MOHAMMED v. FRN (2021)

MOHAMMED v. FRN

(2021)LCN/14930(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, January 25, 2021

CA/G/486/C/2018

RATIO

EVIDENCE: USE OF THE STATEMENT OF A CO-ACCUSED ON THE ACCUSED

Section 29(4) of the Evidence Act, 2011 deals with the use to which the statement of a co-accused can be put when considering the case of another co-accused person. It provides –
“29(4) Where more persons than one is arraigned jointly with a criminal offence, a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
This provision of law has been the cynosure of judicial interest and so the subject of several judicial decisions. For instance, in the case of Ozaki V State (1990) 1 NWLR (Pt. 124) 92, 113 per Obaseki, J.S.C., the Supreme Court held thus:
“It is my opinion that an incriminating statement made even to the hearing of an accused defendant, even on an occasion which could be reasonably expected to call for some explanation from him, is not evidence against him on his trial of the facts therein stated, save in so far as he has accepted the statement, and where the statement is used to found a conviction, the conviction must, on appeal, be quashed.”
See also Okoro V State (2018) LPELR-44273(CA) 14; Hassan V State (2016) LPELR-42554(SC); Solola V State (2005) 11 NWLR (Pt. 937) 460; Emeka V State (2001) FWLR (Pt. 66) 682; Shekete V Nig. Air Force (2000) FWLR (Pt. 29) 243; Gbadamosi V State (1992) 9 NWLR (Pt. 266) 465.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALI MOHAMMED APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court Maiduguri in Charge No. FHC/MG/6C/2015 delivered on July 4, 2018, Coram Salihu, J.

The facts leading to the Appeal are briefly as follows: The Appellant, along with the 1st and 2nd accused persons, Modu Kime and Ba’ana Musa, were arraigned before the Federal High Court, Maiduguri on October 20, 2015 on an amended five-count charge for offences under Sections 4(1), 5(1) (a) and 6(2) (a) of the Counterfeit Currency (Special Provisions) Act, Cap C35 Laws of the Federation of Nigeria, 2004. The Appellant was alleged to have aided one Ba’ana Musa (2nd accused person) to buy fake bank notes, otherwise referred to as counterfeit currency, of N70,000.00 from one Mallam Modu Kime (1st accused person).

The charge against the 1st accused person was contained in count one while the charge against the 2nd accused person was in counts two, three and four. The Appellant was charged under count five of the charge as follows –

“COUNT FIVE:

That you, Ali Mohammed “M” 30 years old of Baga road, Maiduguri, within the jurisdiction of this Honourable Court aided Ba’ana Musa to buy counterfeit bank notes by leading him to buy same from one Modu Kime knowing it to be counterfeit and thereby committed an offence contrary to Section 6(2) (a) and punishable under Section 4(1) of the Counterfeit Currency (Special Provisions) Act Cap C35 Laws of the Federation of Nigeria, 2004 (as amended).”

When the five-count charge was read to the three accused persons, the 1st accused person pleaded guilty and was duly convicted on his plea. However, the 2nd accused person and the Appellant, being the 3rd accused person, pleaded not guilty and the case proceeded to trial.

In proof of the charge, the prosecution adduced evidence through six witnesses and seven exhibits. The 2nd accused person and the Appellant each testified in their defence but called no other witness nor tendered any exhibit. At the close of trial, Judgment was delivered on July 4, 2018 convicting the 2nd accused person on counts 2, 3 and 4 of the charge, while the Appellant was convicted on count 5 of charge. Both of them were thereafter sentenced to life imprisonment. Dissatisfied

with this decision, the Appellant appealed to this Court vide his Notice of Appeal filed on October 2, 2018 wherein he complained on five Grounds.

At the hearing of the appeal on November 2, 2020, A. A. Sangei, Esq., learned Counsel for the Appellant, argued the appeal having sought and was granted leave for the appeal to be heard on the Appellant’s brief of argument alone, the Respondent having failed to respond to the appeal and file a brief of argument, notwithstanding the fact that she had been duly and properly served with all the processes of Court in the Appeal, as well as hearing notices. Mr. Sangei adopted his submissions in the Appellant’s brief of argument filed on 29-10-19, but deemed properly filed on 28-05-20, in urging the Court to allow the appeal, set aside the decision of the lower Court and discharge and acquit the Appellant. In the alternative, he prayed the Court to make an order of retrial.

As afore-stated, the Respondent was neither in Court nor was she represented by Counsel nor did she respond to the Appellant’s brief by filing a Respondent’s brief of argument. Thus, the appeal shall be determined based solely on the Appellant’s brief of argument.

