UMAR v. STATE (2021)

UMAR v. STATE

(2021)LCN/15790(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Tuesday, November 23, 2021

CA/S/108C/2020

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

ABDULLAHI UMAR APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS THE PROSECUTION CAN ESTABLISH THE GUILT OF AN ACCUSED PERSON

Be it noted that in the bid to prove her case, the prosecution is free to utilize any of the three (3) methods for establishing the guilt of the accused persons, namely:
i. Proof by reliance on the Confessional Statement of the accused person.
ii. Proof by circumstantial evidence.
iii. Proof by reliance on the evidence of eye witness to the commission of the Crime. See: Haruna vs. Attorney General of the Federation (2012) NWLR page 419.
The Court hearing the case can similarly rely or depend or utilize any of those methods listed above, in reaching a conclusion or decision. PER HUSSAINI, J.C.A.

THE LEGAL IMPLICATION OF ADMITTING THE TRANSLATED VERSION OF THE STATEMENT OF AN ACCUSED THROUGH THE PERSON WHO WAS NEITHER THE TRANSLATOR NOR THE INTERPRETER OF THAT DOCUMENT OR STATEMENT

THE TEST FOR DETERMINING THE TRUTH OF THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

The test for determining the truth or otherwise of a confessional statement which has been retracted is to look outside the statement for corroborative evidence which makes it possible that the confession is true. In carrying out the test the Court will consider issues such as:
(1) Whether there is anything outside the confessional statement to show that it is true.
(2) Whether the confessional statement is itself corroborated.
(3) Whether the statement of fact made in the confessional statement so far as can be tested is true.
(4) Whether the accused person had the opportunity of committing the offence.
(5) Whether given the surrounding circumstance, the confession of the accused was possible.
(6) Whether the confession was consistent with other facts, which have been ascertained and proved at the trial.
See further, Umar vs. The State (2018) 7 NWLR (pt. 1617) 72. Tobi v. The State (2019) LPELR – 46537 (SC). PER HUSSAINI, J.C.A.

THE POSITION OF LAW ON THE IDENTIFICATION OF AN ACCUSED PERSON

Identification of accused person is the process of proving or recognising who or what somebody or something is and in relation to criminal trial, it more often than not relates to the identification of an accused person or persons who took part in the committion of the offence. An accused person can be identified either by the victim of the crime or witnesses of the crime or witnesses called by him. The best form of identification is from those who saw the crime take place – Adamu v. the State (1991) 4 NWLR (pt. 187) 530. Identification of an accused person can be made either through (a) Visual identification of the offender or (b) Circumstantial evidence of the identity of the offender (c) Voice identification as was the case in R vs. John Keating (1909) 2 Crim. App. Report page 61; Ibe vs. State (1992) 5 NWLR (pt. 244) 642, 649; Eyisi vs. State (2000) LPELR – 1186 (SC). PER HUSSAINI, J.C.A.

INGREDIENTS OF THE OFFENCE OF CONSPIRACY

To succeed in the offence of criminal conspiracy under Section 97 of the Penal Code, the prosecution must prove that there is:-
(a) An agreement between two or more persons to do or cause to be done an illegal act or some act which is not illegal by illegal means.
(b) Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the accused person individually participated in the conspiracy. See: Notes on the Penal Code Law 4th edition at page 77. See further the decision in Osuagwu v. State (2013) 1-2 SC (pt. 1) 37; Adekoya vs. State (2011) 12 WRN 134. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellant Abdullahi Umar was one of two accused persons arraigned upon an amended charge and tried at the High Court of Sokoto State for the offence of Criminal Conspiracy and Culpable Homicide punishable under Sections 97 and 221 respectively, of the Penal Code Law of Sokoto State. The other accused person is by the name Umaru Bello. The two accused persons each entered a plea of “not guilty” to the two count charge.

On the charge for Criminal conspiracy, the appellant was alleged to have agreed with one Umaru Bello at Helmewa village in Shagari Local Government of Sokoto State while armed with sticks, to attack one Abdullahi Usman, pursuant to that agreement, an act punishable under Section 97 of the Penal Code.

