PAUL CHUCKWUDEBELU v. KANO STATE
(2018)LCN/12223(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/K/176/C/2017
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“Now, the word conspiracy is derived from two Latin words, “con which means together and spirare which means to breathe. The combination of those words shows that the word in Latin means to breathe together Conspiracy in terms of its etymology therefore has to do with something that is done in a hush-hush manner away from, prying eyes, if I may lapse into idiomatic expressions, flapping ears and nosy parkas. It has to do with something done in secret and something that is sinister. To prove conspiracy the following elements are required to be proved:- 1. There must be agreement.
2. The agreement must involve at least two people. 3. The conspirators must plan to achieve or execute an illegal goal or objective or to achieve a goal or objective which is itself not illegal but to achieve it entails doing illegal things.
4. At least one of the conspirators must do an act which is overt towards achieving the goal or objective of the conspiracy.” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF ARMED ROBBERY
“Now, the ingredients of the offence of armed robbery have been stated and re-stated by the Courts in numerous cases. They are that:- 1. There was a robbery or series of robberies. 2. That the robber/robbers was/were armed.
3. That the accused person was one of the armed robbers.
See BOZIN V. THE STATE (1985) 2 NWLR PART 8 p. 465 at 467; OSETOLA & ANOR V. STATE (2012) 17 NWLR PART 1329 p. 251; OKANLAWON V. STATE (2015) LPELR 24838 (SC).” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES:
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
PAUL CHUCKWUDEBELU – Appellant(s)
AND
KANO STATE – Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment):
The appeal here is over a criminal matter. The Appellant Paul Chuckwudebelu and two others were charged before the Kano State High Court on a five counts charge of conspiracy, armed robbery, abduction, wrongful restraint and extortion. The first and second counts were offences punishable under Section 6 (b) and Section 1 (2) (b) respectively of the Robbery and Fire Arms (Special Provisions) Act, while the rest of the counts were offences punishable under Section 274, 260 and 294 respectively of the Penal Code Cap. 37 Laws of Kano State. The complainant was one Alhaji Saidu Maikanti. The Appellant was charged along with two other accused persons at the lower Court. He and the other two accused persons pleaded not guilty to all the counts. Seven witnesses testified for the prosecution. The Appellant testified as DW1.
In his judgment delivered on 6th April, 2016 the learned trial judge Yusuf Ubale Mohammad J held that all the counts of the charge were proved. He therefore sentenced the Appellant to death on the counts of conspiracy and armed robbery; 15 years imprisonment for the offence of abduction; 3 years imprisonment for the offence of wrongful confinement; and 14 years imprisonment and a fine of N50,000.00 for the offence of extortion. The learned trial judge ordered that the sum of $5,000 recovered from the Appellant be returned to the complainant, and also that the assets of the Appellant both movable and immoveable be forfeited to the Kano State Government.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 1/7/16 wherein he challenged the judgment on the following five grounds:-
GROUND ONE
That the learned trial judge erred in law in that he convicted and sentenced the Appellant to death for Armed Robbery when all the constituent elements of the alleged crime were not proved beyond reasonable doubt by the prosecution.
PARTICULARS OF ERROR
i. The plea of not guilty recorded for the Appellant connotes that every allegation of fact contained in the charge sheet are denied by the Appellant.
ii. That the weapon allegedly used in the purported crime was not tendered in evidence.
iii. That the car allegedly shot at was not tendered to see where same was hit by any bullet.
iv. That the alleged wrist watch allegedly robbed from Alhaji Salisu Saidu Mai Kanti the PW1 was not in evidence.
v. In the premise, the decision of the learned trial judge regarding the culpability of the accused in the case is not based on sustainable ground.
GROUND TWO
The learned trial judge erred in law in that he convicted the Appellant for conspiracy when the prosecution failed to prove the essential elements of the said offence.
PARTICULARS OF ERROR
i. There was no evidence adduced showing an agreement against the Appellant charged for conspiracy in this matter.
ii. There was no evidence that the Appellant participated as an individual in the crime that constituted the offence in this case.
iii. There was no evidence adduced by the prosecution in this case from where an inference of conspiracy could be inferred.
iv. The finding of the learned trial judge in the circumstance is erroneous in law.
GROUND THREE
That the learned trial Court erred in law in convicting and sentencing the Appellant for Armed Robbery on the basis of Exhibit J. alone when the totality of all the statements allegedly made by the Appellant were not in evidence and jointly considered by the Court.
