UMAR v. STATE
(2021)LCN/15788(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, February 09, 2021
CA/KN/619G/C/2018
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
AUDU UMAR (ALIAS) GULABE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE JURISDICTION OF THE HIGH COURT TO TRY CRIMINAL OFFENCES UNDER THE CRIMINAL PROCEDURE CODE
The jurisdiction of the High Court to try criminal offences under the Criminal Procedure Code (C.P.C) applicable in Northern Nigeria can be as ignited only as provided by Section 185 (b) of the Code, (the C.P.C) and in accordance with the procedure set out by the Criminal Procedure Code (application to prefer a charge in the High Court) Rules 1970. Section 185 (B) of the C.P.C
“No person shall be tried by the High Court unless –
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court…”
Such application for leave shall be made pursuant to the provisions of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. Rule 3 (1) and (2) provides as follows:
“3(1) Every application, other than an application made under Rule 2 shall be in writing signed by the applicant or his counsel and
(a) Shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney – General, shall also be accompanied by an affidavit by the applicant that the statement contained in the application are to the best of the deponent’s knowledge, information and belief, true; and
(b) Shall state whether or not any application has previously been made under these rules and whether or not any proceedings have been taken under Chapter xvii of the Criminal Procedure Code, and the result of any such application or proceedings.
(2) Where no proceedings have been taken under Chapter xvii of the Criminal Procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
(a) There shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge; and
(b) The application shall include a statement that the evidence showing the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is, to the best of the knowledge, information and belief of the applicant, a true case.” PER WAMBAI, J.C.A.
THE REQUIREMENT OF AN APPLICATION FOR LEAVE TO PROFER A CHARGE
As for requirement of an application for leave to prefer a charge, by Rule 3(1)(i) the application for leave must be accompanied by the charge sought to be preferred, GBOKO & ORS V. STATE (2007) LPELR – 8300 36 – 37, OBASI V. STATE (Supra), OHWOVORIOLE V. FRN (2003) 2 NWLR (pt 803) 176; (ii) except the application for leave is made by or on behalf of the Attorney General, it shall be accompanied by an affidavit varying the contents of the statements to the best of the deponent’s knowledge; (iii) it shall state whether an application has previously been made or any proceedings has previously been taken under Chapter XVİİ of the C.P.C. See FRN V. WABARA (2013) 5 NWLR (1347) 331, 335, OHWOVORIOLE V. FRN (2002) 2 NWLR (pt 803) 176, UGWU V. STATE (2013) 14 NWLR (pt 1374) 257, 276, and shall also state the reason for the desirability to prefer a charge. Additionally, the application shall be accompanied by proofs of evidence of the witnesses proposed to be called in support of the charge and a statement that the proofs of evidence will be available at the trial. It shall also contain a statement that the case disclosed by the proofs of evidence is to the best of the knowledge, information and belief of the applicant, a true case. PER WAMBAI, J.C.A.
DUTY OF THE PROSECUTION TO PROVE THE GUILT OF AN ACCUSED PERSON
It is elementary that our adversary system of adjudication places on the prosecution the unshifting and onerous duty of proving the guilt of an accused person in order to dislodge the presumption of innocence of the accused person constitutionally guaranteed by Section 36(5) of the CFRN 1999 (as amended). By Section 135 (1) of the Evidence Act 2011, such proof must be beyond reasonable doubt. See WOOLMINGTON V. D.P.P. (1935) AC 462; NJOKU V. THE STATE (1993) 6 NWLR (PT. 299) 272 AT 285, ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59, OMOTOLA V. STATE (2009) ALL FWLR (PT. 464) 1490 AT 1600, OCHEMAJE V. STATE (2008) 15 NWLR (PT. 1109) 57, ODUNEYE V. STATE (2001) 2 NWLR…
Therefore, the duty it is of the prosecution to present credible evidence to prove the guilt of the Appellant and that no other person but the Appellant committed the offences charged. To do this, it must prove each and every ingredient of the said offences beyond reasonable doubt. The accused/Appellant has no corresponding duty to prove his innocence. See OKOH V STATE (2014) 8 NWLR (PT.1410) 502, AJAYI V THE STATE (2013) 9 NWLR (PT 1360) 589.
Failure to prove any of the ingredients beyond reasonable doubt means failure to prove the entire case, GALADIMA VS THE STATE (2017) LPELR 41909 (SC). Similarly, where at the end of assessment of the prosecution’s case there is any lingering doubt, the doubt must be resolved in favour of the accused. See STATE V. DANJUMA (1997) 5 NWLR (PT. 809)1 AT 35-36, ABDULLAHI V. STATE (2008) 17 NWLR (PT…), YAHAYA V. STATE (2016) LPELR 40254 (CA). PER WAMBAI, J.C.A.
THE MEANING OF PROOF BEYOND REASONABLE DOUBT
However, proof beyond reasonable doubt is not proof beyond all shadows of doubt or to the hilt. It only means the presence of evidence which leaves only a remote possibility in favour of the accused which can easily be dismissed by the phrase “of course it is possible, but not in the least possible”. See ITODO VS STATE (2020) 1 NWLR (PT 1704) 1; MILLER VS MINISTER OF PENSIONS (1947) ALL ER 373.
It is trite that the guilt of an accused person may be established by any of the following ways; namely:
(i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence.
(ii) By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged.
(iii) By direct evidence of eye witnesses who actually saw the accused committing the offence. PER WAMBAI, J.C.A.
THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
By Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990, armed robbery takes place where at the time of the robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed at or immediately before or immediately after the robbery, and the said offender wounds or uses any personal violence to any person. Therefore, the essential and indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to secure the conviction of an accused person include the following:-
1. That there was indeed a robbery or series of robberies;
2. That the robbers were armed with dangerous weapons; and
3. That the accused person was the robber or one of the robbers. It is trite that to secure a conviction, all these ingredients must be proved to co-exist conjunctively, see AFOLALU V. THE STATE (2010) 16 N.W.L.R (pt. 1220) 584, EMEKA V. THE STATE (2014) LPELR – 23020 (SC), (2014) 13, OLAYINKA V. STATE (2007) ALL FWLR (PT 373)163.
In order to establish or prove the above ingredients of the offence of armed robbery, the prosecution may rely on any or a combination of the listed ways of proof, that is to say: (i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence; (ii) Circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged; (iii) Direct evidence of eye witnesses who actually saw the accused committing the offence. PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Hon, Justice Aminu Sabo Ringim of the Jigawa State High Court delivered on 3/03/2005 in charge No. JDU/11C/2003 wherein the Appellant as the 8th accused person along with the other co-accused persons were convicted of the offences of armed robbery and criminal conspiracy punishable under Sections 1 (2) (b) & 5 (b) of the Robbery and Firearms (Special Provision) Act 1990 and sentenced to death by hanging.
The Appellant as the 8th accused along with the others.
The Appellant along with eight other accused persons were alleged on the charge sheet to have on about the 30th day of November 2001 at Tsohuwar Gwaran Local government area agreed to commit an illegal act and while armed with dangerous weapons, attacked one Alhaji Ibrahim Umaru, beat him up and made away with the sum of eight hundred thousand Naira (₦800,000.00) and some valuables. All the accused persons including the Appellant pleaded not guilty to the two-count charge. The matter proceeded to trial. In proof of its case, the respondent called five witnesses and tendered some Exhibits. The Appellant testified in his defence but called no other witness nor tendered any exhibit. At the conclusion of trial, learned counsel to the Appellant and the respondent rendered no written addresses and upon the review of the evidence, the lower Court found that the prosecution (respondent) proved its case beyond reasonable doubt against the Appellant and accordingly found him guilty as charged and sentenced him to death by hanging.
