SANI v. STATE
(2020)LCN/15176(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, January 10, 2020
CA/YL/07C/19
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
HAMISU SANI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE DEFENCE OF ALIBI PROPERLY AND TIMEOUSLY RAISED IF SUSTAINED IS A COMPLETE DEFENCE
No doubt, the defence of alibi where properly and timeously raised if sustained and found to be true is a complete defence. In other words, that the accused person was not at the scene of the crime but, elsewhere when the offence was committed. For the defence of alibi to avail an accused person it must be timeously raised. From the printed Records of Appeal and as submitted by the learned counsel to the Appellant, the Appellant raised the defence of alibi when he testified in Court as the DW2. In EBRE & ORS vs. STATE (2001) LPELR – 995 (SC) PP. 14 – 15, PARAGRAPHS D-G his lordship Achike, JSC explained the need to raise the defence of alibi timeously thus:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabout on the crucial day of the offence which will include not just the specific place(s) where he was, but additional, the people in whose company he was and what, if any, transpired at the said time and place(s). obviously, such comprehensive information furnished by the accused person must, unquestionably be capable of investigation by the Police, should they wish to do so. A fair-minded tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation.” PER UWA, J.C.A.
THE DUTY OF THE PROSECUTION IN EVERY CRIMINAL MATTER
It is trite that, it is the duty of the prosecution in any and every criminal matter to prove its case “beyond reasonable doubt”. Such proof is not beyond all shadow or iota of doubt. See, STATE vs. ONYEUKWU (2004) LPELR – 3116 (SC) PP. 44 – 45, PARAGRAPHS G-E, EZEANI vs. F.R.N. (2019) LPELR – 46800 (SC) P. 23, PARAGRAPHS A-C, NWATURUOCHA vs. THE STATE (2011) 6 NWLR (PT. 1242) 170; (2011) 2 – 3 SC (PT. 1) P. 111; (2012) 6 NWLR (PT. 1242) 170 and AUDU vs. FRN (2018) LPELR – 45642 (CA) PP. 32 – 33, PARAGRAPHS D – E.
In NWATURUOCHA vs. THE STATE (SUPRA) his lordship, Fabiyi, J.S.C. defined proof beyond reasonable doubt thus: “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”PER UWA, J.C.A.
WHETHER OR NOT VOLUNTARY CONFESSION MADE BY AN ACCUSED PERSON IS ENOUGH TO WARRANT A CONVICTION
It is the law that a voluntary confession of guilt made by an accused person if it is direct, positive and proved, is enough to warrant a conviction without any corroboration, contrary to the argument of the learned counsel to the appellant. Exhibit “A – A1” coming from the horse’s mouth so as to say is stronger than the evidence of an eye witness. See, QUEEN vs. ITULE (1967) 2 SC NLR P. 183, AREMU vs. STATE (1991) 7 NWLR (PT. 201) P. 1, JIMOH YESUFU vs. STATE (1976). It is the law that an accused person can be convicted on his confessional statement alone, even where retracted without corroboration. See, IDOWU vs. STATE (2000) LPELR – 1429 (SC) PP. 44 – 45, PARAGRAPHS F-A, where his lordship, Wali, JSC stated the position of the law thus:
“…a mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. See, R. vs. SYKES (1913) 8 CR. APP. 233 and KANU vs. THE KING 14 WACA 30. If the confessional statement is satisfactorily proved, a conviction founded on it without more, will be sustained by an appellate Court. See, THE QUEEN vs. OBIASA (1962) 1 ALL NLR 645; PAUL ONOCHIE & 7 ORS vs. THE REPUBLIC (1966) NMLR 307; OBUE vs. THE STATE (1976) 2 SC 141 and JIMOH YESUFU vs. THE STATE (1976) 6 SC 167.” See, MUMUNI & ORS vs. STATE (1975) LPELR – 1926 (SC) P. 18 PARAS. D-E and DARLINTON vs. FRN (2018) LPELR – 43850 (SC) PP.17 – 18, PARAS. D-A. PER UWA, J.C.A.
WHETHER OR NOT A MERE DENIAL OF A CONFESSIONAL STATEMENT WILL MAKE IT ADMISSIBLE
The retraction was an afterthought. A mere denial of the statement will not make it inadmissible. In IDOWU vs. STATE (2000) LPELR – 1429 (SC) PP. 44 – 45, PARAS. F – A, his lordship, Wali, JSC stated the position of the law thus: “…mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. See, R. vs. SYKES (1913) 8 CR. APP. 233 and KANU vs. THE KING 14 WACA 30. If the confessional statement is satisfactorily proved, a conviction founded on it without more, will be sustained by an appellate Court. See, THE QUEEN vs. OBIASA (1962) 1 ALL NLR 645; PAUL ONOCHIE & 7 ORS vs. THE REPUBLIC (1966) NMLR 307; OBUE vs. THE STATE (1976) 2 SC 141 and JIMOH YESUFU vs. THE STATE (1976) 6 SC 167.” See, also MUMUNI & ORS vs. STATE (1975) LPELR – 1926 (SC) P. 18, PARAS. D – E, DARLINTON vs. F.R.N. (2018) LPELR – 43850 (SC) PP. 17 – 18, PARAS. D – A and DAVOU vs. C.O.P. PLATEAU STATE COMMAND (2019) LPELR – 47040 (CA) PP. 31 – 33, PARAS. E-D. PER UWA, J.C.A.
INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
Starting with the offence of conspiracy to commit Armed Robbery, the following ingredients must be established beyond reasonable doubt:
a. That there was an agreement or confederacy between the accused and others to commit the offence.
b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies.
c. That the robbery or each robbery was an armed robbery.
See USUFU vs. STATE (2007) 3 NWLR (PT. 1020) 94 at 113 – 114, H – A, ADEYEMO vs. STATE (2010) LPELR – 3622 (CA) PP. 30 – 31, PARAS. F – B and TAIYE vs. STATE (2018) LPELR – 444 66 (SC) PP. 21 – 22, PARA. B. Conspiracy simply is an agreement by two or more persons to do or cause to be done an illegal act or an act which is legal but, by illegal means. The mere agreement alone constitutes the offence of conspiracy and it is therefore immaterial to prove that the act was in fact committed. The essential element to prove conspiracy to commit armed robbery lies in the agreement and intention to do an unlawful thing or act which is forbidden by law. The accused person need not have knowledge of its unlawfulness. See, OBIAKOR vs. THE STATE (2002) 6 SC PT. II. 33 at 39/40 and BALOGUN vs. AG. OGUN STATE (2002) 2 SC (PT. 11) 89. The Appellant in Exhibit “A – A1” gave a clear account of the role he played by stating clearly how he and his friends carried out the heinous act of armed robbery at pages 97 – 99 of the printed records of appeal, as contained in Exhibit “A – A1” part of which I earlier reproduced in resolution of issue (B). PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Adamawa State High Court delivered on 10th April, 2018 by Abdul-Azeez Waziri J. in which the Appellant as the 2nd Accused person was tried and convicted for the offences of Conspiracy to Commit Armed Robbery, Armed Robbery and Culpable Homicide punishable with death and sentenced to death by hanging.