Learned Counsel for the Appellant in his brief of argument crafted the following two issues for determination by the Court:
1. “Whether or not the Respondent had proved its case beyond reasonable doubt against the Appellant for the alleged offence of counterfeit currency (special provision). (Grounds 1, 2 and 3)
2. Whether or not the evidences (sic) of the prosecution witnesses are not materially contradictory and if the answer is in the affirmative, whether the lower Court was right in convicting and sentencing the Appellant on such evidence of the prosecution witnesses. (Ground 4)”

No issue having been distilled from Ground five of the Grounds of Appeal, it is deemed abandoned.

It is observed that the submissions of Counsel under these issues are both rambling, winding and repetitive. In addition, the arguments are overlapping and unnecessarily prolix making it hard to read. Nonetheless, since the law is settled that a Court must do its utmost to make sense of a brief of argument no matter how disjointed and incoherent, I will plough on and make every effort to make

sense of the submissions, more so that it is a criminal appeal. The issues shall be addressed together.

ARGUMENTS
Learned Counsel for the Appellant submits that the lower Court was in error when it convicted and sentenced the Appellant to life imprisonment when the prosecution had failed to prove the charge under Section 4(1) and 6(2) of the offence of Counterfeit Currency (Special Provisions) Act, Cap C35, LFN, 2004 beyond reasonable doubt. He contends that the evidence of the prosecution’s witnesses was materially contradictory. Also, the Appellant denied committing the offence and the lower Court failed to consider his defence, contrary to the principle of law that the Court should consider the defence raised by of an accused person or as disclosed in the evidence however weak, foolish or unfounded it is perceived to be – Eyo V State (2013) NWLR (Pt. 1335) 324.

Counsel also takes up issues with the reliance by the lower Court on Exhibit A, the confessional statement of the 2nd accused person, to convict the Appellant. He submits that Exhibit A, being the confessional statement of a co-accused person, cannot be used to convict the Appellant -Salawu V State (2015) 2 NWLR (Pt. 1444) 595, 613.

In addition, Counsel argues that this confessional statement, Exhibit A, is inconsistent with an earlier statement the 2nd accused person made, Exhibit D, wherein he stated that the person who led/directed him to the 1st accused person was one Alhaji, and not the Appellant. In addition, the contents of Exhibit D contradict the evidence of the 2nd accused in Court as DW1. Based on these, Counsel submits that where a witness makes a previous statement which is inconsistent with the testimony of a witness, the Court must reject the previous statement as well as the evidence of the witness given on oath as unreliable. He also submits that where there are inconsistencies in witness testimony and the prosecution fails to offer any reasonable and satisfactory explanation for the inconsistency between the previous statement of the witness and his testimony in Court, as in this case, it is fatal to the prosecution’s case because the Court has no business offering an explanation for such – Afolahan V State (2012) 13 NWLR (Pt. 1316) 185, 311, A-B. Counsel therefore submits that the inconsistencies

in the testimonies of the prosecution’s witnesses created a serious doubt in the mind of the Court which ought to have been decided in favour of the Appellant – Audu V State (2016) 1 NWLR (Pt. 1494) 564, C-D; Kachi V State (2015) 9 NWLR (Pt. 1464) 228, G-H.

Counsel further submits that apart from PW1 and PW3, none of the other prosecution witnesses testified that the Appellant committed the offence as charged. He argues that based on the statement and evidence of PW2, the only eyewitness, the perpetrators of the offence were the 1st and 2nd accused persons. In addition, the 1st accused person, as the principal accused person who pleaded guilty to count one of the charges, was not called as a witness to resolve the issue of the involvement of the Appellant in the offence charged.

Additionally, Counsel submits that there is no valid confessional statement made by the Appellant before the lower Court. From the evidence, it was the 1st and 2nd accused persons who committed the offence charged. None of the witnesses identified the Appellant as being involved except for PW1 and PW3. However, the trial Court convicted the Appellant based on Exhibits A

and C, the confessional statement of the 2nd and the statement of the Appellant.

Counsel submits that Exhibit A cannot be relied upon to convict the Appellant, being the statement of a co-accused – Salawu V State (2015) 2 NWLR (Pt. 1444) 595, 63, A-E. This is more so that the contents of Exhibit A contradict a second statement of the 2nd accused, Exhibit D. In addition, the said confessional statement of the 2nd accused was not subjected to tests mandated by law before a confessional statement can be relied upon to convict an accused person.

