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SHUAIBU v. STATE (2020)

SHUAIBU v. STATE

(2020)LCN/15552(CA)

In The Court of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, September 22, 2020

CA/KN/321B/C/2019

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

HARDO SHUAIBU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

POSITION OF LAW TO PROVE THE OFFENCE OF ARMED ROBBERY

Now the trite position of the law, is that to prove the offence of armed robbery, contrary to Section 298 (c) of the Penal Code, three ingredients must be established:-
a. that there was a robbery or series of them;
b. that the robbery was by the use of arms; and
c. that the accused person was one of the armed robbers.
See OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 AND AGBOOLA VS. STATE(2013) 11 NWLR (PT. 1366) 619 AT 623. ABUBAKAR DATTI YAHAYA, J.C.A. 

DUTY OF PROSECUTION TO PROVE CRIMINAL CASES

By the provisions of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(1) of the Evidence Act 2011, the prosecution has the burden squarely on its shoulders, to prove criminal cases against an accused person, beyond reasonable doubt. This means that the evidence against such an accused person is of strong quality, such that it can be said “of course it is possible, but not in the least probable.” See AGBO VS. STATE (2006) 6 NWLR (PT. 979) 54. ABUBAKAR DATTI YAHAYA, J.C.A. 

DIFFERENT METHODS OF PROVING A CRIMINAL OFFENCE

The evidence to be led in proof of the criminal offence may be by an eye witness to the commission of the crime, voluntary confessional statement of the accused person or circumstantial evidence -OKIDO VS. STATE (2011) 3 NWLR (PT. 1234) 209 AT 236. ABUBAKAR DATTI YAHAYA, J.C.A. 

DUTY OF COURT IN ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE OF WITNESSES

This evaluation of evidence, is the exclusive province of a trial Judge and is one of the cardinal duties imposed on him in his adjudicative role – KING VS. STATE (2016) LPELR – 40046 (SC). In evaluating the evidence of witnesses who gave oral testimonies, the trial Court is to utilize the opportunity it has, of seeing the witnesses and observing their demeanor, how they gesticulate, hesitate or dodge questions, before arriving at a decision. He ascribes probative value to the evidence. He has the right in that process, to believe the evidence of any witness completely or in part or even reject it in toto on any point in issue -DAWA VS. STATE (1980) LPELR – 932 (SC). In IBRAHIM VS. STATE (2012) LPELR – 14234 (CA), this Court held that a trial Court has the liberty and the privilege to believe one side and disbelieve the other. In CHIDI EDWIN VS. STATE (2019) LPELR – 46896 (SC), the Supreme Court per I. T. Muhammad JSC as he then was, referred toMAGAJI VS. ODOFIN (1978) 4 S.C 91 AT 98 AND SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 237) 527, on the need to put the evidence of the two parties on different sides of the scale to weigh them together, to consider the probative value in determining where the imaginary scale tilts and preponderates, whether in civil or criminal cases. He then held:-
“……Thus the ascription of probative value to the evidence of each witness is a matter solely for the trial Court and it is not the business of the appeal Court to substitute its own views of undisputed facts for views of the trial Court.”
It is only when the findings of the trial Court are manifestly perverse or have occasioned miscarriage of justice, that the appellate Court would be bound to interfere by re-evaluating the evidence. ABUBAKAR DATTI YAHAYA, J.C.A. 

WHETHER PROSECUTION IS BOUND BY A PRESCRIBED NUMBER OF WITNESSES

Evidence of an eye witness to the commission of the crime is one of the best evidence to be relied upon by the prosecution to discharge the burden on it, if he tells the truth. Therefore, the evidence of one witness possessing the required quality to prove the ingredients of the offence would suffice as the law does not prescribe the number of witnesses the prosecution must call – BABUGA VS. STATE (1996) 7 NWLR (PT. 460) 279. ABUBAKAR DATTI YAHAYA, J.C.A. 

WHETHER OR NOT FAILURE TO TENDER WEAPONS USED IN A CRIMINAL MATTER WILL PREJUDISE THE CASE

On failure of the prosecution to tender the recovered motor cycle or give other detailed particulars of it, it is the law that although it is desirable to tender same, it is not obligatory and would not affect the case, once there is credible evidence that the motorcycle was stolen during the robbery and the Appellant was one of the armed robbers – SIMON VS. STATE (2017) 1 S. C. N. J 381 AT 408 AND AJAYI VS. STATE (2011) LPELR – 3670 (CA). Similarly, there is no law requiring weapons used in the offence of robbery to be tendered before the guilt of the accused person can be proved because more often than not, criminals dispose of such items like clubs, sticks and cutlasses easily so as to escape justice. It would be unjust to society if tendering such weapons is made mandatory – SIMON VS. STATE (SUPRA) AND VINCENT OWOLABI VS. STATE (2018) LPELR – 46031 (CA) AT PAGE 24. ABUBAKAR DATTI YAHAYA, J.C.A. 

WHETHER OR NOT THE EVIDENCE OF MEMBERS OF THE SAME FAMILY OR COMMUNITY OF THE DEASED IS CREDIBLE.