Dissatisfied with the conviction and sentence, the Appellant through his counsel filed a notice of Appeal on 26/11/2018 and obtained leave of this Court on 17/11/2020 to amend same by adding an additional ground of Appeal. The amended notice of Appeal deemed on 17/11/2020 contains four (4) grounds of appeal.
Solomon Utuagu Esq settled the Appellants brief of argument filed on 15/6/2020. In it he nominated 4 issues for determination.
1) Whether the lower Court rightly arraigned, tried and convicted and sentenced the Appellant to death upon an Application to prefer a charge dated 3rd of June 2003? (Ground 1)
2) Whether from the evidence adduced before the trial Court the prosecution was able to prove the offence of any conspiracy against the Appellant? (Ground 2)
3) Whether from the evidence adduced before the trial Court, the Court was right to have relied on the confessional statement of the Appellant to convict and sentence the Appellant? (Ground 3)
4) Whether the trial Court was right to have convicted and sentenced the accused person despite several fundamental contradictions in the evidences of PW1- PW5? (Ground 4).
The respondent’s brief of argument, filed on 13/7/2020 was settled by A.S Gadanya, Esq. He adopted the Appellants issues for determination. A study of these issues reveals that while the first issue challenges the validity of the Appellant’s arraignment, the 2nd, 3rd and 4th issues attack the holding of the lower Court that the evidence adduced by the prosecution proved the offences of conspiracy and armed robbery beyond reasonable doubt against the Appellant. I shall therefore resolve this appeal on the following two issues culled from the Appellant’s four issues to wit;
1) Whether the Appellant was tried and convicted on a valid charge.
2) Whether the learned trial judge was right in holding that the prosecution (Respondent) proved the two counts charge against the Appellant beyond reasonable doubt.
ISSUE NO 1
WHETHER THE APPELLANT WAS TRIED AND CONVICTED ON A VALID CHARGE.
APPELLANT’S SUBMISSION
In arguing this issue, the learned counsel for the Appellant referred us to pages İ, İİ, & İİİ of the record and submitted that the Appellant was tried, convicted and sentenced to death on an application for leave to prefer a charge and not upon a formal charge as required by Section 185 (b) of the Criminal Procedure Code (C.P.C). That an application for leave to prefer a charge which is merely a request or permission to prefer a formal charge against an accused person is not the same as the formal charge against an accused person. He cited the cases ofATTAH V. STATE (1993) LPELR -598 (SC), @24, OKOYE V. COP & ORS (2015) LPELR @ 70 C-E, GBOKO & ORS V. STATE (2007) LPELR 8300 @ 36-37 C-B, OBASI V. STATE (2012) – 19950 26-27 D AND FRN V. WABARA & ORS (2013) LPELR – 20083 @ 28-29 E-A, and urged us to declare the proceedings as a nullity, the Appellant having not been tried on a formal charge.
Respondents Submission
In his response, the learned counsel for the respondent referred to pages 5 & 6 of the record to submit that the Appellants along with the co-accused were properly arraigned before the Court as the two count charge were read and explained to them and the Appellant along with the co-accused, took their pleas without being misled and subsequently entered his defense and testified as DW8. The Appellant having not been misled, he cannot be heard to complain on appeal that there was no charge against him and that had there being any irregularity, Appellant ought to have objected to same before taking his plea. Having not done so, he is deemed to have conceded to any irregularity and presumed to have understood the charge preferred against him before taking his plea. KPOOBARI V. FRN (2006) (pt 823) 1944 (Incomplete citation), ADAMA V. STATE (2018) ALL FWLR (pt 936) 1477, @ 1497, OKO V. STATE (2017) ALL FWLR (pt 905) 1244 @ 1262 1263 H-A.
He submitted that a charge is valid if it is express enough to tell the accused the case alleged against him – IBRAHIM V. STATE (2017) ALL FWLR (pt 898) 1 @ 39 Paras A-C, and on the basic requirements of a valid arraignment, the cases of AKINLOLU V. STATE (2018) ALL FWLR (pt 927) M@ 62 – 63 A-F., SALISU V. FRN (2018) ALL FWLR (pt 939) 2034 @ 2045 – 2046 E-D, ADAMA V. STATE (Supra) were cited.
Resolution of issue No. 1
The grudge of the Appellant’s counsel is that the Appellant and his co-accused were tried on an application for leave to prefer a charge and not on a proper charge which he contends renders the trial a nullity.
There is no doubt that a valid charge is a prerequisite for a valid arraignment and a valid arraignment is a precondition for a valid trial and conviction of an accused person. Put differently a trial and conviction of an accused predicated on or resulting from an invalid charge amounts to a nullity.
The jurisdiction of the High Court to try criminal offences under the Criminal Procedure Code (C.P.C) applicable in Northern Nigeria can be as ignited only as provided by Section 185 (b) of the Code, (the C.P.C) and in accordance with the procedure set out by the Criminal Procedure Code (application to prefer a charge in the High Court) Rules 1970. Section 185 (B) of the C.P.C
“No person shall be tried by the High Court unless –
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court…”
Such application for leave shall be made pursuant to the provisions of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. Rule 3 (1) and (2) provides as follows:
“3(1) Every application, other than an application made under Rule 2 shall be in writing signed by the applicant or his counsel and
(a) Shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney – General, shall also be accompanied by an affidavit by the applicant that the statement contained in the application are to the best of the deponent’s knowledge, information and belief, true; and
(b) Shall state whether or not any application has previously been made under these rules and whether or not any proceedings have been taken under Chapter xvii of the Criminal Procedure Code, and the result of any such application or proceedings.
(2) Where no proceedings have been taken under Chapter xvii of the Criminal Procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
(a) There shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge; and
(b) The application shall include a statement that the evidence showing the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is, to the best of the knowledge, information and belief of the applicant, a true case.”
The complaint of the Appellant is that the trial, conviction and sentence of the Appellant was predicated only on an application for leave to prefer a charge and not on a formal charge. It is true as vigorously canvassed by the Appellant’s counsel that an application for leave to prefer a charge is not the same as a formal charge. Section 185 (b) of the C.P.C requires the preferment of a formal charge against an accused person, but such charge shall only be preferred with leave of the High Court pursuant to Rule 3 of the Criminal Procedure Code (application to prefer a charge in the High Court) Rules 1970.
The preferment of a formal charge is dependent upon the grant of leave which is a pre-condition to the preferment of a charge. It therefore stands to reason and common sense that the two cannot be same. While an application for leave seeks permission of the Court to prefer a charge, the formal charge is the formal accusation, the charge sheet or the count(s) of accusation against the accused person requiring his plea. See OKOYE & ORS V. C.O.P & ORS (2015) LPELR 70 (SC), ATTAH V. STATE (1993) LPELR – 598 (SC).
To this extent I am at one with the Appellant’s counsel that an application for leave to prefer a charge against an accused person is different and distinct from a formal charge preferred against the accused.