Counsel therefore submits that the Respondent failed to prove the charge against the Appellant beyond reasonable doubt. This is more so that the statement of the Appellant, Exhibit C, which was alleged to be confessional in nature, was actually not. Counsel also contends that the evidence adduced in proof of the charge against the Appellant was hearsay, in addition to being conflicting and contradictory. Thus, no cogent, credible and reliable evidence outside the alleged confessional statement, was adduced which could make it probable that the confession is true. In the absence of such, it would be unsafe to

sustain the confession – Ogudo V State (2011) 12 SCNJ (Pt. 1) 22; State V Isah (2012) 16 NWLR (Pt. 1327) 613, 629-630, H-A. This more so as there is no duty on an accused person to prove his innocence – Ali V State (2015) 10 NWLR (Pt. ?) 1, 22, A-D, F-G. It is therefore submitted that the Respondent failed to prove the charge against the Appellant beyond reasonable doubt.

Counsel further submits that the evidence of the prosecution was materially contradictory, irreconcilable as well as circumstantial. This is because the witnesses were not eyewitnesses. Also, their evidence only linked the 1st and 2nd accused persons to the offences charged. Reference is made in particular to the evidence of PW1 and PW2. In respect of PW1, Counsel submits that his evidence is contradictory with the evidence of the other witnesses and creates a serious doubt which ought to be resolved in favour of the Appellant. The evidence of PW1, a Police officer, was contrary to the evidence of PW2, the only eyewitness to the incident. Instead, PW2’s evidence corroborated the Appellant’s statement, Exhibit C, as well as his evidence in Court as DW2. Thus, Counsel submits

that from the evidence of the prosecution witnesses, there was no direct and positive evidence linking the Appellant to the commission of the offence. Instead, the conviction of the Appellant is based on mere suspicion, and suspicion however strong, will not amount to proof – Nsofor V State (2004) 20 NSCQLR 74 per Kalgo, J.S.C. Counsel contends that the evidence of PW2, the sole eyewitness, exonerated the Appellant and was contradictory to the evidence of PW1, just as the evidence of PW3 contradicted the evidence of both PW1 and PW2. Thus, no Court can safely convict on such evidence. Finally, the Court is urged to allow the Appeal, set aside the conviction and sentence and discharge and acquit the Appellant.

FINDINGS
A review of the Judgment of the trial Court contained at pages 84-109 of the printed Record shows that the contention of learned Counsel for the Appellant, that the conviction and sentence of the Appellant was hinged mainly on the confessional statement of the 2nd accused person standing trial with him, is borne out. The Appellant was a co-accused with Ba’ana Musa having been charged with aiding him to buy counterfeit bank notes

from the 1st accused person, Modu Kime. The evidence of PW1 and PW3 (Police investigating officers) obliquely referred to by the trial Court as evidence which implicated the Appellant, were clearly based on the same confessional statement of the 2nd accused person to the Police, Exhibit A. They evidently did not have any first-hand knowledge of the facts of the case apart from what they were told by the PW2 and what was contained in Exhibit A. PW1 was the second investigating Police officer at the State CID Maiduguri, Borno State where the 2nd accused was subsequently transferred to; while the PW3 was the first investigating officer at the Lamisula Police Station to whom the 2nd accused person was handed to by PW2 who apprehended him at the scene of crime.
Section 29(4) of the Evidence Act, 2011 deals with the use to which the statement of a co-accused can be put when considering the case of another co-accused person. It provides –
“29(4) Where more persons than one is arraigned jointly with a criminal offence, a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not

take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
This provision of law has been the cynosure of judicial interest and so the subject of several judicial decisions. For instance, in the case of Ozaki V State (1990) 1 NWLR (Pt. 124) 92, 113 per Obaseki, J.S.C., the Supreme Court held thus:
“It is my opinion that an incriminating statement made even to the hearing of an accused defendant, even on an occasion which could be reasonably expected to call for some explanation from him, is not evidence against him on his trial of the facts therein stated, save in so far as he has accepted the statement, and where the statement is used to found a conviction, the conviction must, on appeal, be quashed.”
See also Okoro V State (2018) LPELR-44273(CA) 14; Hassan V State (2016) LPELR-42554(SC); Solola V State (2005) 11 NWLR (Pt. 937) 460; Emeka V State (2001) FWLR (Pt. 66) 682; Shekete V Nig. Air Force (2000) FWLR (Pt. 29) 243; Gbadamosi V State (1992) 9 NWLR (Pt. 266) 465.

