WADA HASSAN v. KANO STATE
(2019)LCN/12508(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of January, 2019
CA/K/138B/C/2017
RATIO
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“The essential ingredients required by law to prove the offence of armed robbery are as follows: i. There was a robbery or series of robberies;
ii. The robbery was carried out by the perpetrators while armed;
iii. The accused person was the person or one of the persons who carried out the robbery.
See the cases of AFOLALU VS. THE STATE (2010) LPELR – 197 (SC); IKARIA VS.THE STATE (2012) LPELR 15533 (SC) and THE STATE VS.SALAWU (2011) LPELR 8252 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
COURT AND PROCEDURE: WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE DECISION OF THE TRIAL COURT
“It is elementary law and indeed well settled that it is the primary duty of a trial Court to admit evidence and ascribe probative value to all the pieces of evidence adduced before it. Thereafter, the trial Court is expected to properly and adequately evaluate the case presented by the parties by having recourse to all the pieces of evidence duly admitted before it, before making a finding or reaching its decision. Where a trial Court has effectively discharged this sacred duties, appellate Court(s) re enjoined not to peremptorily or readily interfere with the finding(s) made by the trial Court or its decision, because Appellate Court(s) do not have the same opportunity as the one enjoyed by the trial Court to observe the demeanour of the witnesses who testified before it, but merely rely on the pieces of evidence as contained in the record of appeal. Thus, an appellate Court is only allowed to interfere with the decision or finding of the trial Court when the same cannot be sustained based on evidence adduced on record; or that the decision is contrary to established principles of law. See the cases of HARUNA VS. ATTORNEY-GENERAL OF THE FEDERATION (2012) 9 NWLR (PT. 1306) 419; ATANDA & ORS. VS. AJANI & ORS.(1989) 3 NWLR (PT. 111) 511 and LASISI VS.THE STATE (2013) LPELR – 20715 (SC), (2013) 9 NWLR (PT. 1358) 74.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
WADA HASSAN Appellant(s)
AND
KANO STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the judgment of High Court of Kano State, sitting at Kano, (hereinafter referred to as the lower Court), delivered on the 25th day of February, 2015 by Hon. Justice S. B. Namallam, J.
At the said lower Court, the 4th accused person/Appellant (hereinafter referred to as the Appellant) was charged along with five other accused persons on a two count charge of criminal conspiracy and armed robbery, punishable under Sections 97 and 298 of the Penal Code Law of Kano State, 1991 (as amended). The Appellant and his co-accused persons were alleged to have conspired among themselves and robbed one Sami Murtala Ahmad and his family at their residence at 1000 Units Housing Estate, Zawachiki Quarters, Kumbotso Local Government Area, Kano State. The Appellant and his co-accused persons were alleged to have invaded the house of the victim with gun, cutlasses and other dangerous weapons and robbed him of his money and stole his Honda Accord 2000 car with Reg. No. BL 79 BWR valued at N1,050,000.00 (One Million and Fifty Thousand Naira Only).
To establish the charge brought against the Appellant and his co-accused persons, the prosecution/respondent (hereinafter referred to as the respondent) called nine witnesses which included the nominal complainant, Sami Murtala Ahmad, his wife and his house maid. The respondent also tendered the extra-judicial statements of all the accused persons inclusive of the ones recorded in Hausa Language and the English translated versions. The translated version of Appellant?s extra-judicial statement was tendered, admitted and marked as Exhibit E.
In his defence, the Appellant testified for himself as DW4. At the close of trial, the learned counsel for the parties filed, exchanged and adopted their respective final written addresses, thereafter, the case was adjourned for delivery of judgment. The learned trial judge in a reserved judgment and after an extensive analysis and review of all the pieces of evidence adduced by the parties; found the Appellant guilty on both counts on the charge sheet laid against him. He was sentenced in the following words:
‘The fourth accused now third convict Wada Hassan is also sentenced to three months imprisonment under Section 97(2) of the Penal Code Law of Kano State as amended … On the second head of charge of armed robbery the Court has no option and therefore sentenced all the convicts as follows:- Wada Hassan to twelve years imprisonment with a fine of N5,000.00.’ (See pages 241 & 242 of the record of appeal.)