In NKEBISI VS. STATE (2010) 2 SCNJ 205, AT 219, the Supreme Court held:-
“Lastly, and this is also firmly established, a case is not lost on the ground that those who are witnesses, are members of the same family or community. What is important, is their credibility and that they are not tainted witnesses. See CHUKWU VS. STATE (1992) 1 NWLR (PT. 217) 255 AT 263. The mere fact that witnesses are relations of the deceased does not mean that they are not competent witnesses for the prosecution. See AREHIA & ANR. VS. STATE (1982) 4 S.C. 78 AT 92….”
Niki Tobi, JSC at pages 213 – 214 of the report held:-
“There is no law which says that evidence of a relative of a deceased must not be accepted at all times for the conviction of an accused person. I know of no such blanket law….It depends upon the circumstances of the evidence before the Court…
If a relative is the only eye witness to the murder of a deceased or the only witness to give circumstantial evidence to murder, it will be naïve on the part of the law to discharge and acquit an accused person on that ground. That will not be justice to the family of the deceased. That will be clear injustice and I cannot be a party to that.” ABUBAKAR DATTI YAHAYA, J.C.A. 

PRINCIPLE OF LAW GOVERNING THE OFFENCE OF CULPABLE HOMICIDE

For the offence of culpable homicide punishable with death, the ingredients which the prosecution must prove beyond reasonable doubt are:-
a. that there was a death of a human being;
b. the death was caused by the accused person; and
c. that the act of the accused person causing the death, was with intention to cause the death, or that the accused knew that death would be the probable consequence of his act.
See GARBA VS. STATE (2011) 14 NWLR (PT. 1266) 98 AT 116 AND OCHIBA VS. STATE (SUPRA). ABUBAKAR DATTI YAHAYA, J.C.A. 

 PRINCIPLE GOVERNING THE PROVE OF CONSPIRACY

On conspiracy, Rhodes-Vivour JSC in referring to the case of OYEDIRAN VS. REPUBLIC (1966) 4 NSCC PAGE 52, in the case of – SIMON VS. STATE (2017) 1 SCNJ 381 AT 410, held thus:-
“It becomes clear that there is said to be a conspiracy when A and B agree to commit a crime, and the agreement between A and B can be inferred after examining the facts of the case. See NJOVENS VS. STATE (1975) 5 SC 17; MUMUNI VS. STATE (1975) 6 SC 79; DABOH VS. STATE (1977) 5 SC 97 AND OSETOLA & ANOR VS. STATE (2012) 6 SC. (PT. IV) 148.” It is instructive that conspiracy can be inferred from the facts. This is because it is such a secretive affair, so that the plan will not leak and be thwarted. Direct evidence is therefore hardly available. Once one or two or more persons agree to engage in a common objective, which is illegal or a legal one but by illegal means and the illegal act was accomplished in furtherance of the agreement and each of them participated in the illegality, conspiracy is proved. See ABDULLAHI VS. STATE (2008) 17 NWLR (PT. 1115) 203 AT 221. Conspiracy is different from the actual commission of the offence. It is not necessary to prove the commission of the main offence, once the agreement is there to commit it. ABUBAKAR DATTI YAHAYA, J.C.A. 

WHEN THE APPELLATE COURT WILL NOT INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT

Where a trial Court proceeds on the right direction, following and applying rules of practice, evaluated the evidence and appraised the facts as the trial Judge had done in this case, without blemish, without perversity or miscarriage of justice, this Court is not in a position to interfere -BELLO VS. STATE (2015) LPELR – 40398 (CA) ABUBAKAR DATTI YAHAYA, J.C.A. 

PROVE OF CONSPIRACY

On conspiracy, this is not usually proved by direct evidence but by circumstantial evidence. It is complete if there are acts on the part of an accused person, leading the trial Court to conclude that he and others were engaged in a common objective. The agreement is usually inferred from the acts of the accused person – ISMAIL VS. FRN (2020) 2 NWLR (PT. 1707) 85 AT 111. ABUBAKAR DATTI YAHAYA, J.C.A. 

 

 

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is from the Judgment of the trial High Court Gumel, Jigawa State in CASE NO. JDU/03C/2017 delivered on 14th February, 2019. The Appellant, who was the 1st accused person before the trial Court, was convicted on three counts of criminal conspiracy, armed robbery and culpable homicide and sentenced to fourteen years, twenty-one years and death by hanging respectively.

The facts of the case from the record, show that the Appellant and two others went to the house of Mai Unguwa Idi at Malamawa Gidan Maza Garki, Jigawa State on 2nd July, 2016 at about 1:30am and attacked him and his wife, beat them with sticks and dropped nylon fire balls on the body of her husband, injuring him. They stole their cells phones and a motor cycle and ran away. The husband was initially taken to Gumel General Hospital after the robbery but due to the nature of his injuries, had to be referred to Aminu Kano Teaching Hospital where he died the same date. He was buried at Gawo according to Islamic injunctions. The accused persons were chased and arrested alongside the stolen motorcycle. They were charged, tried, convicted and sentenced accordingly. Being dissatisfied, the Appellant filed this appeal on four grounds of appeal which shorn of their particulars, read:-
GROUND 1
The Decision is unreasonable and cannot be supported having regards to the evidence adduced before the Court.
GROUND 2
The learned trial Judge erred in law when he convicted the Appellant for the offence of culpable homicide without cogent evidence adduced by the prosecution.
GROUND 3
The learned trial Judge erred in law when he relied on evidence of PW1 and that of PW2 to convict the Appellant for the offence of armed robbery.
GROUND 4
The learned trial Judge erred in law when he convicted the Appellant for offences of conspiracy, robbery and culpable homicide despite so many gaps in the case of the prosecution.