PARTICULARS OF ERROR
i. It is clear from the evidence of the prosecution witnesses and that of the Appellant that the Appellant made more than one statement.
ii. That all the statements allegedly made by the Appellant ought to have been tendered in evidence by the prosecution who failed to do so.
iii. That all the statements made by the Appellant ought to have been jointly considered by the learned trial judge but this he failed to do thereby occasioning a miscarriage of justice.
GROUND FOUR
The learned trial judge erred in law in that he convicted the Appellant when he held that the defect on the charge sheet as to the date the offence was allegedly committed did not amount to miscarriage of justice when it was clear that no offence was committed by the Appellant on that day.
PARTICULARS OF ERROR
i. The charge ought to carry the date correctly on which the alleged offences for which the Appellant stood trial and was convicted and sentenced was committed.
ii. In the instant case the charge did not carry the correct date the alleged offences were committed by the Appellant.
iii. There was no amendment of the charge, so as to rectify the defect.
iv. The defect was brought to the attention of the learned State Prosecuting State Counsel as well as the trial judge.
v. That the defect has thereby occasioned a miscarriage of justice.
GROUND FIVE
The decision of the trial judge is unreasonable and cannot be supported having regard to the evidence adduced.
The Appellants Brief of Argument was filed on 22/5/18 out of time. However, this Court, on the application of the Appellants learned Counsel, extended the time within which to file the Brief of Argument and also deemed the Brief as properly filed and served on 7/6/18. The Appellants Brief of Argument was settled by A. Ekhasemomhe Esq. The Respondent did not file any Brief of Argument. Since the Respondent did not file a Brief of Argument, the Rules of this Court require that the Respondent will not be heard in oral argument. See Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016.
The Appellant formulated a sole issue for the determination of this appeal. That issue reads:-
Whether in view of the totality of the evidence led by the prosecution and that of the Appellant, his extracted extra judicial Statement inclusive, the learned trial judge was justified in convicting and sentencing the Appellant for the offences spelt out in the five counts charge in this case?.
In arguing this sole issue, the Appellants learned Counsel referred extensively to the evidence adduced before the lower Court. On the count of conspiracy, the learned Counsel referred to the essential elements of the offence of conspiracy as stated in cases such as AYENI AYOBAMI V. STATE (2017) ALL FWLR PART 886 p. 1964 at 2006; THE STATE V. SALAWU (2012) ALL FWLR PART 614 p. 1 at p. 30 35 and KAZA V. STATE (2008) 7 NWLR PART 1086 p. 125 at p. 176. Learned Counsel argued that the elements of the offence of conspiracy were not proved by the prosecution at the lower Court.
It was submitted that the sum of N145,000.00, a wrist watch and two Samsung watches mentioned in the charge of conspiracy as having been stolen pursuant to the conspiracy of the Appellant and his confederates were never tendered in evidence thus making one of the elements of the offence not proved. It was submitted that conspiracy could not be inferred considering the evidence of the PW1 i.e. the complainant that he did not understand English language and his testimony that the Appellant did not understand Hausa language and considering also other evidence that established that the Appellant did not understand Hausa language. Referring to the evidence of PW4 which the learned trial judge also relied on in convicting the Appellant for the offence of conspiracy, it was submitted that the witness never mentioned the Appellant throughout his evidence. It was submitted that reliance on the evidence of PW1 and PW4 to decide that the Appellant was guilty of the offence of conspiracy was wrong and the inference of conspiracy based on the evidence of those witnesses, was perverse.
It was submitted that the learned trial judge also relied on Exhibit J1 the statement to the Police of the 3rd accused person at the lower Court. That statement it was submitted, was retracted by the said 3rd accused. In view of that retraction, prudence demanded that the learned trial judge should have been weary of attaching weight to its content. Learned Counsel further argued that a confessional statement cannot be held against a co-accused unless the co-accused has adopted it. The cases of EMEKA V. STATE (2001) FWLR PART 66 p. 682 at 690; OJEGELE V. STATE (1988) 1 NWLR PART 71 p. 414 were cited in support. It was finally submitted with regard to the decision on conspiracy, that there was no legal basis for finding the Appellant guilty of the offence.
Now, the word conspiracy is derived from two Latin words, “con which means together and spirare which means to breathe. The combination of those words shows that the word in Latin means to breathe together Conspiracy in terms of its etymology therefore has to do with something that is done in a hush-hush manner away from, prying eyes, if I may lapse into idiomatic expressions, flapping ears and nosy parkas. It has to do with something done in secret and something that is sinister. To prove conspiracy the following elements are required to be proved:-
1. There must be agreement.
2. The agreement must involve at least two people. 3. The conspirators must plan to achieve or execute an illegal goal or objective or to achieve a goal or objective which is itself not illegal but to achieve it entails doing illegal things.
