2018

CA/S/72C/2016

RATIO

EVIDENCE: HEARSAY EVIDENCE

“Hearsay simply means whatever a person declares on information given by someone else. That is not what seems to be the position here. The PW2’s evidence spoke of what he and other members of the investigation team did, when the Appellant arrived and was question by them as to his participation in the crime and with whom as partners where the robberies carried out. The Appellant rose to the occasion and not only gave the names of his cohorts but also went on to disclose to the PW2 and the team what was stolen by them in the course of the robbery operation and he reproduced the proceeds of the crime to the PW2 and his team…The settled position of the law is that a testimony would be hearsay where the person making the statement is not the one who either saw it, heard it, perceived it or gave it as his own personal opinion but rather as what was said to him by another person. See OMONGA vs. STATE (2006) 14 NWLR (PT. 1000) 532; OBIWUNNE vs. TABANSI-OKOYE (2006) 8 NWLR (PT. 981) 1004.” PER FREDERICK OZIAKPONO OHO, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

NAFIU YUSUF – Appellant(s)

AND

THE STATE – Respondent(s)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):

This Appeal is against the judgment of the High Court of Kebbi State, sitting at Birnin Kebbi Coram: IBRAHIM B. MAIRIGA, CJ. in Case No. KB/HC/RF/14/2015, delivered on the 31st day of March, 2016 wherein the Appellant was convicted and sentenced to death for the offences of Conspiracy to commit Armed Robbery and Armed Robbery, contrary to Sections 5(b) and 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act, 1990.

Trial commenced at the Court below on the 24th day of June, 2015 after all four (4) Accused persons, one of whom was the Appellant pleaded not guilty to the charges read against them. See pages 33 to 37 of the Records of Appeal. The prosecution called Five (5) witnesses who testified as the PW1, PW2, PW3, PW4 and PW5 tendered Exhibits 1, 2, 3, and 4 and thereafter closed its case. (See page 46 of the record of appeal). The Appellant as Accused person testified for himself and called no witnesses. At the close of hearing, written addresses of Counsel were duly adopted. On the 31st day of March, 2016 the learned trial Court, delivering a well considered judgment, found the Appellant guilty for the offences of Conspiracy to Commit Armed Robbery and Armed Robbery contrary to Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) respectively and sentenced him to death. Dissatisfied with the judgment of the Court below, the Accused person has Appealed to this Court vide a Notice of Appeal filed on the 5th day of April, 2016. There are two (2) Grounds of Appeal filed.

ISSUE FOR DETERMINATION;

There is nominated for the determination of this Appeal by the Appellant, a lone issue thus;

Whether from the evaluated evidence before the trial Court, the Respondent proved its case against the Appellant beyond reasonable doubt. (Grounds 1, 2 and 3 of the Amended Notice of Appeal)

On the part of the Respondent, three (3) issues were nominated for the determination of this Court, two more than what the Appellant had nominated for the Court?s determination as follows;

1. Whether from the evaluated evidence by the trial Court, the Respondent proved its case against the Appellant beyond reasonable doubt. (Ground 1, of the Amended Notice of Appeal);

2. Whether the Trial Judge was right to convict the Appellant relying on the evidence of PW1, 2, 3, and 4 (Ground 2 of the Amended Notice of Appeal);

3. Whether the Trial Judge relied on Exhibits 1 and 2 or 3 and 4 to convict the Appellant for the offences charged.

In resolving this Appeal, however, this Court shall rely on the sole issue nominated by the Appellant for the determination of the Appeal on the ground that it is all encompassing and addresses all the issue raised by the Respondent in one sentence, thus;

Whether from the evaluated evidence before the trial Court, the Respondent proved its case against the Appellant beyond reasonable doubt. (Grounds 1, 2 and 3 of the Amended Notice of Appeal)

Learned Counsel for the parties addressed Court in their briefs of Argument extensively citing a number of authorities. The Appellant’s brief of Argument settled by HUSSAINI ZAKARIYAU ESQ., was filed on the 26-3-2017 while the Respondent’s brief of Argument filed on the 25-9-2017 and settled by BAGUDU U. ABUBAKAR ESQ., was deemed filed on 26-9-2017. At the hearing of the Appeal on the 24-5-2018, learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.

