USMAN v. STATE
(2022)LCN/5169(SC)
In The Supreme Court
On Friday, May 06, 2022
SC.61C/2019
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
ABDULRAHIM USMAN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
CONSPIRACY
On whether appellant was complicit and liable for the offences of armed robbery, I would not hesitate in reiterating that the offence of conspiracy is embedded in the agreement or plot between the parties. It is normally deduced from the act of the parties which is focused towards the realization of the common or mutual criminal purpose. Usually, the inference is drawn by the Court from the established evidence in the consideration of the offence of conspiracy. I place reliance on the cases of Njovens & Ors v State (1993) 5 SC 17; State v Gbahabo & Ors (2019) LPELR-48 117 (SC). Mary Ukaego Peter-Odili J.S.C.
DENIAL OF STATEMENT SOUGHT TO BE TENDERED
Where an accused person denies making the statement sought to be tendered, the proper procedure the Court should adopt is to admit the statements as exhibits and determine their evidential value at the judgment stage after all the evidence would have been before the Court. The determination of whether the accused did in fact make the statement is an issue of fact to be established after consideration of all the surrounding circumstances. See Abu Mohammed vs The State (2020) LPELR – 52451 (SC) @ 14 – 16 F- F, Dairo vs The State (2017) 9- 12 SC 119; (2017) LPELR – 43724 (SC) @ 13 – 14 D-A and Owie vs State (1985) NWLR (Pt. 3) 470. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C
IBRAHIM MUHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is against the judgment of the Court of Appeal, Akure Judicial Division delivered on December 6, 2018 in appeal no. CA/AW282C/2016. By the judgment in question, the Court below coram Danjuma, Abdullahi and Mahmoud, JJCA, dismissed the Appellant’s appeal and affirmed the judgment of the Ondo State High Court, thereby convicting and sentencing the Appellant to death for the offences of conspiracy and armed robbery, contrary to Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, CAP. R 11, volume 14, Laws of the Federation of Nigeria, 2004.
BACKGROUND FACTS
It was on January 15, 2014 when the Appellant was arraigned before the trial High Court of Ondo State upon a two count charge of conspiracy to commit armed robbery and armed robbery, to wit:
COUNT 1
ARMED ROBBERY, Contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004.
COUNT II
ARMED ROBBERY: Contrary to and punishable under Section 1 (Special Provisions) Act, Cap R. 11 Vol. 14, Laws of the Federation of Nigeria, 2004.
Not unnaturally, the Appellant pleaded not guilty to both counts of the charge. The trial proceeded in earnest. At the conclusion of the said trial, the learned counsel addressed the Court, thereby resulting in adjourning the case for judgment.
On 30/4/2016, the trial Court delivered the vexed judgment to the conclusive effect:
The concomitance of my conclusion is that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery leveled against the defendant is that it is incumbent on me to pronounce the defendant is guilty as charged and therefore hold that the defendant, Abdurahim Usman is guilty of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special provisions) Act and for armed robbery contrary to Section 1(2) (a) of the same Robbery and Firearms (special provisions) Act. He is therefore convicted as charged.
See pages 36-50 of the Record of Appeal.
On 20/7/2016, the Appellant filed a notice of appeal, thereby challenging the conviction thereof by the trial Court. On 06/12/2016, the Court below delivered its judgment to the conclusive effect:
I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on the 28th day of April, 2016.
See pages .124-141 Record.
The Appellant’s notice of appeal, filed in the Court below on 18/12/2018, is predicated upon two grounds, thereby urging this Court to allow the appeal and in consequence thereof, grant the following two reliefs:
(i) An order setting aside the judgment delivered by the lower Court on 6th December, 2018 and conviction of the Appellant.
(ii) An order discharging and acquitting the Appellant of the offences of robbery and conspiracy to commit armed robbery.
See pages 152 – 154 of the Record.
On February 24, when this appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in the respective briefs thereof, thereby warranting this Court to reserve Judgment to today.
The extant Appellant’s brief of argument was settled by OA Ojo Esq., on 10/7/2020, albeit deemed properly filed and served on 17/02/2021.
At pages 5 -6 of that brief, three issues have been couched for determination:
(i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged (Ground 4 of Amended Notice of Appeal).
(ii) whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds 1, 2, 3 and 5 of the Amended Notice of Appeal)
(iii) Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).
The issue 1 is canvassed at pages 6-9 of the brief, to the effect that the reasoning of the trial Court at page 47 of the record regarding Exhibits C & D is wrong. That it’s of no moment that the Appellant denied making the statement, or that it is a fact to be resolved by the Court. See R. VS. IGWE (1960) 5 FSC.
It was submitted, that the Appellant was resolute that he did not make Exhibits C & D.
The Court is urged to resolve issue 1 in favour of the Appellant, as reliance on 1D 1 and 1D2(Exhibits C& D) by the two Courts below, was legally wrong.
The issue no. 2 was canvassed upon at pages 9-14 of the brief. In a nutshell, it is submitted that it was not the responsibility of the two Courts below to propound or offer any justification for the discrepancy in the testimonies of the witnesses, as demonstrated by the Court below at page 137 of the record. Secondly, that the reasoning and conclusion of the Court below was founded on extraneous consideration. See ELIAS VS. OMO-BARE (1982) 13 NSCC 92, et al.