From the four grounds of appeal, learned counsel identified three issues in the Appellant’s brief filed on the 25th June, 2019, by M. M. Kashim Esq. Although counsel referred to the Appellant at the first line of page 4 of the brief as the 3rd accused person vide the charge sheet dated 22nd June, 2017, the Appellant in the said charge sheet was infact the 1st accused person, not the 3rd.

The three issues identified by the Appellant from the grounds of appeal read thus:-
1. Whether from the totality of the evidence proffered in this case, the prosecution’s evidence was cogent enough to warrant the conviction of the Appellant on three counts of conspiracy, culpable homicide and robbery. (Distilled from ground 1 and 2).
2. Whether the learned trial Judge rightly applied the correct principles of law in his review and evaluation of evidence to warrant his findings, conviction and sentences in this case. (Distilled from ground 3)
3. Whether there is sufficient circumstantial evidence to sustain the charges preferred against the Appellant. (Distilled from ground 4)

The Respondent’s brief was settled by Usman Adamu. He identified one issue for determination to be:-
Whether the learned trial Judge was right in holding that the prosecution proved its case beyond reasonable doubt against the Appellant upon evaluating the evidence of the witnesses called.

Although the issues identified by the Appellant can infact be subsumed in the lone issue identified by the Respondent, I will utilize the issues identified by the Appellant in resolving the appeal.

ISSUE NO. 1
Whether from the totality of the evidence proffered in this case, the prosecution’s evidence was cogent enough to warrant the conviction of the Appellant on three counts of conspiracy, culpable homicide and robbery.

Learned counsel for the Appellant in referring to Section 138(1) Evidence Act 2011 and the cases of BUHARI VS. OBASANJO (2005) ALL FWLR (PT. 273) 1 AT 1990 AND IKARIA VS. STATE (2013) ALL FWLR (PT. 671) 1463 AT 1483, submitted that “it is trite and well settled as that in criminal trials standard of proof is reasonable”. I suppose he means beyond reasonable doubt. Counsel referred to the evidence of PW1 in that although she said she knew the Appellant, under cross-examination she admitted not knowing him before the incident, thus contradicting herself. He criticized the fact that Bulama Auwalu who responded to the plea for help, was not told of the identity of the Appellant by PW1, since he did not also inform PW2 of the Identity of the Appellant. He argued that the findings of the trial Judge on all the three counts at pages 54 – 57 of the record, are not supported by evidence and cannot stand. He pointed out that although PW1 was in close proximity with the culprits, she could not ascertain how many they were and did not also demonstrate the role each culprit played in the execution of the crime. He referred to ALABI VS. STATE (1993) 7 NWLR (PT. 307) 511 AT 537 AND AZEEZ VS. STATE (2008) ALL FWLR (PT. 424) 1423 AT 1461 – 1462. As for PW2, learned counsel posited that his whole evidence is not only hearsay and inadmissible, but was riddled with lies and contradictions, relying on MAREN VS. STATE (2010) ALL FWLR (PT. 501) 972 AT 988 G – H AND IKARIA VS. STATE (SUPRA) AT 1480. He argued that the evidence of PW1 and PW2 could not be said to have linked the Appellant to the offences charged.

On robbery, counsel referred to IKARIA VS. STATE (SUPRA) on the ingredients of the offence and the findings of the trial Judge at pages 53 – 54 of the record, which he attacked because although PW1 said they shouted for help, no indication was given as to whether help was given; that there was no mention of any person at Gumel General Hospital or record of medical attention given; that the persons who went together with the deceased to Aminu Kano Teaching Hospital, were not mentioned, or record stated; that Bulama Auwalu never informed the police about the robbery and never featured; and that no police personnel at Gagarawa Division of State Criminal Investigation Department gave evidence. Counsel also argued that the failure to give the names, model or value of the cell phones stolen or tendering them in evidence, the failure to list the cell phones and the motor cycle as items to be tendered in Court, have all indicated that the first ingredient of the offence had not been proved beyond reasonable doubt. On the second ingredient of the offence of robbery, learned counsel referred to AL-MUSTAPHA VS. STATE (2013) 17 NWLR (PT. 1383) 350, to submit that the evidence of PW1 did not “clearly” establish it, contrary to what the trial Judge found, especially as no specific act culminating into the offence, was linked to the Appellant. Furthermore, the failure to tender the sticks used in the commission of the offence or a medical report supporting the evidence of PW1, shows that the ingredient had not been established. He argued that since she is an interested party, her evidence should have been received with caution -AZEEZ VS. STATE (SUPRA) AT 1479. Counsel also submitted that as the deceased was moved from one hospital to another without record of the medical attention given, it could be presumed that the correct medical treatment may not have been administered. On the second ingredient, counsel submitted that as there was no evidence at all that somebody died or was injured, except by PW1, there was no evidence that Appellant was responsible. No medical report was tendered and no member of the community was called. He concluded that there was no evidence on the possible cause of death of the deceased. On the 3rd ingredient, counsel referred to OCHIBA VS. STATE (SUPRA) and submitted that assuming the Appellant was fixed to the scene of crime, the particular act or commission he committed leading to the death, was not in evidence. As such, there is serious doubt in the case of the prosecution, and it should be resolved in favour of the Appellant – AZEEZ VS. STATE (SUPRA) AT 1463; SHEHU VS. STATE (SUPRA) AT 1865 AND ORJI VS. STATE (2008) ALL FWLR (PT. 422) 1093 AT 1109.

