UGWU v. STATE
(2020)LCN/15706(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 29, 2020
CA/A/1022C1/2018
Before Our Lordships:
Monica Bolna’anDongban-Mensem Justice of the Court of Appeal
AdamuJauro Justice of the Court of Appeal
BitrusGyarazama Sanga Justice of the Court of Appeal
Between
FIDELIS UGWU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE PROSECUTION IS DUTY BOUND TO PROVE ITS CASE BEYOND RESONABLE DOUBT
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57. ADAMU JAURO, J.C.A.
THE MEANS OF THE PROSECUTION PROVING ITS CASE AGAINST THE ACCUSED PERSON
The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case ofOJO V. STATE (2018) LPELR – 44699 (SC). ADAMU JAURO, J.C.A.
THE STATEMENT OF AN ACCUSED SHOULD BE RECORDED IN THE LANGUAGE IT IS MADE
The law is trite that a statement of an accused person should as far as practicable be recorded in the language in which it is made. See the case of OLANIPEKUN V. STATE (2016) LPELR – 40440 (SC).
PW1 tendered the confessional statement of the Appellant wherein he testified as follows at page 66 of the record of appeal as follows:
“I then recorded the statement of Fidelis Ugwu the 2nd Accused. I cautioned him in English language which he understands and speaks. He said he understood and signed. He then voluntary (sic) his statement in English language which I recorded in English, after which I read over to him, andhe signed and counter signed as the recorder and filed in the case diary.” ADAMU JAURO, J.C.A.
THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
It is crystal clear that the Appellant’s confession elaborately reproduced above has admitted the essential elements of the offence charged. Despite the Appellant’s confession in Exhibit C, the learned trial Judge sailed on the side of caution when he held at page 162 of the record of appeal that:
“It is trite law that for the trial Court to act on a confessional statement it is desirable to look for evidence outside the confession of the accused before convict of an accused passes on it. (sic)” ADAMU JAURO, J.C.A.
THE PRESUMPTION OF COURT AS IT RELATES TO POSSESSION OF STOLEN GOODS
The law is firm as to the presumption under Section 167 of the Evidence Act of a person found in possession of recently stolen goods. In the instant case, the Appellant and his co-accused were found with the Vehicle belonging to PW2 from the robbery. It is on record that he was arrested in Kaduna when trying to sell the stolen vehicle a day after the incident was reported at the office of PW1 and PW3. Section 167(a) provides that “a man who is in possession of stolen goods soon after their theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
The law places the responsibility of rebutting the presumption that he who was found with stolen goods is the thief, i.e. the Appellant and not on the prosecution who located him with the stolen vehicle and other valuables belonging to PW2.In the Appellant’s testimony at page 74 – 75 of the record of appeal, he testified amongst others that he was not arrested in Kaduna but in his workshop at Tunga. The Appellant failed to call evidence in support of his assertions. ADAMU JAURO, J.C.A.
CONTRADICTION MUST BE FUNDAMENTAL AND SUBSTANTIAL AND NO DOUBT BEFORE IT CAN AFFECT THE PROSECUTION
The law is trite that any contradiction capable of casting doubt on the prosecution’s evidence would be resolved in favour of the accused person. Notwithstanding the correctness in the submission of counsel to the effect that the evidence of an IPO cannot be regarded as hearsay evidence, the question I ask is what is the effect of the contradiction of the evidence of PW1 and PW2 as to who held the gun?
It is my view that the said contradiction is incapable of subtracting from the evidence of the Respondent’s witnesses that a gun was usedto rob them. Whoever amongst the Appellant and his co-accused held the gun is not material in as much as it has been established that a gun was used. Also the contradiction as to where the matter was first reported is incapable of casting doubt on the guilt of the Appellant in the face of the other evidence adduced by the Respondent’s witnesses. The law is trite that contradiction must be fundamental and substantial before it can affect the case of the prosecution. See the case of ODUNLAMI V. NIGERIAN NAVY (2013) LPELR – 20701 (SC). ADAMU JAURO, J.C.A.
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Niger State, sitting in Minna delivered by Honourable Justice A. L. B. Bwari in suit No. NSHC/MN/25C/2016 on the 22nd day of June 2018. In the said Judgment, the Appellant and 2 others were convicted for the offence of Armed Robbery punishable under Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act 2004 and were subsequently sentenced to death by hanging.