Dissatisfied with the decision of the lower Court, the Appellant has now appealed against the said decision to this Court vide his notice of appeal dated the 4th day of July, 2016. This was sequel to the grant of his application for extension of time within which to appeal. This Court extended the period of appeal by 14 days on the 28th day of June, 2016. The Appellant’s complaints against the judgment of the lower Court were expressed and captured in his three grounds of appeal. The three grounds of appeal without their particulars are reproduced below as follows:
GROUND ONE
The trial Court erred in law when it held that:
‘… This Court therefore finds the fourth accused guilty as charged under Section 298(b) of the Penal Code of Kano State 1991 as amended …’
GROUND TWO
The trial Court erred in law when it held that:
‘… The prosecution can be said to have proved beyond reasonable doubt all elements or ingredients expected of it to be proven against the 4th accused …’
GROUND THREE
The trial Court erred in law when it held that:
‘… The Court is of the view that the prosecution had proved beyond all reasonable doubt the issue of conspiracy under Section 96(1) which is punishable under Section 97(1) of the Penal Code against the 4th accused person …’
In prosecution of this appeal, the parties filed and exchanged their respective briefs of argument. The Appellant’s brief of argument was prepared by Rilwanu Umar Esq. Mclarb. The said appellant?s brief was filed on the 17th day of July, 2017. To determine this appeal, the appellant?s counsel donated two issues for resolution. The issues are reproduced below as follows:
1. WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED, THE PROSECUTION HAS PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT TO SECURE THE APPELLANT?S CONVICTION AT THE TRIAL COURT FOR THE OFFENCES OF ARMED ROBBERY AS PROVIDED FOR BY THE PROVISION OF SECTION 298(1). (DISTILLED FROM GROUND ONE).
2. WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED, THE PROSECUTION HAS PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT TO SECURE THE CONVICTION AT THE TRIAL COURT OF THE OFFENCE OF CRIMINAL CONSPIRACY AS PROVIDED FOR BY THE PROVISION OF SECTION 96(1) OF PENAL CODE LAW OF KANO STATE. (DISTILLED FROM GROUND 2)?.
On the other side of the divide, the respondent’s brief of argument was prepared by Ibrahim Musa Zakariya’u Esq. (DCL). It was filed on the 10th day of January, 2018. It was however, deemed as properly filed and served by the order of this Court made on the 15th day of October, 2018. The respondent’s counsel in determination of this appeal, adopted the issues donated for resolution in respect thereof by the learned counsel for the Appellant.
Having considered the two issues distilled by the Appellant’s counsel vis-a-vis the grounds of appeal, the two issues are also adopted by me for resolution and towards the determination of this appeal, and they would be jointly considered.
ARGUMENT ON ISSUES.
The Appellant’s counsel set out with the submission, ‘that the prosecution has failed to prove its case against the appellant on the commission of the offence of armed robbery as provided for by the provision of Section 298 of the Penal Code Law of Kano State beyond reasonable doubt to warrant the conviction of the Appellant by the trial Court’.
The learned Appellant’s counsel continued and stated that in a charge of armed robbery, the prosecution is required to conjunctively prove the following ingredients beyond reasonable doubt:
i. That there was a robbery
ii. That the robbery was an armed robbery
iii. That the accused was the armed robber or one of the armed robbers.
The learned counsel for the appellant further contended, that the respondent failed to adduce credible evidence to establish all the above ingredients beyond reasonable doubt against the Appellant. The learned appellant’s counsel stated, that ‘the Appellant never confessed to the participation of the said robbery at the Police Station and during the trial’.
He maintained and argued, that the evidence of PW1 who implicated the Appellant is weak and not credible enough that the trial Court could rely on that there was robbery indeed in his house and that the appellant participated in the alleged robbery, particularly on the point that the evidence of the said PW1 was not corroborated by any of the other witnesses. The learned Appellant’s counsel contended, that ‘inspite of the non-direct, credible and positive evidence, the trial Court still went ahead to convict and sentence the appellant to 12 years in prison custody and same occasioned miscarriage of justice on the appellant and his entire family, friends and well-wishers not considering that the appellant is a young boy with so much to offer for himself and the country at large and only this honourable Court can interfere and set aside same (i.e. the lower Court’s judgment) in the interest of justice’. (Bracket mine for clarification).