On criminal conspiracy, counsel referred to IBOJI VS. STATE (2016) ALL FWLR (PT. 825) 345 AT 352, and submitted that throughout the record, there is no where a specific role was referred to the Appellant in the realization of the commission of the crimes with which the Appellant was convicted; that the inference drawn by the trial Judge at page 56 was wrong. He urged us to find in favour of the Appellant.

Replying, learned counsel for the Respondent on the offence of robbery, contrary to Section 298 of the Penal Code, referred to AGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) 619 AT 623 on its ingredients. On the 1st ingredient, he referred to the evidence of PW1 and PW2 as establishing same, that there was robbery. On the second ingredient, counsel also referred to the evidence of PW1 and PW2. On the 3rd ingredient counsel again referred to the evidence of PW1 and PW2 and submitted that it had also been proved beyond reasonable doubt. He urged us to so hold.

On culpable homicide punishable with death, learned counsel for the Respondent referred to Section 221 of the Penal Code on the three ingredients, and submitted that the prosecution had proved same. On the 1st ingredient, learned counsel referred to the evidence of PW1 and PW2. On the 2nd ingredient, counsel submitted that setting nylon on fire and allowing the fireballs to drop on the body of the deceased, burnt him and caused his death. On the 3rd ingredient, counsel submitted that it had been proved as without doubt, it is a notorious fact that fire is an element of destruction, and when used on a human being or living thing, death or grievous bodily harm would definitely be the result.

On conspiracy, counsel referred to USUFU VS. STATE (2007) 3 NWLR (PT. 1020) 94 AND OYAKHIRE VS. STATE (2006) 15 NWLR (PT. 1001) 157, to submit that an agreement between the accused persons to carry out an illegal act, amounts to conspiracy.

Taking up the points raised by counsel for the Appellant, the counsel for the Respondent submitted that the evidence of an eye witness which is unequivocal and true, is bound to be accepted and acted upon even if it is a lone witness – ILODIGWE VS. STATE (2012) LPELR – 9342 (SC) He referred to UDO VS. STATE (2018) LPELR – 43707 (SC) on the importance of oral evidence of an eye witness and submitted that PW1 was not only a victim, but was an eye witness and in her evidence, had established the ingredients of all the offences the Appellant was charged with, beyond reasonable doubt, not beyond the shadow of any doubt. He urged us to hold that the accused persons were guilty of the offences charged. This appeal is not by “the accused persons” but by one accused person who was the 1st accused and so counsel should limit submissions in that regard.

Now the trite position of the law, is that to prove the offence of armed robbery, contrary to Section 298 (c) of the Penal Code, three ingredients must be established:-
a. that there was a robbery or series of them;
b. that the robbery was by the use of arms; and
c. that the accused person was one of the armed robbers.
See OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 AND AGBOOLA VS. STATE(2013) 11 NWLR (PT. 1366) 619 AT 623.

By the provisions of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(1) of the Evidence Act 2011, the prosecution has the burden squarely on its shoulders, to prove criminal cases against an accused person, beyond reasonable doubt. This means that the evidence against such an accused person is of strong quality, such that it can be said “of course it is possible, but not in the least probable.” See AGBO VS. STATE (2006) 6 NWLR (PT. 979) 54. The evidence to be led in proof of the criminal offence may be by an eye witness to the commission of the crime, voluntary confessional statement of the accused person or circumstantial evidence -OKIDO VS. STATE (2011) 3 NWLR (PT. 1234) 209 AT 236.

In the instant appeal, for the offence of armed robbery, the prosecution led evidence through PW1 and PW2. PW1 stated in her examination in chief, that she knew the 1st accused person (the Appellant herein) and the 2nd accused person. On 2nd July, 2016 at around 2:00am the accused persons went to their house, broke into her room and asked of her husband. They beat her and her husband with sticks and she sustained injury in her head due to the beating. They also used a lighter to lit nylon and dropped the resultant fire balls on the back of her husband, burning him in the process. They stole cell phones belonging to her and her husband and a motorcycle. When the robbers left, her injured husband was taken to the General Hospital Gumel, but due to the nature of the injuries he sustained, had to be referred to Aminu Kano Teaching Hospital where he died the same day and was buried according to Islamic injunction, at Fagen Gawo. She was cross-examined where she said that she did not know the accused persons before the incident and that they were many but could not say how many.