The Court is urged to so hold, and resolve the issue no. 2 in favour of the Appellant.
The issue no. 3 is argued at pages 14-16 of the brief, to the effect that the circumstances of this case do not, in any way, justify a conviction for the offences of armed robbery, let alone conspiracy to commit armed robbery. Exhibits 1D1 and 1D2 were clearly inadmissible to convict the Appellant; there was no positive identification of the Appellant as the alleged offender. Therefore, the prosecution has failed to prove its case beyond reasonable doubt against the Appellant.
The Court is urged to so hold, and resolve the issue 3 in favour of the Appellant.
On the whole, the Court is urged to allow the appeal.
On the other hand, the Respondent’s brief was settled by Shehu Wada Abdullahi Esq. on 19/11/2020, albeit deemed properly filed on 17/02/2021. It spans a total of 14 pages. At page 4 thereof, a sole issue has been couched for determination:
3.1 Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the Appellant.
It is submitted in the main, that it is clearly shown on the records, that there are no good reasons for this Court to disturb the concurrent decision of the lower Court. See IDAM VS. FRN (2020) LPELR-49564 (SC) @ 10 paragraphs C-E, KURE VS. COP (2020) LPELR-49378(SC) @ 29-31 paragraphs F-A.
Further submitted, that other than Exhibits C and D, the quantum of the evidence before the trial Court was substantial to sustain the conviction of the Appellant. And that the prosecution through the PWI, PW2, PW3 and PW4 and Exhibits A and A1 established that the Appellant was the offender.
The Court is thus urged upon to hold, that the trial Court and the Court below were right to hold that the Appellant was guilty of conspiracy as charged.
Conclusively, the Court is urged to dismiss the appeal and affirm the concurrent decision of the Court below convicting and sentencing the Appellant.
Having accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-avis the record of appeal, as a whole, I am appreciative of the fact that the Appellant’s three issues are very much germaine to the notice of appeal. I accordingly adopt them, mutatis mutandis, for the determination of the appeal, anon.
ISSUE NO. 1
The first issue, as copiously alluded, hereto above, raises the question of whether the Court below was right to ascribe probative value to Exhibits C and D, thereby affirming the Appellant’s conviction on the basis that both exhibits were confessional statements by which the Appellant admitted committing the offences as charged. The issue is distilled from ground 4 of the Amended Notice of Appeal.
As alluded heretofore, the Appellant’s grouse under issue I, in the main, is to effect that Exhibits C and D (Appellant’s confessional statements) were only tendered for identification purpose and marked as 1D1 and 1D2, respectively.
Indeed, the circumstances surrounding the tendering of the Appellant’s two confessional statements in question and the admission thereof as Exhibits E and D, are not far-fetched. It is obvious on the record, that the Appellant was arraigned before the trial Court on 15/01/2014. Consequent upon the plea of not guilty thereof, the trial commenced in earnest, without much ado. Two witnesses called by the prosecution testified as PW 1 (Fatima Yusuf) and PW 2 (Isiaka Jammiu). Both witnesses were not cross-examined by the prosecution.
However, the third prosecution witness (PW3) Police, Corporal Amas Dunbaiji Nimighan (erroneously tagged “PW4”) did not have a ‘smooth sail’ like the PW 1 and PW2 who testified before him.
In the course of his examination-in-Chief, Corporal Nimighan testified that he was made the IPO in the case. He said he recorded what the Defendant (Appellant) told him. The Appellant signed and he too counter-signed that statement.
Consequent upon the identification of the Appellant’s statement in-question, the prosecution counsel, Mrs. Adeyemi Tuki, sought to tender it. However, the Defence counsel vehemently objected thus:
Mr. Abdulkadir:
We are objecting on the ground that the statement was not given voluntarily.
The following scenario then registered itself:
Court:- A trial-within-trial will be conducted.
Mrs. Adeyemi- Tuki:- No. objection.
Court:- The trial-within-trial is adjourned to 27th May, 2014.
However, from 16/4/2014 when the case was adjourned for trial-within-trial, it was only on 18/02/2016 that it came up for TWT. On the said date, the PW 1 (Amos Dunbaiju Nimighani, now a Police sergeant) testified but was not cross-examined by the Defence counsel, Bamisele Esq.
Contrariwise, the Appellant equally testified as DW1. However, in the course of his testimony, under the T W T, the Appellant (DW1) stated:
PW1 and two other Police officers started to beat me. I was wounded. I was then taken to the statement room. PW 1 said I should sign a statement I asked him to read to me. He beat me. I asked him that I should be allowed to write my statement as I did at Owo. They refused. I later signed the document after the beating. The document shown to me was not the one I was forced to sign did not sign the document.
It was consequent upon the Appellant’s evidence under the TWT aforementioned, that the trial Court made a u-turn and thereby held:
“Court – The stand taken by the defendant when he said the statement shown to him was not made by him and that he did not sign it makes the trial-within-trial untenable, although he claimed initially that he was forced to make the statement which necessitated the trial-within-trial. His change of mind which he has the right to do has made the trial-within-trial untenable. The question whether he made the statement and signed it is a question of fact. This will be determined at the judgment stage. The document meanwhile should be marked 1D2. It will be marked as exhibit or rejected as the case may be, later while writing the judgment. The main trial will now resume.”
