SULEIMAN v. STATE
(2022)LCN/16402(CA)
In The Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 10, 2022
CA/K/169B/C/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ABUBAKAR SULEIMAN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON HERESAY EVIDENCE
On the first point, hearsay evidence is an evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. Thus, where a third party relates a story to another as proof of the contents of a statement, such story is hearsay and, inadmissible. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt. 157) 407, Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1 SC, Agoda v. Enamuotor (1999) 8 NWLR (Pt. 615) 407, Ratten v. R. (1972) AC 378 at 387. PER OWOADE, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF A TRIAL JUDGE TO WARN HIMSELF OF THE DANGER OF ACTING ON THE EVIDENCE OF A CO-ACCUSED WITHOUT CORROBORATION
On the second point, it is the duty of a trial Judge to warn himself of the danger of acting on the evidence of a co-accused without corroboration. See Ohuka v. State (No.2) (1988) 4 NWLR (Pt. 86) 36 SC.
Finally, by Section 29(4) of the Evidence Act 2011, “where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other person so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” See also R. v. Spinks (1982) 1 All ER 587, 74 Cr. App. Per 263 CA, R. v. Daniel and Watson (1973) Crim LR 627 CA. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Katsina State High Court of Justice delivered by Honourable Justice Abdullahi Yusuf C.J. (as he then was) on 17-11-2017.
The Appellant was charged as 2nd accused with three other accused persons jointly before the lower Court with two count charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6(b) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria 2004.
The Appellant and the other accused persons were alleged to have on or about the 31st day of October, 2013 at Kwabren dorowa of sabuwar unguwa quarters Katsina conspired to commit Armed Robbery and did attack and robbed one Jamilu Aliyu of one HP Laptop Computer and one Techno mobile phone and thereby committed the offences under Section 6(b) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 Laws of the Federation of Nigeria 2004.
At the trial, five (5) witnesses testified for the prosecution Respondent. The Appellant testified in his defence.
The Appellant’s defence was a total denial of the charge. He does not know the victim or any of the other accused persons.
At the end of the trial, the learned trial judge convicted the Appellant and the other accused persons and sentenced accordingly.
Dissatisfied with this judgment, the Appellant at first filed a Notice of Appeal containing five grounds of appeal in this Court on 14-02-2018. But, by leave of Court filed an Amended Notice of Appeal with two (2) grounds of appeal on 29-08-2019.
Appellant’s brief of argument was filed on 25-11-2019. It is settled by Ibe Ikwechegh, Esq.
Respondent’s brief of argument was filed on 16-03-2020. It is settled by A. A. Ibrahim, Esq., (Asst. Director of Public Prosecution, Katsina State).
Appellant’s reply brief was filed on 15-06-2020. It is settled by H. B. Dembo, Esq.
Learned counsel for the Appellant nominated two (2) issues for determination of appeal.
They are:
“i. Whether having regard to the evidence, the conviction of the appellant is not altogether unwarranted, unreasonable and unsupportable.
ii. Whether the trial Chief Judge’s finding was right to conclude that an appellant was guilty of a crime solely because his no case submission had earlier been overruled.”
Learned counsel for the Respondent adopted the two (2) issues formulated for determination of the appeal by the Appellant.
On issue 1, learned counsel for the Appellant submitted that a judge cannot hinge a conviction on the sole testimony of the prosecution witness whose testimony has been discredited during cross-examination.
The evidence, which the trial judge relied on was the oral testimony of the complainant who claimed that at the time of the robbery which was in the night a torch was flashed into his eyes.
The PW4, said counsel, never claimed that the Appellant was one of those who purportedly broke into his house and robbed him. During examination in chief, said counsel, PW4 said that when the 1st accused “was arrested he mentioned the rest of the accused” meaning the name of the Appellant also. This according to Appellant’s counsel leaves the impression that he was present when the first accused was arrested. But, that then, in cross-examination, the same PW4 stated that he “was on admission in the hospital when I was told they were arrested.”
Learned counsel for the Appellant added that the “judge failed pitifully to resolve this inconsistency as to whether the PW4 was present at the time of arrest or in the hospital.