SUBMISSIONS OF COUNSEL;

APPELLANT;

SOLE ISSUE;

Whether from the evaluated evidence before the trial Court, the Respondent proved its case against the Appellant beyond reasonable doubt. (Grounds 1, 2 and 3 of the Amended Notice of Appeal)

In arguing this issue, learned Appellant?s Counsel contended that in proving the ingredients of this offence against the Appellant, the Respondent relied heavily on the evidence of the PW1, PW2, PW3 and Exhibits 1 and 2. He contended that the evidence of the PW2 and PW3 are hearsay evidence, which is not tenable in proving the offence against the Appellant and also did not link the Appellant to the commission of the offence. (See pages 38 to 41 of the record of appeal). Counsel referred Court to Section 38 of the Evidence Act 2011, for the treatment of hearsay Evidence in the course of trial.

Counsel conceded that by the oral evidence of the PW1 (victim), there was armed robbery in Wadata Area, Jega and that the robbers were armed (See page 36 of the record of appeal) but also contended that the ingredients of the Appellants? participation in the armed robbery were not proved by the evidence of PW1 against the Appellant. He said that the testimony of the PW1 merely said that he knows the Appellant in their area in Jega and never identified him as one of the armed robbers who attacked him. Counsel cited the case ofMUSA IKARIA vs. STATE (2013) 8 NCC 248 at 252:6.

The submission of Counsel, is that trial Court after admitting that the testimony of PW1 did not link the Appellant to the alleged offence went on a frolic to make a case for the Respondent from the extra-judicial statement of one NAFIU SAMAILA (co-accused) in Exhibit 1 and 2. (See pages 92 – 95 of the record of appeal). In this connection, Counsel argued that Exhibits 1 and 2 relied on by the trial Court in making case for the Respondent fall short of a confessional statement and upon which a Court can convict a co-accused. He contended that Exhibits 1 and 2 (see pages 54 – 57 of the record of appeal) relied on by the trial judge in making a conviction for the Respondent are not statements made by the Appellant, rather that they are Exhibits of the statements of one NAFIU SAMAILA who was arraigned along with the Appellant. Hence, the trial judge was wrong in using this statement in getting a conviction for the Respondent, Counsel referred Court to Section 29(4) of the Evidence Act 2011 (as amended) on this issue.

On the count of conspiracy, it was contended by Counsel that the trial judge in convicting the Appellant with regards to this offence held thus:

”There is evidence in Exhibits 1 and 2 that the 1st and 2nd accused persons along with 2 other persons, Nazifi Haruna and Shafiu Abdullahi agreed among themselves to go and steal cell phones and they all participated in the crime. In view of the above and my earlier findings I am satisfied that the charge of conspiracy against the accused persons has been proved by the prosecution beyond reasonable doubt.”

The submission of learned Counsel on this issue is that from the testimonies of the PW1, 2 and 3 there was nothing to link the Appellant to this offence and that by law the trial judge cannot use the confessional statement in Exhibits 1 and 2 made by a co-accused to make a case for the Respondent in convicting the Appellant. Counsel also referred to Section 29(4) of the Evidence Act 2011 (as amended) provides:

”Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”

Counsel finally urged this Court to discharge and acquit the Appellant from this charge.

RESPONDENT;

In arguing this Appeal, Respondent’s Counsel submitted that the prosecution in the instant case proved its case beyond reasonable doubt against the Appellant as provided under Section 135 of the Evidence Act, 2011 and as stipulated in the case cited by the Appellant of MUSA IKARIA vs. STATE (Supra).