See pages 14-16 of the Record.
The trial Court accordingly proceeded with the trial, and at the conclusion of which delivered the vexed judgment on the 28/4/2016 in-question. Most specifically, at page 47 of the Record the trial Court held, inter alia:
“PW3 said that he took the statement of the defendant which he signed and PW3 then counter-signed. The statement was tendered as an exhibit.
The defendant objected on the ground that he did not make any statement to the defendant (sic). I then said that the document should be marked 1DI and that I will determine at the judgment stage whether he made the statement or not. I think I should have admitted the document straight because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R. V. IGWE (1960) 5 ESC. 55; THE STATE V. SALAWU (2011) 8NWLR (pt. 1279) 580 @ 625 B-D. In view of this, the document is to be marked Exhibit C. The same scenario played out when the statement of the defendant which PW4 claimed to have recorded from him was tendered. He claimed not to have signed the document which was brought to Court.
… I should have straight away marked the document as an exhibit in the circumstances but unfortunately I said it should be marked ID2. The document marked ID2 should be marked Exhibit D.”
On its part, the Court below in the judgment thereof (pages 124-150, especially @ 144 of the printed record) held:
“When Exhibits C&D were being sought to be tendered, the appellant only said he did not make it He did not make any direct allegation of lack of voluntariness that he was tortured, threatened, induced etc. Yet the trial judge conducted a trial within trial (another surplusage) and admitted the statements in evidence as Exhibits C and D. The learned counsel made heavy weather about the fact the appellant retracted his confessional, statement. A confessional statement does not become inadmissible because the accused retracted the confession on Oath. Nor can it be regarded as unreliable just because of a retraction. The proper consideration always is that the denial or retraction is taken into consideration in deciding the weight to be attached to it. See DIBIE VS. STATE (2007) 9 NWLR (pt. 1038, 30.”
The law is well settled, beyond per adventure, that where (as in the instant case) the defendant makes an out right denial of the statement sought to be tendered in evidence by the prosecution, the denial (objection) is tantamount to a retraction of the statement. Thus, such a statement is admissible and reliable without the need of resorting to a trial-within-trial, as its voluntariness is not in issue. See IBEME VS. THE STATE (2013) 10 NWLR (pt. 1362) 333.
In the circumstances, the first issue ought to be, and it is hereby resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether or not the Court below was right to regard the discrepancy in the date of the alleged commission of the offences, and that of the Appellant’s arrest as a mere mistake. The second issue is distilled from grounds 1,2,3 and 5 of the Amended Notice of Appeal.
At page 46 of the record, the trial Court made some findings, thereby alluding to the discrepancy in the date the offences were allegedly committed and on which the Appellant was supposedly arrested. Allegedly, the trial Court dismissed the discrepancy as mere mistake. According to the trial Court:
There is no doubt that the discrepancy is nothing but a mistake and should not affect the case of the prosecution in any significant way. PW1, PW2 and PW3 all talked about one robbery in which the defendant was a participant.
It is not possible for the defendant to be in the Police station at 3am of 18th June, 2013 when PW1 and PW3 had not caught him and when he was not caught until I am on the 19th June, 2013.
On the part thereof, the Court below made a finding on the issue of the discrepancy in question at page 137 of the record:
“I am unable to see any contradiction in the evidences of PW1 and PW2 as to the date or in any other particular… If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.3am on the 19th of June. This is English culture that any past 12 midnight is the next day. In most African cultures that would still be explained as the night of the 18th.
Therefore 3.20am of 18th is actually the same thing as the early hours of the 19th since it is past midnight… I do not agree with the appellant’s learned counsel that it was wrong for the trial judge to explain this minor discrepancy in the way he did, that perhaps PW3 made a mistake. This is especially is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the trial judge.”
In my considered view, by virtue of the circumstances surrounding the case vis-a-vis the evidence on record, the Court below was justified and correct in upholding the very apt findings of the trial Court in regards to the discrepancy as to the date on which the offences were allegedly Committed, and the date on which the Appellant was arrested.
Indeed, it is evident on the face of the record, that the Appellant was arrested at the scene of the crime. Both the PW 1 and PW2 had the misfortune of being victims of the armed robbery in-question. They were both present at the scene of crime at the very material time the Appellant was apprehended. Neither the PW1 nor the PW2 was shaken when giving evidence about the identity of the Appellant as the very culprit apprehended at the scene of crime, and date the offence was committed. The PW1, most especially, testified under oath at the trial Court on 15/01/2014, inter alia, thus:
“I am Fatima Yusuf. I live at 11, Ojo Ikoko, Owo. I am a trader. I know the defendant. I remember 19th June, 2013. I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down lie down. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour where I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son. He was the one that pointed a gun at my son, Jamiu. I told them to calm down as I had money to give them. I told them not to hurt my son. The two of the robbers came with me to the room. The defendant was still with my son. The two had face mask on. I did not see their face(sic).”