4. At least one of the conspirators must do an act which is overt towards achieving the goal or objective of the conspiracy.
In the case of EZE V. FRN (2017) LPELR 42097 (SC), the Supreme Court stated that the elements to be proved and proved beyond reasonable doubt are:-
(a) An agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(b) Some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement.
(c) That each of the accused person individually participated in the conspiracy.
Speaking about the nature of the offence of conspiracy, the Supreme Court in the case of STATE V. GWANGWAN (2015) LPELR 24837 (SC) stated that conspiracy is an offence that is difficult to prove because it is often hatched in secrecy. The offence is usually inferred from the facts and evidence led. More often than not, circumstantial evidence is used to point to the fact that the confederates had agreed on the plan to commit an overt act. See per OKORO JSC in the case under reference.
The question that must be answered here is whether there was admissible evidence before the lower Court which the lower Court could properly infer to establish that the Appellant was one of the confederates. Now, it was only the complainant who testified as PW1 that said that he knew the Appellant as one of those who robbed and abducted him. Neither PW2 an 11 years old passer-by, PW4 the landlady of the house where the abducted PW1 was held, nor PW5 who rented the apartment of the 2nd accused person at the lower Court, gave evidence that linked the Appellant to any of the offences listed in the charge. PW6 and PW7, the remaining prosecution witnesses were Police Officers that investigated the crime. As for the defence witnesses, none of them gave evidence that he had any encounter with the Appellant before the matter went to Court.
The DW2 and DW3 were those who were charged alongside the Appellant. Considering the evidence therefore, it is difficult to see how the learned trial judge inferred conspiracy. This is how the learned trial judge considered the count of conspiracy as can be seen at p. 418 of the Record:-
From the statement of the 3rd accused to the Police which was tendered and admitted in evidence as Exhibit J1 and which was not objected to by the Counsel to the accused, and the testimonies of PW1 and PW4 before this Court, it is very clear that there was a nexus between the meetings which the 2nd and 3rd accused had with one Obinna a.k.a. Barrister mentioned by the 3rd accused on 11/7/2010 and the house at Yamadawa rented out to the 2nd accused by PW4 the landlady. In the circumstances of this case therefore, it can safely be informed (sic) that there was a conspiracy to kidnap PW1, the complainant in this case which involved the 1st, 2nd and 3rd accused persons. It is immaterial that the 1st accused never met the 2nd and 3rd accused persons as what is important is the common intention to commit the offence.
From the above passage, the lower Court saw a nexus in the evidence of PW1 and PW4 and Exhibit J capable of drawing an inference of a meeting of the conspirators. It is difficult to see that nexus. PW4 the landlady did not state that she knew the Appellant. As for Exhibit J1 it is a confessional statement of the 3rd accused at the lower Court. It is settled law that the confessional statement of a co-accused is no evidence against a co-accused person who has not adopted the statement. See OZAKI & ANOR. V. THE STATE (1990) LPELR 2888 (SC); EVBUOMWAN V. COP (1961) NWLR PART 257. In OZAKI & ANOR V. THE STATE (Supra) the Supreme Court stated thus:-
It is an error in law to convict an accused on the statement of another accused to the Police. It is a travesty of justice and a gross violation of all known rules of evidence.
There was no basis for the lower Court to infer any conspiracy involving the Appellant. Its finding in that regard was perverse. Being a perverse finding, the Appellate Court can interfere with it and disturb the finding. See DADA & ORS V. BANKOLE & ORS (2008) LPELR 907 (SC). I do not hesitate to disturb the finding of conspiracy. I set aside that finding. See JOLAYEMI & ORS V. OLAOYE & ANOR (2004) LPELR 1625 (SC).
With regard to the decision of the lower Court on the count of armed robbery, it was submitted that armed robbery was not proved by the prosecution. It was contended that the evidence of PW2, PW3 and PW4 did not link the Appellant to the offence of armed robbery. The evidence of PW5, it was contended also did not link the Appellant to the commission of the offence. With regard to the evidence of PW6 one of the investigating Police Officers, the Appellants learned Counsel conceded that the confessional statement Exhibit J, tendered through PW6 was not challenged. However, he submitted that the Appellant retracted the statement in his evidence on record at p. 129 133 of the Record of Appeal and having so retracted it, the learned trial judge ought to have asked himself the questions in KANU & ANOR V. THE KING (1952) 14 WACA p. 30; MBENU V. STATE (1988) 3 NWLR PART 84 p. 615 and EDHIGERE V. STATE (1996) 8 NWLR PART 464 p. 1 before placing reliance on Exhibit J. It was contended that there is nothing outside Exhibit J to show that Exhibit J is true.