Counsel contended that proof beyond reasonable doubt is not proof beyond a shadow of doubt and therefore, not a proof beyond all possible or imaginary doubts; it is proof to moral certainty such proof as satisfies the judgment and conscience of the judge as a reasonable man and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore, imposes a duty on the prosecution to prove the main ingredients of the offence charged against the accused person to the satisfaction of the trial judge. Counsel cited the case ofAFOLAJU vs. THE STATE (2010) 43 NSCQR 227 AT 242-243.

Against the backdrop of this position, Counsel submitted that the trial judge was satisfied with the testimonies of Prosecution Witnesses at pages 36-38, 38-40, 40-42, 42-43, 44-46 of the records and the confessional statement of the Appellant in Exhibits 3 & 4, hence the conviction of the Appellant. He further submitted that Exhibits 3 and 4 are relevant as they established the facts that constitute one of or all the elements of the crime to be proved and or identifies the person who committed the offences. Counsel cited the case of JAMES IGBINOVIA vs. THE STATE (1981) 2 SC. 5 @ 17-18 and contended that confessional statements are usually the best means by which criminal cases are established. See GIRA vs. THE STATE (1996) 4 SCNJ 94.

On the ingredients of the offence of armed robbery, Counsel submitted that from the totality of the evidence of the PW1, PW2, PW3, PW4 and PW5 along with the confessional statements of the 1st and 2nd accused persons in Exhibits 1, 2, 3, & 4 to the effect that there was a robbery or series of robbery on the 10-10-2014. Refer to pages 36-38, 38-40, 40-42, 42-43, 44-46 of the records served to establish the ingredients of the offence.

According to Counsel, the testimonies of the PW1 that he heard the voice of the 2nd accused person and noticed that the robbers were holding machetes and one of them pointed a short-gun at him, ordered him to lie down, demanded that he should give them money and that they took away his cell phones further served to establish that a robbery not only took place but that the robbers were also armed. See page 37 of the records. In respect of the PW3’s testimonies, Counsel said that he questioned the person that pushed his door; he saw two of the robbers were holding knives and machetes. See pages 40-41 of the records. Similarly, Counsel enthused that the confessional statements of the 1st and 2nd Accused persons in Exhibits 3, 4, 1 & 2 confirmed that the robbery or series of the robbery was an armed robbery.

Counsel also submitted that testimonies of the PW1 who identified the voice of the 2nd accused person as one of the robbers and his cell phones stolen by the said robbers coupled with the testimony of the PW2 in whose presence the 2nd accused person admitted taking part in the robbery and even confessed to stealing of the cell phones and some monies and same were found in his possession also served to establish the ingredients of the offence. See pages 37 and 39 of the records. Furthermore, he said that both confessional statements of the 1st and 2nd accused persons in Exhibits 3, 4, 1 and 2 clearly proved beyond reasonable doubt that the 1st and 2nd accused persons were among those that robbed.

Counsel also argued that identification of an accused person by his voice is sufficient to establish identity of a person. See EUGENE IBE vs. STATE (1992) 5 NWLR [PT. 244] 642 at 649 Para. D.

It was also argued by Counsel that where by his confession, as in Exhibits 3 and 4, an accused person identified himself or where circumstances show his involvement in the commission of the offence as in the instant case, identification parade is not necessary. Counsel cited the cases of SEMIU AFOLABI vs. THE STATE (2014) 9 NCC 333, DECISION 8, PARTICULARLY AT 360-361, Paras. H and A-D; KAYODE BABARINDE and 2 ORS vs. THE STATE (2014) 10 NCC 567 DECISION 3, PARTICULARLY AT 606 paras A-C.