The background facts are that the Appellant and two other persons (Luka Umaru and Rabiu Alh. Wada (1st and 3rd Accused persons)) stood trial for a three count information of conspiracy to commit Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R.11, Laws of the Federation 2004 (hereafter referred to as (the Robbery and Firearm Act), Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms Act and Culpable Homicide punishable with death under Section 221 (b) of the Penal Code. At the trial, the Appellant pleaded not guilty. On the part of the Appellant, he made out that he is a business man who was arrested in Mubi by a vigilante group that apprehended him. It was made out that unknown persons were caught with cows which were being taken to the Appellant. The Appellant denied receiving any cows or killing anyone at Hildi and made out that he had never been to Hildi. Also, that he neither knew the 1st and 3rd Accused persons who committed the offences.
The Respondent called four witnesses while the Appellant testified for himself and tendered no Exhibit. It was argued on behalf of the Appellant that he did not know the 1st and 3rd accused persons until they met at the CID. The Respondent relied on Exhibit “A – A1” the confessional statement of the Appellant in proof of its case. The Appellant made out that Exhibit “A – A1” was not corroborated. The Appellant retracted Exhibit “A – A1” at the trial. The Appellant who was unhappy with the judgment of the trial Court appealed against same. The following issues were formulated for the determination of the appeal:
1. Was the refusal and failure of the Respondent/Police to investigate and disprove the Appellant’s alibi not fatal to the Respondent’s case at the Trial Court? (Distilled from Ground 1 of the Amended Notice of Appeal).
- Was the Trial Court not wrong when it failed to take cognizance of, and/or refused and failed to consider the Appellant’s alibi? (Distilled from Ground 2 of the Amended Notice of Appeal).
3. Was the Trial Court not wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of conspiracy to commit Armed robbery, convicted and sentenced the Appellant to death? (Distilled from Ground 3 of the Amended Notice of Appeal).
4. Was the Trial Court not wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of Culpable Homicide punishable with death, convicted and sentenced the Appellant to death? (Distilled from Grounds 4, 6 and 7 of the Amended Notice of Appeal).
5. Was the Trial Court not wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of Armed Robbery, convicted and sentenced the Appellant to death?” (Distilled from Ground 5 of the Amended Notice of Appeal).
The Respondent on her part formulated three (3) issues for the determination of the appeal thus:
(a) “Whether the learned trial Judge admirably discharged his legal duty in considering whether the defense of alibi raised by the appellant in his defense for the first time as DW2, in reaching the conclusion that the defense did not avail the appellant. (Distilled from Grounds 1 and 2 of the Appellant’s grounds of appeal).
(b) Whether the learned trial Judge was right to have convicted and sentenced the appellant based on Exhibit A, A1 along with other legal evidence adduced before him. (Distilled from grounds 3, 4 and 6 of the appellant’s grounds of appeal).
(c) Whether from the totality of evidence adduced by the respondent before the trial High Court in proof of the offences on account of which the appellant was charged, the essential ingredients of the offences had been proved.” (Distilled from ground 5 and 7 of the appellant’s grounds of appeal).
In arguing the appeal, the learned counsel to the appellant, Fred Onuobia Esq. adopted and relied on his brief of argument filed on 8/2/19 but, deemed properly filed on 4/4/19 and his reply brief filed on 23/5/19 but, deemed properly filed on 15/10/19 as his argument in this appeal in urging us to allow the appeal, set aside the judgment of the lower Court, discharged and Acquit the appellant.
In arguing his issue one, it was submitted that the failure of the Police to investigate the Appellant’s alibi was fatal to the case of the Respondent at the trial Court. It was submitted that the appellant raised the defence of alibi timeously when he was arrested and taken to the Uba Police Station. It was submitted that the Police failed to investigate the alibi raised by the Appellant in his statement to the police. It was argued that even though all that the Appellant said was that he had never been to Hildi without more does show that he was not at scene of crime. It was submitted that the failure of the Police to investigate the alibi put up by the Appellant was fatal to the Respondent’s case. See, SALE vs. STATE (2016) 3 NWLR (PT. 1499) 392 at PAGES 418 – 419, F-A, DANGOTE GEN. TEXTILE PRODUCTS LTD vs. HASCON ASSOCIATES NIG. LTD (2013) LPELR – 20665 (SC), ABUDU vs. STATE (1985), NWLR (PT. 1) 55, OZAKI vs. THE STATE (1990) 1 NWLR (PT. 124) 92, ABDULLAHI vs. THE STATE (1995) 9 NWLR (PT. 47) 115 at 22, CHEWMOH vs. THE STATE (1986) 2 NWLR (PT. 22) 331 at 343. It was argued that no claim of alibi should be disregarded by the prosecution without investigation. See, ADAMU vs. STATE (1986) 3 NWLR (PT. 32) 865 at 881, ODIDIKA vs. STATE (1976) 6 SC 109, NWATURUOCHA vs. THE STATE (2011) 30 WRN 54 amongst others. It was concluded on this issue that Exhibit “A – A1” lacked evidential value and failed to fix the appellant at the scene of the crime.
In arguing his second issue, it was submitted that the trial Court failed to take cognizance of and/or refused to consider the defence of alibi raised by the Appellant in his testimony, page 142 of the printed records of appeal. It was submitted that the defence of alibi was timeously raised at the Police Station. It was argued that any defence raised by an accused person must be considered by the Court no matter how inelegantly raised. See, AKPABIO vs. STATE (1994) 7 NWLR (PT. 359)635 at 671, B – C, AKPAN vs. STATE (2016) LPELR – 40113 (SC), ADA vs. THE STATE (2008) 13 NWLR (PT. 1103) 149, UWAEKWEGHINYA vs. STATE (2005) 9 NWLR (PT. 930) 227 and ORISA vs. STATE (2018) LPELR – 413896 (SC) at 50 – 53, B – B. It was argued without conceding that assuming the defence was not raised, that the Court could on its own raise and consider any available defence to the Appellant. See, BABATUNDE vs. STATE (2014) LPELR – 23802 (CA), SAMUEL EDIBO vs. STATE (2007) 5 SC 138 at 141, 15 – 30, NWABUEZE vs. THE STATE (1988) NWLR (PT. 86) 16 at 34 D-E and ONAFOWOKAN vs. STATE (1986) 2 NWLR (PT. 23)496.
It was submitted that the trial Court’s refusal to consider the Appellant’s defence of alibi breached his right to fair hearing which is fatal to the prosecution’s case. See, ETTI vs. TINUBU (2011) LPELR – 4737 (CA), WALTER WAGBATSOMA vs. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 43722 (SC) and ANPP vs. INEC (2004) 7 NWLR (PT. 871) 16.