On the second count which is for Culpable Homicide, the appellant and one Umaru Bello were alleged to have committed the offence of Culpable Homicide punishable with death by the use of sticks to attack Abdullahi Usman and beat him up as a result of which he sustained serious injuries and died and that the said act is contrary to Section 221 of the Penal Code At the trial the prosecution called evidence of witnesses, four (4) of them is number who testified as PW1, PW2, PW3 and PW4. Documents were also tendered and admitted in evidence as Exhibits A and A1, B and B1 as Hausa and English versions respectively as the statements of the two accused persons. Exhibit A – A1 are the statements ascribed to the appellant as his confessional statement.
The appellant, at the close of prosecution’s case gave evidence on his own behalf as DW2 and closed his case without calling any witness or tender any document.

In the judgment delivered on the 16th September, 2020, the trial High Court of Sokoto State in suit or charge No. SS/18C/2019 found the appellant and the co-accused guilty on both counts and sentenced them accordingly. The appellant has appealed to this Court against the said judgment vide the Notice of Appeal filed on the 21/09/2020. However by the Amended Notice of Appeal filed on 1st December 2020 with the Leave of this Court granted on the 8th July, 2021, the appellant has appealed to this Court on Nine (9) Grounds. The said amended notice of appeal was also deemed on the 8th July, 2021 as properly filed and served. Following the transmission of the record of appeal to this Court earlier on the 5th October, 2020, the parties herein through their counsel, filed and exchanged their briefs of argument and adopted same at the hearing of this appeal on the 23rd September, 2021.

For the avoidance of doubt, the brief of argument filed for the appellant on the 1st December, 2020 was deemed as properly filed and served on the 8th July, 2021.
Respondent’s brief of argument filed on the 22nd February, 2021 was similarly deemed on the 8th July 2021.

In his brief of argument for the appellant, his counsel raised two (2) issues for determination in this appeal, namely:
(i) Whether the trial Court rightly relied on Exhibit A and A1 to convict the appellant (Ground 5, 6 and 7 of the Amended Notice of Appeal).
(ii) Whether having regard to the evidence led in this case the prosecution did not fail to prove the guilt of the Appellant beyond reasonable doubt or at all (Grounds 1, 4, 8 and 9 of the Amended Notice of Appeal).

The Respondent on the other hand, formulated just one (1) issue for the determination of Court in this appeal thus:-
“Whether the Respondent has discharged the burden of proof placed by law on him to warrant the conviction of the appellant”.

Learned counsel on both sides have canvassed those issues in their respective briefs of argument as at pages 2-13 in the Respondent’s Brief. I will however abide by the two issues formulated in the appellant’s brief of argument in determining this appeal.

Issue 1
“Whether the trial Court rightly relied on Exhibits A and A1 to convict the appellant?”
In arguing issue No. 1, learned appellant’s counsel alluded to the three (3) methods by which the prosecution can prove her case and argued that the prosecution and the Court below heavily relied on Exhibit A and A1, i.e. the Hausa and the English version of the Statement ascribed to the Appellant as his confessional statement. Learned counsel faulted the decision of the trial Court founded or based on Exhibits A and A1 whereas the Exhibit A and A1 were not tendered by the Investigating Police Officer who investigated the case neither was the translator of the Hausa version of the Statement called as a witness in this case, rather the person (pw4) who did not record the statement in Exhibit A nor translate Exhibit A to Exhibit A1 was called to testify. He relied on Section 83 (1) of the Evidence Act, 2011 to submit that it is only the Investigating Police Officer that can tender statements recorded from accused persons.

He argued by reference to Section 50 of the Evidence Act, 2011, that the failure of the prosecuting counsel to call the Investigating Police Officer and the reasons advanced for his absence did not meet with the requirement set out in Section 50 of the Evidence Act. There was failure of compliance with the requirements of the statute. He argued and relied on the decision in Odogwu v. Ilombu (2007) 8 NWLR (pt. 1037) 488, 515-516. Pharm-Deko Plc. vs. F. D. C. Ltd (2015) 16 NWLR (pt. 1467) 225. He argued that the failure to call the recorder of Exhibit A-A1 in the person of CPL Waziri Mukhtar rendered Exhibit A – A1 inadmissible and the trial Court ought not to have acted on those documents.