The contention of Counsel is that the pieces of evidence of the PW1, 2, and 3 have not been contradicted or controverted in cross examination. He argued that where there is nothing to contradict or controvert evidence, the Court will be on a firm ground to admit and rely on same. He cited the case of MUDASIRU vs. ABDULLAHI (2011) 7 NWLR (PT. 1247) 591 AT PAGE 600 and submitted that all the ingredients of the offence under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, 2004 were proved beyond reasonable doubt and that the trial judge rightly held at pages 92 of the records:

“I am convinced that the 1st and 2nd accused along with 2 other persons at large have participated in robbery in the houses of Zainal Abidina and Surajo Abubakar on the 10/10/2014 at about 3:30am at Wadata Area in Jega Town where they took 4 cell phones and the sum of N5000.”

As it relates to the offence of criminal conspiracy under Section 5(b) of the Robbery and Firearms (Special Provisions) Act, 2004, Counsel submitted that conspiracy to commit an offence is quite often inferred from circumstantial evidence and that it is based on common intent, or purpose. He cited the case of AIGBE vs. THE STATE (1976) NMLR 184 and argued that when once there is such evidence to commit the substantive offence, it is settled that it does not matter, what any of the conspirators did what. See also SULE vs. STATE (2009) 38 NSCQR 1069 at 1097.

It was also submitted that going by the testimonies of the PW1-5 as well as confessional statements of the 1st and 2nd accused persons in Exhibits 3, 4, 1 and 2, the prosecution proved that the Appellant along with three others agreed and went further to commit armed robbery leading the trial Court into holding thus; in view of the above and my earlier findings, I am satisfied that the charge of conspiracy against the accused persons has been proved by the prosecution beyond reasonable doubt. See page 94 of the records.

On the Appellant’s Counsel assertions at pages 4-6 of the Appellant’s brief in paragraph 11.0 that the Respondent relied heavily on the evidence of PW1, PW2, PW3 and Exhibits 1 and 2 and also in paragraph 12.0 where he submitted that the evidence of PW2 and PW3 is hearsay evidence, Counsel referred Court to the evidence of the PW2 where he stated thus;

”When he arrived, we questioned (sic) as to whether it was true that he took part (sic), and with whom. He said Surajo Abubakar, Alh Arzika, Bashir Umar. He said they robbed cell phones and monies. We asked him the where about of the items they robbed, he sent for (sic) collected from his 2 accomplices and together with the cell phones in his possession, making 3 and handed them over to us.” See page 37 of the records.

Arising from the foregoing, Counsel argued that from the above piece of evidence it is clear that the 2nd accused confessed in his presence and some of the stolen items were recovered from 2nd accused person. He added that this cannot be said to be hearsay. As for the evidence of PW3, Counsel reproduced it thus:

”I remember 10/10/14, I was at home. I was at home at about 3:20 am in the night, when I noticed someone push (sic) on my door I asked, what is that and a voice answered ‘you will know’. I got up and reached for my stick and the person retreated a bit. He was holding a knife and machete. Another one emerged. He too was holding a knife and machete. I bent down to reach for my cell phone to call for assistance, they thought I was reaching out for another weapon and they fled. Short while after their departure, I heard cries in the direction of the house of my elder brother, Dan Alhaji. I went out over the house and they inform (sic) me that three went into their house with knives and machetes…” see pages 40-41 of the records.

Once again Counsel argued that this piece of evidence is not hearsay evidence.

On the issue of whether evidence of the PW1 has linked the Appellant (1st accused person) to the commission of the offence, the submission of Counsel is that when the testimony of the PW1 at pages 36-37 of the records are compared with the confessional statement of the Appellant in Exhibits 3 and 4 at pages 58-59 & 60-61 of the records, it is clear also that there are similarities in the testimony of PW1 and confessional statement of 1st accused person in Exhibits 3 and 4, with regards to;

a. Date of the offence i.e. Friday, 10/10/2014;

b. Name of one of the victims i.e. PW1, Zainal Abidina, mentioned in Exhibits 3 and 4;

c. Items stolen from him, two handsets;

d. Assailants one of them was recognized by PW1 as Nafiu Samaila the same person is mentioned in Exhibits 3 and 4.