BRIEF STATEMENT OF FACTS
The Appellant along with one Jamilu Shehu and one Abubakar Yakubu were arraigned on a lone count charge of Armed Robbery punishable under Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act 2010, for which the Appellant pleaded not guilty to the charge proffered against him. The said charge at page 5 of the record of appeal read as follows:
“That you JEMILU SHEHU, FIDELIS UGWU, ABUBAKAR YAKUBU on or about the 15th day of January, 2015 at Flayout Area, by Yusuf Datti Road Minna, Niger State Minna within the jurisdiction of this honourable Court while armed with a gun and a knife attacked one ARCH UMAR MUHAMMED BAWA who was with his friend one Maimuna Yusuf Datti in his Toyota Camry Muscle Vehicle with Registration NO. KNT43 HP worth N6.2 Million containing many valuable items namely:- Three Samsung Galaxy handsets, One Nokia Handset, A cash sum of N17, 000, Four official I.D cards, National I.D card both old and new, Voters card, Original purchase receipt of the vehicle, ATM Card of UBA, Tax identification Number Tag, Bunch of keys for his house robbed him of the said car with the items inside the car, carried him to a bush in the three Arm Zone Minna with his friend, tied him and the friend down and went away with said car. In an attempt to sell off the car at Kaduna you were arrested by the police. You hereby committed an offence of Armed Robbery punishable under Section 1(2) (a) and (b) of the Robbery and Firearm (Special Provisions) Act 2010.
The case of the Respondent is that on the 15th day of January, 2015 at F-Layout Area, the Appellant in company of two others armed with gun and knife attacked one Arch Umar. Muhammed Bawa (PW2) and one Maimuna Yusuf Datti (PW4). PW2 and PW4 were said to be in PW2’s Toyota Camry Muscle with Reg. No: KNT 43 HP worth 6.2 Million Naira when he was robbed of the said car containing various valuable items. The Appellant and his co-accused, according to the testimonies of the Respondent witnesses drove the robbed car with the owner and his friend to a bush in the Three Arm Zones Maitunbi Minna, tied both PW2 and PW4, left them inside the bush and went with the car to Kaduna where they attempted to sell the car before the Appellant and his co-accused were arrested, investigated and later charged to the trial Court.
In a bid to discharge the burden of proof imposed on it by law, the Respondent called four witnesses and tendered 3 documents which included the Appellant’s confessional statement.
At the conclusion of trial, the learned Trial Judge in a considered judgment delivered on the 22nd day of June, 2018 found the Appellant and others guilty of the offence charged and sentenced them to death by hanging.
Dissatisfied with the judgment of the trial Court, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal containing five grounds of appeal. The said Notice of Appeal dated and filed on 19th November, 2018 can be found at pages 171 – 175 of the Record of Appeal.
In line with the Rules of this Court, parties filed and exchanged their respective briefs of arguments. The Appellant’s brief is dated 28th November 2018 and filed on the same date. The Appellant also filed a Reply Brief dated 1st February 2019 and filed on the same date. Both Briefs were settled by PHILIP K. EMMANUEL ESQ. who at paragraph 3.1 of the Appellant’s Brief distilled three issues for the determination of this appeal to wit:
“a. Whether the trial Court was right when it held that the prosecution had proved the commission of Armed Robbery against the Appellant.
Distilled from grounds 1 and 3 of the Notice of Appeal
b. Whether the trial Court was right in relying and grounding the conviction of the Appellant based on the purported confessional statement embodied in exhibit “C”.
Distilled from ground 2 of the Notice of appeal
c. Whether the trial Court erred in law when it held that the prosecution had proved its case against the Appellant beyond reasonable doubt.
Distilled from grounds 4 and 5 of the Notice of Appeal.”
The Respondent’s Brief of argument is dated 15th January 2019 and filed on the 16th January 2019. The said Brief was settled by M.G. CHIROMA, DIRECTOR OF PUBLIC PROSECUTIONS, NIGER STATE who at paragraph 2.0 of the Respondent’s Brief distilled a sole for the determination of the appeal to wit:
“Whether considering the totality of the evidence adduced by the prosecution at the trial, the trial Court was not right to have held that the prosecution did prove its case beyond reasonable and thereby convicted and sentenced the Appellant accordingly.”
APPELLANT’S ARGUMENTS
On issue 1 distilled by Counsel to the Appellant, he submitted that while the IPO who testified as PW1 informed the Court that it was the Appellant that used the gun during the robbery, PW2, Umar Mohammed Bawa testified that it was Jamilu Shehu that was holding the gun. He submitted further that a contradiction regarding the weapon allegedly used during the alleged armed robbery is a major contradiction capable of casting doubt on the prosecution’s evidence with the effect of disparaging the testimony and leading to aresolution in favour of the Appellant. It is the contention of counsel that if the two versions of the materially contradictory testimonies of PW1 and PW2 are altogether rejected and expunged from the record, there would be nothing left in evidence to sustain the charge of armed robbery against the Appellant. He referred this Court to the case of C. O. P V. AMUTA (2017) 4 NWLR (PT. 1556) 379 AT 385 RATIO 6.