PW2 on his part stated that he was informed about the robbery in question by Bulama Auwalu around 3:30 am the same day who requested for help in order to arrest them. He mobilized people in two vehicles and set out. When they encountered the three robbers who were on a motor cycle, they changed course. PW2 and others followed them on Gayawa route. They still pursued the robbers until they disappeared into a thick bush where the vehicles could not go into. PW2 and the search party then went to the house of the 1st accused person. He had earlier said he knew the 1st accused person (Appellant) and the 3rd accused person. They found the stolen motor cycle at the back of the Appellant’s house near a cattle route. The 3rd accused person was also found in the Appellant’s house. The second accused person was also found in the Appellant’s house. The police came and arrested the Appellant alongside the stolen motor cycle. Under cross-examination, he said he was not present when the robbery took place.

The learned counsel for the Appellant has criticized the learned trial Judge for not properly evaluating the evidence led before making his findings. It is the duty of the trial Judge to consider and evaluate the totality of evidence led before him, before arriving at a decision one way or another, especially in a criminal case where the guilt of an accused person must be proved beyond reasonable doubt. This evaluation of evidence, is the exclusive province of a trial Judge and is one of the cardinal duties imposed on him in his adjudicative role – KING VS. STATE (2016) LPELR – 40046 (SC). In evaluating the evidence of witnesses who gave oral testimonies, the trial Court is to utilize the opportunity it has, of seeing the witnesses and observing their demeanor, how they gesticulate, hesitate or dodge questions, before arriving at a decision. He ascribes probative value to the evidence. He has the right in that process, to believe the evidence of any witness completely or in part or even reject it in toto on any point in issue -DAWA VS. STATE (1980) LPELR – 932 (SC). In IBRAHIM VS. STATE (2012) LPELR – 14234 (CA), this Court held that a trial Court has the liberty and the privilege to believe one side and disbelieve the other. In CHIDI EDWIN VS. STATE (2019) LPELR – 46896 (SC), the Supreme Court per I. T. Muhammad JSC as he then was, referred toMAGAJI VS. ODOFIN (1978) 4 S.C 91 AT 98 AND SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 237) 527, on the need to put the evidence of the two parties on different sides of the scale to weigh them together, to consider the probative value in determining where the imaginary scale tilts and preponderates, whether in civil or criminal cases. He then held:-
“……Thus the ascription of probative value to the evidence of each witness is a matter solely for the trial Court and it is not the business of the appeal Court to substitute its own views of undisputed facts for views of the trial Court.”
It is only when the findings of the trial Court are manifestly perverse or have occasioned miscarriage of justice, that the appellate Court would be bound to interfere by re-evaluating the evidence.

Evidence of an eye witness to the commission of the crime is one of the best evidence to be relied upon by the prosecution to discharge the burden on it, if he tells the truth. Therefore, the evidence of one witness possessing the required quality to prove the ingredients of the offence would suffice as the law does not prescribe the number of witnesses the prosecution must call – BABUGA VS. STATE (1996) 7 NWLR (PT. 460) 279. The submission of counsel for the Appellant, that other witnesses, such as those who accompanied the husband of PW1 to the two hospitals, Bulama Auwalu and medical doctors, who have not been called, is fatal to the prosecution case, cannot be the correct position of the law. Once the prosecution called PW1 who was infact a victim of the robbery and an eye witness to the commission of the crime, who gave evidence in proof of the offences, believed by the trial Judge, other witnesses were not vital or necessary. It also does not amount to withholding of evidence in proof of the armed robbery – Section 167(d) of the Evidence Act as counsel for the Appellant had argued.

On failure of the prosecution to tender the recovered motor cycle or give other detailed particulars of it, it is the law that although it is desirable to tender same, it is not obligatory and would not affect the case, once there is credible evidence that the motorcycle was stolen during the robbery and the Appellant was one of the armed robbers – SIMON VS. STATE (2017) 1 S. C. N. J 381 AT 408 AND AJAYI VS. STATE (2011) LPELR – 3670 (CA). Similarly, there is no law requiring weapons used in the offence of robbery to be tendered before the guilt of the accused person can be proved because more often than not, criminals dispose of such items like clubs, sticks and cutlasses easily so as to escape justice. It would be unjust to society if tendering such weapons is made mandatory – SIMON VS. STATE (SUPRA) AND VINCENT OWOLABI VS. STATE (2018) LPELR – 46031 (CA) AT PAGE 24.