In continuation of the testimony thereof, the PW1 stated that the Appellant was actually apprehended at the scene of crime:
“As the commotion was going on in my apartment my neighbour who was living at the upstairs of my apartment heard what was going on. She raised alarm that thieves were in my apartment. This caused the neighbours to move towards my apartment. The two who were with me were the first to leave my apartment. The defendant backed as and then pointed his gun toward the direction where the neighbours were coming from. I summoned courage and I grabbed the defendant from the back. I held unto him until help came and we were able to suppress the defendant. The defendant was bound with rope and the Police was called.”
Under cross-examination by the defence counsel, the PW 1 had this, inter alia, to say:
“I did not know the defendant before the day I caught him in my house…when I grabbed the defendant and we both fell down, I saw that the defendant had hand glove and there was a long scarf beside him. I would not know whether he used the scarf as a disguise during the robbery.”
See pages 8-9 of the Record.
The PW2 under Oath equally testified narrating his direct encounter with the Appellant, thereby corroborating the evidence of the PW 1 regarding the date of the commission of the armed robbery and the resultant apprehension of the Appellant at the scene of the crime. According to the PW 2:
“I know the defendant. I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken. I look up and I saw three men with me. They said they will kill me, the defendant pointed gun at me.”
The PW3 also testified corroborating the evidence of both the PW1 and PW2 regarding the Appellant’s arrest at the scene of crime on 19th June, 2013.
The Court below in the vexed judgment resolved the alleged discrepancy regarding the date on which the armed robbery was commissioned, and when the Appellant was apprehended at the scene of crime on 1-9/6/2013, in favour of the prosecution.
I am unable to appreciate, let alone uphold the Appellant’s preposterous submission, to the effect that the inconsistencies and discrepancies highlighted cast doubt in the prosecution’s case, that the Appellant was the one arrested at the scene of crime on 19/6/2013 and time (1.30am) in-question.
In the circumstances, the second issue is hereby resolved against the Appellant.
ISSUE NO. 3
The third issue raises the question of whether there was any justification upon which the Court below could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery.
In the instant case, the evidence of the PW1 and PW2, who were the unfortunate victims and indeed eye witnesses of the said armed robbery, was direct and unequivocal that the Appellant in company of other persons (still at large) broke into their apartment and robbed them on 19/06/2013. The trial Court in its judgment found as a matter of fact that:
“The evidence before the Court is that the defendant in company of two others went to the house of PW1 in the early hours of 18th June, 2013, and they robbed PW1. The fact that three of them went to the place to rob is evident of conspiracy. They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being part of it is guilty of conspiracy as charged.”
On its part, the Court below at page 141 of the record upheld the foregoing findings of the trial Court, thus:
“I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned armed and took him away in such a quality that without doubt in the words of Achike as quoted by Kekere-Ekun, JSC in the case of YAKUBU V. STATE (2014) 8 NWLR (pt. 1408, III: Irresistibly compels the Court to make an inference s to the guilt of the accused.”
I think, I cannot agree more with the foregoing concurrent finding of the Court below, which said finding is cogent, unassailable and duly supported by the circumstances surrounding the case vis-vis-vis the evidence an record.
In the circumstances, the third issue equally ought to be, and same is hereby resolved against the Appellant.
My Lords, it’s indeed settled, that if a Court came to a decision which no reasonable Court or tribunal applying its mind to proper considerations and giving itself proper directions can come, then an appeal Court having jurisdictional competence to entertain an appeal from such a decision only on a point of law, would reverse such a decision. The reason being that, the position is exactly the same as if the Court had to come to a decision of fact that no evidence whatsoever supports, which must be considered erroneous in law, and equally perverse. See NAFIU RABIU VS. KANO STATE (1980) LPELR-2936 (SC) per Idigbe, JSC @ 57 paragraphs A-E.
In the case of BRACEGIRDLE VS. OXLEY (1947) 1 ALLER 126 (a decision of the Court of 5 justices, cited with approval by this in NAFIU RABIU VS. KANO STATE, supra), it was aptly held:
“In this Court, we only sit to review the justices’ decision on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.”
Hence, having effectively resolved all the three issues raised by the Appellant against him, there is no gain-saying the fact that the instant appeal fails, and it is hereby dismissed by me.
The concurrent judgment of the Court of Appeal, Akure Judicial Division, delivered on 06/12/2018, in appeal no. CA/AW282C/2016, is hereby affirmed by me.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa JSC and to register the support in the reasonings from which the decision emanated, I shall make some remarks.
This appeal is against the decision of the Court of Appeal, Akure Division or Court below or lower Court, Coram: Mohammed A. Danjuma, Ridwan M. Abdullahi and Patricia Ajuma Mahmoud JJCA The judgment which was delivered on 6th December, 2018, affirmed the appellant’s conviction by the High Court of Ondo State, per Kolawole J in a decision made on 28th April, 2016.
BACKGROUND FACTS
The appellant was arraigned on a two count charge of armed robbery and conspiracy to commit armed robbery as follows:
COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to, and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, vol.14, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
Abdulrahim Usman (M) and others still a large, on the 19th day of June, 2013 at about 01;30 am Division, did conspire with others at large to commit felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY: Contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R.II, Vol. 14, Laws of the Federation of Nigerian
PARTICULARS OF OFFENCE
Abdufrahim Usman (M) and others still at large, on the 19th day of June, 2013 at Owo in the Akure Judicial Division, while armed with guns and other dangerous weapons broke into the house of one Fatima Yusuf (F) and robbed her of money (N60,000.00) and other valuables.