On whether the trial Court was right in relying and grounding the conviction of the Appellant based on the purported confessional statement embodied in exhibit “C”, counsel submitted that the trial Court erred when it held that exhibit “A”, “B” and “C” were tendered and admitted in evidence without objection from the defence counsel. He submitted further that while Exhibit “A” and “B” (Statements of the 1st accused, Jemilu Shehu and 3rd accused, Abubakar Yakubu) were actually tendered and admitted in evidence without objection from the defence, a stout objection was raised on the admissibility of exhibit “C” (the statement of the Appellant) and was only admitted after argument was taken and a ruling delivered thereto.
Flowing from the hills of the above, counsel submitted that the trial Court approached the said exhibit C during the judgment in relation to its evidential value must have negatively impacted on the amount of weight attached to the said exhibit. He submitted further that the decision of the trial Court with respect of exhibit C is perverse and liable to be set aside. He referred this Court to the case of ADEKOYA V. STATE (2012) 7 NCC 1 AT 11 RATIO 19; HAMZA V. KURE (2010) 5 NCC 486 AT 507 – 508.
It is his contention that Exhibit “C” purported to be that of the Appellant ought not to have been admitted in evidence by the trial Court because it is not in dispute as per the record of the trial Court that the Appellant neither understands nor speak English language but speaks Hausa language and that on the face of the said exhibit, two signatures purporting to be that of the Appellant are radically different from the other. Counsel contended further that these points were raised as objections to the admissibility of the said confessional statement but that the trial Court, over ruling the Appellant’s objection imputed understanding of English language on the Appellant contrary to the entire record. He submitted that the Appellant being an illiterate person, his statement ought to have been recorded in Hausa language which he understands and speaks before it is translated to English language and both versions tendered in evidence during trial. He referred this Court to the case of HARRISON OWHORUKE V. COMMISSIONER OF POLICE (2015) ALL FWLR (PT. 801) P. 1401 AT 1407 RATIO 5.
In the final analysis of the second issue distilled by counsel, he submitted that the statement in Exhibit “C” was wrongly admitted in evidence by the trial Court; he therefore urged this Court to expunge it from the record.
On the third and final issue distilled by counsel to the Appellant, he submitted that the evidence led by the Respondent does not support the findings of the trial Court that the evidence before it having been placed on an imaginary scale of justice tilts against each of the accused persons. He submitted further that there are material contradictions in the testimonies of the Respondent’s witnesses particularly that of PW2 and PW3 on where the armed robbery incident was first reported. On what a trial Court should do if there are contradictions in the case of witnesses, counsel referred this Court to the case of ARUNA V. STATE (1990) 6 NWLR (PT. 155) 125 AND ONUBOGU V. STATE (1974) 9 SC.
On the whole, counsel argued that it is settled that where there are contradictions in the evidence of the prosecution and the contradictions materially affect the charge, a doubt is created and the benefit of it must be given to the accused persons in which case he will be discharged. He referred this Court to the case of ALMI V. STATE (2009) 10 NWLR (PT. 1148) 31 AND CORPORAL DESMOND ONONUJU V. STATE (2013) 6 SCNJ 458 AT 484. He therefore urged this Court to resolve all the issues in favour of the Appellant and allow this appeal.
RESPONDENT’S ARGUMENTS
On the sole issue distilled by Counsel to the Respondent, he argued that it is trite law that the prosecution must prove its case beyond reasonable doubt. He submitted that the prosecution proves its case against the accused person by all or any of the following means:
a) Evidence of an eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
Counsel submitted further that for prosecution to prove its case beyond reasonable doubt in a charge of armed robbery under Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, the following ingredients of the offence must be proved:
a) That there was a robbery or series of robberies;
b) That each or any of the robbers was armed at the time of robbery operation;
c) That the accused was one of the robbers or had taken part in the robbery operation.
Counsel referred this Court to the evidence of PW2 and PW4 and the confessional statement of the Appellant admitted in evidence as exhibit “C” and submitted that the Respondent proved the first ingredient of the offence of armed robbery. On the second ingredient, he submitted that the evidence of PW2 and Exhibit “C” proved the 2nd ingredient of the offence. He submitted further that PW2 in his evidence testified that a gun waspointed at him by one of the three young men who attacked him and robbed him of his Toyota Camry Car. He submitted that in the confessional statement of the Appellant in exhibit “C”, the Appellant confessed that he was holding a gun and Abubakar (his co-accused) was holding a knife which they used in threatening PW4.