It is further argued that the failure to call CPL Waziri Mukhtar, the translator of exhibit A to A1 was fatal to the case of the prosecution. He relied on the case of Ifaramoye v. State (2017) LPELR – 42031 (SC) at page 17-32. He further argue that PW4 who is not the recorder of Exhibit A nor the translator of Exhibit A to Exhibit A1 and yet both documents were admitted in Evidence through him (PW4) rendered Exhibits A – A1, documentary hearsay. He relied on Ifaramoye v. State (supra) and Section 37 and 38 of the Evidence Act.

Relying further on Section 17 (3) (4)(5) of the Sokoto State Administration of Criminal Justice Law, he argued that Exhibit A1 translated into English from Exhibit A was not signed or endorsed by the translator as the law required and this it is argued, rendered Exhibit A1 inadmissible evidence.

He further relied on the decision in State vs. Saidu (2019) LPELR – 47397 (SC) pages 9-11 to urge us to resolve issue No. 1 in favour of the appellant and against the respondent in the light of the inadequacies surrounding Exhibits A and A1.

The learned appellant’s counsel further on this point faulted the learned trial Judge’s ruling when the Court failed to ascertain the truth or otherwise of exhibit A-A1 before acting on same to convict the appellant whereas the statement had been retracted by the appellant. He relied on several authorities including the decision on Onochie vs. the Republic (1966) 4 NWLR 307. Jafiya Kopa v. The State (1971) 1 all NLR 150; Kareem v. Federal Republic of Nigeria (No. 1) (2002) 8 NWLR (pt. 770) 636, 656. R. vs Sykes (1913) 8 CA R 233; Obisi v. Chief of Naval Staff (2002) 2 NWLR (pt. 751) 400, 418 – 419. Umar vs. State (2018) 7 NWLR (pt. 1617) 72; Tobi v. State (2019) LPELR – 46537 (SC). In response to those submissions their counsel, argued, stating affirmatively that the Respondent had dislodged the burden duty on her to prove the guilt of the accused person (appellant) beyond reasonable doubt.

Speaking specifically, on Exhibit A-A1, the documents ascribed to the appellant as his Confessional Statement, he argued that the said Exhibit A-A1 were admitted without objection of the counsel on the opposite side at the time the two documents were tendered in evidence. He debunked the notion that Exhibit A1 was not signed by the Interpreter/Translator stating that the translator indeed signed the document immediately after the words of caution was administered on the appellant. The appellant he said, also thumb – printed those cautionary words. He urged us to do substantial justice in the case assuming that the translated version of the Confessional Statement was not signed by the interpreter. He likened the non-signing of the translated version of the statement to a technical issue which can be over looked in the bid to do substantial justice.

On the question whether Exhibits A – A1 were admissible evidence in absence of the recorder and translator of those documents who were not called as witnesses, learned respondent’s counsel relying on Section 49 of the Evidence Act argued that the documents are admissible evidence even where the recorder of the Statement was not called as a witness provided that the Court was satisfied with reason advanced as to why the recorder was not called as a witness in this instance. It is argued that the Court below was satisfied with the explanation given by the prosecuting counsel hence the same i.e Exhibit A-A1 were so admitted. Learned Respondent Counsel urged us to hold that Section 50 of Evidence Act is not applicable to the case on hand or to investigating Police Officers (IPO).

RESOLUTION OF ISSUE NO. 1.
Permit me at this point to address Issue No. 1 on the admissibility of Exhibits A-A1 and the propriety and otherwise of the Court below acting on same to convict the appellant as it did.

Be it noted that in the bid to prove her case, the prosecution is free to utilize any of the three (3) methods for establishing the guilt of the accused persons, namely:
i. Proof by reliance on the Confessional Statement of the accused person.
ii. Proof by circumstantial evidence.
iii. Proof by reliance on the evidence of eye witness to the commission of the Crime. See: Haruna vs. Attorney General of the Federation (2012) NWLR page 419.
The Court hearing the case can similarly rely or depend or utilize any of those methods listed above, in reaching a conclusion or decision.