Furthermore, said counsel, even if PW4 were there at the time the arrested person stated that the Appellant committed the crime with him, such a statement would have amounted to no more than hearsay evidence in law upon which no reasonable Court would sustain a conviction.
He submitted that an accused person cannot be convicted upon hearsay evidence in the absence of any other evidence to corroborate it.
He referred on this to the cases of Ozude v. IGP (1965) ALL NLR 106, Arogundade v. The State (2009) 6 NWLR (Pt. 1136) 165.
He submitted there was an overwhelming barrage of evidence given at the trial supporting that the Appellant had never before the trial known any of the accused persons and particularly, the 1st accused whose purported confession implicating the Appellant was the only connection the Appellant has with the crime.
Appellant’s counsel suggested that a careful examination of the judgment of the learned trial judge particularly at page 81 reveals that the learned Chief Judge treated a statement of a co-accused person confessing to a crime as though it were admissible against the Appellant.
The law as laid down in a long list of cases, said counsel, is that a statement allegedly given to the police by a co-accused is not evidence against the accused and a Judge must warn himself of that fact so that its contents will not affect his mind.
He referred on this to the case of C.O.P. v. Dogbe (1938) 4 WACA 189 and continued, that even if there is a confession by a co-accused, such confession is at best a confession against his maker and not another such as the Appellant. He referred to the case of R. v. Bobo (1935) 2 WACA 390.
Learned counsel for the Appellant further submitted that the said incriminating statement of the co-accused was vehemently denied by the Appellant (page 69 of record). However, said counsel, the learned trial Chief Judge failed to adhere to the age long admonition in law that in accepting a confession which was denied by accused at the trial, care must be taken that there is other evidence to support a conviction of the accused before the Court convicts. He referred to the case of R v. Kesinro 1955-56 WRNLR 56.
Appellant’s counsel added that the above admonition is with respect to retraction of a confessional statement by an accused, and that much more care ought to be taken where the statement is that of a entirely different accused person.
Learned counsel for the Appellant further submitted that PW4 never mentioned in his testimony that at the time of the purported robbery anything was stolen but that he only returned later to find his properties stolen.
The testimony, said counsel, leaves us in doubt as to when, if at all, his properties were stolen. He submitted that all these provide reasonable doubt that any robbery was committed and that if any was committed, that the Appellant was responsible. He referred to the cases of Bakare v. State (1987) 1 NWLR (Pt. 52) 597, Uzo v. State (1991) ALL NLR 111 P. 115 and submitted that proof beyond reasonable doubt is that high degree of probability anything short of a reasonable doubt standard will not suffice in a trial such as this.
Learned counsel for the Appellant concluded on his first issue, that there is no law against a Court convicting upon a credible evidence of a single witness, but that witness’s evidence must be credible.
The inconsistencies in the case of the prosecution deny PW4 all the accolades of credibility. These doubts, said counsel could and should be resolved in favour of the Appellant.
On issue 1, learned counsel for the Respondent submitted that the law is trite that the prosecution is not bound to call a host of witnesses to prove its case. The evidence of one credible witness if believed is enough. He referred to the case of Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 at 584.
He submitted that the trial Court found the testimony of PW4 who is the victim of the offence to be credible and relied on same to convict the Appellant.
He added that evaluation of evidence and ascription of probative value to same is essentially within the province of the trial Court. He referred to the case of Okpa v. The State (2017) 15 NWLR (Pt. 1587) SC 1 at 28 to say that it is the duty of the Court to access witnesses, form impression about them and evaluate their evidence having regard to the impression formed of the witnesses.
He submitted that the evidence of PW4 was neither challenged nor debunked during cross-examination and therefore the trial Court has the liberty and privilege to believe and act on it.
He referred to the case of Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402 at 416, Akindipe v. State (2012) 16 NWLR (Pt. 1325) 94 at 116.
Respondent’s counsel submitted that contrary to the contention of the Appellant there was no inconsistency which the Court needed to resolve as to whether PW4 was present when the accused persons were arrested or he was in the hospital, as it was clear at page 65 of the record during cross-examination of PW4, that he stated “I was on admission in the hospital when I was told they were arrested” and there was no opposite statement of PW4 as to the arrest of the accused persons.