On his third issue, the learned counsel to the Appellant submitted that the trial Court was wrong to have held that the Respondent proved the offence of conspiracy to commit Armed Robbery beyond reasonable doubt for which the Appellant was convicted and sentenced by the trial Court. The three ingredients that must exist to sustain a conviction for conspiracy to commit Armed Robbery were given as follows:
1. That there was an agreement or confederacy between the accused and others to commit the offence.
2. That in furtherance of the agreement or conspiracy, the accused took part in the commission of the armed robbery or series of robberies;
3. That the robbery or each robbery was an armed robbery.
It was submitted that the three ingredients must co-exist, see, OKOH vs. THE STATE (SUPRA) and USUFU vs. THE STATE (2007) 3 NWLR (PT. 1020) 94 at 113 0 114 H-I. Further, that the burden of proof beyond reasonable doubt is on the prosecution. See, Section 135 of the Evidence Act 2011, STATE vs. ONYEKWU (2004) ALL FWLR (PT. 221) 1388 at IGABELE vs. STATE (2004) 15 NWLR (PT. 896) 314 at 344. Also, that the respondent did not prove any of the ingredients enumerated above. It was argued, that there was no common criminal intention formed with the 1st and 3rd accused persons. See MUSTAPHA vs. THE STATE (2016) LPELR – 40081 (CA), AKINKUNMI vs. THE STATE (1987) 3 SC 152 and OGBALI vs. STATE (1983) 1 SC NLR 161. The learned counsel agreed that the law does not require conspirators to physically meet before a common criminal intention can be formed, because it could be inferred from circumstances described in the evidence led before the trial Court. See, ALARAPE vs. THE STATE (2001) LPELR – 412 (SC). It was submitted that the Appellant, 1st and 3rd accused persons did not know each other. See, IBE vs. IBHAZE (2016) LPELR – 41556 (CA), OLA vs. STATE (2018) LPELR – 44983 (SC). Further, that the Appellant’s evidence was not challenged when he stated that he did not know the 1st and 3rd accused, he met them for the first time at SCIID, Yola.
It was submitted that proof of common intention is a condition precedent before an accused could be found guilty of conspiracy. See ELE vs. THE STATE (2006) LPELR – 11649 (CA) and ODUNAYO vs. STATE (2014) 12 NWLR (PT. 1420) 1. It was concluded on this issue that the trial Court was wrong to have convicted the appellant of conspiracy to commit armed robbery and sentenced him to death by hanging despite the absence of proof of common criminal intention in the evidence led by the Respondent at the trial Court.
In arguing issue four, the learned counsel submitted that the Respondent did not prove the offence of culpable homicide punishable with death for which the Appellant was convicted and sentenced. It was submitted that the following ingredients must be proved to establish the offence of culpable homicide punishable with death:
1. That the deceased died
2. That the death of the deceased was resulted from the act of the accused person, and
3. That the act or omission of the accused person, which caused the death of the deceased, was intentional with full knowledge that death or grievous bodily harm was its probable consequence.
It was submitted that the three ingredients must co-exist. See, MAIYAKI vs. THE STATE (2008) 15 NWLR (PT. 1109) 173 at 192 – 193, G-B. Further, that the death of the deceased was not proved to have been as a result of the act of the Appellant. See EGBEYOM vs. THE STATE (2000) LPELR – 6790 (CA). Further, that the PW1 – PW4 in their evidence did not establish the death of the deceased. Learned counsel agreed that the cause of death could be inferred from the circumstances of the case. It was argued that there were no peculiar circumstances for the inference but, the Court relied on Exhibit “A – A1” to convict the appellant.
Further, that none of the Respondent’s witnesses testified that they saw the Appellant kill the deceased. It was submitted that the Court was wrong to have relied on Exhibit “A – A1” the retracted statement of the Appellant which was not corroborated. See AIGUOREGHIAN vs. STATE (2004) 3 NWLR (PT. 860) 367 at 408 – 409, A-A, R. vs. OLEDINMA (1940) 6 WACA 202 and OMOGODO vs. THE STATE (1981) 5 SC 5, at 26 – 27. Also, that the Respondent at the trial failed to prove the offence of Culpable Homicide beyond reasonable doubt. See ADEYEYE vs. STATE (1968) NMLR 48, NJOVENS vs. STATE (1973) 1 NMLR 331, OLUWATOYIN ABOKOKUYANRO vs. THE STATE (2016) LPELR – 40107 (SC), AIGBADION vs. STATE (2000) 7 NWLR (PT. 666) 686 at 704, B. It was submitted that the Respondent needed to prove beyond reasonable doubt the following:
a. The death of a person occurred.
b. The Appellant caused the death of the deceased.
c. There was intention of the Appellant to cause the death of the deceased or the Appellant knew that death would be the probable consequence of his act.
See BAKARE vs. STATE (1987) 1 NWLR (PT. 52) 579.
In arguing his fifth issue, it was submitted that the Respondent did not prove that the Appellant committed the offence of Armed Robbery beyond reasonable doubt. The essential elements that must be established for the offence of Armed Robbery were given as follows:
1. A robbery took place;
2. The person who committed the offence of robbery was armed; and
3. The Accused was the person or one of the persons who committed the act of Robbery.
See ADEKOYA vs. STATE (2012) 9 NWLR (PT. 1306), TANKO vs. STATE (2009) 4 NWLR (PT. 1131) 430), ADEBAYO vs. STATE (2014) 12 NWLR (PT. 1424) 613 and OKHIRIA vs. STATE (2014) 1 NWLR (PT. 1389) 638. It was submitted that from the evidence of the PW3 and PW4, there is nothing to show the twelve (12) cows were stolen by the Appellant and two others. Further, that the PW3 and PW4 did not witness the taking away of the cows, pages 134 – 137 of the printed records of appeal. It was submitted that there is no evidence linking the Appellant to the alleged Armed Robbery. Further, that the Respondent needed to prove beyond reasonable doubt that there was a Robbery. See OKHIRIA vs. STATE (SUPRA). It was submitted that Exhibit “A – A1” has no evidential value and ought not to have been relied on by the trial Court. It was concluded on this issue that the Respondent did not prove that there was armed robbery. Further, that none of the Respondent witnesses was an eye witness and that doubt in the Respondent’s case ought to have been resolved in favour of the Appellant. See ONYENYE vs. THE STATE (2012) LPELR – 7866 (SC), SALE vs. STATE (2016) 3 NWLR (PT. 1499) 392 at 423. D-E and 424 B-C and AJAYI vs. STATE (SUPRA) at PAGES 231 – 232, G-A. It was submitted that the knife allegedly used to commit the alleged robbery was not tendered in evidence. See, STATE vs. AJAYI (2016) 14 NWLR (PT. 1532) 196 at 232, B-D.
In response, the learned counsel to the Respondent Z. Y. Usman, Senior State Counsel II, Adamawa State Ministry of Justice adopted and relied on his brief of argument filed on 2/5/19, as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the lower Court. The Respondent’s issue (A) encompasses the appellant’s issue one (1) and two (2). It was submitted that the defence of alibi is a complete defence for the accused person, if properly investigated and found to be true that the Appellant was not at the scene but, elsewhere. It was argued that the defence must be timeously raised. Further, that the Appellant raised the defence of alibi when he testified in Court as the DW2, pages 141 – 143 of the printed records of appeal. It was argued that Exhibit “A – A1”, the Appellant did not mention his whereabout on the day of the incident and at the particular time, but raised the defence in Court when he testified as the DW2 without giving evidence that would prompt the Police to investigate. The defence was said to be an afterthought.
It was submitted that for the defence of alibi to be sustained, it must be raised timeously, which in turn the Police would investigate. See DURU vs. STATE (2017) 4 NWLR (PT. 1554) PG. 1, PARAGRAPHS A-F at 33 and SULEIMAN ABUBAKAR vs. STATE, APPEAL NO: CA/YL/101C/2018, DELIVERED ON THE 26TH DAY OF MARCH, 2019 (UNREPORTED) which explained that the defence means that the Appellant was not at the scene of crime, ‘elsewhere’. It was argued that in the present appeal where the defence of alibi was raised during the Appellant’s evidence in Court the prosecution was not bound to debunk the Appellant’s alibi, therefore failure to do so would not jeopardize the case of the Respondent or amount to a miscarriage of justice. It was submitted that the cases cited and relied upon by the Appellant are distinguishable from the present case in that in those cases, the defence alibi was timeously raised and the Police were supplied with enough particulars of the whereabout of the accused person. See DURU vs. STATE (SUPRA) PAGE 33, PARAGRAPHS A – F.