You will permit me again to refer to the concluding portions of the judgment of the trial Court at page 95 of the record. The Court held as follows:
“From the evidence adduced by the prosecution of PW1-4 and the voluntary confessional statements of the 2 accused persons Exhibits “A’, ‘A1’, ‘B’ and ‘B1’ showing the violent manner they beat the victim with sticks, their acts has been linked therefore to the causing of the death of the deceased Abdullahi Usman.
I accept the prosecutions own version as having established its case and reject forthwith the frame-up stories of the accused persons in this case as an afterthought when they testified as DW1 and 2 in their defences to the action.”

It can be seen for the foregoing extract of the judgment of the Court below that the trial Court did not only rely on the oral testimony of the witnesses called by the prosecuting counsel including eye witness account of the incident, the Court, ostensibly relied also on the statement(s) ascribed to the appellant as his confessional statement i.e. Exhibits A-A1 to reach a decision.

For the purpose of addressing Issue No. 1, exhibits A-A1 is my main focus in this appeal case.
Exhibits A-A1 were tendered and admitted in evidence through PW4, Inspector Danjimma Giwa, who as at then, was the police officer attached to the State C.I.D, Sokoto as an Investigating Police Officer. Although the witness was among the detectives who investigated this case at that point in time, he was not the recorder of the Statement in Exhibit A credited to the appellant. Exhibit A was recorded in Hausa Language by CPL Waziri Mukhtar, who also doubled as the translator of that document (Exhibit B) into the English Language (Exhibit A1). It goes without saying therefore that PW 4 also, was not the translator of the document admitted through him as Exhibit A1. The question now are these:
(i) What is the legal implication of admitting the statement of an accused person through the person who was not the recorder of that statement?
(ii) The second question, which is related to the first, is the legal implication of admitting the translated version of the statement of an accused through the person who was neither the translator nor the interpreter of that document or statement.
Answers to those questions are not farfetched.

In R vs. Gidado (1940) 6 WACA 60, the West African Court of Appeal had no difficulty in allowing the appeal before it on account of the failure of the prosecution to call the interpreter of the statement ascribed to the accused in that case. Ditto the decision in R vs. Zakwakwa (1966) FSC 12. The two cases referred to above exemplify the long standing principles established by the Courts of the land that translated version of the statement of an accused recorded in the local dialect is only admissible evidence through the person who acted as the interpreter or translator otherwise not. The apex Court in a more recent case has finally stated the legal position on this point in the case of Ifaramoye v. State (2017) LPELR – 42031 (SC) when it held:
“The legal position is that if the statement of an accused is made in language other than English and it is interpreted into English by an interpreter to the recorder, the interpreter must be called to give evidence on the point at the trial of the accused otherwise the contents of the statement will be hearsay and the statement will be inadmissible…”
See further, the decision in Federal Republic of Nigeria vs. Usman (2012) 8 NWLR (pt. 1301) 141. Olalekan vs. State (2001) LPELR – 2561 (SC). In the case on hand it was one CPL Waziri Mukhtar who doubled as the recorder and interpreter of the statement in Exhibit A to A1. He was not called to give account of the role played by him in making those documents. I will return shortly to that on the necessity of having to call, the evidence of a witness who translated the statement of the accused person but the point must be made now that before those documents can be admitted in evidence, the Police Officer who recorded and translated the statement must testify in Court as to the role played by him. So, in the recording of the statement and the translation see: Ifaramoye v. State (supra). In the case on hand, Exhibits A-A1 among others were admitted through PW 4 whose evidence on those documents is nothing but hearsay evidence, and to that extent the evidence of P.W. 4 is inadmissible on that point. See:Buhari vs. Obasanjo (2005) LPELR – 815 (SC); Kasa vs. the State (1994) LPELR – 1671 (SC). See further Section 37 and 38 of the Evidence Act, 2011.
I have already addressed the question of the desirability of inviting the recorder of the statement of an accused person as a witness and the circumstance under which the evidence of the Recorder of a Statement can be dispensed with. PW 4 in his evidence is on record as stating at page 68 of the record thus:-
“I was among the detectives assigned to investigate the case. The detective comprises of ASP Abdullahi Ladan, ASP Sunday Marriman, myself and Corporal Waziri Mukhtar. Corporal Waziri was assigned to record the statements of the 2 accused persons and he recorded their statements individually by reading the words of caution separated to each of them, CPL Waziri Mukhtar is now in Somalia for peace keeping. He left in January, 2020. It is now difficult for CPL Waziri to come before this Court”.
The trial High Court felt that this evidence of PW4 was good enough to make exhibit A-A1 admissible evidence and the Court accordingly admitted those documents. Respondent’s counsel in their brief of argument agreed with the Court below on this point and he relied heavily on Section 49 of the Evidence Act to justify the admission of Exhibits A-A1. Section 49 reads:-
“Notwithstanding anything contained in thus Act or any other law but subject to this section, where in the course of any criminal trial, the Court is satisfied that for any sufficient reason, the attendance of the Investigating Police Officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the Court if – (a) the defence does not object to the statement being admitted; and (b) the Court consents to the admission of the statement”.
The case of Dalyop v. the State (2013) LPELR – 21898 (CA) relying on the decision of the apex Court in Stephen John & Anr. vs. the State (2011) 12 (pt. 2) SCM 2238, 247 has held that where in an investigation into a criminal matter against persons suspected to have committed crime and the investigation was carried out by a team of Police Investigators any of the team members can tender the statement of an accused at the trial even where it is a confessional statement where the Police officer who obtained the statement or administered the words of caution on the accused is not available. By this holding; it means that PW 4 through whom Exhibits A-A1 were admitted in evidence was perfectly right when he tendered those documents.
However the point of difference in those cases and the instant case, is the fact that a translator/interpreter was involved. He played some roles in the interpretation or translation of the statement in the local dialect into English Language, certainly he put questions to the suspect/accused and got answers therefrom hence it is that translator/interpreter and no one else that can relate the roles played by him. See: Ifaramoye vs. State (supra). Moreover, by reason of Section 17 (3) (4) (5) of the Sokoto State Administration of Criminal Justice Law, the presence of the Interpreter as a witness is imperative and cannot be dispensed with.
It is for this reason that exhibits A-A1 became inadmissible document. Even though no objection was taken at the time the documents were tendered and admitted, wise counsel dictated that the documents ought not to be acted upon, the same being inadmissible documents.

