CORAM

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PARTIES

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1. HUSSAIYU GARBA2. YAHUZA MOHAMMED

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THE STATE

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AREA(S) OF LAW

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SUMMARY OF FACTS

This appeal emanated from the judgment of Kebbi State High Court, which convicted the two Appellants for the offences of conspiracy and Armed Robbery contrary to Sections 5 (b) and 1 (2)(a) of the Robbery and Fire Arms Act 1990, and sentenced each of the Appellants to 21 years imprisonment while discharging and acquitting the 3rd accused for the Respondents inability to prove the offences beyond reasonable doubt against him. The Appellants pleaded not guilty to each of the two-count charge. In proof of its case the Respondent called five (5) witnesses and tendered six (6) exhibits including a horse whip marked exhibit ‘A’, the first Appellant’s extra judicial confessional statement marked exhibit ‘C, and the second Appellant’s confessional statement marked exhibits ‘B’. The Appellants testified in their defence as DW1 and DW2 respectively and tendered one exhibit marked exhibit ‘E’ but called no other witness. The facts on the part of the Respondent is that on the 19th of March 2005, the Appellants and one other person charged along with them (now simply referred to the 3rd accused), agreed to commit armed robbery at Zango area of Zuru, Kebbi State and while so armed, they went to the houses of Kabiru Hammadi and Alhaji Bashir Hammadi attacked them and robbed them of the sums of N150, 000 and N2, 060 respectively. While the first Appellant was recognised by PW4 through the reflection on the standing mirror by the flashes of torch light of the robbers, the second Appellant was arrested within the scene of crime. On their parts, the first Appellant denied being the person recognised by PW4 or taking part in the commission of the offence. The second Appellant also denied any involvement in the crime. Upon reviewing the evidence, the learned trial judge found that the Respondent proved its case beyond reasonable doubt against the two Appellants and accordingly convicted and sentenced each of the 1st and 2nd Appellants to 21 years imprisonment on each count charge to run concurrently but discharged and acquitted the 3rd accused. Dissatisfied with the conviction and sentence by the trial Court, the Appellants have appealed to this Court.

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HELD

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1st Appellant’s Appeal Dismissed, 2nd Appellant’s Appeal Allowed .

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ISSUES

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Whether from the evaluated evidence by the trial Court; the respondent proofs (sic) its case against the Appellants beyond reasonable doubt?

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RATIONES DECIDENDI

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ARMED ROBBERY – ESSENTIAL INGREDIENTS OF ARMED ROBBERY A PROSECUTION MUST PROVE TO GROUND A CONVICTION

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“The essential ingredients of armed robbery as stated and restated in a plethora of decided cases include:
(a) That there was a robbery or series of robberies;
(b) That the robbery or robberies was an armed robbery; and
(c) That the accused person took part in the robbery.
See Bello V State (2007) ALL FWLR (Pt 396) 7002 at 719 B C, Isibor V State (2002) 3 NWLR (Pt. 754) 250, 278 D E. It is needless to emphasize that to secure a conviction, the prosecution must prove all the ingredients beyond reasonable doubt, see Galadima V The State (2017) LPELR 41909 (SC).”

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GUILT OF AN ACCUSED PERSON – WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON

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“It has since been established over time that the guilt of an Accused person may be established either by the confessional statement of the accused; by circumstantial evidence, or by the evidence of eye witnesses account to the commission of the offence. See Igabele V The State (2006) 6 NWLR (Pt. 975) 100, N.G. Army & 2 Ors V Commander S.A Ube Lanbert (2007) ALL FWLR (Pt. 398) 574, at 586.”

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IDENTIFICATION OF AN ACCUSED PERSON – FACTORS WHICH COURTS ARE TO CONSIDER TO AVOID INSTANCES OF MISTAKEN IDENTITY

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“Now, our Courts have been enjoined to always be cautious and wary on matters of identification of accused persons especially when the resolution of the issue turns solely on the identify the accused person. That is why the Courts are enjoined to be guided by some factors so as to guard against instances of mistaken identity. These factors though not closed, include;
(1) The circumstances under which the eye witness saw the accused;
(2) The length of time the witness saw the accused (3) the lightening conditions (4) close observation opportunity (5) previous counters between the two. See Rasaki V State (2011) 16 NWLR (Pt 1273) 251 @ 293 294. The need for this caution is more where there are no previous contacts, familiarly, acquaintance or knowledge of the accused person or in conditions which render the identification difficult and the identification evidence weak.”

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IDENTIFICATION OF AN ACCUSED PERSON – DUTY OF COURT ON AN ALLEGATION OF MISTAKEN IDENTITY

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“It is trite that whenever the case turns wholly on the correctness of the identification of the accused, and the defence alleges that the identification is mistaken, the Court has an onerous task of meticulously examining the identification evidence with a view to discovering the truth. See Ukpabi V State (2004) 11 NWLR (Pt 884) 439.”

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IDENTIFICATION OF AN ACCUSED PERSON – CONSIDERATIONS BY TRIAL COURTS ON THE IDENTIFICATION OF AN ACCUSED PERSON

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“Nonetheless, it is settled law that each case must be considered on its own facts and peculiar circumstances the question of whether an accused person is properly identified or not being a question of fact to be considered by the trial Court. See Ukpabi V State (Supra).”