On the third and final ingredient, counsel submitted that by the Appellant’s confessional statement, it is not in doubt that the Appellant was one of the robbers and that evidence of PW1 is to the effect that the Appellant was arrested in possession of the robbed vehicle while trying to sell it off at Kaduna and that PW1 was never cross-examined by the defence counsel on this issue. On the possession of stolen good after theft, Counsel referred this Court to Section 36(1) (a) and 167(a) of the Evidence Act 2011 (as amended). He submitted further that the prosecution did prove its case against the Appellant beyond reasonable doubt and that there was no material contradictions in the proof of any of the ingredients of the offence charged. It is the argument of Counsel that a confessional statement which is free andvoluntarily made and is direct and positive and the Court is satisfied with it as such is enough to ground conviction without corroborative evidence. He referred this Court to the case of AKWUOBI V. STATE (2017) 2 NWLR PT. 1550 PAGE 421 AT PAGES 426 to 427 RATIOS 4, 5 AND 6.
He submitted that Exhibit “C” corroborated the evidence of PW1 to PW4 to the effect that PW2 and PW4 were the victims and that the Appellant was arrested with the robbed vehicle while they attempted to sell it at Kaduna. He submitted further that if a person caught with a robbed item fails to give explanation as to how he came about it; the logical conclusion therefore is that he is the thief or the receiver knowing that it was a robbed item. It is his contention that circumstantially, the Appellant who was found with the robbed vehicle and who refused to give explanation contrary to the charge against him proved that he was the robber. He contended further that where no other evidence exists as to the eye witness or confession and that the Appellant without giving explanation as to how he came about the robbed vehicle is the robber. He referred this Court to the case ofAL-HASSANI V. STATE (2011) 3 NWLR (P.1234) P.257 RATIO 1. On the whole, he urged this Court to dismiss the appeal, affirm the conviction and the sentence passed by the trial Court.
Learned counsel to the Appellant committed pages 1 – 4 of the Reply Brief to address the issues raised therein in the Respondent’s Brief and urged the Court to discountenance with the submissions contained in the Respondent’s Brief of Argument and allow this appeal.
RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Judge in reaching his decision that is being challenged now.
Thus; having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the understated issue would suffice in determination of this appeal.
“WHETHER FROM THE TOTALITY OF THE EVIDENCE ADDUCED BY THE RESPONDENT AT TRIAL, THE GUILT OF THE APPELLANT WASPROVED BEYOND REASONABLE DOUBT TO JUSTIFY HIS CONVICTION BY THE TRIAL COURT?”
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57.
It has been established in an imprimatur of judicial authorities that to secure a conviction for the offence of armed robbery, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That there was robbery or series of robberies
b. That the robbery was armed robbery; and
c. That the accused was one of those who took part in the armed robbery.
See AWOSIKA V STATE (2010) 9 NWLR PT 1198, P.49 AT 53-54 RATIO 5; BELLO VS STATE (2007) 10 NWLR PART 1043, P.563To determine whether the Respondent proved the offence of armed robbery against the Appellant beyond reasonable doubt is an issue to be determined after revising the evidence on record. The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC).
On the first and second ingredients which borders on whether there was a robbery or series of robberies and that the robbery was armed robbery, the evidence of PW2 and PW4 the victims of the crime are instructive. PW2 testified at page 62 – 63 of the record of appeal as follows:
“On 15/1/2015 I was outside the house of Yusuf Datti discussing with Maimuna at about 9:30 p.m. along Yusuf Datti Road F. Layout Minna. Suddenly 3 young men approached us while we were sitting in my car, pointing a gun at us and asked us to get out of the car. The car was a Toyota Camry No. KLT 43 HP. I moved out from the car driver’s seat to the back seat where one of them sat with me point a gun at me. The 3 young men are the 3 accuseds now in Court.
The one that pushed me from the driver’s seat to the back seat point the gun at me is the 1st accused person Jemilu. The one that pushed me out then sat in the driver’s seat started car which had its key in the ignition and drove us to the 3 Arm Zone Maitumbi area Minna. Maimuna was pushed further on the floor of the passenger’s seat and one of the young men sat with her there while we were driven off.