The other point which I should mention here albeit, briefly is the manner the trial Court acted and relied on that document not withstanding that the appellant retracted from it in the course of the trial, at defence stage. Whether retracted at the right or appropriate time, is not the issue now but the fact that the statement was retracted at some point in time in the course of trial. Having done so, the duty now lies with the trial Court to subject the admissibility of those documents to the test outlined, in R vs. Sykes (1913) CAR 113 so as to determine the veracity of those statements before acting on same. See further, Obisi vs. Chief of Naval Staff (2002) 2 NWLR (pt. 751) 400, 418 – 419. Bolanle v. State (2005) 7 NWLR (pt. 925) 431, 498.
The test for determining the truth or otherwise of a confessional statement which has been retracted is to look outside the statement for corroborative evidence which makes it possible that the confession is true. In carrying out the test the Court will consider issues such as:
(1) Whether there is anything outside the confessional statement to show that it is true.
(2) Whether the confessional statement is itself corroborated.
(3) Whether the statement of fact made in the confessional statement so far as can be tested is true.
(4) Whether the accused person had the opportunity of committing the offence.
(5) Whether given the surrounding circumstance, the confession of the accused was possible.
(6) Whether the confession was consistent with other facts, which have been ascertained and proved at the trial.
See further, Umar vs. The State (2018) 7 NWLR (pt. 1617) 72. Tobi v. The State (2019) LPELR – 46537 (SC).

The record of judgment of the trial Court now before us does not show or indicate that this principle or procedure was adhered to by the trial Court before relying on it i.e. Exhibit A-A1 convict the appellant.

By dint of the failure of the Court below, to comply with those directions means that the conviction of the accused/appellant cannot also stand.

I will now advert my mind to another aspect of this case upon which the prosecution relied on, that is to say, the evidence of direct eye-witness account of the incident and that is, the evidence of PW1 and PW2 who are said, were eye witnesses and at the scene of crime when the act took place. The two witnesses described the event in their own words at pages 64-65 of the record of appeal. The two witnesses stated that they were attacked by the appellant and one other person, by name, Umaru Bello at about 8’0 clock in the night and got beaten by them including the deceased (Abdullahi Usman). It is worthy of note that the PW 2 who in his evidence in chief at page 65 of the record, said that his father the deceased was beaten by their attackers, in his evidence under cross examination, said, he did not see the attackers beat his father.