According to Counsel, these pieces of evidence only go to corroborate the evidence of the PW1 and statements of the 1st Accused Persons in Exhibits 3 and 4.

On the question of whether the ingredient of the Appellant’s participation in the armed robbery was proved by the evidence of the PW1 and the submission of Appellant’s Counsel that the testimony of the PW1 did not link the Appellant to the alleged offence but that the trial Court went on a frolic to make a case for the Respondent from the extra-judicial statement of one NAFIU SAMAILA (Co-accused) in Exhibits 1 and 2; the argument of Counsel is that a close scrutiny of the confessional statement of the 2nd accused person in Exhibits 1 and 2 at pages 54-55 & 56-57 of the records and that of the 1st accused person in Exhibits 3 and 4 will reveal that conually the two statements are the same with little variations.

He however contended that this is not the main issue; that the material issue is whether the trial Court relied on Exhibits 1 and 2 or 3 and 4 to convict the Appellant on the alleged offences.

In order to answer the above poser, Counsel took time to reproduce parts of the judgment of the trial judge thus:

”As I said earlier, the extra-judicial statements of the accused to the police as contained [in] Exhibits 1 and 2 are also crucial in the determination of this case. Considering the fact that both the 1st and 2nd accused persons denied making any statement to the police (Exhibits 1 & 2), it is necessary to address the issue of whether a Court can act upon such evidence

See pages 91-92 of the records and specifically at page 92 of the records, where the learned trial judge said:

”In order to answer the above questions, it is necessary to look at the statements of the accused persons in Exhibits 1 and 2 and relate them to the evidence of PW1, 2, 3, & 4 respectively. I will start by considering the statement of Nafiu Samaila, the 2nd accused (Exhibit 2). The statement inter alia reads as follows:

‘On Friday 10/10/14 at about 12:30 hours…”’

See page 92 paragraphs 3, 4 and 5 more specifically at lines 10-26. On lines 27 of page 92 of the records, the trial judge has this to say:

”The statement of the Nafiu Yusuf, the 1st accused reads as follows:

.on Friday 10/10/14 at 01:00 hours, one Nafiu Samaila met me at the football field

See lines 28-41 of page 92, lines 1-10 of page 93 of the records. On lines 11-27 of page 93, the trial judge has this to say:

”After a careful consideration of Exhibits 1 and 2 vis–vis the evidence of PW1, 2, & 3, I am of the view that the confessional statements in question are materially corroborated by the evidence of PW1, PW2, and PW3. In particular, the evidence of PW1 that he heard and recognized the voice (sic) the 2nd accused is in harmony with the statement of the 2nd accused where he inter alia stated and I quote

“the confessional statements of both the first and 2nd accused positively revealed that on the 10/10/14 in the mid-night, the 1st and 2nd accused in the company of two other person(s), Nazifi Haruna and Shafiu Abdullahi, still at large, have entered the houses of Zainu (PW1), Atiku and Alhaji Arzika where they took handsets and some money. There is also an unchallenged evidence of PW2 that they recovered 3 handsets from the accused persons. Based on the above, it is apparent that confessional statements under consideration are in many respects consistent with the evidence of PW1, 2 & 3 respectively. I am therefore, of the view that confessional statements in question have satisfied the tests set out earlier and consequently, I am convinced that the 1st and 2nd accused along with 2 other persons at large have participated in robbery in the houses of Zainal Abidina and Surajo Abubakar on the 10/10/14 at about 3:30am at Wadata Area in Jega Town where they took 4 cell phones and the sum of N5000.”