Learned counsel also argued that PW1 had been impeached in her testimony and that the entire evidence of PW2 is hearsay.
​In her evidence in chief, PW1 stated that she knew the Appellant and the 2nd accused person. Under cross-examination, she was asked if she knew the accused persons before the incident and she answered No. This is what counsel for the Appellant submitted as contradiction. I disagree. When she said in her evidence that she knew them, she did not specify when. So the question on cross examination pin pointed at the time she knew them. That is not a contradiction. More importantly, when she was asked how she managed to identify them when she said she did not know them before the incident. She said:-
“I identified them when they broke in before they started using torch light to lit our faces.”
This clearly explained away how she managed to know them and at what time. There was no disparagement of the evidence to amount to a contradiction -OHIWEREI VS. OKOSUN (2003) 11 NWLR (PT. 832) 463 AT 491. It is also of no moment, that she did not know how many the attackers were, as there is nothing in the record, apart from her evidence, establishing that they were more than three. She even gave details of which accused person first entered her room (the Appellant) and then the second accused joined him, before others came. It was a positive identification of the Appellant at the scene of crime. They were also linked to the armed robbery by her evidence, when she described how they used sticks to beat her and her husband and how they used a lighter to lit nylon and drop fire balls on the back of her husband. The trial Judge considered the evidence of the Appellant and dismissed it as “tissue of lies”. He was well within his right to so characterize the evidence of the Appellant. The trial Judge had unquestionably evaluated the evidence of PW1 and the Appellant. We find no perversity in the exercise or in the findings. He also evaluated the evidence of PW2. The evidence shows that PW2 was informed about the robbery and he organized a team to apprehend the robbers. They encountered the robbers who were three on a motor cycle. They pursued them but they ran away. He knew the Appellant and the third accused person. He saw the stolen motor cycle at the back of the Appellant’s house. He also saw the 3rd accused person in the same house, who was then arrested alongside the motorcycle. All these happened in his presence. Such evidence cannot by any stretch of the imagination, be termed hearsay evidence. Hearsay by virtue of Section 37 of the Evidence Act 2011, is a statement (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of the Act, which is tendered in evidence for the purpose of proving the truth of the matter in it. The trial Judge believed PW2. We have no reason to interfere.

From the evidence of PW1 and PW2, the prosecution had established that there was a robbery in the house of Namalamawa and the robbers used sticks and nylon fire balls on the victims in order to rob them. PW2 had also clearly, cogently and directly identified the Appellant as one of the robbers and the acts he perpetrated with others, to commit the armed robbery. The fact that PW1 was related by marriage to the deceased person, does not make her evidence inadmissible or necessarily suspect. In NKEBISI VS. STATE (2010) 2 SCNJ 205, AT 219, the Supreme Court held:-
“Lastly, and this is also firmly established, a case is not lost on the ground that those who are witnesses, are members of the same family or community. What is important, is their credibility and that they are not tainted witnesses. See CHUKWU VS. STATE (1992) 1 NWLR (PT. 217) 255 AT 263. The mere fact that witnesses are relations of the deceased does not mean that they are not competent witnesses for the prosecution. See AREHIA & ANR. VS. STATE (1982) 4 S.C. 78 AT 92….”
Niki Tobi, JSC at pages 213 – 214 of the report held:-
“There is no law which says that evidence of a relative of a deceased must not be accepted at all times for the conviction of an accused person. I know of no such blanket law….It depends upon the circumstances of the evidence before the Court…
If a relative is the only eye witness to the murder of a deceased or the only witness to give circumstantial evidence to murder, it will be naïve on the part of the law to discharge and acquit an accused person on that ground. That will not be justice to the family of the deceased. That will be clear injustice and I cannot be a party to that.”
Here PW1 was a victim as well as an eye witness to the armed robbery. Her evidence is lucid, it was rightly believed by the trial Judge and it has proved all the ingredients of the offence of robbery with which the Appellant was charged with.

For the offence of culpable homicide punishable with death, the ingredients which the prosecution must prove beyond reasonable doubt are:-
a. that there was a death of a human being;
b. the death was caused by the accused person; and
c. that the act of the accused person causing the death, was with intention to cause the death, or that the accused knew that death would be the probable consequence of his act.
See GARBA VS. STATE (2011) 14 NWLR (PT. 1266) 98 AT 116 AND OCHIBA VS. STATE (SUPRA). There is evidence through PW1 and PW2 which had been evaluated and accepted as true by the trial Court and which have not been contraverted by the defence. The evidence has established that the husband of the PW1 had died and had been buried according to Islamic injunctions. Even though no medical report had been tendered, the evidence of PW1 on that regard is compelling. It has established the first ingredient of the offence. Again PW1 in her evidence, stated that the deceased was beaten and nylon fire balls dropped on his back burning him, by the Appellant and his co-accused. He was taken to two hospitals where he died on the same day. There is no evidence of any supervening event. Death therefore occurred nearly instantaneously and it was well within the powers of the trial Judge to infer from the credible evidence before him, that the death, was as a result of the beating and droppings of nylon fire balls on his body, by the Appellant and his co-accused persons. See BAKORI VS. STATE (1980) 8-11 S.C 81. Thus, the second ingredient had been proved beyond reasonable doubt. On the third ingredient, PW1 stated that the Appellant and his co-accused used sticks to beat them and in addition, nylon fire balls were dropped on the back of the deceased causing him such injuries, that a general hospital could not treat him and he had to be referred to the Aminu Kano Teaching Hospital where he died the same date. There is a presumption of law that a person intends the natural consequences of his acts. A reasonable person is expected to know that beating a person with a stick and burning him with nylon fire balls on his body, would probably cause his death or cause him grievous bodily injury. The Appellant and his co-accused persons must have intended that the deceased would die from their dastardly and merciless acts, or knew that death would be the probable consequence of their acts. People fear to offend God so that they would not be burnt in hell fire. Here are callous and emotionless persons burning the deceased with fire here on earth, in order to rob him of material possession! The trial Judge had unquestionably evaluated the evidence properly and had made findings on the evidence. There is no miscarriage of justice. We can’t interfere.