By the amended charge levelled against the appellant and one Umaru Bello, the amended charge alleges that the attackers beat the deceased with the use of sticks. Evidence of PW 1 and PW2 indicated that an iron rod was used by the appellant to attack them.

More importantly, and given the time, the event took place (8pm) it is imperative that the Identity of the attackers be sufficiently established given the fact that the evidence of the prosecution witness was given amid denial by the accused persons.

Identification of accused person is the process of proving or recognising who or what somebody or something is and in relation to criminal trial, it more often than not relates to the identification of an accused person or persons who took part in the committion of the offence. An accused person can be identified either by the victim of the crime or witnesses of the crime or witnesses called by him. The best form of identification is from those who saw the crime take place – Adamu v. the State (1991) 4 NWLR (pt. 187) 530. Identification of an accused person can be made either through (a) Visual identification of the offender or (b) Circumstantial evidence of the identity of the offender (c) Voice identification as was the case in R vs. John Keating (1909) 2 Crim. App. Report page 61; Ibe vs. State (1992) 5 NWLR (pt. 244) 642, 649; Eyisi vs. State (2000) LPELR – 1186 (SC).

Throughout the evidence of the eye witness account of the incident by PW1 and PW2, no mention is made by them of how the persons who emerged from the bush at about 8:00pm to attack them and the deceased person, were the appellant and the co-accused. I think this is very important because it relates to the causative aspect of the case of the prosecution who has a duty to also prove the third ingredient of the offence of culpable homicide punishable with death. This has to do with the actus reus, the cause or the doer of the act which result in the crime.

Given the strained family relationship between the family of the victim of the offence and the family of the appellant, it takes more than the casual evidence elicited by PW1 and PW2 that it was the appellant who killed their father, Abdullahi Usman. The evidence of PW3, is nothing to write home about as far as the charge is concerned. His evidence essentially, is hearsay evidence and this is not admissible. See: Kasa v. State (1994) LPELR – 1671 (SC).

Therefore viewed from both angles, whether from the angle of the confessional statements ascribed to the appellant or from the angle of direct eye witness account of the event at the scene of crime, the prosecution and indeed the Court below can be faulted over the conclusion arrived at in convicting the appellant.

To succeed in the offence of criminal conspiracy under Section 97 of the Penal Code, the prosecution must prove that there is:-
(a) An agreement between two or more persons to do or cause to be done an illegal act or some act which is not illegal by illegal means.
(b) Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the accused person individually participated in the conspiracy. See: Notes on the Penal Code Law 4th edition at page 77. See further the decision in Osuagwu v. State (2013) 1-2 SC (pt. 1) 37; Adekoya vs. State (2011) 12 WRN 134.

To establish the offence of Culpable Homicide Punishable under Section 221(b) and secure conviction the prosecution must as a matter of duty lead credible evidence on the following ingredients, namely:-
(a) The death of the deceased person.
(b) The death must have been caused by the act of the accused, and
(c) The said act which caused the death was intentional with the accused having the knowledge that death or grievous bodily harm was probable consequence of his act. See Muazu Ali vs. State (2015) LPELR 24711 (SC). State vs. Fatai Azeez (2008) All FWLR (pt. 424) 14, 1455 – 1456.

The process by which the prosecution sought to establish his case has been faulted as not being the proof required of them under Section 135 (1) (2) of Evidence Act, 2011, for proof beyond reasonable doubt but the trial Court proceeded nonetheless and wrongly too, to act on those faulty or failed processes, which is why, that decision of the High Court of Sokoto delivered on the 16th September, 2020 in charge No. SS/18C/2019 must to be set aside and in its place, I enter this judgment allowing the appeal on the two (2) issues canvassed in the appellant’s brief of argument. In consequence, the conviction and sentencing of the appellant must be quashed. I so order. Accordingly, the accused/appellant is discharged and acquitted.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Saidu Tanko Hussaini, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

MOHAMMED DANJUMA, J.C.A.: I have the honour of reading in draft, the lead judgment just delivered by my learned brother Saidu Tanko Hussaini JCA. I agree with the reasoning and conclusion. This appeal succeeds and same is allowed. I abide by the consequential order in the lead judgment.