Furthermore, the learned counsel for the appellant argued, that none of the prosecution’s witnesses identified the appellant in the course of the identification parade conducted at the earliest stage of investigation of this case, yet the lower Court went ahead to convict the appellant. In summary, the learned counsel for the Appellant insisted, that the respondent has failed to establish or prove all the ingredients of armed robbery against the Appellant. Thus, he urged this Court to come to the aid of the Appellant by setting aside his conviction and sentence for the offence of armed robbery. He called in aid the cases of UGWU VS. THE STATE (2013) ALL FWLR (PT. 669) 1178; OLANIPEKUN VS. THE STATE (2012) ALL FWLR (PT. 607) 763 and ADEBAYO VS. THE STATE (2014) ALL FWLR (PT. 743) 2015.
On the second issue, the learned counsel for the Appellant submitted, that ‘the prosecution failed to prove their case against the Appellant on the commission of the offence of criminal conspiracy as provided for by the provision of Section 96(1) of Penal Code Law of Kano State beyond reasonable doubt to warrant the conviction of the appellant’.
The learned Appellant’s counsel contended, that in order to establish an offence under a count of criminal conspiracy, the prosecution is expected to prove:
1. An agreement between two or more persons to do an illegal act or a legal act by illegal means.
2. The agreement must be followed by an act to give effect to the agreement.
He referred us to Section 96(1) of the Penal Code Law of Kano State, 1991 (as amended) and the case of MOHAMMED VS. THE STATE (2012) ALL FWLR (PT. 621) 1567 – 1567.
The learned counsel for the appellant further stated, that the Appellant stated in evidence, ‘that he had not in anyways meet his co-convicts before and that fact was not challenged nor controverted. It is trite law my lords that unchallenged evidence like the appellant testimony in this case before the trial Court was not challenged or controverted’. He supported his submission with the case of MUSARI VS. BISIRIYU (2014) ALL FWLR (PT. 735) 403. The learned Appellant’s counsel also contended, that the prosecution in discharging the burden of proof placed on them by law failed to establish that there was an alliance agreement by the Appellant and the other accused persons to rob the house of PW1. The trial judge ought to have evaluated all the evidences before him critically before reaching conclusion that there was conspiracy between all the accused persons at the trial
Court before convicting the appellant and sentence him to 12 years 3 months imprisonment?.
Furthermore, the learned counsel for the Appellant submitted, that ‘no direct evidence in proof of the charge of conspiracy was laid down before the trial, the prosecution failed to prove that appellant’s Actus Reus referable to common criminal design with the other convicts existed… throughout the testimony of the prosecution witnesses see pages 9 – 57 of the record of proceedings none of the witnesses testimony establishes any act of conspiracy before and or during the alleged incidence by the appellant and other convict, … that from the evidence proffered by the prosecution, the prosecution failed to discharge the burden as expected upon it and therefore we urge your Lordships to resolve this issue in favour of the appellant’.
He also referred us to the cases of FEDERAL REPUBLIC OF NIGERIA VS. SANI (2015) ALL FWLR (PT. 763) 1885, and OKOH VS.THE STATE (2014) 6 SCM, 184.
In his response to the first issue, the learned counsel for the respondent stated, that the respondent has adduced credible and overwhelming evidence to establish beyond reasonable doubt that the Appellant was guilty of the offence of armed robbery and he was rightly convicted and sentenced in respect of the said offence by the lower Court. The learned respondent’s counsel did what could be regarded as a summation or highlights of evidence adduced against the appellant as contained in the record of appeal placed before this Court, and concluded that the PW1 in both his evidence-in-chief and cross-examination stated unequivocally that he recognized the Appellant as one of the four culprits that invaded his house and robbed him.
With regard to the second issue, the learned counsel for the respondent submitted, that in order to prove the allegation of criminal conspiracy, the prosecution is required by law to prove the following elements:
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means;
2. That, where the agreement is other than agreement to commit an offence, some act besides the agreement was done by one or more of the parties in furtherance of the agreement;
3. That, specifically, each of the accusedpersons individually participated in the conspiracy?.
The learned respondent’s counsel contended, that the respondent has led credible evidence on record to establish all the ingredients of criminal conspiracy highlighted above. Also, he argued, that conspiracy need not be expressed, as long as it can be inferred from the conduct of the parties involved or circumstances surrounding the whole case. He therefore urged it upon us to resolve the two issues adopted for resolution in determination of this appeal in favour of the respondent.