In arguing his issue (B), it was submitted that in criminal trials, the guilt of an accused person could be proved by:
a. Evidence of an eye witness
b. Confessional statement
c. Circumstantial Evidence.
See GIKI vs. STATE (2018) 6 NWLR (PT. 1615) PAGE 237 at 247, PARAGRAPH F, EYOP vs. STATE (2018) 6 NWLR PT. 1615 PAGE 273 at 276, PAGE 273 at 281, PARAGRAPHS A-B and GODWIN IGABELE vs. STATE (2007) LNCC 125. It was submitted that at the trial, there was evidence in support of the conviction of the Appellant. Further, that the confessional statement was admitted in evidence after a trial within trial as Exhibit “A – A1”. The Appellant denied making Exhibit “A-A1”, extra judicial statement attributed to the Appellant. It was submitted that Exhibit “A-A1” was corroborated by the evidence of PW2, PW3 and PW4 which was proved and ascertained. Further, that an accused person could be convicted solely on his confessional statement as long as the Court believes that the retracted confessional statement is cogent. See, R. vs. SYKES (1913) CR APP. REP. 224, 230, HASSAN vs. STATE (2001) 15 NWLR (PT. 735) PAGES 184, 199. It was submitted that Exhibit “A – A1” was subjected to the rules laid down in R. vs. SYKES (SUPRA). Further, that the offence of conspiracy can be inferred, the parties need not be seen together or to have known each other. A common intention for the furtherance of the act committed is all that is required. See, OYEDIRAN vs. REPUBLIC (1967) NMLR 122 at 127 – 128. Reference was made to the evidence of PW1 – PW4 which we were urged to consider with Exhibits “A – A1” as well as Exhibits “B – B1” and “C – C1”. It was submitted that it can be inferred that the appellant and his co-accused conspired to attack the deceased Emmanuel Mika on the fateful day which led to his death. See, FAMUYIWA vs. STATE (2018) EJSC (VOL. 93) PG 161 at 181, PARAGRAPHS C-E, UGBOJI vs. STATE (2018) 10 NWLR (PT. 1627) PAGE 346 at 375, PARAGRAPHS E-F, OKEMEFUNE NDOZIE vs. THE STATE (2016) LPELR – 26067 (SC) – C – D 14-15 D-A and SULE vs. STATE (2009) 17 NWLR (PT. 1169) 3. It was submitted that the Appellant made his confessional statement early in time and did not deny the allegation but, chose to do so by retracting his statement belatedly. See, SIMON vs. THE STATE (2017) 8 NWLR (PT. 1566) 119 at 140 – 141 and NSOFOR vs. THE STATE (2004) 18 NWLR (PT. 905) 292. It was submitted that the trial Court was right to have convicted the Appellant and two others on the strength of Exhibit “A – A1” with other corroborating evidence even though the statement was retracted, also right to have admitted Exhibit “A – A1” in evidence. See, FEDERAL REPUBLIC OF NIGERIA vs. GAD BARMINAS (2017) 15 NWLR (PT. 1588) PAGE 177 at 217, PARAGRAPHS G – F. It was the contention of the learned counsel that Exhibit “A-A1” is self-explanatory as to the role the appellant played, pages 97 – 102 of the printed records of appeal. The trial Court was therefore right to have acted upon Exhibit “A – A1”. See, AKPAN vs. STATE (1992) NWLR (PT. 248) and UBIERHO vs. STATE (2005) 5 NWLR (PT. 919) 644. The evidence of the PW3 – PW4 was reviewed to the effect that it corroborated the contents of Exhibit “A – A1”, that Emmanuel Mika was slaughtered. See, FEDERAL REPUBLIC OF NIGERIA vs. GAD BARMINAS (SUPRA) PAGE 177 at 217, PARAGRAPHS D-E. It was submitted that the trial Court was right to have convicted the Appellant since, proof beyond reasonable doubt is not proof beyond all iota of doubt. See, EMMANUEL IKE vs. THE STATE (2011) 200 LRCN 143 at 149. See, EDHIGERE vs. THE STATE (1996) NWLR (PT. 464) 1 at P. 10, PARAGRAPHS B-C. It was argued that the evidence of a Police Officer (PW1) who gave account of his findings on investigation cannot be termed as hearsay. See, ANYASODOR vs. THE STATE (2018) 8 NWLR (PT. 1620) PAGE 107 at 114, PARAGRAPHS C-E at 125 and AROGUNDARE vs. THE STATE (2009) ALL FWLR (PT. 1136) 165.
On the Respondent’s issue (C) with the Appellant’s conviction for Conspiracy to commit Armed Robbery, the ingredients that needed to be proved were listed as follows:
(a) That there is an agreement or confederacy between the appellant and others to commit the offence.
(b) That in furtherance of the agreement or confederacy, the appellant took part in the commission of the robbery or series of robberies, and
(c) That robberies or each robbery was an armed robbery.
It was argued that the Appellant in Exhibit “A – A1” explained his participation in the dreadful acts for which he was convicted; pages 30 – 33 and 97 – 101 of the printed records of appeal. It was submitted that the common intention of the Appellant and his co-accused persons was proved for which the Appellant was properly convicted and sentenced.
In respect of the offence of culpable homicide, it was submitted that the required ingredients were proved at the trial against the Appellant. These are:
(a) That the deceased died;
(b) That the death was caused by the accused;
(c) That the accused intends to either kill the victim or cause her/him grievous bodily harm.
It was submitted that the evidence of the PW1 established the required ingredients; the witness saw the body of the deceased when it was taken to the hospital for post mortem examination. Also, the evidence of the PW2 was that he saw the slaughtered body of the deceased when it was taken to hospital for post mortem. The PW3 also gave evidence to the effect that he saw the body of the deceased (which was battered and slaughtered) before it was released to the relatives for burial. It was submitted that the DW1 also gave evidence that he was arrested after the body of the deceased was found in the bush. It was argued that the contents of Exhibit “A – A1” read with the evidence of the PW1, PW2, PW3 and DW1 amongst others, the respondent proved the ingredients of culpable homicide punishable with death against the Appellant.
It was submitted that for conviction of the Appellant for the offence of Armed Robbery, the ingredients needed to be established are as follows:
- That there was robbery or series of robberies; and
2. That the robberies or each robbery was an armed robbery; and
3. That the accused was one of those who took part in the armed robbery.
It was concluded that the respondent led adequate evidence to prove that there was a robbery, the robbery was armed and the appellant was one of those who took part in the robbery, reference was made to the evidence of the PW3, PW4 and Exhibit “A – A1”. It was submitted that the Respondent discharged the required burden of proof for the conviction of the appellant, see, SUBERU vs. STATE (2010) 8 NWLR (PT. 1197) at 586 and ATTAH vs. STATE (2010) 10 NWLR (PT. 1201) at 190.