As for requirement of an application for leave to prefer a charge, by Rule 3(1)(i) the application for leave must be accompanied by the charge sought to be preferred, GBOKO & ORS V. STATE (2007) LPELR – 8300 36 – 37, OBASI V. STATE (Supra), OHWOVORIOLE V. FRN (2003) 2 NWLR (pt 803) 176; (ii) except the application for leave is made by or on behalf of the Attorney General, it shall be accompanied by an affidavit varying the contents of the statements to the best of the deponent’s knowledge; (iii) it shall state whether an application has previously been made or any proceedings has previously been taken under Chapter XVİİ of the C.P.C. See FRN V. WABARA (2013) 5 NWLR (1347) 331, 335, OHWOVORIOLE V. FRN (2002) 2 NWLR (pt 803) 176, UGWU V. STATE (2013) 14 NWLR (pt 1374) 257, 276, and shall also state the reason for the desirability to prefer a charge. Additionally, the application shall be accompanied by proofs of evidence of the witnesses proposed to be called in support of the charge and a statement that the proofs of evidence will be available at the trial. It shall also contain a statement that the case disclosed by the proofs of evidence is to the best of the knowledge, information and belief of the applicant, a true case.
To determine whether the Appellant was tried, convicted and sentenced upon an application for leave to prefer a charge or on a formal charge, it is necessary to look at the relevant pages of the record. These are pages i, ii, iii (roman figures) and pages 5 & 6 of the record. Pages i, ii, iii contain the application to prefer a charge, the two heads of charge, the list of prosecution witness, the summary of what each witness would say at trial and a summary of the evidence to be led by the prosecution.
At page 5 of the record, Mr. Sule Umar who appeared for the state moved the application pursuant to Section 185 (b) C.P.C to prefer a charge against the accused persons (the appellant inclusive) and upon the grant of the application by the Court, the charge sheet dated 13/6/2003 was read and explained to each of the accused persons who all pleaded not guilty. Without any much ado, I say that the referred pages of the record belies the Appellant’s contention and vindicates the lower Court that the procedure adopted substantially complies with the requirement of Section 185 (b) of the C.P.C and Rule 3 (1) & (2) of the Criminal Procedure Code (application to prefer a charge in the High Court) Rules 1970, See FRN V. WABARA (Supra). After all, what is important about a charge in a criminal trial is that it provides sufficient information of the allegation against the accused person to enable him know the nature of the accusation levelled against him and to prepare for his defence. Minor errors, defects, or irregularities which do not mislead or prejudice the defence do not affect the validity of the charge or any conviction based thereon. In IBRAHIM V. STATE (2017) ALL FWLR (PT.898) 39 @ 39 A-C the apex Court made the point thus:
“The most important thing about a charge in any criminal case is that it must tell the accused enough, so that he may know the allegation against him and prepare his defense. The emphasis is not on whether or not there were defects, error or omissions in charge, but on whether those defects, error or omission could and in fact misled the defense. A defect which does not prejudice the defense is no ground for quashing a charge”.
Furthermore, the law is settled that the appropriate time to raise any objection on an irregularity in a charge is at the time the charge is being read to an accused person and before his plea is taken. Similarly, the law is also trite that once an accused person takes his plea to a charge, he is presumed to have understood the charge and has no objection to its regularity. Any complaint arising thereafter either at the trial Court or on appeal will be considered belated. See KPOOBARI V. FRN (2016) ALL FWLR (pt 823) 1944, @ 1953 A- C, ADAMA V. STATE (2018) ALL FWLR (pt 936) 1477, H-A, ATTAH V. STATE (Supra), AGBO V. THE STATE (2006) 6 NWLR (pt 977) 545. Therefore, in view of all that has been said, this issue is resolved against the Appellant.
ISSUE NO. 2
Whether the learned trial judge was right in holding that the prosecution (Respondent) proved the two counts charge against the Appellant beyond reasonable doubt.
APPELLANT’S SUBMISSION
Arguing this issue which comprises of his issues 2, 3, & 4, learned counsel referred to the case of YAHAYA V. STATE (2016) LPELR -40254 (CA) on what the prosecution needs to prove in a charge of armed robbery and traversed the evidence of PW1 – PW5, none of whom he submitted ever testified that the Appellant was the person or one of the persons who attacked PW1 or was involved in any robbery. He submitted that neither the evidence of PW1 nor the incoherent and inconsistent evidence of PW2 or those of PW’s 3, 4 & 5 linked the Appellant to the offences for which he was tried, convicted and sentenced to death.
To demonstrate the incoherent and contradictory nature of the evidence of PW1 and PW2, counsel referred to the evidence of PW1 who at one breath stated that he gave his wife (PW2) money to keep while PW2 stated that one Umar was her husband who was locked up in her room and that in that tensed situation, she took the said money to her husband’s room but at another breath, stated that the money she kept in another room was stolen by the bandits.
On the evidence of PW3 aged 15 years referred to as a child of whom the learned trial judge did not satisfy himself that he understood the nature of oath, counsel argued that his evidence be expunged from the record more so that the evidence is so shallow and watery that no Court can rely upon it to find that the Appellant committed the offences charged.
To further buttress the point that the Appellant was not linked to the offences charged, counsel drew our attention to the fact that while the robbery took place on 30/11/2001, the Appellant was arrested in August 2002, nine months after the robbery. That both PW4 and PW5 admitted that the weapons were recovered from a search/ raid conducted and without any witness testifying that any of the weapons was recovered in the house of the Appellant or that the Appellant was linked to the offence or the weapons or that the weapons were used in the commission of any offence. To further put the evidence of the prosecution witnesses in serious scrutiny, learned counsel referred to the unchallenged Appellant’s evidence as DW1 who denied any involvement in the commission of the offences and wondered how the Appellant would have reported himself at the police station if he actually committed the offences.
On the definition and nature of conspiracy, counsel referred to the cases of OMOTOLA & ORS V. STATE (2009) LPELR – 2663 PP 62 – 64 E – A, AWOSIKA V. STATE (2018) LPELR- 44316 PP 30 – 31 E – F and submitted that none of the witnesses testified that the Appellant conspired with or was in company of the other co-accused persons to commit an offence or attacked PW1.
It was the counsel’s contention that the Court only relied on the purported confessional statement of the Appellant which he has denied, but was only beaten and threatened to sign, without conducting any further investigation, and which confession was not subjected to the six way veracity tests as set out in the cases of NSOFOR V. STATE (2004) NSQLR VOL.20. 74 @ 77 AND YAHAYA V. STATE (Supra) @ 33 A-E. Counsel contended that there is nothing outside the confession to show that it is true; that it is corroborated; that the relevant facts therein as far as they can be tested are true; that the Appellant had opportunity to commit the murder; that the confession is possible or the facts therein are consistent with other proved facts. He therefore insisted that the Court was wrong to have convicted the Appellant solely on the retracted confession urguing us on the authority of UMAR V. STATE (2019) LPELR- 47617 PP 17 – 18 A-D PARA … and the much relied upon case of YAHAYA V. STATE (Supra) at pp 30 – 31, E – B, to hold that the prosecution having failed to prove the offences against the Appellant, the Appellant should be entitled to the benefit of doubt created and be discharged and acquitted.
RESPONDENT’S SUBMISSION
In the support of the judgment of the lower Court that the prosecution proved two counts against the Appellant, counsel for the respondent restated the 3 ways by which the guilt of an accused person can be established and that the prosecution (respondent) relied on the confessional statement of the Appellants and the testimonies of the prosecution witnesses in proving the case beyond reasonable doubt against the Appellant.