Thus, the law is settled that the statement of a co-accused person is different and must be distinguished from his evidence in Court. For whereas, the statement of an accused person is his statement and binds him alone and so can be used to convict him where it satisfies the requirements of a confessional statement, it cannot be used to convict a co-accused person. However, where the prosecution intends to use the statement against a co-accused, a copy of the incriminating statement must be made available to him and he adopts it by his words or conduct.
In the instant case, right from the onset, the Appellant denied the allegation against him. Upon his arrest, he was said to have made two statements, Exhibit C at the State Criminal Investigation Division (CID) Maiduguri, Borno State and Exhibit C1 at the Lamisula Police Station. Exhibit C was described by the trial Judge as a confessional statement. However, a close scrutiny of both statements, Exhibits C and C1, discloses that neither of them is confessional in nature. Instead, the Appellant expressly and repeatedly denied the allegation therein. For ease of reference, Exhibit C the so-called confessional statement of the Appellant, reads inter alia thus:

“I could remember on the 17/5/15 at about 1700hrs I was at Zajari Ward I saw Ba’ana Musa and Goni Ali and Goni Ali introduce the other people as his friend that I should direct him to a mallam who will pray for him to prosper or to get money. He Ba’ana Musa give the sum of N1,000 I tok (sic) him to one Mallam called Modu Kime for pray (sic) and their (sic) discuss with the Mallam three of us later left. But I didn’t know what their (sic) discuss in details with Mallam. So, we departed to our various house. Since then, I had (sic) nothing from them… I was arrested by Police … and I was told that Ba’ana Musa was arrested with fake currency, that Ba’ana tell Police I am the one toke (sic) him to where he gets the fake currency. But I told them I take him to pray and not for him to to have fake currency.”
It is apparent from the Judgment of the lower Court, particularly at pages 103 and 105 -106 of the Record, that the Appellant was convicted based exclusively on the confessional statement of the 2nd accused person, Exhibit A. This is because there was neither direct nor circumstantial evidence incriminating the Appellant of the offence.

An analysis of the evidence of the six prosecution witnesses reveals as follows:
i. PW1 (the investigating Police officer at the CID) merely repeated what he was told and what was contained in Exhibit A, the 2nd accused person’s confessional statement. This was contrary to his earlier statement in Exhibit D made at Lamisula Police Station. He also recorded the Appellant’s statement. Exhibit C
ii. PW2 was the person who caught the 2nd accused person with the fake bank notes, apprehended him and handed him over to the Police. He made no reference to the Appellant;
iii. PW3 was the investigating Police officer at Lamisula Police Station. He recorded the Appellant’s first statement, Exhibit C1 in which he denied the allegation. He also recorded the 2nd accused person’s first statement, Exhibit D in which the allegation was similarly denied. He offered no evidence, direct or circumstantial, against the Appellant;
iv. PW4, PW5 and PW6 were officials of the Central Bank of Nigeria (CBN) and the Nigeria Security and Mint Company (NSMC) respectively. Their evidence did not incriminate the

Appellant in any way except to confirm that the sum of N70,000.00 found on the person of the 2nd accused person was indeed counterfeit currency.
It is therefore surprising that the trial Court proceeded to convict the Appellant based on the evidence of PW1, PW3 and Exhibit A, the confessional statement of a co-accused person, which was not shown to have been adopted by words or conduct by the Appellant.
Additionally, by the Appellant’s two statements to the Police, Exhibits C and C1, the latter which was erroneously referred to as confessional by the trial Court, the Appellant categorically denied committing the offence charged. What he admitted to was only directing the 2nd accused person to the 1st accused person, a Muslim scholar, for prayers when he came to him seeking for assistance. This denial was repeated by the Appellant in his evidence in Court as DW2.
I therefore do not find any rationale or legal basis for the conviction of the Appellant and his subsequent sentence to life imprisonment, based merely on the hearsay evidence of PW1 and PW3 (Police officers), as well as the confessional statement of the 2nd accused person, a

co-accused person, which statement was not adopted by the Appellant at the trial. This was wrong.
In the case of Suberu V State (2010) LPELR-3120 (SC), the Supreme Court stated as follows –
“Section 27(3) of the Evidence Act deals with the use to which the statement of a co-accused can be put when considering the case of another co-accused… It is trite that a statement of a co-accused is different and distinguishable from his evidence in Court. A statement made by an accused remains his statement, and not his evidence, and it is binding on him only. Where the prosecution intends to use the statement against the co-accused, a copy of the incriminating statement must be made available to him.”
[Section 27(3) of the Evidence Act referred to therein is now Section 29(4) of the Evidence Act, 2011].
The Supreme Court took it further in the case of Ozaki V State (1990) LPELR-2888 (SC) when it held –
“It is an error in law to convict an accused person on the statement of another accused to the Police. It is a travesty of justice and gross violation of all known rules of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional…”