In the Appellant’s reply brief, the learned counsel to the Appellant re-argued his points on the defence of alibi to the effect that it was raised at the earliest opportunity. It was re-argued that the Appellant was tortured before he made Exhibit “A – A1” which fortified the Appellant’s notion that he did not make any statement to the Police. It was argued that the statement required to be made at the earliest opportunity need not be made in writing. See, CHUKWUMA vs. NWOYE (2009) LPELR – 4997 (CA). It was submitted that there was no credible evidence fixing the appellant at the scene of crime. See, ADEBIYI vs. STATE (2016) 8 NWLR (PT. 1515) 459 at 475 – 476, H – F. Further, that the Respondent did not argue anywhere that Exhibit “A – A1” was corroborated by any independent piece of evidence. It was argued that the trial Court ought to have adopted the test as laid down in R. vs. SYKES (SUPRA) adopted in AKPAN vs. STATE (1992) 6 NWLR (PT. 248) 439 at 460, B-D. It was re-argued that the respondent’s witnesses PW1 – PW4 were not eye witnesses, therefore, that Exhibit “A – A1” ought to have been corroborated. See, IMEPURUNGU vs. THE STATE (2019) LPELR – 27047 (CA) and OWHORUKE vs. COP (2015) LPELR – 24820 (SC) at 22G – 23C. We were urged to set aside the judgment of the trial Court found solely on Exhibit “A – A1”.
The Appellant’s issues (1) and (2) were captured in Respondent’s issue (A), while the Appellant’s issues 3 – 5 were captured in the Respondent’s issues (B) and (C). I would utilize the Respondent’s issues in determining the appeal.
No doubt, the defence of alibi where properly and timeously raised if sustained and found to be true is a complete defence. In other words, that the accused person was not at the scene of the crime but, elsewhere when the offence was committed. For the defence of alibi to avail an accused person it must be timeously raised. From the printed Records of Appeal and as submitted by the learned counsel to the Appellant, the Appellant raised the defence of alibi when he testified in Court as the DW2. In EBRE & ORS vs. STATE (2001) LPELR – 995 (SC) PP. 14 – 15, PARAGRAPHS D-G his lordship Achike, JSC explained the need to raise the defence of alibi timeously thus:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabout on the crucial day of the offence which will include not just the specific place(s) where he was, but additional, the people in whose company he was and what, if any, transpired at the said time and place(s). obviously, such comprehensive information furnished by the accused person must, unquestionably be capable of investigation by the Police, should they wish to do so. A fair-minded tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation.”
From the printed records of appeal, it is clear that the Appellant did not raise his defence of alibi at the earliest opportunity when he made his statement to the Police but, did so when he testified as the DW2 and stated that he had never been to Hildi where the incident took place. Exhibit “A – A1”, the Appellant’s confessional statement did not indicate in any way that he was not at the scene of the crime or had never been to Hildi. On the other hand as rightly argued by the learned Senior State Counsel, the said Exhibit gave a detailed account of where the Appellant was and the role he played in causing the death of the deceased Emmanuel Mika on the fateful day. In his testimony in Court, the Appellant merely stated that he had never been to Hildi, he did not state where he was on the fateful day and whom he was with. No particulars of his whereabout were given which would have prompted the Police to investigate the alibi. The defence of alibi is an afterthought. For the defence of alibi to avail an accused person, it must be timeously raised which would shift the responsibility to the Police to investigate same, where the Police fails to do so, the accused would go free. Further, the accused person must give detailed particulars of his whereabout on the day and time the offence is said to have been committed, in whose company he was in and what transpired at the time. The particulars must be capable of being investigated by the Police. The accused person raising the defence at the trial while testifying is to deliberately deny the prosecution its right and duty to investigate the defence, as has happened in this case where the Appellant while testifying at the trial stated that he had never been to Hildi where the incident took place. That the Appellant had never been to Hildi is a vague account of his whereabout and there was nothing for the Police to investigate, it cannot avail the Appellant. See, EBRE & ORS vs. STATE (2001) (SUPRA), AKPAN vs. STATE (1986) LPELR – 379 (SC) P. 7, PARAGRAPHS A-B, IKUMONIHAN vs. STATE (2018) LPELR – 44362 (SC) PP. 35 – 40, PARAGRAPH B, KOLADE vs. STATE (2017) LPELR – 42362 (SC) PP. 71 – 72, PARAGRAPH B-A and AKEEM vs. STATE (2017) LPELR – 42465 (SC) PP. 24 – 26, PARAGRAPHS E-A. The defence of alibi ought to have been raised at the earliest opportunity, when he made his statement to the Police and not at the trial. The learned trial Judge was right not to have considered the appellant’s testimony in Court as an alibi. The trial Court was also right not to have faulted the non-investigation of the alleged alibi, there was nothing to investigate. The Police was right not to have investigated the appellant’s belated and vague defence of alibi raised at the trial. I agree with the submission of the learned Senior State Counsel that the authorities cited and relied upon by the learned counsel to the Appellant support the case of the Respondent in that, in those cases, the defence of alibi was timeously raised in the accused person’s statement to the Police, thus gave the Police a lead as to what was to be investigated, the whereabout of the Appellant on the day and time the offence was committed. The Appellant’s defence of alibi fails; I hold that the trial Court was right to have held that the defence did not avail the appellant. Issue (A) is resolved against the Appellant.
In respect of issue (B), Exhibit “A – A1” is the Appellant’s retracted confessional statement to the Police which the learned counsel argued that the trial Court ought not to have relied solely on in convicting the Appellant. It is trite that, it is the duty of the prosecution in any and every criminal matter to prove its case “beyond reasonable doubt”. Such proof is not beyond all shadow or iota of doubt. See, STATE vs. ONYEUKWU (2004) LPELR – 3116 (SC) PP. 44 – 45, PARAGRAPHS G-E, EZEANI vs. F.R.N. (2019) LPELR – 46800 (SC) P. 23, PARAGRAPHS A-C, NWATURUOCHA vs. THE STATE (2011) 6 NWLR (PT. 1242) 170; (2011) 2 – 3 SC (PT. 1) P. 111; (2012) 6 NWLR (PT. 1242) 170 and AUDU vs. FRN (2018) LPELR – 45642 (CA) PP. 32 – 33, PARAGRAPHS D – E.
In NWATURUOCHA vs. THE STATE (SUPRA) his lordship, Fabiyi, J.S.C. defined proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
Exhibit “A – A1” was tendered at the trial Court after a trial within trial and linked the Appellant with the cause of death of the deceased. Exhibit “A – A1” having been admitted in evidence after a trial within trial, its voluntariness is no longer an issue. On the other hand, the Appellant denied making the confessional statement to which the trial Court found otherwise, this means that the Appellant made the statement voluntarily and it is the truth on the issue of the role he played in the crime. By the provisions of Section 28 of the Evidence Act, 2011, a confessional statement is a direct acknowledgement of guilt once it is a voluntary admission of his participation in the crime, it is a confession. It is the law that a voluntary confession of guilt made by an accused person if it is direct, positive and proved, is enough to warrant a conviction without any corroboration, contrary to the argument of the learned counsel to the appellant. Exhibit “A – A1” coming from the horse’s mouth so as to say is stronger than the evidence of an eye witness. See, QUEEN vs. ITULE (1967) 2 SC NLR P. 183, AREMU vs. STATE (1991) 7 NWLR (PT. 201) P. 1, JIMOH YESUFU vs. STATE (1976). It is the law that an accused person can be convicted on his confessional statement alone, even where retracted without corroboration. See, IDOWU vs. STATE (2000) LPELR – 1429 (SC) PP. 44 – 45, PARAGRAPHS F-A, where his lordship, Wali, JSC stated the position of the law thus:
“…a mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. See, R. vs. SYKES (1913) 8 CR. APP. 233 and KANU vs. THE KING 14 WACA 30. If the confessional statement is satisfactorily proved, a conviction founded on it without more, will be sustained by an appellate Court. See, THE QUEEN vs. OBIASA (1962) 1 ALL NLR 645; PAUL ONOCHIE & 7 ORS vs. THE REPUBLIC (1966) NMLR 307; OBUE vs. THE STATE (1976) 2 SC 141 and JIMOH YESUFU vs. THE STATE (1976) 6 SC 167.”