On the meaning of conspiracy and when the offence is said to be committed and the usual way of proving conspiracy by inference, the cases of YAHAYA V. STATE (2018) ALL F.W.L.R (pt 968) 546 @ 576, OFFOR V. STATE (2018) ALL F.W.L.R (pt 929) 340 @ 372 were cited. He stated that all the accused persons confessed in their statements to have conspired to commit the robbery, that the Appellant confessed in exhibit 5f (i) & (ii) that himself and three others met at Dole market in old Gwaram when Yakubu Babe suggested that they should go for robbery operation. He also referred to contents of the confessional statements of the other co-accused persons and submitted that in a charge of conspiracy, the statement of one accused is admissible against the other co-conspirators, KAYODE V. STATE (2016) ALL F.W.L.R (pt 835) 203 @ 240, such confessional statement which is corroborated by those of the co-accused persons counsel submitted, is rendered free, direct and reliable.FAMUYIWA V. STATE (2018) ALL F.W.L.R (pt 919) 1, 23, F-G. It was contended that the exhibit 5 f (i) & (ii) which were admitted without any objection and properly evaluated by the lower Court are voluntary and reliable – SIMON V. STATE (2017) ALL F.W.L.R (pt 885) 1929 @ 1945 G-H and therefore sufficient alone to ground the Appellant’s conviction for conspiracy and the substantive offence of armed robbery – AYEDATIWOR V. STATE (2018) ALL F.W.L.R (pt 952) 1 @ 19, MOHAMMED V.C.O.P (2018) ALL F.W.L.R (pt 949) 1466, @ 490 C-D, notwithstanding its retraction or denial more so that it was not impeached by any credible evidence OLAOYE V. STATE (2018) ALL F.W.L.R (pt 961) 1532 @ 1559, D-E, IDOWU V. STATE (2000) F.W.L.R (pt 16) 2 672 (SC).
On the conditions which a confessional statement must meet to be considered voluntary, the case of OLAOYE V. STATE (Supra) was called in aid where the Supreme Court stated the requirements to include;
i. That it must contain the words of caution
ii. That the cautionary words have been administered in the language understood by the accused;
iii. The statement was duly signed or thumb printed by the accused;
iv. That the statement was recorded in the language understood by the accused person;
v. That the statement was after being recorded read over and interpreted to the maker in the language it was recorded’’.
Counsel submitted that exhibit 5 f (ii) satisfies the requirement of caution, it was duly signed by the Appellant and was rendered in the language of the Appellant, Hausa language, to his understanding and was interpreted to him as testified to by PW5 who did the recording.
On the tests which a confessional statement may be subjected to, the case of AFOLABI V. STATE (2018) ALL F.W.L.R (pt 955) 446, 479 – 480 G-B was cited and that the exhibit 5 (f) (ii) was tested and passed the test, that the evidence of PW1 & PW2 are evidence outside the confession to show it was true; that evidence of PW3 corroborated the statement of the 6th accused person as well as that of the appellant’s confession that he was one of the robbers, corroborates the evidence of PW1 & PW2 that they were attacked, that the facts contained therein so far as can be tested are true; that the Appellant had opportunity of committing the offence since he raised no defense of alibi; that the confession is possible and same is consistent with the evidence of PW1 and PW2.
On the contention of the Appellant’s counsel that the recovered weapons were not linked to the robbery, respondent’s counsel submitted that the submission is misconceived and unfounded as such linkage is either an ingredient of the offence nor is it necessary to tender same in evidence. DAWAI V. STATE (2018) ALL F.W.L.R (pt 970) 939 A-D, OGU V. C.O.P (2018) ALL F.W.L.R (pt 928) 31 @ 69 and that as long as the accused was in the midst of the those who were armed and inflicted injuries on or used violence on PW1, the Appellant is equally culpable.
Learned counsel maintained that the lower Court was right in convicting the Appellant on the voluntary confessional statement and the testimonies of PW1 to PW5 as the acclaimed inconsistency in the evidence of the prosecution witness PW1 – PW5, which Appellant did not point out in clear terms, are not material to quash the Appellant’s conviction – OGU V. C.O.P (2018) ALL F.W.L.R (pt 928) 31, 71-72, GALADIMA V. STATE (2018) ALL F.W.L.R (pt 944) 663.
Moreover, he submitted, the evidence of PW1, PW2 & PW3 were never cross-examined by the Appellant which is an indication that their testimonies were accepted as true. ESENE V. STATE (2017) ALL F.W.L.R (pt 910) 338 @ 376, C-E, SIMON V. STATE (Supra).
It was his further contention that the lower Court having sufficiently discharged its duty of evaluating the evidence, this Court should not disturb its findings HASSAN V. STATE (2017) ALL F.W.L.R (pt 890) 738 @ 766-767 CA urging us to dismiss the appeal and affirm the findings and the judgment of the trial Court.
RESOLUTION OF ISSUE NO. 2
The crux of this issue is whether the lower Court was right in holding that the prosecution (now respondent) proved the two-count charge of robbery and conspiracy against the Appellant beyond reasonable doubt to warrant his conviction and sentence for the said offences.
It is elementary that our adversary system of adjudication places on the prosecution the unshifting and onerous duty of proving the guilt of an accused person in order to dislodge the presumption of innocence of the accused person constitutionally guaranteed by Section 36(5) of the CFRN 1999 (as amended). By Section 135 (1) of the Evidence Act 2011, such proof must be beyond reasonable doubt. See WOOLMINGTON V. D.P.P. (1935) AC 462; NJOKU V. THE STATE (1993) 6 NWLR (PT. 299) 272 AT 285, ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59, OMOTOLA V. STATE (2009) ALL FWLR (PT. 464) 1490 AT 1600, OCHEMAJE V. STATE (2008) 15 NWLR (PT. 1109) 57, ODUNEYE V. STATE (2001) 2 NWLR…
Therefore, the duty it is of the prosecution to present credible evidence to prove the guilt of the Appellant and that no other person but the Appellant committed the offences charged. To do this, it must prove each and every ingredient of the said offences beyond reasonable doubt. The accused/Appellant has no corresponding duty to prove his innocence. See OKOH V STATE (2014) 8 NWLR (PT.1410) 502, AJAYI V THE STATE (2013) 9 NWLR (PT 1360) 589.
Failure to prove any of the ingredients beyond reasonable doubt means failure to prove the entire case, GALADIMA VS THE STATE (2017) LPELR 41909 (SC). Similarly, where at the end of assessment of the prosecution’s case there is any lingering doubt, the doubt must be resolved in favour of the accused. See STATE V. DANJUMA (1997) 5 NWLR (PT. 809)1 AT 35-36, ABDULLAHI V. STATE (2008) 17 NWLR (PT…), YAHAYA V. STATE (2016) LPELR 40254 (CA).
However, proof beyond reasonable doubt is not proof beyond all shadows of doubt or to the hilt. It only means the presence of evidence which leaves only a remote possibility in favour of the accused which can easily be dismissed by the phrase “of course it is possible, but not in the least possible”. See ITODO VS STATE (2020) 1 NWLR (PT 1704) 1; MILLER VS MINISTER OF PENSIONS (1947) ALL ER 373.
It is trite that the guilt of an accused person may be established by any of the following ways; namely:
(i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence.
(ii) By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged.
(iii) By direct evidence of eye witnesses who actually saw the accused committing the offence.
The Appellant was charged and convicted for the offences of armed robbery and conspiracy to commit armed robbery punishable under Sections 1(2)(b) and 5 (b) of the Robbery and Firearms Special Provisions) Act 1990.
By Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990, armed robbery takes place where at the time of the robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed at or immediately before or immediately after the robbery, and the said offender wounds or uses any personal violence to any person. Therefore, the essential and indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to secure the conviction of an accused person include the following:-
1. That there was indeed a robbery or series of robberies;
2. That the robbers were armed with dangerous weapons; and
3. That the accused person was the robber or one of the robbers. It is trite that to secure a conviction, all these ingredients must be proved to co-exist conjunctively, see AFOLALU V. THE STATE (2010) 16 N.W.L.R (pt. 1220) 584, EMEKA V. THE STATE (2014) LPELR – 23020 (SC), (2014) 13, OLAYINKA V. STATE (2007) ALL FWLR (PT 373)163.
