CORAM

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Muhammed Lawal Shuaibu JCA

Ebiowei Tobi JCA

Mohammed Ahmed Ramat JCA

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PARTIES

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ALIYU UMAR

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE

 

 

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SUMMARY OF FACTS

At the High Court Kebbi State sitting at Birnin Kebbi, the accused and another were charged with offences of conspiracy to commit armed robbery, and also receiving stolen property under Sections 6(3) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 211 LFN 2004 and 319A of the Penal Code. They were accused of robbery of a motorcycle.

Upon arraignment, the accused person (now Appellant) pleaded not guilty to the charge and the matter went into full trial, wherein the prosecution called five witnesses and tendered the accused person’s extra judicial statements, Exhibits A, A1, 2 and 2A respectively. The accused person testified in his defense.

At the end of the trial and in a reserved but considered judgment delivered on 30th December, 2021, Learned trial Judge found the accused person guilty as charged. He was sentenced to death on the 1st and 2nd counts and six month imprisonment on the 3rd count.

Appellant was dissatisfied with the judgment of the Lower Court and hence appealed to this Court vide a notice of appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether prosecution proved its case against the Appellant beyond reasonable doubt as required by law to secure his conviction in the circumstances of this case?

 

 

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RATIONES DECIDENDI

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PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

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Now there is no question that the established principle in all criminal cases is that the prosecution must establish the guilt of the accused person beyond reasonable doubt upon established evidence before the trial Court. That burden on the prosecution never shifts. But proof beyond reasonable doubt is not proof to a mathematical certainty. It is also not proof beyond every shadow of doubt. Thus, if the evidence against the accused person is so strong as to lead to only remote probability in his favour which can be dismissed as though possible but not in the least probable, then proof beyond reasonable doubt has been attained. (OBUE V. THE STATE (1976) 2 SC 141, LORI V. STATE (1980) 8 – 11, SC 81 and ONYEUKWU V. STATE (2000) 12 NWLR (PT. 681) 256. – Per M. L. Shuaibu, JCA

 

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PROSECUTION – THE EFFECT OF THE PROSECUTION PROVING THE ESSENTIAL ELEMENTS OF AN OFFENCE CHARGED

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Let me state in an unambiguous terms that where the prosecution proves the essential elements of an offence charged, such offence or offences are proved beyond reasonable doubt. Thus, the duty on the prosecution is to prove the main or essential ingredients of the offence charged. – Per M. L. Shuaibu, JCA

 

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CONSPIRACY – THE MEANING OF CONSPIRACY

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Conspiracy is defined as an agreement by two or more persons to accomplish an unlawful or illegal act or to commit an act which is not unlawful by illegal or unlawful means. Thus, the mere agreement alone constitutes the offence of conspiracy because it is immaterial to prove that the act was in fact committed. See BALOGUN V. A.G. OGUN STATE (2002) 2 SC (PT. 11) 89. – Per M. L. Shuaibu, JCA

 

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CONSPIRACY – THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF CONSPIRACY

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It is very pertinent to note that a conspiracy is complete if there are acts on the part of the accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing common object or objective. In the instant case, the Appellant has in his extra-judicial statements, Exhibits 1, 1A, 2 and 2A stated that himself and his friend, one Mai aigi of Gidan Kwano Village, Ngaski L.G.A had agreed to go out to steal motorcycle and before then, they approached a prospective buyer. The law is that the offence of conspiracy is complete when two or more persons agree to do an unlawful act by unlawful means whether or not the act itself was successful. See SANI V. STATE (2023) LPELR – 60176 (CA). – Per M. L. Shuaibu, JCA

 

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ARMED ROBBERY – THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

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To secure conviction for armed robbery on the other hand, the prosecution must adduce credible evidence in proof of the following facts beyond reasonable doubt:

(a). That there has been a robbery or series of robberies;

(b). That the robbery or series of robberies was an armed robbery; and

(c). That the accused was either the armed robber or one of those who took part in the robbery or series of robberies.

See BAKARE V. STATE (2017) LPELR – 42772 (CA). – Per M. L. Shuaibu, JCA

 

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ESSENTIAL INGREDIENTS – THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF CONSPIRACY TO COMMIT ARMED ROBBERY AND THE OFFENCE OF ARMED ROBBERY

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In MINDI V. STATE, per PETER -ODILI, JSC (pp. 44 – 45, paras D-D:

“The Appellant had put up a defence to the effect that the prosecution had not proved the offences of conspiracy to commit armed robbery against him beyond reasonable doubt. The said offences of conspiracy to commit armed robbery and armed robbery are contrary to Section 6(b) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap. 515 L.F.N. For the offence of conspiracy to commit armed robbery in order to secure a conviction, the prosecution must prove the following; (a). That there was an agreement between the accused person and others to commit armed robbery, (b). That in furtherance of the argument, the accused took part in the commission of the armed robbery or series of robberies, (c). That the robbery or each of the robberies was an armed robbery. In respect of the offence of armed robbery, I had stated that the prosecution has a burden duty to prove beyond reasonable doubt that: (a). That there was a robbery, (b). That the robbery or series of robberies, were armed with offensive weapons at the time of the robbery and (c). That the accused person participated in the robbery. See Thomas V State (2017) LPLER – 41735”. – Per M. L. Shuaibu, JCA

 

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POSSESSION OF STOLEN GOODS – CONDITIONS FOR THE DOCTRINE OF RECENT POSSESSION OF STOLEN GOODS TO APPLY

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…the law is settled that a man who is in possession of stolen goods soon after the theft is either the thief or received the goods knowing same to be stolen unless he can account for his possession. See Section 167(a) of the Evidence Act, 2011. However, for the doctrine of recent possession to apply, there must be evidence that: (i) That the accused was found in possession of the stolen property or goods, (ii) That the property was recently stolen and (iii) That the accused was unable to account for the possession of property. See OSARE-KHOE V. STATE (2019) LPELR – 48320 (CA) and UDOH V. THE STATE (1993) 5 NWLR (PT. 295) 556. – Per M. L. Shuaibu, JCA

 

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STATEMENT – CONDUCT OF COURTS TO CONFESSIONAL STATEMENTS

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Where the extra-judicial confession of an accused person has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, it is safe to convict on it even if there is no corroboration of it. Similarly, confessional statement is proved to have been made voluntarily when at the stage of tendering the confessional statement, there is no objection from the accused person or his counsel as to the voluntariness of the statement. – Per M. L. Shuaibu, JCA

 

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TRIAL WITHIN TRIAL – THE PURPOSE OF A TRIAL WITHIN TRIAL AND WHEN IT BECOMES NECESSARY

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The purport of a trial within trial on the other hand is to ascertain whether or not the statement of the Accused person was voluntarily obtained, devoid of threat, duress or promise emanating from a person in authority. If at the end of the mini trial, or trial within trial, it is found that the confession was voluntary, it would be admitted in evidence as an exhibit. In the instant case, there was no basis for trial within trial because the Appellant did not object to the admissibility of his statements on the ground of involuntariness. A fortiori, a complaint of non-compliance with the provisions of the Administration of Criminal Justice Act by the police in recording the Appellant’s statements is in the realm of procedural issue which can be waived. Therefore, the failure of the Appellant to raise this point timeously at the point of tendering the statement means that the Appellant cannot raise it for the first time on appeal. – Per M. L. Shuaibu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Robbery and Firearms (Special Provisions) Act, Cap 211 LFN 2004

3. Penal Code.

4. Administration of Criminal Justice Act, 2015.

5. Evidence Act, 2011

 

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