It is elementary law and indeed well settled that it is the primary duty of a trial Court to admit evidence and ascribe probative value to all the pieces of evidence adduced before it. Thereafter, the trial Court is expected to properly and adequately evaluate the case presented by the parties by having recourse to all the pieces of evidence duly admitted before it, before making a finding or reaching its decision. Where a trial Court has effectively discharged this sacred duties, appellate Court(s) re enjoined not to peremptorily or readily interfere with the finding(s) made by the trial Court or its decision, because Appellate Court(s) do not have the same opportunity as the one enjoyed by the trial Court to observe the demeanour of the witnesses who testified before it, but merely rely on the pieces of evidence as contained in the record of appeal. Thus, an appellate Court is only allowed to interfere with the decision or finding of the trial Court when the same cannot be sustained based on evidence adduced on record; or that the decision is contrary to established principles of law. See the cases of HARUNA VS. ATTORNEY-GENERAL OF THE FEDERATION (2012) 9 NWLR (PT. 1306) 419; ATANDA & ORS. VS. AJANI & ORS.(1989) 3 NWLR (PT. 111) 511 and LASISI VS.THE STATE (2013) LPELR – 20715 (SC), (2013) 9 NWLR (PT. 1358) 74.
In the instant case, can it be said that the decision of the lower Court cannot be sustained by all the pieces of evidence on the record of appeal placed before us? To conveniently answer this question, recourse would be had to all the pieces of evidence admitted on the printed record placed before us.
The essential ingredients required by law to prove the offence of armed robbery are as follows:
i. There was a robbery or series of robberies;
ii. The robbery was carried out by the perpetrators while armed;
iii. The accused person was the person or one of the persons who carried out the robbery.
See the cases of AFOLALU VS. THE STATE (2010) LPELR – 197 (SC); IKARIA VS.THE STATE (2012) LPELR 15533 (SC) and THE STATE VS.SALAWU (2011) LPELR 8252 (SC).
In the instant case, the respondent in its bid to prove the essential ingredients stated above fielded PW1, PW2 and PW3 who were all eye witnesses to the robbery incident and they testified to the fact that some unknown men who they later identified as the accused persons invaded their home and that they were armed with dangerous weapons when they did. The learned trial judge after a careful and dispassionate evaluation of all the pieces of evidence placed or adduced before him, found as a fact that the respondent has proved beyond reasonable doubts that there was robbery and the robbery was carried out with arms. (See pages 212 & 213 of the record of appeal). These findings made by the learned trial judge was not challenged or controverted by any evidence before the lower Court and the said findings are unassailable.
Also, I have personally and critically evaluated all the pieces of evidence adduced on record, and I am in complete agreement with the learned trial judge that the respondent has successfully established beyond all reasonable doubts that the nominal complainant Sami Murtala Ahmad was robbed and the robbery was carried out with dangerous weapons.
On the third element which dwelt on the identity of the appellant as one of the armed robbers who attacked the nominal complainant, PW1. PW1 was categorical and equivocal when he stated clearly that he recognized the appellant in this appeal as one of the armed robbers who confronted him. The PW1 while still under the heat and scrutiny of cross-examination was unshaken on the issue of identity of the appellant and he further reinforced his earlier testimony when he stated that:
‘The 4th accused was arrested at his house when he is nursing a fractured leg. I was scared when I realized that armed robbers raided my house. I recognized the 2nd and 4th accused because we have a fairly long discussion with them during the incidence. I was focused on the two that we were discussing, the others are carrying out their business of ransacking my room’.