In order to establish or prove the above ingredients of the offence of armed robbery, the prosecution may rely on any or a combination of the listed ways of proof, that is to say: (i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence; (ii) Circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged; (iii) Direct evidence of eye witnesses who actually saw the accused committing the offence.
In the instant case, the prosecution relied on both the confessional statement of the Appellant and the evidence of prosecution witnesses particularly of PW1, PW2 and PW3 in proof of its case.
On confessional statement as a means of proof of guilt of an accused person, the lower Court was explicit on its reliance on the Appellant’s confessional statement, Exhibits 5 (f) (i) and (ii). At page 67 of the record, the Court stated thus:
“Let me hasten to state here, with unlimited emphasis, that I consider one very crucial issue arising from the totality of the evidence of this case to be germane to the guilt or innocence of the accused persons. This is conclusively premised on the exhibits… 5 (f) (i) & (ii). …In other words, the statements of the accused persons as enshrined in the exhibits (Supra) are Rebicon of the prosecution’s case.“
In the English version of the Appellant’s confessional statement, exhibit 5 (f), (ii), the Appellant stated inter alia:
The … of the record of the Court stated thus; Appellant stated in exhibit 5 (f) (ii) inter alia: 48-49 of the record:
“On one Monday last month August my self Audu Umaru alias Gulabe (2) Maigoro Ali (3) Abdullahi Bala (4) Sani Sabo (5) Salisu Tigana (6) Abdu Abubakar alias lalala (7) Yakubu Babe (8) Auwalu Nadabo alias Danashaka we all met at junction near a filling station at old Gwaran, as a result Maigoro Ali and Yakubu Babe invited us for robbery operation at (Unguwar Durumin Duste) at old Gwaram, we reached the house at about (0200hr) and same Maigoro Ali and Yakubu Babe directed me Audu Umaru Gulabe Auwalu Nadabo Danasheka to stay outside the rest went inside, I don’t know actually what they did inside, after the out(sic) we left back to the same junction and they brought money inside one sack and the money was counted we discovered the sum of seven thousand nine hundred naira ₦7,900 and it was Maigoro Ali divided and gave me my shear (sic) the sum of four hundred naira ₦400, those armed with rifles are (1) Yakubu Babe armed with police rifle (2) Maigoro Ali and (3) Sani Sabo both armed with locally made rifles. The name of the owner of the house is Alhaji Ibrahim Durumin Duste, that is all about Alh Ibrahim house’’.
Learned counsel to the Appellant has contended that the lower Court ought not to have relied on the purported confessional statement to convict the Appellants on the grounds that the Appellant was only forced to sign same; that the confession was not tested for its veracity; and that the confession was not corroborated by any outside evidence.
The law is that an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following:
(i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – HASSAN V. STATE (2001) 15 NWLR (Pt 735) 184, KAZEEM V. STATE (2009) WRN 43 and OSETOLA V. STATE (2012) 17 NWLR (pt 1,329) 257.
In the instant case the Appellant’s only objection is that to the contents of the confessional statement.
On the contention that the Appellant was forced to sign the statement, when an accused person alleges that he was forced to sign a confessional statement, he is simply saying that the confession was not made voluntarily. In other words, such an allegation raises or puts to question the voluntariness of the confessional statement since the signature is part and parcel of the statement and indeed serves as the veritable acknowledgment of the contents of the statement. Therefore, an allegation that the signature on the statement is not voluntary in the sense that the maker was forced to sign it as it is being submitted here, is an objection that the entirety of the confessional statement is not voluntary. See SAIDU V. THE STATE (1982) LPELR – 2977 (SC), ITU V. STATE LPELR (2013) 22002 (CA). Where such an allegation is made at an appropriate time, the long standing procedure is for the trial Court to conduct a mini trial called the “Trial within Trial” to determine the voluntariness or otherwise of the statement before admitting or rejecting same in evidence, OGU V. COP (2018) 8 NWLR (pt 1620) 134, HASSAN V. STATE (2016) 5 NWLR (pt 1357) 1, IFARAMOYE V. STATE (2017) 8 NWLR (pt 1560) 457 and failure to conduct the trial within trial when necessary, renders the statement inadmissible, and if wrongfully admitted, should be expunged from the record or discountenanced. It should not be un-relied upon, EHOT V. STATE (1993) 4 NWLR (pt 290) 644 @ 673 C, OGU V. C.O.P (2018) 8 NWLR (pt 1620) 134.
On the appropriate time or stage to raise an objection to the admissibility of a confessional statement, the law has since been settled that the proper time to challenge the voluntariness of a confessional statement is during trial at the point when the statement is being tendered in evidence by the prosecution, IKEMSON V. STATE (1989) 3 NWLR (pt 110) 455, ADEBAYO V. STATE (2014) 5 SCNJ 825 – @ 883, ALARAPE V. THE STATE (2001) 5 NWLR (pt 205) 79., ALO V. STATE (2015) 9 NWLR (pt 1464) 238. Where the statement is admitted without any such objection, the presumption is that the accused person accepts or concede the voluntariness of the confession, see OSUAGWU V. STATE (2013) 1- 2 SC 194. Any objection afterwards, will be unacceptable and properly deemed as an afterthought. Thus, it is belated to raise the issue after the statement has been tendered and admitted in evidence and worse of all, on appeal vide the Appellants brief of argument as in the instant appeal.
In the instant case, the records shows at page 18 that when the statements of all the accused persons including those of the Appellant recorded in Hausa language and the English translated version were tendered through PW4, CPL Musa Isah, of the State C.I.D Dutse who recorded the statements, the defence counsel was asked if he had any objection. His response was ‘’our objection goes to the contents of the statements.”
Such an objection to the admissibility of a confessional statement on account of its contents or challenge to the correctness of its contents is not synonymous with an objection to its voluntariness, thus the consequential effect of each is different. Where as in the present case an accused merely disputes the correctness of the contents of the confession or a written statement, or that he did not make the statement at all, he is not challenging the voluntariness of the statement and a trial within trial is unnecessary. The statement is admissible and the trial Court is to admit the statement. See IGAGO V. STATE (1999) 14 NWLR (pt 637), IREK V. THE STATE (1976) 4 SC 65.
Therefore, the learned trial judge rightly admitted the Exhibits 5 (e) (i) & (ii). It is to be noted that the Hausa version exhibit 5 (e) (i) was endorsed by a superior police officer.
As can be seen from the portion of the reproduced confessional statement of the Appellant, the Appellant unequivocally admitted the commission of the offence. The confession is positive and direct.
The Appellant stated the role he played in the commission of the offenses, how they met and Maigoro Ali and Yakubu Babe briefed them for the robbery operation, that they reached the house about (0200 hours); that he along with two others were directed to stay outside the compound of PW1; that those who went inside came out with a sack containing money; they went back to the same junction, the money was counted and he was given his share, the sum of ₦400.00
Clearly, the Appellant admitted against his interest, his involvement and participation in the offences of criminal conspiracy and robbery. The utilitarian value of a confessional statement of an accused person in a criminal trial cannot be over emphasized. Its eminence in evidential value and its prime place derives from the fact that there is no stronger evidence than a man’s own admission or confession. It is considered as the best evidence which the Court can rely upon to convict. No better proof is required than an admission by the adversary which is voluntary. In ODUMEGWU OJUKWU V ONWUDIWE (1984) 2 SC 15 @ 88, the apex Court stated the law clearly when it held thus:
“…it is a clear principle deeply enshrined in our jurisprudence that admissions made do not require to be proved for the simple reason among others that “out of the abundance of the heart the mouth speakth”.