On conspiracy, Rhodes-Vivour JSC in referring to the case of OYEDIRAN VS. REPUBLIC (1966) 4 NSCC PAGE 52, in the case of – SIMON VS. STATE (2017) 1 SCNJ 381 AT 410, held thus:-
“It becomes clear that there is said to be a conspiracy when A and B agree to commit a crime, and the agreement between A and B can be inferred after examining the facts of the case. See NJOVENS VS. STATE (1975) 5 SC 17;MUMUNI VS. STATE (1975) 6 SC 79; DABOH VS. STATE (1977) 5 SC 97 AND OSETOLA & ANOR VS. STATE (2012) 6 SC. (PT. IV) 148.” It is instructive that conspiracy can be inferred from the facts. This is because it is such a secretive affair, so that the plan will not leak and be thwarted. Direct evidence is therefore hardly available. Once one or two or more persons agree to engage in a common objective, which is illegal or a legal one but by illegal means and the illegal act was accomplished in furtherance of the agreement and each of them participated in the illegality, conspiracy is proved. See ABDULLAHI VS. STATE (2008) 17 NWLR (PT. 1115) 203 AT 221. Conspiracy is different from the actual commission of the offence. It is not necessary to prove the commission of the main offence, once the agreement is there to commit it. In the instant appeal, PW1 gave evidence that she identified the Appellant and the 2nd co-accused persons as the robbers who attacked them and robbed them of the stated items. From this evidence, which is overwhelming and accepted by the trial Court, it can safely be and it was correctly inferred, that the Appellant and his co-accused agreed to rob PW1 and her husband. In furtherance of that agreement, they went to the house armed, attacked, beat them and burnt the deceased. They robbed them and ran away. The elements of conspiracy had been clearly established therein. The Appellant was identified as one of the robbers, pursuant to their agreement. The element of conspiracy had been proved beyond reasonable doubt against the Appellant. This issue is resolved against the Appellant and in favour of the Respondent.

ISSUE NO. 2
Whether the learned trial Judge rightly applied the correct principles of law in his review and evaluation of Evidence to warrant his findings, convictions and sentences in this case.

Whilst arguing this issue, learned counsel for the Appellant mostly repeated arguments he had proffered whilst arguing issue No. 1. Counsel has submitted that PW1 did not refer to any specific role the Appellant played. This is not correct. The evidence shows that she stated that the Appellant and the 2nd co-accused entered their room and beat them with sticks; that they dropped hot nylon fire balls on the body of the deceased who sustained injuries. If this is not stating what role the Appellant played, I don’t know what it is. She identified the Appellant clearly as one of the robbers who robbed and beat them. It is immaterial that she could not state the number of the robbers who attacked them. The findings of the trial Judge at page 54 of the record are therefore supported by the evidence of PW1 and her cross examination, contrary to the submissions of counsel for the Appellant. For PW2, counsel for the Appellant has submitted that “all his testimony is hinged on hearsay.” I have already held that this is not true. The only hearsay aspect is what a bystander told them and that has not been used in deciding the guilt of the Appellant. Counsel has also submitted that PW2 had said at one point, that he was at the scene of crime and in another, contradicted himself that he was not at the scene, during cross-examination. This submission is unfortunately, fallacious. At page 12 of the record, PW2 was asked whether he was “present when the robbery took place” and he answered a definite “No”. There is nothing at page 13 of the record where PW2 stated that he was at the scene of crime. Again throughout the evidence in chief of PW2, he never stated that he was present at the scene of crime. Better attention should be paid to the record of Court so as to avoid misleading the Court. There was no contradiction and nothing to explain away by the prosecution. The trial Judge as I have already held, in resolving issue No. 1, had made the correct findings from the admissible evidence led before him which cannot be faulted. All the points attacking same by the Appellant have not been properly made out. There is no need to repeat them here, as I have resolved them in issue No 1.

On the evidence of DW1, learned counsel for the Appellant has submitted that it was not shaken or contradicted and should have been accorded probative value in the absence of admission or confession to the contrary. He attacked the trial Judge for being selective! What was the evidence of DW1? A lot of it was what he was told. The salient point being that he denied participating or robbing anybody. So apart from denial, what was there in his evidence to be contradicted? The crux of the matter is that the trial Judge believed PW1 and PW2 and disbelieved the Appellant. This was his prerogative and I have already held that his evaluation of the evidence is impeccable. Since the two stories are on opposite sides, i.e. the evidence of PW1 and PW2 are different from the evidence of the Appellant as DW1, both cannot conceivably be believed! If PW1 and PW2 are believed, the Appellant’s evidence cannot possibly be believed. The same goes, if the Appellant was believed, PW1 and PW2 could not have been believed. Since they were believed, it is the natural course of events that any evidence to the contrary given by the Appellant, could not also be believed. Where a trial Court proceeds on the right direction, following and applying rules of practice, evaluated the evidence and appraised the facts as the trial Judge had done in this case, without blemish, without perversity or miscarriage of justice, this Court is not in a position to interfere -BELLO VS. STATE (2015) LPELR – 40398 (CA). Issue No. 2 is thus resolved against the Appellant and in favour of the Respondent.

