Legalpedia Citation: (2022-09) Legalpedia 21213 (CA)

In the Court of Appeal

YOLA JUDICIAL DIVISION

Tue Sep 6, 2022

Suit Number: CA/YL/185C/21

CORAM

Chidi Nwaoma Uwa JCA

JAMILU YAMMAMA TUKUR JCA

MOHAMMED L. ABUBAKAR JCA

PARTIES

MUNBE BALA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

CRIMINAL PROCEDURAL LAW, CONSTITUTIONAL LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appeal is against the judgment of the High Court of Adamawa State (trial court). The background facts are that there were six defendants that stood trial over a five count information. The six defendants stood trial under counts 1 – 3, the 1st Defendant alone was charged under count 4 (Illegal Possession of Firearms) while the 6th defendant alone was charged under count 5 (Illegal Possession of Firearms). The Appellant was arraigned and he pleaded not guilty to counts 1 – 5 of the information. It was alleged by the Respondent that the Appellant and five other Defendants committed two robberies, one on 29th August, 2015 and the other on 31st August, 2015. In proof of her case, the Respondent called eight witnesses, PW1 – PW8.

The Appellant testified in defence and tendered no Exhibit, denied committing any of the offences charged, testified that he was forced and tortured to say that he committed the alleged offences. On the alleged confession of the Appellant in Exhibits F1 – F6, the trial court held that the prosecution proved its case beyond reasonable doubt, the guilt of the Appellant in respect of the offences charged. The Appellant was convicted for the offences charged under counts 1 – 5 of the information. It was made out that the Appellant was not charged under count 4 of the information but, was convicted on the said count, pages 7 and 291 of the printed records of Appeal. The Appellant dissatisfied with the decision of the trial court, appealed to this court.

HELD

Appeal allowed in part

ISSUES

The appeal is against the judgment of the High Court of Adamawa State (trial court). The background facts are that there were six defendants that stood trial over a five count information.  The six defendants stood trial under counts 1 – 3, the 1st Defendant alone was charged under count 4 (Illegal Possession of Firearms) while the 6th defendant alone was charged under count 5 (Illegal Possession of Firearms). The Appellant was arraigned and he pleaded not guilty to counts 1 – 5 of the information.  It was alleged by the Respondent that the Appellant and five other Defendants committed two robberies, one on 29th August, 2015 and the other on 31st August, 2015.  In proof of her case, the Respondent called eight witnesses, PW1 – PW8.

The Appellant testified in defence and tendered no Exhibit, denied committing any of the offences charged, testified that he was forced and tortured to say that he committed the alleged offences.  On the alleged confession of the Appellant in Exhibits F1 – F6, the trial court held that the prosecution proved its case beyond reasonable doubt, the guilt of the Appellant in respect of the offences charged.  The Appellant was convicted for the offences charged under counts 1 – 5 of the information.  It was made out that the Appellant was not charged under count 4 of the information but, was convicted on the said count, pages 7 and 291 of the printed records of Appeal. The Appellant dissatisfied with the decision of the trial court, appealed to this court.

RATIONES DECIDENDI

CONVICTION – WHETHER OR NOT AN ACCUSED CAN BE CONVICTED FOR AN OFFENCE HE WASN’T CHARGED WITH?

The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See, OKABICHI & ORS. VS. STATE (1975) LPELR – 2406 (SC) PAGES 20 – 22, PARAS. C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P.35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH V. FRN (2008) 13 NWLR (PT.1103) 1. PER – CHIDI NWAOMA UWA, JCA.

RIGHT TO FAIR HEARING – WHAT DOES FAIR HEARING FOR AN APPELLANT REQUIRE?

RIGHT TO FAIR HEARING – WHAT DOES FAIR HEARING FOR AN APPELLANT REQUIRE?

The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See, ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1.The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried. See, SEGUN VS. STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F. PER – CHIDI NWAOMA UWA, JCA.

RIGHT TO BE INFORMED – THE RIGHT OF AN ACCUSED TO BE INFORMED ABOUT THE NATURE OF HIS OFFENCE

Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS. (2017) LPELR – 42985 (CA) P. 68, PARAS. A – B, his lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus:

“The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged”.

See, FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C – E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D. PER – CHIDI NWAOMA UWA, JCA.

FAIR HEARING – WHAT IS THE RESULTANT EFFECT OF AN ACCUSED BEING DENIED FAIR HEARING

The Appellant was denied fair hearing under the present circumstances, it is a gross miscarriage of justice contrary to the provisions of Section 36(6)(a) of the 1999 Constitution (as amended). The resultant effect is that the trial court’s conviction and sentence of the Appellant on count 4, of illegal possession of firearms is a nullity and it is hereby set aside. Issue one is resolved in favour of the Appellant. PER – CHIDI NWAOMA UWA, JCA.