The law is settled that no better proof is required than that which an adversary wholly and voluntarily owns up …”
It is therefore no longer debatable that a man may be convicted on his confessional statement alone which is voluntary, direct, and positive once the Court is satisfied of its truth. See IDOWU V. THE STATE (2007) 9 NWLR (pt 1038 30; OZNA UBIERHO V. THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655;KAMILA V. THE STATE (2018) ALL FWLR (PT 965); OSENI V. THE STATE (Supra), also HABIBU VS THE STATE appeal No. CA/K/411/C/2014 delivered on 13/04/2018 per Uwani JCA (as he then was now JSC) cited by the learned Respondent’s Counsel.
In KAMILA V. THE STATE (SUPRA) where the complaint was that the Appellant was convicted on an uncorroborated and inadmissible evidence, the Supreme Court reaffirmed that the trial Court is empowered to convict an accused person on the basis of his confession alone.
The other contention of the Appellant’s counsel is that the Exhibits 5 (e) (i) & (ii) were not put to the six way veracity test nor corroborated by any evidence outside the confession. This submission, I must state straight away is not belied by the record, but is also unsupported by law.
It is trite that a free and voluntary confession of guilt by an accused person if direct and positive and is duly made and satisfactorily proved is sufficient to warrant the conviction of an accused person even without any corroborative evidence. See MOHAMMED V. STATE (2007) 30 NSCWR (pt 1) 364, IKPO V. STATE (2016) 10 NWLR (pt 1521) 501. In ACHABUA V. STATE (1976) 12 SC 63 @ 65, the apex Court explained thus;
“the secrecy with which criminals perpetrate their crime has tended to deprive the prosecution in some cases of eye witness, hence confession alone even without corroboration can support a conviction as long as the Court is satisfied with the truth of the confession. Similarly; OGU V. C.O.P (Supra) the Court held thus:
“Of all the methods of proving the guilt of an accused person beyond reasonable doubt, a confessional statement, which is voluntarily made and which is direct, positive and satisfactorily proved, is the most potent of all, coming as it were, “from the horse’s mouth”. It was stated in ADIO VS THE STATE (1986) 2 NWLR (Pt. 24) 581 @ 593 – 594 H-A thus: “A free and voluntary confession of guilt by an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further corroboration to warrant a conviction…”
Admittedly, the Appellant retracted or resiled from this confession exhibits 5 (e) (i) & (ii). The lower Court realizing the desirability or the practice of testing a retracted confession before grounding a conviction held thus: “Now the Court is saddled with the herculean task of testing the truthfulness or otherwise of the statement” and at pages 68 -71 puts the confessional statements of the 1st and 6th accused persons to the following tests as spelt out in the cases of ALARAPE V. STATE (2001) 5 NWLR (pt 705) without the page number, QUEEN V. OBIASA (1962) 1 ALL NLR 651 and the much relied upon case of YAHAYA V. STATE (Supra) by the Appellant to wit:
a) Is there anything outside it to show it is true?
b) Is it corroborated?
c) Are the facts stated in it true so far as can be tested?
d) Did the accused have an opportunity of committing the offense?
e) Is the accused’s confession possible?
f) Is the confession consistent with the other facts which have been ascertained and proved?”
And held that same was true of the confessional statements of the other accused persons including the Appellant. He concluded:
“I am satisfied from other facts proved against the 2nd, 3rd, 4th, 5th, 7th, 8th and 9th accused persons that their respective confessional statements contained in the exhibits referred to Supra, are free and voluntary.”
Now, aside from the confessional statements, the prosecution led evidence through PW1, PW2, and PW3, that unknown persons armed with various dangerous weapons broke into the house (compound) of PW1, they asked him to give them money or they would kill him, they said the same thing to his wife PW2. They knocked him down and he became unconscious, PW2 met PW1 unconscious in a pool of blood gushing out from his ear. They robbed PW1 of the sum of ₦511,000.00.
PW3 heard a shout and saw some people asking PW1 for money. In exhibit 5 (f)(ii) as earlier reproduced, the Appellant stated that he was a member of the gang that went to the house of PW1; that while some members of the gang including Maigoro Ali and Danliti Audu went to the compound he and others stayed outside. That one Yakubu Babe (a member of the gang among those who went inside) came out with a leather bag and when they got to the initial primary school, he (the Appellant) was given his share, the sum of ₦1,500. The 6th accused stated in his statement that they beat the Alhaji (PW1) and left him lying down.
It is trite that in a conspiracy trial as an exception to the hearsay rule, evidence of what one accused says in the absence of other conspirators is rendered admissible against others, on the basis that, if they are all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators. See R. V. LUBERG & ORS 19 C.A.R. p. 133, MUMUNI & ORS. V. STATE (1975) LPELR-1926 (SC) and KAYODE V. STATE (SUPRA).
The contention of Appellant’s counsel contended that the evidence of PW3 be expunged because the lower Court did not satisfy itself that the witness understood the nature of an oath, is highly misconceived and is made in oblivion of the provisions of Section 209 of the Evidence Act 2011. PW3 whom the record shows was 15 years old and a student at the time he testified, was not a child within the meaning of Section 209 of the Evidence Act whose evidence is required to be subjected to the conditions and procedure set out in sub Sections (1) and (2) of the Section. For the purpose of the section, PW3 who was above the age of 14 years was an adult when he testified, who by virtue of Section 205 must give evidence on oath or affirmation. Hence, he was duly affirmed to testify and his evidence properly taken. The lower Court was thus entitled to rely on his evidence.
Furthermore, the prosecution also led evidence through PW4 & PW5 that the houses of the 7 accused persons were raided and items recovered include 2 locally made pistols; 1 dane gun; 2 knives; a sharp iron pipe and that the accused persons led the team of police investigators to the scene of crime. While the latter piece of evidence was not even challenged, the former was not successfully destroyed in cross-examination.
All the pieces of evidence outside the confession corroborate the contents of Exhibit 5 (f) (ii) and are consistent with the proved facts by the prosecution witnesses that PW1 was in his house and was robbed of the sum of money. Their evidence remains uncontroverted and unchanged.
Evidence of a witness on a material fact which is not cross-examined by the adversary is deemed admitted. See OFORLETE V. STATE (Supra) (2000) LPELR 2270(SC). It is therefore without doubt that the contention of the counsel for the Appellant that the confessional statement (exhibit 5 (f) (i) & (ii)) were not subjected to the acid test and not corroborated by any outside evidence is most unfounded. It is clearly in violent conflict with the judgment of the lower Court appealed against and the record before the Court.
Counsel for the Appellant referred to evidence of PW1 & PW2 and contended that there are contradictions in their evidence, that while PW1 referred to PW2 as his wife to whom he gave the money for safe keeping before it was stolen, PW2 referred to one “Umar’’ as her husband and in whose room she was locked up as her husband and not PW1. That she also stated that she was able under the intense situation to take the money to her husband’s room for safe keeping.
I have looked at the evidence of PW1 & PW2. It is on record that the full name of PW1 as given in evidence is Alhaji Ibrahim Umar. It appears that PW2 referred to PW1 (her husband) as Alhaji Ibrahim and Umar interchangeably. In any case, the law is settled that testimonies of witnesses can be said to be contradictory only when they give inconsistent accounts of the same event. For a contradiction to exist between the evidence of one witness and the other, there must be a substantial disparagement of the evidence of one witness from the other. Even at that the contradictions in the evidence of the witness to vitiate a decision or render the evidence unviable, they must be material and substantial to the extent that they cause serious doubts on the case presented as a whole by the party. See EKE V. STATE (2011) 3 NWLR (pt 1235) 589, OHIWEREI V. OKOSON (2003) 11 NWLR (pt 832) 463.