He reasoned relying on the case of Ebeinwe v. State (supra) at 413 that for a statement to be contradictory, it should be a direct opposite of what was earlier stated.
The law according to counsel is that even where there is contradiction, the contradiction must relate to the substance of the matter, as minor contradiction that do not affect the credibility of witnesses may not be fatal.
He referred on this to the case of Shaibu v. State (2017) 16 NWLR (Pt. 1597) 396 at 421.
Learned counsel for the Respondent submitted that there is no where in the record where the lower Court relied on any statement of a co-accused person to convict the other and insisted there is no doubt in the evidence of PW4 as to whether anything was stolen by his attackers.
He referred to the cases of Bolanle v. State (2009) 15 NWLR (Pt. 1172) 1 at 10 – 11, Jua v. State (2010) 9 NWLR (Pt. 1184) 217 at 243 for us to hold that the Respondent (Prosecution) proved its case beyond reasonable doubt and urged us to dismiss the appeal.
Learned counsel for the Appellant frowned on the evaluation of the evidence of PW4 by the trial Court in two important and related respects. The first is that even though a sole witness for the Respondent (Prosecution) the evidence of PW4 was not sufficiently credible or has been so discredited that it could not be relied on to convict the Appellant.
Second and relatedly, that the tacit acceptance of the incriminating statement of a co-accused from PW4 to convict the Appellant is in all the circumstances not in conformity with the law.
It is appropriate to start this enquiry by reproducing the evidence of PW4 both at examination in chief and cross-examination as contained on pages 64 – 65 of the Record of Appeal:
“My name is Jamilu Aliyu, I am 25 years old. I stay at Sabuwar Unguwa Kwabren Dorowa. I know the accused persons. On the 31st of October, 2013 about 2:00 hours, on that night, I was asleep in my room I heard noise of breaking the door and I was beaten with a stick I was flashed with a torch light and an axe used to cut me on my head, shoulder and legs. There were two of us in my room together with one Bishir Aliyu. I tried to escape and I did, I ran away. Then I found myself in the hospital after the down break. I came back and found my wallet and computer HP Laptop including cell Tecno and my wallet with school I.D and driving license with N3000 in it. These items were missing. I reported the matter at Sabon Gari Police Station and informed them what happened. They found one of them because they are residents of the area. Abubakar is one of them he is also called Baleru. When he was arrested he mentioned the rest of the accused. Then from there we were taken to Court. He mentioned Ibrahim engineer, Abu Bandir and Dan Auwalu. There is one who is not among the accused he is Dan Auwalu, Ibrahim engineer is the 3rd accused then Abu Bandar is the 2nd accused then Abu Baleru the 1st accused. My statement was taken and was told to wait for Court summons. Yes I can show the Court where I was injured then on my shoulder and legs.
Mr. Aliyu: That is all for the witness.”
Cross-examination:-
“PW4: Yes I was attacked while I was in my room. There was torchlight so I could not say whether there was light or no light. We know one another. Yes I recognized Abu. We only told them that they were from the same quarters with us. I was on admission in the hospital when I was told they were arrested. Yes they were not jointly arrested. It was after he was arrested he told the police where they will be arrested.
Mr. Mohammed: That is all.
Mr. Radda on cross-examination.
You said when you were hit in the night you were with your junior brother Bishir.
PW4: Yes,
I escaped and found myself in the hospital. They did not torch my younger brother. I know Abubakar very well. Yes he mentioned the rest I heard him mentioned Dan Auwalu, I can recognized him but he is not here, then Ibrahim Dan engineer, Abu Bandir and Abubakar Baleru is not here he is dead. I know him but he did not mention him.
Mr. Radda: That will be all.
Mr. Aliyu: That is all for the witness. I call the exhibit keeper as PW5.”
In the first place, there is nothing so unequivocal even in the testimony of PW4 at examination in chief that could support the suggestion that the Appellant was indeed identified by PW4 at the scene of crime on the said 31st October, 2013 that could warrant the belief that PW4’s evidence was unchallenged or contradicted or the conclusion that it was credible. It seems to me that both at examination in chief and cross-examination, PW4 said nothing to pin down the Appellant as a participis criminis to the offence charged.