At the 3 Armed Zone, I and Maimuna were brought out of the car and we were each tied with our hands and legs to the back with a wide cell or tape. Then one of them said “We leave them here in the bush probably snake will bite them and they will die.” Then they drove off the vehicle containing some of my personal belongings which including our GSM Phones about 3 in number, the keys of one of my other vehicle, the sum of N17,000:00 which one of them removed from my pocket. My National ID cards, driving Licences and other things I cannot remember now.”
On whether there was a robbery and that the robbery was an armed robbery, the testimony of PW4, one Maimuna Yusuf Datti at pages 69 -72 of the record of appeal is similar to that of PW1 elaborately reproduced above. Having gone through pages of the record of proceedings wherein the testimonies of the said witnesses are contained, I agree with the trial Court when it held at page 133 of the judgment that the said testimonies were not challenged under cross-examination. The law is trite that the failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See ADEJUYIGBE V. FRN (2017) LPELR – 43801 (CA).
To fortify the testimonies of PW2 and PW4 in this regard, the evidence of PW1, one Corporal Mohammed Isah with force No. 267877 testified at page 55 – 56 of the record of appeal that:
“On 15/1/2015 at about 22:30 hrs I was on duty at the State CID when one Umar Mohammed Bawa of Senior Staff Quarter Bosso Minna came and reported a case of armed robbery. That he was robbed of his vehicle at the F Layout Minna where he had gone to see hisfriend one Maimuna Yusuf. That while in the vehicle discussing, three young men attacked them with gun and knife, took them to the 3 Armed zone Maitumbi in Minna, robbed them of 4 handsets, a cash of N17,000.00, his ID Cards and other documents inside the vehicle along the vehicle.”
From the unchallenged testimonies of PW2, PW4 and PW1, it is clear without doubt that the Respondent at the trial proved the first and second ingredients beyond reasonable doubt. From the ingredients of the offence charged, it is expected of the prosecution to not only prove that there was a robbery and that the robbery was an armed robbery, it has to further prove through convincing evidence beyond reasonable doubt that the Appellant was one of those who took part in the armed robbery.
I wish to quickly add that the Respondent tendered the Appellant’s confessional statement which was admitted and marked Exhibit C. Counsel to the Appellant in this appeal has challenged the trial Court’s ruling at pages 67 – 68 of the record of appeal on the admissibility of the Appellant’s confessional statement.
On whether the trial Court was right in relying on Exhibit C in convicting the Appellant, counsel made concerted efforts to draw the attention of this count to the holding of the trial Court at page 162 of the record wherein the learned trial judge held that exhibits A, B and C (i.e. the confessional statement of the Appellant and his co-accused) were tendered without objection from the Appellant’s counsel. Having gone through Pages 66 – 68 the records of proceedings, it is evident on record that the Appellant’s counsel at trial page 67 objected to the admissibility of Exhibit C which the trial Court held was admitted with no objection.
Learned counsel argued vehemently at paragraph 4.7 of the record of appeal that the premise upon which the trial Court approached the said Exhibit C in relation to its evidential value must have negatively impacted on the amount of weight attached to the said Exhibit. It is clear that the Appellant’s issue No. 2 strongly challenges the admissibility of the Appellant’s confessional statement. As earlier said, an objection was registered to the admissibility of the said exhibit and the trial Court at page 67 of the record delivered an interlocutory ruling on the issue. The learned trial judge anchored his reasons for the admissibility of the said document on the principle of relevance as provided under Section 4 of the Evidence Act.
The learned counsel to the Appellant submitted at page 9 of the record of appeal that the Appellant being an illiterate person, his statement ought to have been recorded in Hausa language which he understands and speaks before it was translated to English language and both versions tendered in evidence during trial.
The law is trite that a statement of an accused person should as far as practicable be recorded in the language in which it is made. See the case of OLANIPEKUN V. STATE (2016) LPELR – 40440 (SC).
PW1 tendered the confessional statement of the Appellant wherein he testified as follows at page 66 of the record of appeal as follows:
“I then recorded the statement of Fidelis Ugwu the 2nd Accused. I cautioned him in English language which he understands and speaks. He said he understood and signed. He then voluntary (sic) his statement in English language which I recorded in English, after which I read over to him, and he signed and counter signed as the recorder and filed in the case diary.”
This piece of evidence of PW3 as to the fact that the Appellant understood English was not controverted under cross-examination. Assuming but without agreeing with counsel that the Appellant does not understand English language, I am of the opinion that there may be instances where the statement of the accused person is rendered in a different language orally other than English Language which is the language of the Court, while the statement is recorded by the recorder who understands that language directly in English Language. In such a situation, as argued by counsel to the Appellant in the instant case, there would be no recorded version of the statement in the language in which the Appellant made the statement except the English Language version.