I find no such serious and substantial contradiction or disagreement between the evidence of PW1 that the money he gave to his wife (PW2) for safe keeping was stolen by those who attacked them in the house and the evidence of PW2 that the money was kept in her husband’s room where it was stolen from.
The judge cannot be faulted in his findings that the Appellant’s confessional statement was duly tested against the evidence of PW1 & PW2 and was found to be possible and true and was also corroborated by the evidence adduced by the prosecution. His conclusion that and holding that the prosecution proved the case of armed robbery against the Appellant as charged is also impeccable.
It is noted that the Appellant only confessed to be a member of the gang which carried out the robbery but did not actually participate in the act of beating PW1 or PW2 as he did not even go into the compound but stayed outside the house. That notwithstanding, the Appellant as a member of the gang that went to the house of PW1 with the common intention and purpose of robbing PW1 is equally coupled by the principle of common intention in criminal cases where two or more persons as in instant case, form the necessary common intention to prosecute an unlawful purpose, and an offence of such a nature of such purpose is committed, each of them is deemed in law to have committed the offence. It does not matter on such facts which of them does what. A fatal blow given by any one of the accused persons is deemed in the eyes of the law to have been given by the rest of the accused persons. The act of one is the act of the other in so far as it is established that they share a common intention or design to carry out the unlawful act. See NWANKWOALA V. THE STATE (2006) 14 NWLR (pt 1000) 663, IKEMSON & ORS V. THE STATE (1989) 3 NWLR (pt 110) 455.
The mere fact of the common intention manifesting in the execution of the common objective is enough to render each of the accused persons in the group guilty of the offence. The Appellant is fully wrapped in the armed robbery. The act of those members of the gang who went into the house and committed the actual robbery while armed with offensive weapons and injured PW1 is the act of the Appellant who only stayed outside providing cover to those inside the compound who committed the robbery and inflicted injury on PW1. In the eyes of the law, the Appellant is deemed to have also participated in the actual armed robbery and the infliction of injury on PW1 and is no less guilty of the offence than those who were armed or physically inflicted injury on PW1.
This leads to the charge of conspiracy
The offence of conspiracy has over the years been said to be committed by mere agreement by two or more persons to do an illegal act or a legal act by illegal act means. Merely being one or two or more persons acting or planning to act in concert under some agreement in pursuit of a criminal design either expressly or impliedly constitute the offence. Thus, conspiracy is simply an agreement between two or more persons to commit an unlawful act coupled with intent to achieve the object of the agreement; HARUNA VS. STATE (1972) 8 – 9 SC 174.
Put differently, the offence is complete once there is a formation of a scheme between the parties before the actual commission of the act for which the conspiracy is formed.
Thus the ingredients are:
a) An agreement between two or more persons to commit an illegal act, or a legal act by illegal means; and
b) That the illegal act was done in furtherance of the agreement and that each of the conspirators participated in the illegality. BIODUN V. STATE (2012) 7 N.W.L.R (pt 1299) 394.
The offence is complete once there is an agreement between the parties who share a common criminal intention or purpose; See NJOVENS VS. STATE (1973) 5 SC 17, OSETOLA VS. THE STATE (2012) L.P.E.L.R – 8252 (SC). It is not necessary that the substantive offence itself be committed or be proved. This means that conspiracy is a separate and independent offence from the crime that is the object of the conspiracy and failure to prove a substantive offence does not make conviction for conspiracy inappropriate. See OSONDU VS. F.R.N(2000) 12 N.W.L.R (pt. 682) 483. OSETOLA VS. THE STATE (SUPRA).
As conspiracy is often hatched in an incubator of secrecy, direct evidence of it is seldom available. Proof of conspiracy or the agreement is generally a matter of plausible inference deduced from certain criminal acts of the accused persons done in pursuance of a criminal purpose common between the conspirators. It is rarely proved by direct evidence and understandably so, because of the secrecy by which it is planned and executed to the exclusion of every other person who is a stranger to the scheme. It is therefore difficult to have direct witnesses to prove the offence. Consequently, the Courts have held that conspiracy can be proved either by leading direct evidence in proof of common criminal design or by inference deduced from the commission of the offence; EGUNJOBI VS. F.R.N (2001) 53 W.L.R.N 20 at 54; LAWSON VS. STATE (1975) 4 SC 115 AT 123. NWOSU VS. THE STATE (2004) 15 NWLR (pt 897) 466.
The agreement can be inferred from what each person does or does not do, in furtherance of the common purpose and it is immaterial that the persons have not met each other. JIMOH VS. STATE (2014) 10 NWLR (pt 1414) 105. Once there is evidence to commit the substantive offence, it does not matter what any of the conspirators did or who did what; SULE VS. STATE (2009) 17 NWLR (pt 1169) 33.
In the instant case as earlier reproduced, the Appellant stated in exhibit 5 (f)(ii) how himself and the co accused persons met and one Maigoro Ali and Yakubu Babe hinted them for robbery operation. The learned trial judge thoroughly and painstakingly referred to the confessional statements of each of the accused persons, how they met, hatched the plan to rob, how the 4th accused suggested that they should rob PW1 because he has money and how they executed the plan in furtherance of their common design and concluded thus:
“In view of the above, it is no gain saying the fact that the prosecution has succeeded in proving that the criminal design to wit, to commit robbery, is common to all the accused persons. The bottom line of the offence (conspiracy) is the meeting of the mind of the conspirators. In this nexus, the prosecution had evidence to establish that this constituent is apparent in all the confessional statements of the accused persons. This is consistent with other facts proved by the independent witnesses (robbery)”
The above finding is pukka and cannot be faulted; I can only lend my support to it
On the whole, the contention of the counsel for the Appellant that the lower Court only relied on the untested confessional statement of the Appellant and on unreliable evidence to convict the Appellant is not borne out of the record. It is very farfetched. Indeed, nothing can be further from the truth than that submission. The evidence on record duly evaluated by the learned trial judge supports the finding and conclusion that the prosecution proved its case of armed robbery and conspiracy against Appellant beyond reasonable doubt. The confessional statement is unequivocal. It is direct and positive, it is voluntary and was subjected to acid veracity test, in it, the Appellant stated the role he played in the conspiracy and the commission of the offence of armed robbery. The learned trial judge was satisfied and convinced of its truth.
The confession is fully corroborated by the evidence of PW1 & PW2, the victims of the offense and the evidence of PW4 & PW5 who were led by the Appellant and other co-accused to the scene of crime and who recovered some weapons from the houses of the accused persons. The oral testimonies of the witnesses envelope the Appellant in the commission of the offences charged. It will therefore be flying in the teeth of the glaring evidence and amount to turning the law on its head to hold otherwise. After all, proof beyond reasonable doubt does not mean proof beyond shadow of doubt or to the hilt. It only means establishment of the guilt of the accused persons with compelling and conclusive evidence with a degree of compulsion which is consistent with a high degree of probability and in the instant case, the credible and compelling evidence adduced by the prosecution more especially through the Appellant’s confessional statement, established the guilt of the Appellant beyond reasonable doubt. There is therefore no merit in this appeal to warrant any interference with the impeccable finding and conclusion arrived at by the lower Court. Consequently, this issue is also resolved against the Appellant and this appeal deserves to be and is accordingly dismissed. The judgment of the lower Court delivered by Hon. Justice Aminu Sabo Ringim on 18/3/2005 in charge No JDU/11C/2003 including the conviction and sentence passed on the Appellant are affirmed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the lead Judgment of my learned brother Wambai JCA, just delivered and I agree that the prosecution had proved its case beyond reasonable doubt, leading to the conviction of the Appellant. In the circumstances, I find no merit in this appeal and I dismiss it. I affirm the Judgment of the trial High Court Jigawa, delivered on the 3rd of March 2005 in Charge No. JDU/11C/2003, which convicted and sentenced the Appellant to death by hanging.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, 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 only wish to comment on one issue.