The prosecution called four witnesses while the Appellant testified in his own defence. Exhibits A and A1 are the locally made riffles used in commission of the offence. Exhibit B are specimen signatures obtained from the appellant during trial, when the appellant denied making the two statements admitted for identification purpose as ID1 and ID2. Both statements were said to be the Appellant’s confessional statements.
The prosecution’s case was that the appellant was one of three armed robbers that attacked PW1 and PW2 at gunpoint on 19th June, 2013 at about 1 a.m. The other two are said to be at large. PW3 and PW4 were the policemen that investigated the crime and obtained statements from the appellant. Neither of these witnesses arrested the appellant. One Supol Suleinnan, who was not called to testify, was said to have arrested at the appellant police station in Owo. PW3 testified that he was summoned to the Owo Police Station in the early hours of 18th June, 2013 and that it was then that he met and took the appellant’s first statement (admitted as ID1).
The case was later transferred to the Special Anti-robbery Squad (SARS) in Akure for investigation. PW4 stated that he obtained a second statement (admitted as ID2) from the Appellant upon transfer of the case file to SARS, Both PW3 and PW4 stated that ID1 and ID2 are voluntary confessions by the appellant.
The appellant denied complicity in either of the offences charged. He testified that as of 15th June, 2019, he was already in police custody on account of an unrelated matter for which he asserted he was being detained. He denied making both statements credited to him. He initially challenged the voluntariness of ID2. That then resulted in a trial-within-trial, during which he denied making the statement. The trial judge then terminated the trial-within-trial.
Both sides closed their respective cases and addressed the trial judge which convicted the appellant as charged and sentenced him to death.
On the 24/2/2022, date of hearing, learned counsel for the appellant, Oluwaseyilayo Ojo adopted the brief of argument filed on 10/7/2020 and deemed filed on 17/2/2021. He distilled three issues for determination, viz:
(i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the appellant’s conviction on the basis that both were confessional statements, by which the appellant arrest as a mere mistake, (Grounds 4 of the Amended Notice of Appeal)
(ii) Whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds and 5 of the Amended Notice of Appeal),
(iii) Whether there was any justification upon which the lower Court could infer that the appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Learned counsel for the respondent, Shehu Wada Abdullahi Esq., adopted the brief of argument filed on 19/11/2020 and deemed filed on 17/2/2021. He formulated a single issue as follows:-
Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the appellant?
The sole issue of the respondent covers all questions regarding the determination of the appeal and I shall use it.
SOLE ISSUE
Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court on the conviction and sentencing of the appellant.
Learned counsel for the appellant contended that the trial Court and the Court below were wrong to have held that it was of no moment that the appellant denied making the statement and so the trial Court relying on that statement to make its decision was faulty. That R. V Igwe (1960) 5 FSC 55 and The State v Salawu (2011) 8 NWLR (pt.12 79) 580 were misapplied.
That there were discrepancies in the evidence of prosecution witnesses which should vitiate the conviction which conviction was based on a conjecture. He cited Elias v Omo-Bare (1982) 13 NSCC 92.
Learned counsel for the appellant submitted that the offences of armed robbery and conspiracy to commit armed robbery remained not proven. He cited Osetola v State (2012) 17 NWLR (pt.1329) 251 etc.
That the circumstances of this case justify this Court’s interference with the concurrent findings and a reversal of the same. He relied on Audu v State (2016) 1 NWLR (pt. 1494) 557 etc.
Learned counsel for the respondent contended that there is no good reason for this Court to interfere with the concurrent findings of fact of the two Courts below. He cited Idam v FRN (2020) LPELR-49564 (SC) at 10 etc.
That the prosecution established the offences beyond reasonable doubt and the PW1 and PW2 – the witnesses identified the appellant as one of those who committed the offence.
It was submitted for the respondent that the confessional statements of the appellant, Exhibits C and D were properly admitted. See IBEME V. STATE (2013) 10 NWLR (PT.1362) 333 where it was held that:
“where there is an outright denial of the statement sought to be tendered by the prosecution, it amounts to retraction of the statement and such a statement is otherwise admissible and reliable without the necessity of conducting a trial as its voluntariness is not in issue.”
The point has to be made that if the appellant’s objection at the first instance is on the ground that he did not make the statement, Exhibits C and D would have outrightly been admitted. The trial Court rightly found at page 47 lines 12-17 of the record when he held that:
“The defendant objected on the ground that he did not make any statement to the defendant (sic-PW3), I then said that the document should be marked ID1 and that I will determine at judgment stage whether he made the statement or not. I think I should have admitted the document straightaway because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R v. IGWE (1960) 5 F.S.C 55, THE STATE V. SALAWU (2011) 8 NWLR (Pt. 1279) 580 at 625 B-D. In view of this, the document is to be marked Exhibit C.”
The Court below of course saw no reason in the circumstance why Exhibits C and D should not have been admitted as evidence and so Ridwan Abdullahi JCA in the appellate Court’s judgment stated as follows:
“In the instant case, the appellant only said he did not make Exhibit C and D when they were sought to be tendered. Therefore, the mini trial conducted by the learned trial judge is a surplus.”