PROOF OF GUILT – 3 MEANS BY WHICH THE PROSECUTION CAN PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT

It is trite that it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt and in proving such guilt it could be done by any or a combination of any of the following means:

1. The confessional statement of the Defendant.

2. Circumstantial Evidence, and

3. Evidence of an eye witness.

See, OBIAKOR & ANOR. VS. STATE (2002) LPELR – 2168 (SC) PP. 11- 12, PARAS. F – A, NWEZE VS. STATE (2017) LPELR – 42344 (SC) P. 14, PARAS. A – B, STATE VS. GWANGWAN (2015) LPELR – 24837 (SC) PP. 11 – 22, PARAS. G – D, YONGO VS. COMMISSIONER OF POLICE (1992) 4 SCNJ 113, BALOGUN VS. FRN (2021) LPELR – 53185 (SC) PP. 22 – 34, PARAS. E – A and YOHANNA DANJUMA VS. THE STATE (2019) LPELR – 47037 (SC) PP. 17 – 18, PARAS. E – D. PER – CHIDI NWAOMA UWA, JCA.

 

CONFESSIONAL STATEMENT – A CONFESSION IS THE BEST EVIDENCE WHERE VOLUNTARILY MADE

The Appellant confessed to having committed the offence of conspiracy to commit armed robbery and armed robbery as charged.  A confession is the best evidence where voluntarily made as in the present case where the Appellant retracted from his statement and the trial court conducted a trial within trial and found the confessional statement to have been voluntarily made and admitted same in evidence as Exhibits F1 – F6. The confessional statement therefore rightly formed part of the evidence before the trial court. In ABDULLAHI MUSTAPHA BENENDE VS. FEDERAL REPUBLIC OF NIGERIA (2021) LPELR – 54993 (SC) P. 67, PARAS. C – D his lordship Okoro, JSC on the Status of a confessional statement held thus:

“It is trite law that short of an eye witness account, a confessional statement is the best and strongest evidence possible against an accused person, as long as it has passed the verification test. See OSENI VS. STATE (2012) 5 NWLR (PT. 1293) 351”.

See also, KUSHIMO VS. THE STATE (2021) LPELR – 54999 (SC) P. 57, PARAS. B – D. The Appellant’s confessional statement was tested and verified by the trial within trial rightly conducted by the trial court. See, SOLOLA & ANOR. VS. STATE (2005) LPELR – 3101 (SC) PP. 38 – 39, PARAS. G – A. When a confession is well proved, it is the best evidence that could be produced, as in the present case, where the accused person admitted committing the offence charged. See, EDMINE VS. STATE (1996) LPELR – 1002 (SC) P. 12, PARA. B. and SANI VS. STATE (2020) LPELR – 53905 (SC) P. 16, PARAS. A – B. PER – CHIDI NWAOMA UWA, JCA.

 

RIGHT OF AN ACCUSED – RIGHT OF AN ACCUSED TO MAKE A STATEMENT IN THE LANGUAGE HE UNDERSTANDS WHERE HE DOESN’T UNDERSTAND ENGLISH

No doubt, it is constitutionally required that where an accused person does not understand English his statement must be recorded in the language he understands and later translated into English. See, Section 36(6) of the Constitution of the Federal Republic of Nigeria (as amended). PER – CHIDI NWAOMA UWA, JCA.

 

COFESSIONAL STATEMENT – A CONFESSIONAL STATEMENT IS SUFFICIENT TO GROUND CONVICTION

It is trite that an accused person can be convicted solely on his confessional statement as long as it is direct, positive and proved.  In ACHABUA VS. STATE (1976) LPELR – 63 (SC) P. 8, PARAS. A-C his lordship Obaseki, JSC held thus:

“It is settled law that confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession. (R.V. SKYES 8 CR APP R233, R.V. KANU 14 WACA 30, EDET OBOSI VS. THE STATE (1965) N.N.L.R. 119, PAUL ONOCHIE & 7 ORS. VS. THE REPUBLIC 1966 NNLR 307 AND JIMOH YESUFU VS. THE STATE (1975) 6 SC. 167.”

See, also KOPA VS. STATE (1971) LPELR – 1702 (SC) PP. 3-4, PARA. E, SAMA’ILA VS. STATE (2021) LPELR – 53084 (SC) P. 30, PARAS. B-F and UMAR VS. FRN & ORS (2021) LPELR – 53936 (CA) PP. 41 – 42, PARAS. C-A.  A confession is an admission by an accused person that he committed the crime. PER – CHIDI NWAOMA UWA, JCA.