Counsel to the Appellant contended in the appeal that the Appellant was not tried on a valid charge. The records of appeal show that the Respondent commenced the action against the Appellant in the lower Court by filing an application to prefer a charge dated the 3rd of June, 2003 against him and his co-accused persons. The application contained on its face the request for leave to prefer a charge, the two count charge of conspiracy to commit armed robbery and armed robbery against the Appellant and his co-accused persons, the list of witnesses to be called and the summary of the evidence of each witness. The records of appeal show that when the matter came up before the lower Court on the 17th of March, 2004, the Appellant and his co-accused persons were present and they informed the lower Court that they had no legal practitioner of their choice to represent them and whereupon the lower Court assigned a legal practitioner from the private Bar, a Barrister Ibrahim Mohammed Dabi, the brief to defend the Appellant and his co-accused persons and the learned Counsel accepted the brief and stated that he was ready for the case as mentioned.
The records show that the lower Court heard and granted the application to prefer the two count charge, without objection from the Appellant or his Counsel, and it thereafter directed that the two count charge contained on an Information Charge Sheet dated the 3rd of June, 2003 be read to the Appellant. The records show that the two counts of offences were read to the Appellant as the eighth accused person and when he seemed perfectly to understand same, pleaded not guilty and the matter was adjourned for trial. All these were done without any objection from the Appellant or from his Counsel. The matter proceeded to trial and the Appellant and his Counsel participated fully in the trial up till the delivery of judgment by the lower Court.
The grouse of Counsel to the Appellant in this appeal is that there is nothing in the record of appeal showing that the application to prefer a charge was accompanied by a separate charge sheet as required by law and from which the two counts of offences ought to have been read and explained to the Appellant, and that the two counts of offences read and explained to the Appellant were those engrossed on the face of the application to prefer a charge. The contention of Counsel to the Appellant was on the procedure by which the charge was preferred against the Appellant and his co-accused; that the application to prefer a charge was not accompanied by a required document; the charge sheet.
This contention of the Counsel to the Appellant is doubtful in view of the order made by the lower Court upon the grant of the application to prefer the charge, i.e. that the “Information Charge Sheet dated 3/6/03 is hereby ordered to be read to each and every accused person.” This presupposes that there was an Information Charge Sheet, other than the application to prefer a charge, before the lower Court. It is true that this said “Information Charge Sheet” does not form part of the records of appeal. Now, assuming that the contention of Counsel to the Appellant is indeed correct, the records of appeal show, as stated above, that the Appellant was present in the lower Court on the day the application to prefer the charge was taken and granted and he was represented by Counsel. Neither the Appellant nor his Counsel objected to the application to prefer the charge and neither did they object to the two counts charge when it was read and explained to the Appellant after the lower Court granted the application to prefer the charge and/or any time thereafter either throughout the trial or in the final address. It is being raised in this Court for the first time.
The law is that by not raising an objection either to the application to prefer the charge and/or to the two count charge at the time it was read to him, the Appellant acquiesced with the procedure used in preferring the charge against him, and that, having done so, he cannot now be heard to complain that the procedure was irregular -Uwaekweghinya Vs State (2005) 9 NWLR (Pt 930) 227, Oguno Vs State (2013) 15 NWLR (Pt. 1376) 1, Baalo vs Federal Republic of Nigeria (2016) 13 NWLR (Pt 1530) 400, Adama vs State (2018) 3 (Pt 1605) 94, Shafiu vs State (2019) LPELR 47923(CA). Matters of procedural irregularity must be raised by a party in the lower Court at the earliest opportunity, otherwise he be foreclosed from raising it again – Odu’a Investment Co. Ltd vs Talabi (1997) 10 NWLR (Pt 523 1, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd vs Nigeria National Petroleum Corporation (2009) 12 (Pt 1155) 387. In Oko vs The State (2017) 17 NWLR (Pt. 1593) 24 at 69 the Supreme Court held that
“A party who did not object to a procedural irregularity at the trial Court would not be allowed to do so at the appellate stage of the proceeding. In this case, if there was any irregularity in the procedure relating to the written addresses at the trial Court, the appellant did not raise any objection at the trial Court. So, he cannot do so on appeal.”
The proper time to object or protest against irregularity in the mode of preferring a charge or in the presentation of a charge is either at the time of the application to prefer the charge or when the charge is being read and explained to an accused defendant, and before he takes his plea; he cannot do so thereafter and definitely not in the appellate Court – Okewu Vs Federal Republic of Nigeria (2012) 9 NWLR (Pt. 1305) 327 at 352E, Osareren Vs Federal Republic of Nigeria (2018) 10 (Pt 1627) 221, Ameh vs State (2018) 12 (Pt 1632) 99, John vs State (2019) LPELR 46936(SC). The restatement of this position of the law was made by the Supreme Court in Attah Vs State (2010) 10 NWLR (Pt 1201) 190 thus:
“In any event, the appellant ought to have complained against the exercise of the discretion by the trial judge to grant the application to prefer the charge before the trial and not when the trial was concluded and on an appeal, the last Court of resort, the Supreme Court. At the trial, evidence was adduced by the prosecution witnesses which was believed by the trial judge that the appellant(s) committed the offences charged. In my view, such a complaint can only be valid before the trial and accordingly, where an accused person consented to his trial after even faulty exercise of discretion to prefer a charge, he cannot after the conclusion of the trial raise the complaint. In my view it is too late”
Further, it is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court. An appellant cannot contest an appeal on an issue not raised in the lower Court and he cannot set up a new case on appeal; he must be consistent in stating his case -Iliyasu vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola vs Pedro (2014) 13 NWLR (Pt 1424) 409, Ekweozor Vs Registered Trustees of Saviour’s Apostolic Church of Nigeria (2020) LPELR 49568(SC). This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
‘It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”
The option open to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same – Shaibu Vs State (2017) 16 NWLR (Pt 1592) 396, Ewugba vs State (2018) 7 NWLR (Pt 1618) 262, Saliu vs State (2018) 10 NWLR (Pt 1627) 251, Awusa vs Nigerian Army (2018) LPELR 44377(SC), Jibrin vs Federal Republic of Nigeria(2018) 13 NWLR (Pt 1635) 20, Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1636) 229,Osho Vs State (2018) 13 NWLR (Pt 1637) 474. There is nothing on the records showing that the Appellant sought for and obtained the leave of Court to raise this present contention in this appeal.
Thus, whichever way, this contention of the Appellant against the way and manner the charge was preferred against him in the lower Court is inapposite in the circumstances of this case. It is for this reason and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered in Charge No JDU/11C/203 by Honorable Justice Aminu Sabo Ringim on the 3rd of March, 2005 as well as the conviction of and sentence passed on the Appellant therein.
Appearances:
Solomon Utuagu, Esq. For Appellant(s)
A.S Gadanya, Esq. For Respondent(s)