See, MUMUNI & ORS vs. STATE (1975) LPELR – 1926 (SC) P. 18 PARAS. D-E and DARLINTON vs. FRN (2018) LPELR – 43850 (SC) PP.17 – 18, PARAS. D-A. The learned Senior State Counsel was right to have submitted that in the present case, the Respondent was not under any legal obligation to elicit any independent evidence to corroborate the confessional statement of the appellant, Exhibit “A – A1” for a conviction. The important thing is that the confession has been found to be voluntarily made and true. Further, Exhibit “A – A1” was corroborated by the evidence of the PW2, PW3 and PW4 and consistent with facts which were ascertained and proved before the trial Court. The trial Court was therefore right to have admitted Exhibit “A – A1” in evidence.
On the issue of corroboration, or lack of it as argued by the learned counsel to the Appellant, it is only desirable and not mandatory, moreso, where the confessional statement has been proved to be true as in the present case where, the statement was admitted in evidence after a trial within trial. In Exhibit “A – A1” the Appellant in a blood chilling detail clearly stated how he and his friends planned step by step the execution of their mission, the armed robbery and murder of Emmanuel Mika. The Appellant gave a precise account of the role each of his friends played, in tying the deceased up with a rope, hitting the deceased with a stick on his head, he fell, his throat was slit by the 3rd Appellant who proceeded to slaughter the deceased while Luka Umaru (1st accused) was on the lookout/guard and gave cover to the operation in case a passerby came along. The said Luka Umaru was armed with a knife which he handed over to the 3rd Appellant as they approached the scene. The deceased was slaughtered so that the cows he reared could be taken away, which the Appellant and his friends succeeded in doing. Pages 97 – 100 of the printed records of appeal. I will hereunder reproduce part of Exhibit “A – A1” for clarity.
“I could remember on the 10/01/2016 at about 0600 hrs one Rabiu Alias Jega real second name yet know but he leave with one Umaru Danjalo, he came and told me that he has a deal, that we are to go to Uba Hildi to steal some cattles that the deal as been already planed I then agree he call one of his friend one Ali Bassa “M” of Mubi the three of us then went to Uba Hildi where we met one Luka Umaru that’s my first time of seeing him he took us to his house he told us that his younger brother has went with the cattles for grazing we then trace him in the bush then the said Luka Umaru called aside under a Tree because the plan was that if they separated him with the cattles then I should just take over the cattles and took them to Mubi cattles market that if they sale they will settle me then one Rabiu Jega went and met them under the three I saw when they caught him and tie him with a Rob but I did not see when they slaughtered him I know when Luka Umaru took a knife in his room and left with it. I counted the cattles and they were numbering twelve bulls I started controlling the cattles to the direction of Mubi until I reached a Fulani village along the bush the cattles and it was almost night I then decided to go to the Fulani house to sleep there so that I continue the next day, then the Fulani man ask me to sleep in his son room with him then next day he stopped me not to go he there asked me the owner of the cattles I told him it was Rabiu Jega he asked me to call him severally on phone but could not pick the phone from there the Fulani man took me to Mubi cattle market where we went to the office of Fulako where the chairman identified me but the vigilantes insisted they are to take me back to the Fulani village I then call on a police man in the cattle market where he took us to his office later after hearing from us he then took us to the police station of Mubi South there some police men come and took me to Uba Adamawa.”
The Appellant admitted that he and his friends killed Emmanuel Mika in the bush while he the appellant was instructed to carry the cows to Mubi from where the cows would be taken to Lagos for sale. The Appellant admitted being present when the operation was planned and executed, which caused the death of the deceased. The Appellant testified as the DW2 in open Court and denied ever knowing his co-accused persons and denied ever going to Hildi where the incident took place. At page 142 of the printed records of appeal, the appellant testified as follows:
“I was asked if I knew those that killed a human being. I was told where the person was killed i.e. at Hildi. I told them I had never been to Hildi …
I met Luka Umar at the SCIID and Rabiu Wada I met him at the prisons. I don’t know Umar prior to my meeting him at the SCIID. I do not know Rabiu Wada too.
I have not committed the alleged offence. Equally I do not know committed the offence.”
The above oral testimony in Court is contrary to the contents of Exhibit “A – A1” where the appellant confessed to having committed the offences charged with his friends the co-accused persons. He had given a detailed account of his presence during the planning and how they slaughtered Emmanuel Micah. The position of the law is that once an extra judicial confession, as in the present case has been proved to be made voluntarily; it amounts to the guilt of the accused/appellant. A conviction would be held to be good, irrespective of the fact that the accused person resiled or retracted same in his testimony in Court. The retraction is an afterthought. At page 196 of the printed records, the trial Court rightly held thus:
“It is my finding that the narration of events surrounding the commission of the offence as contained in Exhibits A – A1, B – B1 and C – C1 are consistent with the prosecution’s led evidence before this Court.”
The trial Court was right to have convicted the appellant on his resiled statement. Without sentiment, where a man has confessed to his crime, later at the trial changes his mind about the confession, walks away a free man merely because he had a change of mind, it would surely make a mockery of the trial and the criminal justice system. Allowing such a precedent to extra judicial confession of an accused person would not only be dangerous and make the society to be riddled with unimaginable crime and insecurity, it would open the flood gate of retraction of all confessional statements made by an accused person to the police to ensure his freedom by merely retracting his statement. This would certainly not be good or safe for the society.