The contention of Counsel is that the combined effect of all the references made by the trial judge to Exhibits 1 and 2 will reveal that he referred to Exhibits ‘1 & 2’ to convict Nafiu Samaila, the 2nd Accused person; and mistakenly refers to Exhibits 3 & 4 as 1 and 2 to convict the 1st accused person, Nafiu Yusuf, who is the Appellant. Counsel therefore submitted that notwithstanding the trial judge’s reference to Exhibits 1 and 2 in his judgment, the 1st accused person who is the Appellant is convicted based on his confessional statements in Exhibits 3 and 4. He referred to page 92 of the records [the statement of the Nafiu Yusuf, the 1st accused person].

According to Counsel, the said Exhibits are fully corroborated by pieces of evidence of the PW1, 2, and 3 and that the reference made to Exhibits 3 and 4 as Exhibits 1 and 2 is a mistake, slip or an error of the trial judge. He submitted that it is such a mistake, slip or error that would not result to allowing the Appellant’s Appeal and he cited the case of OLUSOLA ADEYEMI vs. THE STATE (2015) 11 NCC, 376 DECISION 4 AND 6 AT 410-411 AND 414, PARAS G-H, A AND E-H respectively.

It was further contended that the Appellant has to show that this error is so substantial, that it has occasioned a miscarriage of justice and the Appellant having failed to do so, he urged this Court to resolve this issue in favour of the Respondent.

RESOLUTION OF APPEAL

The brief facts of this case is that the Appellant, on or about the 10th day of October, 2014, in the company of three (3) other robbers at about 3:30 am at Wadata Area in Jega Town, Jega Local Government Area of Kebbi State agreed among themselves to commit armed robbery and indeed robbed a number of persons, some of whom are Zainal Abidina, Surajo Abubakar and Bashiru Umar, and in the process stole five (5) different brands of cell phones and the sum of Four Thousand and Fifty (N4,050.00) Naira only. Five witnesses testified for the Respondent and tendered four Exhibits amongst, which were the confessional statements of the Appellant. The Hausa version was marked Exhibit 3 while the English version was marked Exhibit 4; hence the Appellant was convicted based on the testimonies of PW1, 2, and 3 along with his confessional statement in Exhibits 3 and 4.

The contention of Appellant’s Counsel was that the Respondent did not prove the ingredients of the offence and that to secure conviction, the Court below relied heavily on the evidence of the PW1, PW2, PW3 and Exhibits 1 and 2. What seem to be rather clear is the fact that the Court below by a careful examination of the records was satisfied with the testimonies of Prosecution Witnesses at pages 36-38, 38-40, 40-42, 42-43, 44-46 of the records and the confessional statement of the Appellant in Exhibits 3 & 4. A close perusal of Exhibits 3 and 4 not only established the facts that discloses a clear case of armed robbery, but also the elements of the crime proved and in addition identified the persons behind the commission of these offences.

The contention of Appellant’s Counsel furthermore, was that the evidence of the PW2 and PW3 are hearsay evidence and which did not also link the Appellant with the commission of the offences charged. (See pages 38 to 41 of the record of appeal). It is important once again to refer to the pages of the records of appeal on the issue of whether the evidence of the PW2 and PW3 were hearsay evidence of not. Specifically, at page 37 of the printed records, the evidence of the PW2 which the Court below accepted and relied upon goes thus;

Hearsay simply means whatever a person declares on information given by someone else. That is not what seems to be the position here. The PW2’s evidence spoke of what he and other members of the investigation team did, when the Appellant arrived and was question by them as to his participation in the crime and with whom as partners where the robberies carried out. The Appellant rose to the occasion and not only gave the names of his cohorts but also went on to disclose to the PW2 and the team what was stolen by them in the course of the robbery operation and he reproduced the proceeds of the crime to the PW2 and his team.

As it relates to the evidence of the PW3, which the Appellant also said was hearsay evidence, the evidence of the PW3 which the Court below accepted and relied upon, is at pages 40-41 of the printed records thus;

The settled position of the law is that a testimony would be hearsay where the person making the statement is not the one who either saw it, heard it, perceived it or gave it as his own personal opinion but rather as what was said to him by another person. See OMONGA vs. STATE (2006) 14 NWLR (PT. 1000) 532; OBIWUNNE vs. TABANSI-OKOYE (2006) 8 NWLR (PT. 981) 1004.