Indeed, there was nothing to challenge in the evidence of PW4. Rather, the evidence of PW4 was so vague as the role or participation of the Appellant that a reasonable tribunal ought only to believe the defence, denial by the Appellant that he knew nothing about the offence committed.
In the first part of the cross-examination of PW4 the statement that “yes, I recognized Abu” does not indicate the source of the recognition but definitely that could not have been at the scene of crime; because the next statement by PW4, still in the first part of the cross-examination, that is “we only told them that they were from the same quarters with us” shows clearly that at the earliest possible time, when he reported the matter to the police, he did not mention any of the names of his assailants or suspects to the police.
The rule of law that evidence of a single witness suffices for a conviction is only applicable if there is evidence and if such evidence is credible.
The problem in the instant case goes beyond inconsistencies or contradictions in the evidence of PW4 but indeed a problem of insufficiency of evidence. For example, in examination in chief PW4 said inter alia:
”I reported the matter at Sabon Gari police station and informed them what happened. They found one of them because they are residents of the area. Abubakar is one of them he is also called Baleru. When he was arrested he mentioned the rest of the accused…”
And, at cross-examination, PW4 witnessed inter alia
“…We only told them they were from the same quarters with us. I was on admission in the hospital when I was told they were arrested…”
The fact that PW4 was in the hospital when the accused persons were purportedly arrested shows that the mentioning of the name of the Appellant by one other accused person is inadmissible hearsay. And, more, as rightly pointed out by the learned counsel for the Appellant, an incriminating statement of a co-accused which is not adopted by the accused is not evidence against the accused.
On the first point, hearsay evidence is an evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. Thus, where a third party relates a story to another as proof of the contents of a statement, such story is hearsay and, inadmissible. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt. 157) 407, Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1 SC, Agoda v. Enamuotor (1999) 8 NWLR (Pt. 615) 407, Ratten v. R. (1972) AC 378 at 387.
On the second point, it is the duty of a trial Judge to warn himself of the danger of acting on the evidence of a co-accused without corroboration. See Ohuka v. State (No.2) (1988) 4 NWLR (Pt. 86) 36 SC.
Finally, by Section 29(4) of the Evidence Act 2011, “where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other person so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” See also R. v. Spinks (1982) 1 All ER 587, 74 Cr. App. Per 263 CA, R. v. Daniel and Watson (1973) Crim LR 627 CA.
In the instant case, the evidence of PW4 which the trial Court regarded as sole eyewitness to the crime lacks credibility in form and content, it did not link the Appellant with the commission of the offence. And, whatever seems to be left of the evidence of PW4 as demonstrated above are remnants of inadmissible evidence.
For these reasons, I agree with the learned counsel for the Appellant that the learned trial Judge was in error to have placed any weight at all on the rather unreliable evidence of PW4 to convict the Appellant.
Issue 1 is resolved in favour of the Appellant.
Having resolved issue 1 which deals with evaluation of evidence in favour of the Appellant, I do not have to deal with Appellant’s issue 2 which has now become academic as it deals at best with procedural requirements.
Issue 1 has turned out to be a determinant issue in this appeal. The appeal is meritorious and it is allowed.
In consequence, the judgment, conviction and orders of Hon. Justice Abdullahi Yusuf (CJ, as he then was) delivered on 17/11/2017 against the Appellant – Abubakar Suleiman being the 2nd accused in case No. KTH/35/2014 are hereby set aside.
The Appellant, Abubakar Suleiman is hereby discharged and acquitted on the said charges.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the honour and privilege of reading a draft of the judgment just delivered by my learned brother M. A. Owoade, PJCA.
I agree with and adopt as mine the finding and conclusion reached by my learned brother in the lead judgment that this appeal has merit. I also allow it, set aside the conviction and sentence passed by the lower Court in its judgment delivered on 17/11/2017 in Case No. KTH/35/2014. In its place, I pronounce that the Appellant is hereby discharged and acquitted.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
CHIEF IBE IKWECHEGH, with him, H.B. DEMBO, ESQ. For Appellant(s)
A. A. IBRAHIM, ESQ, DCL, MINISTRY OF JUSTICE, KATSINA STATE For Respondent(s)