Since I have held that a confessional statement which has been proved to be positive and true does not need corroboration, there would have been no need to go through the evidence of the PW1 – PW4 as to whether it corroborated the contents of Exhibit “A – A1” as challenged by the learned counsel to the Appellant but, I will briefly touch on it. The PW1 who obtained Exhibit “A – A1” from the appellant was one of the investigating Police Officers, he gave evidence that he visited the hospital with his team members when the deceased’ body was released to the relatives. The PW3 testified that he visited the scene of crime in the farm where there were blood stains, he recovered the body which was taken to the hospital where a post mortem examination was conducted confirming that the deceased was slaughtered and beaten up, and that he was also present when the body was released to the family for burial. Similarly, the evidence of the PW3 is to the effect that Emmanuel Mika died. From the evidence of the PW1 – PW3, there is no doubt that Emmanuel Mika died and that his slaughtered body was recovered from the farm where the incident took place. The observation of the PW1 – PW3 clearly corroborated the contents of Exhibit “A – A1” to the effect that Emmanuel Mika was slaughtered in the farm; his body was recovered and later released to his relatives. I am of the view that the prosecution provided corroborative evidence which supported the contents of Exhibit “A – A1”, where the appellant confessed how he and his friends killed the deceased. The test in R. vs. SYKES (1913) (SUPRA) was satisfied, which the Courts adopted in KANU vs. R. (1952) 14 WACA P. 30, J. DAWA vs. STATE (1980) 8 – 11 SC P. 236 and KOPA vs. STATE (1971) 1 ALL NLR, P. 150. The PW4 also testified to the fact that his cows were missing and that the deceased that took them to graze never returned. As I stated earlier in this judgment, it is desirable but, not mandatory that some evidence outside the confession is available, however slight, of circumstance which makes it probable that the confession is true. See, FABIAN IMOH vs. THE STATE (2017) ALL FWLR (PT. 887) 88; ASUQUO vs. THE STATE (2016) 14 NWLR (PT. 1532) 309 SC; ULUEBEKA vs. THE STATE (2000) 7 NWLR (PT. 565) 41 and OKOH vs. STATE (2014) 8 NWLR (PT. 1410) 502. I hold that Exhibit “A – A1” is self-explanatory for the Court to draw the inference that the Appellant participated in the commission of the crime. In the present case, the confession is true and I have earlier held so, the trial Court having found that the statement, Exhibit “A – A1” was voluntarily made, it was a free and voluntary confession proved to the satisfaction of the trial Court, which I cannot fault as enough proof of guilt without any corroboration. The retraction was an afterthought. A mere denial of the statement will not make it inadmissible. In IDOWU vs. STATE (2000) LPELR – 1429 (SC) PP. 44 – 45, PARAS. F – A, his lordship, Wali, JSC stated the position of the law thus: “…mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. See, R. vs. SYKES (1913) 8 CR. APP. 233 and KANU vs. THE KING 14 WACA 30. If the confessional statement is satisfactorily proved, a conviction founded on it without more, will be sustained by an appellate Court. See, THE QUEEN vs. OBIASA (1962) 1 ALL NLR 645; PAUL ONOCHIE & 7 ORS vs. THE REPUBLIC (1966) NMLR 307; OBUE vs. THE STATE (1976) 2 SC 141 and JIMOH YESUFU vs. THE STATE (1976) 6 SC 167.”
See, also MUMUNI & ORS vs. STATE (1975) LPELR – 1926 (SC) P. 18, PARAS. D – E, DARLINTON vs. F.R.N. (2018) LPELR – 43850 (SC) PP. 17 – 18, PARAS. D – A and DAVOU vs. C.O.P. PLATEAU STATE COMMAND (2019) LPELR – 47040 (CA) PP. 31 – 33, PARAS. E-D.
It was argued that the PW1 obtained Exhibit “A – A1” under duress. As I stated earlier in this judgment, Exhibit “A – A1” was voluntarily made by the appellant at the earliest opportunity when he narrated the role he played in the execution of his mission with his friends. On this note, I discountenance the argument of the learned counsel to the appellant to the effect that the evidence of the PW1 is hearsay and therefore unreliable, instead I find same to be direct and positive having obtained Exhibit “A – A1” directly from the Appellant. Similarly, the evidence of the PW2, PW3 and PW4 is not hearsay as they gave evidence of what they saw and what they found as a fact which corroborated the confessional statement of the Appellant. Part of the evidence of the PW3 under cross examination is as follows:
“When we found the dead body we then called the Police and they took the dead body to the Police Station at Uba Hong Local Government Adamawa State …
We noticed on the dead body of the deceased he was slaughtered with some beating. The body of the deceased was then released to us for burial. It is true that the dead body I saw and found was that of Emmanuel Mika.”
Similarly, as to the death of Emmanuel Mika, the PW4 testified thus:
“The boy who went out for the rearing of the cows was not found. The said junior brother of PW3 is not alive. He died on the 10/1/2016. I did not see the dead body of the deceased.”
In Exhibit “A – A1”, the appellant gave details of the role he played on the fateful day. The Appellant stated how they planned and took away the cows from the deceased, hit him with a stick after which, he was slaughtered and the body left in the farm while he went away to dispose of the cows. There is no doubt that the Appellant agreed with his friends to carry out their planned mission. Exhibit “A – A1” linked the Appellant with the offences for which he was tried and convicted. A voluntary confession of a crime by an accused person if direct and positive as in this case, were proved, is enough to warrant a conviction without any corroborative evidence. It is the best evidence and stronger than that of an eye witness. See, JOHN vs. STATE (2019) LPELR – 46936 (SC) P. 17, PARAS. E – G, KOPA vs. STATE (1971) LPELR – (1702) (SC) PP. 3 – 4, PARA. E and ACHABUA vs. STATE (1976) LPELR – 63 (SC) P. 8, PARAS. A – C. I resolve issue (B) against the Appellant.
The Appellant’s issue (C) is whether from the evidence adduced at the trial Court, the ingredients of the offences for which the appellant was charged were proved? Starting with the offence of conspiracy to commit Armed Robbery, the following ingredients must be established beyond reasonable doubt:
a. That there was an agreement or confederacy between the accused and others to commit the offence.
b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies.
c. That the robbery or each robbery was an armed robbery.
See USUFU vs. STATE (2007) 3 NWLR (PT. 1020) 94 at 113 – 114, H – A, ADEYEMO vs. STATE (2010) LPELR – 3622 (CA) PP. 30 – 31, PARAS. F – B and TAIYE vs. STATE (2018) LPELR – 444 66 (SC) PP. 21 – 22, PARA. B. Conspiracy simply is an agreement by two or more persons to do or cause to be done an illegal act or an act which is legal but, by illegal means. The mere agreement alone constitutes the offence of conspiracy and it is therefore immaterial to prove that the act was in fact committed. The essential element to prove conspiracy to commit armed robbery lies in the agreement and intention to do an unlawful thing or act which is forbidden by law. The accused person need not have knowledge of its unlawfulness. See, OBIAKOR vs. THE STATE (2002) 6 SC PT. II. 33 at 39/40 and BALOGUN vs. AG. OGUN STATE (2002) 2 SC (PT. 11) 89. The Appellant in Exhibit “A – A1” gave a clear account of the role he played by stating clearly how he and his friends carried out the heinous act of armed robbery at pages 97 – 99 of the printed records of appeal, as contained in Exhibit “A – A1” part of which I earlier reproduced in resolution of issue (B).
As I stated earlier in this judgment in the resolution of issue (B), Exhibit “A – A1” was tendered in evidence after a trial within trial, it was voluntarily made after which, the trial Court found and stated the role the appellant played in committing the offence for which he stood trial. On the other hand, the offence of conspiracy is often not proved through direct evidence but, the agreement or plot could be inferred from the facts of doing things towards achieving a common criminal goal. See, CLARK vs. THE STATE (1986) 4 NWLR (PT. 35) 381; ODUNEYE vs. STATE (2001) 1 SC. 1, NWANKWOALA vs. THE STATE (2006) ALL FWLR (PT. 339) 801 and TAIYE vs. STATE (2018) LPELR – 444 66 (SC) PP. 21 – 22, PARA. B. From the detailed account of the role the Appellant played in carrying out the armed robbery as narrated by the appellant himself, it is glaringly clear that the Appellant conspired with his friends to commit the offence of armed robbery, in that while armed with offensive weapons made away with twelve cows in the custody of one Emmanuel Mika from a grazing ground having planned and agreed to do so with his friends named in Exhibit “A – A1”. The evidence led by the PW1 – PW4 tallied with the contents of Exhibit “A – A1” to the effect that the Appellant was in agreement with others to commit the offence of armed robbery and participated in the armed robbery.