In the case of JIMOH V. STATE (2014) 3 SCNJ P.27, the Apex Court held as follows:
“From the record, there is no written statement of the Appellant in Yoruba Language which could have been translated into English Language as the official language of the Court. What was said to have transpired was that the Appellant rendered his statement in Yoruba which he speaks and PW4 who served as interpreter translated the speech in a foreign language as the words were spoken relaying the translation orally as it is done. This is the work of an interpreter. In other words as there was no written statement in Yoruba that was translated into English Language, there could not have been any to be produced and tendered by the prosecution. The point was to say the least, misconceived by the Appellant’s counsel. The police never recorded the statement of the Appellant in Yoruba. Hence, there was none to be tendered. (The underlining was supplied by me for emphasis).
In the instant case, even if PW3 recorded and translated Exhibit C in English language, whereas the Appellant only understands Hausa language as submitted by his counsel, it is therefore obvious that the said statement made by the Appellant was not recorded in Hausa language; hence, there was no Hausa Version of the said statement to be tendered. It is my opinion and I hold that the procedure employed in obtaining the statement Exhibit C was in order and did not offend any exclusionary rule of admissible evidence. See thecase of BAKO V. THE STATE (2018) LPELR – 44479 (CA).
Still on the admissibility of Exhibit C, counsel also submitted that on the face of Exhibit C, the two signatures purporting to be that of the Appellant are radically different from each other. An objection in this regard was also raised at the trial Court and the Court in resolving same held at page 67 of the record of appeal as follows:
“The signature of the accused at the end of the cautionary words and the end of the statement are the same. The signatures have not been denied as that of the accused. They were therefore put there as a recognition by him in writing of the statement of which he is responsible.”
I have also compared the signatures on the said Exhibit and I am also of the opinion that they are the same. In as much as I agree with counsel to the Appellant that the trial Court erred when it held that Exhibit C was admitted without an objection from counsel to the Appellant, it is my view that not every error in a judgment will lead to its reversal on appeal. An error in the decision of a trial Court will only be subject to an appellate reversal if the complaining party has successfully shown that the said error has led to a miscarriage of justice. The mistake of the trial Court must have affected or influenced the decision being appealed against before it can result to a reversal of the decision. See the case of MOBIL PRODUCING (NIG) UNLTD V. JOHNSON & ORS (2018) LPELR – 44359 (SC).
It is my view therefore that Exhibit C was properly admitted in evidence by the trial Court save to the extent that the trial Court wrongly held that Exhibit C was tendered with no objection as submitted by learned counsel to the Appellant.
At this juncture, the question I ask myself is from the evidence on record, has the Appellant been sufficiently linked with the commission of the act of armed robbery?
After deciding that the Appellant’s confessional statement in Exhibit C was properly admitted in evidence by the trial Court, I shall then proceed to reproduce the said statement. In the Appellant’s confessional statement at page 8 – 9 of the record of appeal, he testified as follows:
“That on 15/1/2015 at about 2130hrs, myself, Fidelis Ugwu, Jemilu Shehu and one Abubakar also known as star boy attacked one Umar Bawa of Bosso Estate Senior Quarters Minna along Flayout road by David Umar Campaign office and robbed him of his Toyota Camry. In fact as at the time we were doing the robbery the said man was with a lady who we met him in front of the said vehicle. That I Fidelis Ugwu was the one holding a gun which I used in the attack and Abubakar Star Boy was also armed with a sharp knife which he used in threatening the said lady. That having succeeded in the robbery the said vehicle with Jemilu Shehu taking over the steering and then moved our victim behind the back seat where I and Abubakar held them hostage under the fear of the gun and knife which we both are holding. None of them could say a word due to the way we are armed. That instantly when we notice that there is no enough fuel in the vehicle we decided to get a road side which will take us to at least Dikko where we added 25 litres of petrol which will take us to Kaduna where we intended to sale the car through one Abubakar Alhassan who introduced to us by same Jemilu Shehu who lead us to Kaduna. On reaching there and about to sell the vehicle suddenly we were intercepted by a team of policemen in Kaduna State.”
It is crystal clear that the Appellant’s confession elaborately reproduced above has admitted the essential elements of the offence charged. Despite the Appellant’s confession in Exhibit C, the learned trial Judge sailed on the side of caution when he held at page 162 of the record of appeal that:
“It is trite law that for the trial Court to act on a confessional statement it is desirable to look for evidence outside the confession of the accused before convict of an accused passes on it. (sic)”
The question is, is there anything outside the Appellant’s confession to show that the confession is true or is it consistent with other facts which have been ascertained and which have been proved?