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IDENTIFICATION OF AN ACCUSED PERSON – PURPOSE OF EVOLVING GUIDELINES TO GUIDE TRIAL COURTS IN RESOLVING COMPLAINTS ON ISSUES OF IDENTIFICATION OF AN ACCUSED PERSON

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“The purpose of evolving guidelines to guide trial Courts in resolving complaints on issues of identification of an accused person or to satisfy itself that the accused was properly identified by the witness, is to safeguard against cases of mistaken identity. But in cases where there is previous contact or familiarity between the witness and the person so identified and the identification evidence is cogent, the Court will be entitled to accept and act on the evidence. In the case of in Charles Anyaele and Others Vs. The State SC. 299 (1971) delivered on February 23rd, 1973 the Supreme Court held:-
“When considering the value of the identification of an accused person by witness, a distinction should be drawn between a witness who has merely made a brief acquaintance with the person being identified and one who knows him well. And since in the present case the witness who testified against the appellants knew them well, the acceptance of their evidence by the trial Judge was proper and was not open to any objection.”

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IDENTIFICATION OF AN ACCUSED PERSON – CIRCUMSTANCES WHEN THE IDENTIFICATION EVIDENCE OF A LONE WITNESS WOULD SUSTAIN THE CONVICTION OF AN ACCUSED PERSON

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“The settled position of law is that once the Court believes the identification evidence of even a lone witness, that evidence is sufficient to sustain the conviction of an accused person. In Fatai V State (2013) 10 NWLR (Pt 1361) 1 Ngwuta JSC held:
‘It has been held by this Court that where there is no dispute about the identity and identification of an accused person by a witness there will be no reason why his evidence alone, if believed, cannot ground and sustain a conviction even on a charge of murder. See also Ochiba V State (2011) 12 SC (Pt. 11) 79.”

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STATEMENT OF AN ACCUSED PERSON – BASIS ON WHICH A CONFESSIONAL STATEMENT MADE BY AN ACCUSED PERSON CAN BE CONSIDERED AGAINST A CO-ACCUSED PERSON

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“By virtue of Section 29 (4) of the Evidence Act where more than one person are charged jointly for an offence, a confessional statement made by one of the accused persons shall not be considered against the other accused person except it is made in his presence and adopted by him. Judicial authorities giving life to this statutory provision abounds. 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 statement.”

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CONFESSIONAL STATEMENT – APPROPRIATE TIME FOR CHALLENGING THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT

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“The law which is now very elementary and has repeatedly been restated is that the right time to challenge the voluntariness of a confessional statement is at the time it is sought to be tendered. An objection to the voluntariness of a confessional statement after the statement has been admitted in evidence is one too late. It is like an attempt to resuscitate or revive a dead horse. Such an effort will bear no fruit. My lord I T. MUHD JSC in Oseni V State (2012) LPELR 7833 (SC) likened such an attempt to that of a person seeking a remedy to a dented or crucified matter which can hardly be survived. At best, the effect of such denial of the voluntariness of a confessional statement, which has been admitted without objection in that such a statement would be treated as the law consider such a statement as a retracted confessional statement which the Court is entitled, if satisfied with, to rely upon so long as it is direct, positive and unequivocal. It is however desirable that before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See Bassey V The State (1993) 7 NWLR (pt. 306) 469, 479.”

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CONSPIRACY – MEANING OF CONSPIRACY IN A CRIMINAL CHARGE

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“On the charge of conspiracy, conspiracy simply is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means.”

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CONSPIRACY – BASIS FOR THE COURTS INFERENCE OF CONSPIRACY FROM CIRCUMSTANTIAL EVIDENCE

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“Often, conspiracy to commit an offence is inferred from circumstantial evidence, and it is based on common intent or purpose of the parties. Once, as in the case at hand, there is evidence to commit the substantive offence, it does not matter whether the other conspirators are still at large or have been discharged. See Ogugu V State (1990) 2 NWLR (Pt 134) 539. Similarly, once there is evidence to commit the substantive offence, it does not matter that any of the conspirators did what. See Sule V State (2009) LPELR 3125 (SC).”

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CRIME – WHETHER THE MERE PRESENCE OF A PERSON AT THE SCENE OF CRIME CONSTITUTES SUFFICIENT PROOF OF THE GUILT OR COMMISSION OF CRIME

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“The law is trite that the mere presence at the scene of crime does not, as a matter of law render the person so present guilty of the crime. There must be clear evidence that either prior to or at the time of the commission of the offence, the person present did something or omitted to do any act such as aiding or abetting to facilitate the commission of the offence. See ADE Tokunbo Ogunlana V The State (1995 5 SCNJ 189.”

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REASONABLE DOUBT – DUTY OF COURT WHERE AT THE CLOSE OF A PROSECUTION’S CASE REASONABLE DOUBT IS CREATED IN THE MIND OF THE COURT

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“The law is settled that where at the close of the case for the prosecution a reasonable doubt is created in the mind of the Court, as it is here created, the doubt should of necessity be resolved in favour of the accused. Our law reports both electronic and print are replete with judicial authorities on this cardinal principle of Criminal Law. See for examples Kalu & Ors Vs The State (1988) 4 NWLR (PT. 90) 503; Chukwu Vs The State (1996) 2 NWLR (PT. 463) 687.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Evidence Act|Robbery and Fire Arms Act 1990|

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CLICK HERE TO READ FULL JUDGMENT

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