The law was further expounded by Okoro, J.S.C. in State V Gwangwan (2015) 24837(SC) 28-29, E-C thus:
“First, where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices. An accused person’s is only evidence against him and not against co-accused persons and it is a misdirection which may lead to quashing the conviction. However, a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it.”
Finally, in the more recent case of Ajaegbo V State (2018) LPELR-44531 (SC) 43-45, D-E, Nweze, J.S.C. held as follows: “A free and voluntary confession of guilt by an accused person, whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the Court is satisfied of the truth of the confession… However, a man’s confession is only evidence against him and not against his accomplices… In

effect, a confessional statement is not binding on a co-accused person, except the statement was adopted by the co-accused person. This must be so for where an accused person makes a confessional statement to the Police as to his participation or culpability in the crime charged, he is not confessing for his co-accused person. Thus, his confession is only evidence against him and not against the co-accused person…
The law therefore is that the confessional statement of an accused person cannot be used against a co-accused person unless it is adopted by the co-accused person…
Therefore, in the instant case, based on the law which has been copiously interpreted by the apex Court and this Court, the use of the statement of the co-accused person against the Respondent without his having adopted it as his, was unlawful and has a vitiating effect on his conviction by that Court… For this purpose, the adoption of the statement of an accused person which would qualify the statement to be used against a co-accused person can be by words or conduct…”

Therefore, from the printed Record of the Court there is no gainsaying that there was a total dearth of evidence upon which to base the conviction of the Appellant. The confessional statement of the co-accused person, Ba’ana Musa, which formed the nucleus of the findings of the trial Court against him, should not have been used to convict the Appellant, and the trial Court therefore erred in law when he purported to do so. It is for these reasons that I resolve both issues for determination in favour of the Appellant.

In the result, I find the Appeal meritorious. It succeeds and is allowed.
Accordingly, the findings in the Judgment of the Federal High Court, Maiduguri delivered on 4th of July, 2018, the conviction of the Appellant for the offence of aiding Ba’ana Musa to buy counterfeit bank notes contrary to Section 6(2) (a) and punishable under Section 4(1) of the Counterfeit Currency (Special Provisions) Act, Cap C35 Laws of the Federation 2004, and the sentence of life imprisonment, are hereby set aside.
In its place, the Appellant is discharged and acquitted.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother JUMMAI

HANNATU SANKEY, J.C.A. I agree with him that you cannot convict an accused solely on the confessional statement of a co-accused. In AIKHADUEKI V STATE (Supra) the apex Court held:
“…….. In any case the Court is wary of an allegation in a statement of one accused person against another. It is trite law that allegations in a statement made by one accused against a co-accused will not constitute evidence against the co-accused unless the said co-accused has adopted the said statement”.
The extra-judicial statement of an accused is irrelevant in the trial of a co-accused. See SUBERU V STATE (2009) LPELR 8716, HOLO LANRE V THE STATE (2015) LPELR-24538, NWODO V THE STATE (2018) LPELR 46335.

For this and the more detailed reasoning in the lead judgment, I too hold that the appeal has merit. It is allowed. I abide by all the consequential orders contained in the lead judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the Judgment of my Lord, JUMMAI HANNATU SANKEY, J.C.A. It is an in depth analysis of the conviction of the appellant by the trial Federal High Court, Maiduguri based on the confessional statement of the 2nd accused

person (a Co – accused). I am in total agreement with his Lordship that the conviction cannot stand in view of the settled position of the law that an incuminating statement made even to the hearing of an accused defendant, even on an occasion which could reasonably be expected to call for some explanation from him is not evidence against him on his trial of the facts stated therein, save in so far as he has accepted the statement and where the statement is used to found or secure conviction, the conviction must on appeal be quashed. See Ozaki V. State (1990) 1 NWLR (Pt. 124) 92 at 113. Cajethan Okoro V. the State (2018) LPELR – 44273 (CA), (PP. 14-25, paras C-A) see also Section 29(4) of the Evidence Act, 2011.

It is for this reason and detailed consideration of all the other issues by his Lordship and the conclusions reached on them that I agree with his Lordship, that the appeal is meritorious, and is accordingly allowed, in consequence of which the conviction and sentence of the Appellant is set aside. In its place, I also make an order of discharge and acquittal in his favour.

Appearances:

A. Sangei Esq., with him, M. S, Umar Esq. and K. Adamu Esq. For Appellant(s)

Respondent served a hearing notice but was not represented. For Respondent(s)