Apart from the evidence of the Appellant in Exhibit C, I find it instructive to also reproduce the evidence of PW3 at pages 65 – 66 of the record of appeal as follows:
“On 15/1/2015, I was at the SCID Minna Niger State Command on duty as an Investigation Police Officer when a case of Criminal Conspiracy and armed robbery was transferred from GRA Minna for investigation.Myself and Cpl. Isah Mohammed and Abubakar Ibrahim were detailed to investigate.
The statement of the complainant in person of Umar Bawa was recorded. We dissimilated the information via signal across the states, about the armed robbery of the complainant’s vehicle a Toyota Camry Black in colour. The following day 16/1/2015 we received a signal from the state CID Kaduna in Kaduna State that the said vehicle has been recovered in Kaduna from two suspects.
Myself, Cpl. Isah Mohammed and Cpl. Ibrahim Abubakar proceeded to Kaduna where the vehicle and the two suspects were handed over to us. The two suspects are the 1st and 2nd accused persons in Court. We brought them back to our office where the 2nd accused Fidelis Ugwu volunteered a confessional statement mentioning the name of the 3rd accused person now in Court as Abubakar whom we got arrested on the street of Sayako area in Minna and took him to our office.”
Corroborating the evidence of PW3 above, PW1 testified at page 55 – 56 of the record of appeal as follows:
“On 15/1/2015 at about 22:30 hrs I was on duty at the State CID when one Umar Mohammed Bawa of Senior Staff quarter Bosso Minna came and reported a case of armed robbery. That he was robbed of his vehicle at the F Layout Minna where he had gone to see his friend one Maimuna Yusuf. That while in the vehicle discussing, three young men attacked them with gun and knife, took them to the 3 Armed zone Maitumbi in Mina robbed them of 4 handsets, a cash of N17,000.00, his ID Cards and other documents inside the vehicle along with the vehicle. The statement was accepted and I was detailed to investigate.
Signals were sent to various police Command all over the Country for possible recovery of the vehicle.
Then on 16/1/2015 Jemilu the 1st accused, Fidelis Ugwu the 2nd accused were arrested at Kaduna in Kaduna State while trying to sell the vehicle. We were contacted by the police command at Kaduna about their arrest.
A team of detective led by One Inspector Hassan Gimba left Minna to Kaduna. This team included Sgt. Yusuf Umar and Sgt. Ibrahim Abubakar and brought back two of the suspects, the vehicle and some of the handsets inside.”
The evidence of PW1 and PW3 that the Appellant and one Jemilu Shehu were arrested in possession of the stolen car and the other valuables inside the said car was not challenged under cross-examination. Apart from the Appellant’s confessional statement in Exhibit C, the fact that the Appellant was arrested with the stolen vehicle and other valuables is akin to circumstantial evidence.
The law is firm as to the presumption under Section 167 of the Evidence Act of a person found in possession of recently stolen goods. In the instant case, the Appellant and his co-accused were found with the Vehicle belonging to PW2 from the robbery. It is on record that he was arrested in Kaduna when trying to sell the stolen vehicle a day after the incident was reported at the office of PW1 and PW3. Section 167(a) provides that “a man who is in possession of stolen goods soon after their theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
The law places the responsibility of rebutting the presumption that he who was found with stolen goods is the thief, i.e. the Appellant and not on the prosecution who located him with the stolen vehicle and other valuables belonging to PW2.In the Appellant’s testimony at page 74 – 75 of the record of appeal, he testified amongst others that he was not arrested in Kaduna but in his workshop at Tunga. The Appellant failed to call evidence in support of his assertions. This is in sharp contrast with the evidence of PW1 and PW3 regarding where the accused was arrested and the vehicle recovered. On the recovery of the stolen vehicle, PW2 testified that on 16/1/2015, he got information that his vehicle has been recovered in Kaduna and was with the police and that after some days, his vehicle was released to him by the State CID Minna. See page 64 of the record of appeal.
I agree with the learned trial judge when he held at page 154 of the record of appeal that the Appellant was arrested together with a vehicle in Kaduna and brought back to Minna. In the absence of any reasonable explanation by the Appellant, I am of the view that the Appellant was one of the armed robbers that robbed PW2 and PW4. The evidence adduced by the prosecution is believable, than that of the Appellant who testified that he was arrested in his workshop on 30/1/2015.