FIREARMS – THE INGREDIENTS REQUIRED TO PROVE ILLEGAL POSSESSION OF FIREARMS

The ingredients required to prove illegal possession of firearms was listed by the Supreme Court in, BILLE VS. STATE (2016) LPEL – 40832 (SC) P. 32, PARA A – E where his lordship Rhodes-Vivour, JSC highlighted the ingredients to be proved by the prosecution for the offence of illegal possession of firearms to be established held that:

“In a charge of unlawful/illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act, the prosecution proves the case beyond reasonable doubt if the following three ingredients are established. (a) that the accused person was found in possession of firearms; (b) that the firearm is within the meaning of the Robbery and Firearms (Special Provisions) Act; (c) that the accused person has no licence to possess the firearm. See MOMODU VS. STATE 2008 ALL FWLR (PT. 447) P. 67 STATE VS. OLADOTUN (2011) 10 NWLR (PT. 1256) P. 542”.

See also, OKASHETU VS. STATE (2016) LPELR – 40611 (SC) PP. 16 – 17, PARAS. E – A and my earlier decision in THE STATE VS. ABDULMALIK ABIODUN & ANOR. (2016) LPELR – 43750 (CA) P. 20, PARAS. B – E; (2018) ALL FWLR (PT. 926) P. 157. PER – CHIDI NWAOMA UWA, JCA.

 

WEAPON OF ATTACK – THE POSITION OF THE LAW ON TENDERING THE WEAPON OF ATTACK AS EVIDENCE

On the other hand, it is not always necessary to tender the weapon of attack. In ESENE VS. STATE (2017) LPELR – 41912 (SC) P. 41, PARAS. A-E, his lordship Ogunbiyi, JSC stated the position of the law thus:

“Further still and to show that the prosecution is not duty bound to produce the knife, there is no legal obligation on the prosecution to produce or tender the knife in evidence. The lower court was clear and could not be faulted on this part when it held at page 148 of the record and said:-

“Let me mention here and now, that it is not the law, that the firearms, or the offensive weapons used must be tendered in proof by prosecution to commission of armed robbery. This issue has since been settled by the Supreme Court in case of FATAI OLAYINKA VS. THE STATE, 30 NSC Q B 149 AT PAGES 162 – 163”. It is a settled principle therefore that the failure of the prosecution to tender the knife used by the Appellant in attacking PW1 did not in any way water down the credible and unchallenged evidence that the Appellant committed armed robbery against PW1 on 23/12/2006”.

See, WOWEM VS. STATE (2021) LPELR – 53384 (SC) PP. 54 – 55, PARAS. C – B, STATE VS. FADEZI (2018) LPELR – 44731 (SC) P. 27, PARAS. D – G, AYORINDE ABDULKABIR VS. THE STATE (2015) LPELR – 41841 (CA) PP. 36 – 37, PARAS. F – B and UMARU VS. STATE (2020) LPELR – 50005 (CA) PP. 40 – 42, PARAS. E – B.  There is no law requiring the tendering of the weapons of an alleged robbery to be able to establish the guilt of an accused person. PER – CHIDI NWAOMA UWA, JCA.

 

DISCREPANCIES IN EVIDENCE – WHETHER OR NOT DISCREPANCIES IN EVIDENCE CAN DESTROY THE CREDIBILITY OF THE WITNESS

For discrepancy or contradiction in evidence, in the case of ABOKOKUYANRO VS. THE STATE (2016) LPELR – 40107 (SC) PP. 25 26, PARAS. D – A, his lordship Ogunbiyi, JSC stated the position of the law thus:

“The law is trite that where two or more pieces of evidence seem to contradict each other or vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. See the case of AYO GABRIEL VS. THE STATE (1989) 5 NWLR 457 AND UWAGBAE VS. STATE NCC 3, PAGE 636”.

See, also OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP. 39 – 41, PARAS. E – A, minor discrepancies in dates will not destroy the credibility of the witnesses. PER – CHIDI NWAOMA UWA, JCA.

 

IDENTICAL TESTIMONY – WITNESSES WITH IDENTICAL TESTIMONY SHOWS A LIKLIHOOD OF THEM BEING TUTORED

Sometimes, where all the witnesses give identical testimony in respect of an incident or issue, there is the likelihood that the witnesses have been tutored. PER – CHIDI NWAOMA UWA, JCA.

CASES CITED

Not Available

STATUTES REFERRED TO

Not Available

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