Significantly other than the confessional statements of the appellant (Exhibits C and D), the quantum of evidence before the trial Court is substantial to sustain the conviction of the appellant. The ingredients of the offence were proved beyond reasonable doubt by the prosecution. Also, the prosecution through PW1 and PW2- who were eye witnesses identified the appellant as one of those who committed the offence. PW3 and PW4 also established that the appellant was the offender and tendered Exhibits A and A1 (Gun and four live cartriges) which were recovered from the appellant. The appellant did not object to the admissibility of Exhibits A and A1.
Patricia Mahmoud, JCA with clarity stated in the lead judgment when he held at page 146 of the printed record that:
“Even if, like urged by the learned counsel to the appellant, I expunge Exhibits C and D, the confessional statements of the appellant (which has not been justified), there is ample credible evidence left to sustain his conviction. I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on 2Sh day of April, 2016.”
For certain, the trial Court was right to admit the confessional statement of the appellant as Exhibits C and D and the Court below correct to go along with that well founded position.
On the other grouse of the appellant over whether the discrepancy on the date of the commission of the offence and the date of arrest was a mistake and therefore fatal to the case of the prosecution. I shall answer that poser by taking a few steps back into the facts leading to where we are now.
The appellant was arrested at the scene of the crime. PW1 and PW2 were victims and were at the scene of the crime and they successfully identified the appellant as the apprehended culprit, were unshaken about the date of offence and the date of arrest.
In her testimony, PW1 stated that:
“I remember 19th June, 2013, I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down! Lie down!. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour when I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son.”
While establishing that the defendant was arrested after the robbery on the same date, PW1 equally stated in lines 8-9 at page 9 of the record that:
“the defendant was bound with rope and the police was called The police later came and he was taken to the police station at Ijebu-Owo.”
PW2 who had a direct encounter with the appellant corroborated the date of commission of the offence and arrest of the appellant stated that:
“I know the defendant I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken, I woke up and I saw three men with me. They said they will kill me, the defendant pointed a gun at me.”
PW3 also established the date of the appellant’s arrest in his testimony contained at page 11 of the record when he stated that:
“I was in my office on 19th June, 2013 when the case of armed robbery was transferred from ‘A’ division, Owo to our office.”
Of note is that the information/Charge (contained at page 2 of the record) was not at variance with the date of commission of the offence and arrest as stated by PW1 and PW2 who were victims and eye witnesses. It reads thus:
“Abdulrahim Usman (M) and others still at large, on the 19th day of June, 2013, at Owo in the Akure Judicial Division…”
It is evidently clear that the date of arrest stated by PW3 is a mere mistake which is not detrimental to the prosecution’s case as PW3 is not an eye witness to the commission of the crime by the appellant or his arrest. See ASUQUO V STATE (2016) LPELR-40597.
There is no wonder that the lower Court examining the importance of PW3″s testimony and resolved that the discrepancy was minor and insignificant and found in favour of the respondent. The Court below per Mahmud JCA rightly held thus:
“I am unable to see any contradiction in the evidence of PW1 and PW2 as to the date or in any other particular. They were the victims of the said robbery. If there was a major discrepancy in the evidence of the two, it might have been an issue. But there was none. PW3 was not an eye witness. He was called by his superior to attend to the appellant who had been arrested and taken to the police station on allegation of robbery. If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.30am on the 19th June. This is English culture that anything past 12 midnight is the next day. In most African cultures that would stiff be explained as the night of the 18th. Therefore 3.00am of 18th is actually the same thing as the early hours of 19th since it is past midnight. The only difference here is that perhaps PW3 belongs to the African culture, so that until the day breaks, it is stiff the day before. I do not agree with the appellant’s counsel that it was wrong for the trial judge to explain this minor discrepancy in the time the way he did, that perhaps PW3 made a mistake. This is especially so as the discrepancy is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the judge.”
There is no faulting the two Courts below on the stand on the discrepancy as to the date of the commission of the offence and arrest of the appellant was a genuine mistake by the PW3.
On whether appellant was complicit and liable for the offences of armed robbery, I would not hesitate in reiterating that the offence of conspiracy is embedded in the agreement or plot between the parties. It is normally deduced from the act of the parties which is focused towards the realization of the common or mutual criminal purpose. Usually, the inference is drawn by the Court from the established evidence in the consideration of the offence of conspiracy. I place reliance on the cases of Njovens & Ors v State (1993) 5 SC 17; State v Gbahabo & Ors (2019) LPELR-48 117 (SC).
In line with the guides on how the offence of conspiracy is said to have been established, in this instance, the testimonies of PW1 and PW2 who are victims and eye witnesses were direct and unequivocal that the appellant in company of two other persons robbed them on the said date of 19th June, 2013. It was from what was before him that the learned trial judge found that there must have been an agreement by the appellant and the others to act the way they did by going to the house of PW1 in the early hours of the day of incident and robbed PW1. He stated further that the agreement was conspiratory and since the appellant was part of it, he was guilty of the conspiracy as charged.