Learned counsel to the Appellant at paragraphs 4.4 – 4.6 of the Appellant’s brief submitted that the contradiction in the testimony of PW1 and PW2 as to who used or held the gun during the robbery was fatal to the case of the Respondent. He argued that the trial Court was wrong to have treated the evidence of PW1, (the IPO) as hearsay evidence which is incapable of contradicting the evidence of PW2 who was an eye witness of the incident. He referred this Court to the case of ANYASODOR V. STATE (2018) 8 NWLR (P. 1620) 107 AT 125 PARA C – E wherein the Court held that the evidence of an IPO is never to be tagged as hearsay.
The law is trite that any contradiction capable of casting doubt on the prosecution’s evidence would be resolved in favour of the accused person. Notwithstanding the correctness in the submission of counsel to the effect that the evidence of an IPO cannot be regarded as hearsay evidence, the question I ask is what is the effect of the contradiction of the evidence of PW1 and PW2 as to who held the gun?
It is my view that the said contradiction is incapable of subtracting from the evidence of the Respondent’s witnesses that a gun was usedto rob them. Whoever amongst the Appellant and his co-accused held the gun is not material in as much as it has been established that a gun was used. Also the contradiction as to where the matter was first reported is incapable of casting doubt on the guilt of the Appellant in the face of the other evidence adduced by the Respondent’s witnesses. The law is trite that contradiction must be fundamental and substantial before it can affect the case of the prosecution. See the case of ODUNLAMI V. NIGERIAN NAVY (2013) LPELR – 20701 (SC).
From the totality of the evidence adduced by the Respondent at trial, I am of the considered opinion that the statement of the Appellant was probable and true and that the guilt of the Appellant has been proved beyond reasonable doubt.
On the whole, I hereby resolve the sole issue distilled by this Court in the resolution of this appeal against the Appellant and in favour of the Respondent. I hold that his appeal is bereft of merits and same is hereby dismissed. The decision of the trial Court Per Honourable Justice A.L.B. Bwari in suit No. NSHC/MN/25C/2016 on the 22nd day of June 2018 wherein the Appellantwas convicted and sentenced to death by hanging for the offence of Armed Robbery punishable under Section 1(2) (a) and (b) of the Robbery and Firearm (Special Provisions) Act 2004 is hereby affirmed.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother, ADAMU JAURO JCA, dismissing the appeal.
The learned trial Court received and believed the evidence of the Prosecution witnesses and the confessional statement of the Appellant, although the Appellant subsequently retracted has confessional statement in his testimony. In his argument, the Appellant argued assiduously that the retracted confessional statement of the Appellant ought to be expunged from the records. This submission is of no moment because the retraction of a confessional statement does not affect its admissibility, it only affects the weight to be attached to the statement. The apex Court stated this principle in the case of ADEKOYA V. STATE (2012) LPELR-7815 (SC) thus:
“A denial or retraction of a confessional statement is a matter to be taken into consideration to decide what weight could be attached to it. Dibie V. State (2007)(pt. 1038) pg. 30. Ukpong V. Queen (No. 1)(1961) 1 SCNLR pg. 53.” Per ADEKEYE, J.S.C.
In order to determine the weight to be attached to a retracted confessional statement, the learned trial Court must subject the confessional statement to the six (6) way test which was succinctly outlined by the Apex Court in the case of ALAO V. STATE (2019) LPELR-47856 (SC) thus:
“It is trite law that a Confessional statement made by an accused person, which is properly admitted in evidence is, in law, the best pointer to the truth of the role played by such accused person in the Commission of the defence. See Oseni v. State (2012) 5 NWLR (pt. 1293) 352, FRN v. Iweka&Ors 3 NWLR (pt. 1341) 285. The retraction of a Confessional statement does not render confession inadmissible. The fact that an accused person denies making a confessional statement to the police, does not render such extra judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement inthe light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence;The accused person’s confession is possible; f. The Confession is consistent with the other facts ascertained and proved at the trial. See Osetola V. State (2012) 17 NWLR (pt. 1329) 251 at page 278; Dawa V. State (1980) 8-11 Sc 236.” Per OKORO, J.S.C.
In this appeal, as clearly shown in the lead Judgment, the learned trial Court applied the six (6) way test and found that the protestations of the Appellant failed to diminish the case of the Prosecution.
I too hereby affirm the decision of the learned trial Court Coram Aisha A.L.B. Bwari, J. of the Minna Judicial Division of the High Court of Niger State.
The Appellant stands convicted and sentenced to death.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
Phillip K. Emmanuel Esq., with him, E. O. Egbonodje Esq For Appellant(s)
J. K. Alfa Esq. Senior State Counsel, Niger State Ministry of Justice For Respondent(s)