It is clear that the PW3 being one of the victims of the robbery attack told the Court below what he witnessed when the robbers stormed his residence and he saw them wielding machetes and knives. How this now becomes hearsay evidence in the conjecture of the Appellant and his Counsel beats the imagination of this Court.

On the question of the submission of the Appellant that the Court below ‘went on a frolic to make a case for the Respondent’ from the extra-judicial statement of one NAFIU SAMAILA (co-accused) in Exhibit 1 and 2.(See pages 92 – 95 of the record of appeal) and upon which the Court relied in convicting the Appellant, it would be recalled that the said Exhibits 1 and 2 were extra-judicial confessional statements made by NAFIU SAMAILA, a co-accused of the Appellant and that in the Court’s evaluation of the evidence before him, rather than refer to Exhibits 3 and 4 made by the Appellant, went ahead and referred to Exhibits 1 and 2.

It is to this issues that learned Appellant’s Counsel had made a storm out of a tea-cup in his arguments on the issue. It would be further recalled that Appellant’s

Counsel as a result had made heavy reliance on Section 29(4) of the Evidence Act 2011 (as amended) dealing with the reliance of a Court on the confessional statement of a co-accused person. It is important to note while reading the records of Appeal that the confessional statement of the said 2nd accused person, the said NAFIU SAMAILA in Exhibits 1 and 2 at pages 54-55 & 56-57 of the records and that of the 1st accused person, who is Appellant herein in Exhibits 3 and 4 will reveal that conually the two statements are the same with little variations, the possibility of mistakes on the part of the Court below in referring to one instead of the other cannot be ruled out.

What should however, be the concern of this Court is not whether the Court made a mistake in referring to the wrong set of exhibit, but rather whether the Exhibits 3 and 4 credited to the Appellant contained extra-judicial confessions capable of leading to the conviction and sentence of the Appellant as an accused person. A close scrutiny of the records at page 60, where the statement of the 1st accused person NAFIU YUSUF who is the Appellant is pasted and where he confessed copiously to the commission of the crimes charged alongside his co-accused persons; NAFIU SAMAILA, NAZIFI HARUNA and SHAFIU ABDULLAHI.

I therefore have no hesitation in accepting that the Appellant was convicted based on his own confessional statement. Besides this point, Appellant has to show that as a result of the error of the Court below in referring to Exhibits 1 and 2 rather than Exhibits 3 and 4 have occasioned a miscarriage of justice against him. The Appellant having failed to do so, in the face of overwhelming confession, which he had himself made in the said Exhibits 3 and 4 and which the Court below took cognizance of in convicting him, the point is therefore of no moment.

This Appeal therefore fails and it is accordingly dismissed. The judgment of the High Court of Kebbi State, sitting at Birnin Kebbi Coram: IBRAHIM B. MAIRIGA, CJ in Case No. KB/HC/RF/14/2015, delivered on the 31st day of March, 2016 is hereby affirmed.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance, the lead judgment just rendered by my learned brother, Frederick O. Oho, JCA. I agree with the reasoning therein and the conclusion that the appeal is bereft of substance.

The unmeritorious appeal is hereby dismissed. I subscribe to the consequential orders made in the judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: Having been privileged to read in draft the judgment of my learned brother, Frederick O. Oho, JCA just delivered.

I am in entire agreement with the reasoning and conclusion that the appeal lacks merit. I accordingly dismiss it and affirm the judgment of the trial Court delivered on 31/3/2016.

Appearances:

Hussaini Zakariyau, Esq.For Appellant(s)

Bagudu U. Abubakar, Esq. (DCL, Ministry of Justice, Kebbi State) with him, Lawal H. Garba, Esq. (DDPP) For Respondent(s)