The appellate Court had no difficulty in affirming what the trial Court did when the Court below held as follows:
“I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the police patrol team which was summoned arrived and took him away is such a quality that without doubt in the words of Achike JSC as quoted by Kekere-Ekun, JSC in the case of Yakubu V STATE (2014)8 NWLR PT 1408, 111: “irresistibly compels the Court to make an inference as to the guilt of the accused.”
The appellant is expected to show exceptional reasons why this Court should interfere with the concurrent decision of the trial Court and the lower Court of Appeal. See UGBOJI V. STATE (2017) LPELR-43427 (SC); this, the appellant has failed to do. The prosecution successfully proved the ingredients of the offences of armed robber and conspiracy to commit armed robbery. PW1 and PW2 undoubtedly and positively identified the appellant as the alleged offender.
In conclusion and from the foregoing, the appellant certainly has no fighting chance to sway the hand of the Court in his favour as the appeal lacks merit.
I too dismiss the appeal and abide by the consequential orders made.
Appeal dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft, the judgment of my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and deserves to be dismissed.
The appellant has made heavy weather of the fact that the learned trial Judge erred in relying on his extra-judicial statements, Exhibits C and D, in convicting him. It was argued that the statements were merely admitted for identification purposes during the trial-within-trial and marked ID1 and ID2 respectively. As elaborately explained in the lead judgment, at the time the statements were sought to be admitted in evidence, there was an initial objection on the ground that the statements were not made voluntarily but were the product of torture. It was on this basis that a TWT was held to ascertain whether the allegation of involuntariness was true.
However, during his testimony, the appellant made an about-face and stated that the statements sought to be tendered were not the statements he was forced to make. He completely denied any knowledge of the statements. At that stage, the learned trial Judge held that having denied making the statements at all, a TWT was not the appropriate procedure to adopt. The statements were marked ID1 and ID2 and His Lordship terminated the TWT and stated that the decision as to whether the statements were made by the appellant or not would be deferred to the judgment stage.
Where an accused person denies making the statement sought to be tendered, the proper procedure the Court should adopt is to admit the statements as exhibits and determine their evidential value at the judgment stage after all the evidence would have been before the Court. The determination of whether the accused did in fact make the statement is an issue of fact to be established after consideration of all the surrounding circumstances. See Abu Mohammed vs The State (2020) LPELR – 52451 (SC) @ 14 – 16 F- F, Dairo vs The State (2017) 9- 12 SC 119; (2017) LPELR – 43724 (SC) @ 13 – 14 D-A and Owie vs State (1985) NWLR (Pt. 3) 470.
As rightly observed by the learned trial Judge, he ought to have admitted the statements in evidence once the appellant changed his tune and denied making them. However, the law is trite that it is not every mistake made by a Judge that would result in a reversal of the decision, unless the party complaining can show that there has been a miscarriage of justice or that if the error had not occurred the judgment would have been in his favour. See Kraus Thompson Org. Ltd. Vs University of Calabar (2004) 4 SC (Pt. 1) 65; (2004) LPELR- 1715(SC) @ 18 – 19 A – F, Garuba vs Omokhodion (2011) LPELR – 1309 (SC) @ 55 B – C, Faleye vs Dada (2016) LPELR – 40297 (SC) @ 27 C- E.
In the instant case, there was credible, unchallenged evidence of PW1 and PW2, affirmed by PW3, that the appellant was actually arrested at the scene of crime with a firearm and 4 cartridges and handed over to the Police. PW1 and PW2 were the victims of the crime. The trial Court found them to be credible witnesses. The Court below was not persuaded to hold otherwise. It was PW1’s quick thinking in seizing the appellant from behind when he was pointing his gun in the direction of neighbours who were approaching the scene to rescue them, that led to his arrest, as she held onto him until help came.
Clearly, the argument of learned counsel for the appellant regarding alleged discrepancies as to the time of the commission of the offence in the evidence of PW1 and PW2 on the one hand and PW3 on the other, could not put a dent in the solid case put forward by the prosecution.
The concurrent findings of the two lower Courts are well situated on the cogent and credible evidence on record.
The appellant has not advanced any special circumstances to warrant interference by this Court.
The appeal lacks merit and is hereby dismissed. The judgment of the lower Court is affirmed.
ABDU ABOKI, J.S.C.: I have had the benefit of reading in draft, the lead judgment written by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of any merit and should be dismissed. His Lordship had thoroughly and painstakingly dealt with all the issues canvassed by the learned counsel to the parties, and I adopt them as mine, I shall make some few comments by way of emphasis.
By an information dated 11th November, 2013, the Appellant was charged and arraigned at the trial High Court of Ondo State, on a two count charge of conspiracy and armed robbery, contrary to and punishable under Section 6(b) and 1(2) (a) respectively of the Robbery and Firearms (Special Provisions) Act, Cap RI 1, Vol. 14, Laws of the Federation of Nigeria, 2004.
The Prosecution’s case was that the Appellant Abdurahim Usman, along with two others still at large robbed one Fatima Yusuf (F) at her house in Owo, in Akure Judicial Division of the sum of Sixty Thousand Naira (N60, 000.00) and other valuables.
In proof of its case, the Prosecution called three witnesses and tendered five exhibits. The Appellant in his defence testified for himself and called no other witness.