The learned trial judge in his evaluation of all the pieces of evidence adduced against the Appellant and those adduced by the Appellant himself in his defence, found as a fact that the evidence adduced by Appellant are laced with contradictions and generally unbelievable, specifically, the learned trial judge found and held as follows:
‘By the defence set up by the fourth accused in his testimony as DW1(sic) and his extra judicial statement it could easily be seen that there are irreconcilable contradictions which makes one to believe that his testimony in Court appears to be afterthoughts and a way of confusing facts. In his statement he admitted knowing first and second accused wherein in his testimony denied knowing or ever seen any of the accused. Again when testifying as DWIV said he was arrested by the Police and taken to Panshekara Police Station by the road side when the Police and PW1 confirmed to this Court that he was arrested at his home while nursing his fractured leg. Still at that contradiction was as nothing he further confused issues by saying in his testimony that he made his statement dated 02/01/2011 when he was first arrested and taken to Panshekara his statement could not have been dated 02/01/2011 but 26/12/2010 or thereabouts.
These are factors blurring the defence put up by the fourth accused making them unreliable and not capable of being believed. Having earlier on found that 4th accused is without any doubt duly identified and fixed at the scene by the complainant (PW1) as being among those that attacked and robbed him on 18/11/2010 this Court therefore finds the fourth accused guilty as charged under Section 298(b) of the Penal Code Law of Kano State 1991 as amended for armed robbery and do hereby convict him accordingly as such.’
These crucial, powerful and damnifying findings made by the learned trial judge have not been shown by the Appellant to have been wrongly made and or without basis. Let me repeat, the findings are unassailable. Indeed, the said findings of facts highlighted above were the final nails on the coffin upon which the appellant was found to be one of the armed robbers who attacked the nominal complainant and accordingly convicted him for the offence of armed robbery.
The learned counsel for the Appellant made a strong argument that the Appellant was not identified nor pointed out as one of the culprits who attacked the nominal complainant during identification parade and he was accordingly wrongly convicted. Just as the learned counsel for the respondent has rightly stated, PW1 who linked the Appellant with the commission of the offence charged, did not take part in the identification parade, and this can be rightly presumed as one of the reasons the Appellant was not identified. It is instructive and germane to point out herein, that it was only PW1 who mentioned and linked the Appellant with the robbery incident. No other witness testified of having seen him, thus, PW2 and PW3 who partook in the identification parade could not have identified the Appellant during the identification process or parade.
Based on all that I have said above, I am of the considered viewpoint that in the light of all the pieces of evidence adduced on the record of appeal placed before us and the profound and unassailable findings made by the learned trial judge, the respondent has proved beyond all reasonable doubts that the Appellant was one of the participants in the armed robbery attack and was properly convicted.
On the second issue for resolution, criminal conspiracy can hardly be proved by direct evidence as the plotting for any criminal acts are hardly hatched in the open but usually hatched and shroudedin secret. Except where the parties involved expressly admit culpability, conspiracy is largely a matter of inference to be deducted from the overt acts of the parties involved in carrying out or executing their criminal intention/purpose. See the cases of OKIEMUTE VS. THE STATE (2016) LPELR – 40639 (SC); THE STATE VS. GWANGWAN (2015) LPELR – 24837 (SC); andBOUWOR VS. THE STATE (2016) LPELR – 26054 (SC).
In the instant appeal matter, credible and unchallenged evidence was led to establish the fact that the accused persons save for the 3rd and 5th accused persons, jointly participated in the robbery incident. In this vein and with regard to the joint and active participation of the perpetrators, it could be rightly inferred that the parties, that is, the convicted accused persons including the Appellant herein conspired together and indeed acted in concert. Thus, I agree with the veritably unassailable findings and decision of the learned trial judge, that the Appellant has been proved beyond reasonable doubt to be guilty of the offence of conspiracy and was thus rightly convicted. Therefore, Issue 2 is also resolved against the Appellant.
The resolution of the issues adopted for the determination of this appeal in the manner done above has the inescapable implication, that this appeal is devoid of merit and it is accordingly dismissed by me. Therefore, the conviction and sentence imposed on the appellant by the lower Court for the offences of armed robbery and conspiracy in Suit No. K/118C/2011 are hereby affirmed by me.
IBRAHIM SHATA BDLIYA , J.C.A.: I agree.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have read the draft Judgment of my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA. dismissing this appeal. I agree.
Appearances:
Rilwanu Umar, Esq.For Appellant(s)
Bashir Sale, Esq. (Chief State Counsel,Ministry of Justice, Kano State)
For Respondent(s)