Learned Counsel submitted that when PW6 was called to give evidence and was cross-examined, he testified that the Appellant made many statements to the Police. The statements made by the Appellant other than Exhibit J, it was argued, ought to have been tendered by the prosecution and the prosecution having failed to tender them, the trial Court should have relied on Section 167 (d) of the Evidence Act and held in favour of the Appellant by reason of the failure to produce the Appellants other statements. The case of IGBEKE V. EMORDI (2010) 11 NWLR PART 1204 p. 1 at p. 35 was cited in support.
The failure of the prosecution to have tendered the other statements of the Appellant it was argued, occasioned a miscarriage of justice.
Learned Counsel submitted that the evidence of the Appellant in which he denied the offences for which he was charged was not subjected to cross-examination. The effect of that learned Counsel submitted, is that the evidence of the Appellant was accepted in its entirety. The case of NITEL V. OKEKE (2017) ALL FWLR PART 899 p. 196 was cited in support.
Submitting further, learned Counsel argued that the co-accused of the Appellant that is Dw2 and DW3 never implicated the Appellant in their evidence in Court. He submitted that Exhibits J, J1 and L being confessional statements needed to be corroborated and that the Exhibits cannot corroborate each other, adding that in the absence of an independent corroborative evidence, Exhibit J could not be relied upon to convict the Appellant.
Turning to the other offences for which the Appellant was also convicted, learned Counsel contended that the essential elements of those offences were also not established. Learned Counsel again referred to the evidence of the witnesses and submitted that their evidence did not link the Appellant to the commission of any of the other offences either. With regard to the evidence of PW1 who said he knew the Appellant, the learned Counsel juxtaposed his evidence with that of PW2 and submitted that the evidence of PW1 created doubt whether the Igbo man who spoke Hausa Language to PW2 was the same Igbo man who PW1 said he knew and which Igbo man according to the said PW1 did not understand Hausa Language.
Now, the ingredients of the offence of armed robbery have been stated and re-stated by the Courts in numerous cases. They are that:-
1. There was a robbery or series of robberies.
2. That the robber/robbers was/were armed.
3. That the accused person was one of the armed robbers.
See BOZIN V. THE STATE (1985) 2 NWLR PART 8 p. 465 at 467; OSETOLA & ANOR V. STATE (2012) 17 NWLR PART 1329 p. 251; OKANLAWON V. STATE (2015) LPELR 24838 (SC).
With regard to the offence of abduction, the Penal Code defines the offence in Section 272 thus:-
Whoever by force compels or by a deceitful means induces a person to go from a place is said to abduct that person.
The ingredients of that offence can therefore be extrapolated as follows:-
1. A person is moved from a place to another against his will.
2. The movement was done or caused to be done by the accused through an inducement by forceful means or deceit.
See also the case of SANI V. KANO STATE (2017) LPELR 43329 (CA).
The ingredients of the offence of wrongful restraint will be that:-
1. The accused obstructed a person.
2. The effect of the obstruction was the restraining of that person from proceeding beyond a certain limit.
3. The restraint was wrongful.
4. The restraint was for the purpose of extorting property or other valuable thing.
The ingredients of the offence of extortion will be that:-
1. A person was threatened by another with the intention of obtaining a thing of value.
2. The accused was the one who issued the threat with the intention of obtaining the thing of value.
A close look at the judgment of the lower Court will show that the prosecution never proved the elements of any of these offences for which the Appellant was convicted and sentenced. As pointed out by the Appellants learned Counsel, the principal piece of evidence upon which the learned trial judge convicted and sentenced the Appellant was Exhibit J, his confessional statement. But there were other statements made by the Appellant to the Police which the PW6 admitted were made by him and which the PW6 admitted show that the Appellant denied committing the offence but which statements were not tendered in Court. That the prosecution did not tender those statements should have rang an alarm bell in the mind of the learned trial judge and raised the question: why did the prosecution not tender those statements of the Appellant
The Court should also have asked the question: why did the prosecution tender only Exhibit J in respect of the Appellants case As stated by the Supreme Court in the case of PEOPLE OF LAGOS STATE V. UMARU (2014) LPELR 22466 (SC) it is not only a damning statement of an accused person that should be tendered with glee by the prosecution. A favourable statement to the accused should not be left out in a bid to secure conviction by the prosecution at all costs. As stated by PW6, some of the statements of the Appellant showed that he denied committing the offences. Those statements should not have been left out. Leaving them out suggests that the prosecution had something to hide and was out to secure a conviction at all costs. Indeed, the prosecution had a duty to tender those other statements made to it by the Appellant. In the case of OGUDO V. STATE (2011) LPELR 860 (SC) the Supreme Court stated thus:-
The prosecution has a duty to tender any statement made by the accused during the investigation of the offence with which he is charged whether or not it is in his favour.