At the conclusion of trial, the learned trial judge found the Appellant guilty as charged and sentenced him to death by hanging.
Dissatisfied with this judgment, the Appellant appealed to the Court below. The Court below dismissed the appeal and affirmed the decision of the trial Court.
Still aggrieved, the Appellant lodged an appeal at the Registry of this Court. The amended Notice of Appeal, deemed filed on the 17th February, 2021, contains six grounds of appeal.
Learned Counsel for the Appellant distilled three issues for determination. They are:
1. Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction, on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged?
2. Whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences; and that of the Appellant’s arrest, as a mere mistake?
3. Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery?
The Respondent raised a sole issue for determination that is:
“Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court on appeal, on the conviction and sentencing of the Appellant?”
I adopt the Respondent’s sole issue, in lending credence to the well-articulated lead judgment of my learned brother, SAULAWA, JSC.
Learned counsel for the Appellant has argued amongst others, that the Prosecution has failed to prove the ingredients of the offences charged, and that the learned trial Judge was wrong to have relied on the retracted Appellant’s confessional statement, Exhibits C. Understandably, the Respondent argued otherwise.
PW1 and PW2, the victims of the robbery incident, gave very vivid account of the robbery as eye witnesses and how they caught and held the Appellant down at the scene of the crime until the police came and took him away. The evidence of PW1 and PW2 coupled with the Anpellant’s confessional statement is enough for the Court to make an inference as to the guilt of the Appellant.
The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. Where an accused person objects to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. See:
Dibia v. State (2017) LPELR 48453 SC.
In the instant case, PW1 and PW2 who are the victims of the robbery incident, gave very vivid account of the robbery. The evidence of PW1 and PW2 coupled with the Appellant’s confessional statement is enough for the Court to make an inference as to the guilt of the Appellant. Conviction can stand if the Prosecution is able to establish the ingredients of the offence, even on the evidence of a single witness. See:
Lase v. State (2017) LPELR 42468 SC.
The Court below, echoed these sentiments, when in its judgment, it stated thus:
“The testimonies of PW1 and PW2 are very strong, positive and direct. They were not only the victims of the robbery but they saw the appellant, grabbed him and held him down until help came and he was taken away. The evidence of PW1 is that the Appellant along with two others broke into her house and were holding a local gun, Exhibit D over her son who was sleeping in the ‘parlour’. She was in her room next door sleeping when she heard the commotion and came out to the ‘parlour’ and was confronted with that scene. Fearing for her son’s life, she offered to give them money. Two of the gang members (still at large) followed her to the room where they robbed her of a total sum of N60,000. At that point, the neighbors sensing what was happening started shouting ‘thief, thief’ to draw attention of those who might aid them. Throughout the operation with the two gang members in the room, the appellant was holding a gun over PW2’s head in the ‘parlour’. The evidence was that the two went out to shut up the neighbor who was trying to attract attention to them and bolted away when they realized the situation was dangerous. Before the appellant could leave, PW1 grabbed him from the back. Assisted by PW2 they held down the appellant until the neighbours called for help and the patrol team went and took him to the Police station. PW1’s evidence was never shaken under cross-examination. Clearly, she is a witness of truth. In cross-examination, she said she did not know the appellant before the date of the robbery. In further cross-examination, she said the other two accomplices of the appellant wore face mask but the appellant had one together with the local gun and four ammunitions and hand gloves but was not wearing it at the time of their encounter with him. While she admitted that she could not identify the two accomplices who were masked, the identity of the appellant vis-a-vis PW1 was never in doubt. Indeed, as has been held in a plethora of cases, the testimony of PW1 alone having proved all the essential elements of the offence of armed robbery, is sufficient to prove the offence beyond reasonable doubt. It is direct, positive, cogent and reliable. I found earlier that the testimony of PW1 was not in any way shaken in cross-examination. It is important that even though it could have relied on the evidence of PW1 alone to secure a conviction, the prosecution still called PW2. … the evidence of Pw2 corroborated the testimony of PW1 in every material particular. There was robbery involving three persons. The appellant was one of them. He was armed with a gun and was captured in the house with a gun and four ammunitions. They robbed PW1 of N60,000.00. I am satisfied from the evidence of PW1 and PW2 which remained largely uncontroverted, that the prosecution proved its case beyond reasonable doubt…”
I agree with the Court below that in the circumstances of the instant case, even without the confession, it is clear that the evidence of the Prosecution Witnesses. i.e. PW1 and PW2 was unassailable and enough to ground the Appellant’s conviction and sentence.
It is for these and the more detailed reasons advanced in the lead judgment prepared by my learned brother, IBRAHIM M. M. SAULAWA, JSC, that I also dismiss this appeal.
I equally abide by any consequential order contained therein.
Appeal dismissed.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, SAULAWA, JSC granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal.
I entirely agree and endorse the sound reasoning and conclusion, I adopt the entire judgment as mine, I have nothing extra to add.
Appeal dismissed.
Appearances:
OLUWASEYILAYO OJO with him, OLANIYI ANJORIN For Appellant(s)
SHEHU WADA ABDULLAHI with him, OPEYEMI AJEKIGBE For Respondent(s)