The Appellant challenged the trial Court’s holding that the offence of culpable homicide was not proved against the Appellant beyond reasonable doubt. The starting point would be: what is required to be proved by the prosecution for a conviction of culpable homicide? The ingredients are as follows:
(a) That the death of a human being has taken place.
(b) That the death has been caused by the accused;
(c) That the act of the accused was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
See, HARUNA ALHAJI GALADIMA vs. THE STATE (2017) LPELR – 43469 (SC) PP. 19 – 20, PARAGRAPHS B – A, OYAKHERE vs. STATE (2005) LPELR – 11325 (CA) PP. 18 – 19, PARAGRAPHS E – A and SANI vs. STATE (2017) LPELR – 43475 (SC) P. 5, PARAGRAPHS C – G.
On whether Emmanuel Mika died, the evidence of the PW1 under cross examination, at page 131 of the printed records of appeal is to the effect that he visited the hospital (Cottage Hospital Uba) where a post mortem examination was carried out on the corpse which was later released to the relatives of the deceased in the presence of his team members. Similarly, the evidence of the PW2 (Sgt Amos Ishaku) who was part of the investigating team, visited the scene of the crime at the farm where the slaughtered deceased’ body was recovered from and taken to the hospital for post mortem examination, he was also present when the body was released to the relatives of the deceased, page 130 of the records of appeal. Further, the PW3 (Utama Mika) an elder brother to the deceased testified that the beaten up and slaughtered remains of his brother was released to the family for burial, he gave account of how Emmanuel Mika went to graze the twelve cows and he and the twelve cows went missing before the deceased’s body was found, as well as the missing cows, pages 134 – 136 of the printed records of appeal. The PW4 (Hellamadah Umaru) who owned some of the cows that the deceased went to graze gave evidence similar to that of the PW3 to the effect that Emmanuel Mika who went to graze the cows had died and that the missing cows were recovered.
Apart from the evidence of the PW1 – PW4, the contents of Exhibit “A – A1” established that Emmanuel Mika died. Further, Exhibit “A – A1” also showed that the Appellant was amongst those that caused the death of Emmanuel Mika. The killing was intentional as it was well planned to achieve a common goal which was executed. The appellant in Exhibit ‘A – A1’ gave account of his role in the death of Emmanuel Mika; his role was to dispose of the cows, he was present when the deceased was caught and tied with a rope before he was slaughtered. The Appellant no doubt had a common intention with his friends to carry out their unlawful act and knew that death would be natural consequence of the execution of their planned act. It is immaterial what role each of the appellant and his friends played, the knocking down with a stick, the tying with a rope, the slaughtering or a look out so as not to be caught, all these are deemed to have been carried out by each and every one of his friends present at the scene and in this case, also the action of the appellant who was at the scene.
The Appellant who testified as the DW2 also gave evidence that the corpse of Emmanuel Mika was found inside the bush, there is therefore no doubt that the recovered body released to the relatives for burial was that of Emmanuel Mika. If Exhibit “A – A1” is read alongside the evidence of the PW1, PW2, PW3, PW4 and DW1, it is clear that the Respondent proved the ingredients is culpable homicide punishable with death contrary to Section 221 of the Panel Code. The learned trial Judge was right to have held that even though there was no eye witness account of the incident but, that there is sufficient circumstantial evidence which was cogent, complete, unequivocal and irresistible leading to the conclusion that the appellant is directly linked to the death of the deceased, which could be inferred by the conduct of the appellant which he confessed to in Exhibit “A – A1”. The view of the learned trial judge cannot be faulted.
On the offence of armed robbery, the Appellant made out that the trial Court was wrong to have held that the prosecution proved beyond reasonable doubt the offence of armed robbery for which the Appellant was convicted and sentenced to death. It is trite that for the offence of armed robbery to be established, the following ingredients must be proved beyond reasonable doubt:
1. That there was a robbery or series of robberies.
2. That each robbery was an armed robbery.
3. That the accused took part in the robbery or robberies.
See BOZIN vs. STATE (1985) LPELR – 799 (SC) P. 6, PARAGRAPHS B – D, AGUGUA vs. THE STATE (2017) LPELR –42021 (SC) P. 39, PARAGRAPHS A – C and MOHAMMED VS. STATE (2019) LPELR – 46420 (SC) PP. 6 – 7, PARAGRAPH F. From the contents of Exhibit “A – A1” and the evidence adduced by the prosecution witnesses, no doubt there was a robbery, the Appellant in Exhibit “A – A1” stated clearly how he made away with the twelve cows while armed with stick and a knife. The PW3 who saw the recovered body of the deceased before it was taken for post mortem at the hospital testified as to the condition of the body, as having been slaughtered. The PW3 and PW4 gave evidence as to the missing cows. The learned counsel to the Appellant had argued that there was need for the prosecution to have tendered the weapon, this is erroneous considering the evidence led as to the recovered body having been slaughtered and the glaring content of Exhibit “A – A1” where the Appellant stated clearly that he and the others were armed with sticks and a knife with which Emmanuel was attacked. In most cases, the culprits would easily dispose of their weapons of attack while on the run. See, SIMON vs. STATE (2017) LPELR – 41988 (SC), P. 13 – 14, PARA. C and STATE vs. FADEZI (2018) LPELR – 44731 (SC) P. 27 PARAS. D – G.
In ESENE vs. STATE (2017) LPELR – 41912 (SC) P. 41, PARAS. A – E, his lordship, Ogunbiyi, JSC held thus:
“Further still and to show that the prosecution is not duty bound to produce the knife, there is no legal obligation on the prosecution to produce or tender the knife in evidence. The lower Court was clear and could not be faulted on this point when it held at page 148 of the record and said:- “Let me mention here and now, that it is not the law that the firearms, or the offensive weapons used must be tendered in proof by prosecution to commission of the armed robbery. This issue has since been settled by Supreme Court in the case of FATAI OLAYINKA vs. THE STATE 130 NSCQB 149 at PAGES 162 – 163.” It is a settled principle therefore that the failure of the prosecution to tender the knife used by the appellant in attacking PW1 did not in any way water down the credible and unchallenged evidence that the appellant committed armed robbery against PW1 on 23/12/2006.”
See, also ABDULKABIR vs. STATE (2015) LPELR – 41841 (CA) PP. 36 – 37, PARAS. F – B.
Through the clear evidence of the PW3 and PW4 who were part owners of the missing cows which is in line with the Appellant’s confession in Exhibit “A – A1”, that he took away the cows to Mubi market to sell, I am of the humble view that the prosecution proved the offence of armed robbery against the appellant and the trial Court was right to have held so, which I have no reason to fault. I resolve issue (C) against the Appellant.
Having resolved all the issues against the Appellant, I hold that the appeal is unmeritorious, same fails and it is hereby dismissed.
The judgment of the trial Court in case No: ADSY/17C/2017, delivered on 10/10/18, conviction and sentence in respect of the Appellant is hereby affirmed.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
Appearances:
Fred Onuobia Esq. For Appellant(s)
Y. Usman Esq. Senior State Counsel II, Adamawa State Ministry of Justice, with him, Salihu Mohammed, Senior State Counsel I For Respondent(s)