ISSUE NO. 3
Whether there is sufficient circumstantial evidence to sustain the charges preferred against the Appellant in the absence of identification of the Appellant.

Learned counsel submitted on this that the trial Court basically relied on circumstantial evidence in its findings, as the evidence of PW1 and PW2 does not measure up to standard of proof required by the law, in aspect of the charges.

It is not correct, that the trial Court relied basically in circumstantial evidence in its findings. Therefore the submission regarding findings of fact based on circumstantial evidence basically, would go to naught. For the offence of robbery, the trial Judge evaluated the evidence of PW1 and PW2 and gave them probative value. The evidence of PW1 is direct evidence in that she clearly identified the attackers who beat and robbed them and the weapons used. This is direct evidence relied upon by the trial Judge, not circumstantial evidence. The submission of counsel in this regard holds no water. For culpable homicide punishable with death, the trial Judge relied on the direct evidence given by PW1 on the case of death – page 55 of the record. On the second ingredient, he again relied on the evidence of PW1 at page 56. This is direct evidence that she and her husband were beaten with sticks and her deceased husband, the victim of nylon fire balls dropped on his body and burning him, leading to his death. It is here that the learned trial Judge drew inferences from the circumstances stated in evidence to find that it was the nature of his injuries inflicted by the Appellant and his co-accused persons that caused his death. The Judge was in order and had drawn the correct inferences from the evidence led. There was no speculation whatsoever in that regard as he is backed by law. On the third ingredient, the learned trial Judge relied on the direct evidence of PW1 he believed on the injuries inflicted on the deceased and his resultant death and drew inferences from the circumstances allowed by law, to find that the Appellant and his co-accused persons must have intended the death or knew it was probable because of the calibre of the weapons used and the nature of the injuries inflicted. The trial Judge had done the right thing, had arrived at the correct findings and did not speculate at all. On conspiracy, this is not usually proved by direct evidence but by circumstantial evidence. It is complete if there are acts on the part of an accused person, leading the trial Court to conclude that he and others were engaged in a common objective. The agreement is usually inferred from the acts of the accused person – ISMAIL VS. FRN (2020) 2 NWLR (PT. 1707) 85 AT 111. In the instant appeal, there is overwhelming evidence led by the prosecution through PW1 and PW2, which the trial Court accepted and which it used to infer the offence of conspiracy against the Appellant and his co-accused as I have already stated in resolving issue No 1. The trial Judge did not speculate. He did everything right in that regard. I have also dealt with the issue of the witnesses not called as pointed out by counsel for the Appellant, whilst resolving issue No 1. Regarding the police officers not called and the failure to tender the extra judicial statements of the Appellant, it is on record that it was the counsel for the accused persons who applied to the Court to close the case for the prosecution due to the absence of the official witnesses and the Court did so on 23rd October, 2018. It was not shown to be a deliberate action by the prosecution and the Appellant cannot complain in that regard to say the witnesses were withheld. As regards the extra-judicial statements of the Appellant that is not contained in the summary of evidence. There is only the evidence of the Appellant that his statement was taken by the police. Since his evidence has been rejected by the trial Court, there is nothing to show that his statement was taken let alone withheld. Issue No. 3 is also hereby resolved against the Appellant and in favour of the Respondent.

The result is that nothing useful has been urged in favour of the Appellant. The appeal lacks merit and it is hereby dismissed. I affirm the conviction and sentence of the Appellant as contained in the Judgment of the Gumel High Court in CASE NO. JDU/03C/2017, delivered on 14th February, 2019.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.

I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State, sitting in Gumel, in Suit No JDU/03C/2017 delivered by Honorable Justice Ado Yusuf Birni Kudu on the 14th of February, 2019, along with the conviction of and the sentences passed on the Appellant therein.

AMINA AUDI WAMBAI, J.C.A.: I read before now the leading judgment of my learned brother A.D. YAHAYA JCA and I agree with his reasoning and conclusion.

There is abundant evidence on record which the learned trial judge duly evaluated and applying the correct principles of law, came to the conclusion that the prosecution proved the offences against the Appellant.

I find in particular the eye witnesses evidence of PW1 and PW2 very direct and unshaken linking the Appellant to the commission of the crimes. I find no fault with the findings and conclusion of the trial Court which are rock solid on the evidence on record.

In the circumstance, the appeal lacks any merit and is accordingly dismissed by me.

​I affirm the judgment of the lower Court delivered on 03/10/2017 in Charge No. K/07C/2016 including the conviction and sentence of the Appellant.

Appearances:

M. M. Kashim. For Appellant(s)

Respondent Counsel absent. For Respondent(s)