Therefore when it comes to tendering of evidence in its custody, the prosecution must not be involved in cherry picking, i.e. suppressing evidence. The prosecution must come clean. It must act fairly, professionally and with a mind of having no other desire other than to ensure that justice is done according to law. No subterfuge is allowed in the exercise of the duty of a prosecutor. In view of the evidence of PW6, the lower Court ought to have invoked the provision of Section 167 (d) of the Evidence Act against the prosecution for failing to tender the other statements of the Appellant. No doubt the evidence before the lower Court raised sufficient doubt about the prosecutions case such that it could not be said that the case against the Appellant was proved beyond reasonable doubt. The lower Court was wrong to have convicted the Appellant when the case against him was not proved beyond reasonable doubt. Consequently, the appeal is allowed. The conviction and sentence of the Appellant on all counts in the charge against him are hereby set aside. In their place, the Appellant is discharged and acquitted on all the counts in the charge.
IBRAHIM SHATABDLIYA, J.C.A.: The appellant, Paul Chuckwudebelu, was arraigned before a Kano State High on a five (5) counts charge for committing the offences of Conspiracy, armed robbery, abduction, wrongful restraint and extortion under the Penal Code of Kano State. He was found guilty on all the counts, and consequently convicted and sentenced accordingly. Was the learned Judge of the Kano State High Court right when he convicted the appellant as charged? In the leading Judgment just delivered, by my learned brother, OBIETONBARA DANIEL KALIO, J.C.A, after a thorough examination of the evidence adduced by the prosecution, came to a reasoned conclusion that the evidence adduced did not support the conviction and sentencing of the appellant on all the five (5) counts charge in that the commission of the offences by the appellant was not proved beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011. I am in full agreement with the reasoning and conclusion arrived at in the leading judgment.
The learned Judge of the lower Court relied heavily on the retracted confessional statement of the appellant when convicting him.
The evidence of the prosecution witnesses did not link the appellant with the commission of the offences with which he was charged. In short, there were no corroborative evidence of the contents of the alleged confessional statement which the lower Court relied on to convict the appellant. It is desirable to have, outside an accused persons confession, some corroborative evidence, no matter how slight of circumstances that make it probable that the confession is true and correct, as the Courts are not generally disposed to act on a confession without testing the truth thereof. The test would also include the Court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial. See Onochie v. The Republic (1966) NMLR 307; R v. Obiasa (1962) 2 SCNLR 402; Ikpasa v. A-G., Bendel State (1981) 9 SC 7; Akpan v. State (1992) 6 NWLR (Pt. 248) 439.
The principles of law on the requirement to prove the commission of an offence by an accused person have been settled by a litany of judicial decisions of the Apex Court and this Court. In all the decisions, the Courts have enunciated that the commission of a crime by a person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution and it never shifts.
If on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by the law and the accused is entitled to an acquittal. However, this does not mean the prosecution must call every available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus which the law lays upon the prosecution. See Alonge v. I.G.P (1959) SCNLR 516.
It is for the foregoing, and the more comprehensive reasoning leading to allowing the appeal, discharging and acquitting the appellant for committing the offences with which he was charged, convicted and sentenced as alluded to in the leading judgment, that, I too, hereby allow the appeal, set aside the judgment of the lower Court, and in consequence, discharge and acquit him.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read before now the lead judgment delivered by my learned brother, Obietonbara Daniel-Kalio, JCA.
He has meticulously considered the relevant issues raised in this appeal. I adopt all his conclusions on the issues including his order allowing the appeal and setting aside the conviction and sentence of the Appellant on all the counts in the charge against him.
I consider my learned brothers order for discharge and acquittal of the Appellant appropriate and hereby abide by the said order.
Appearances:
A. Ekhasemomhe, Esq. For Appellant(s)
Respondent Counsel not represented For Respondent(s)
