Iliyasu Suberu V The State (2010)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI: J.S.C.

This is an appeal against the judgment of the court of appeal, Abuja Division (hereafter referred to as ‘the court below’) delivered on 30th April, 2009 which upheld the decision of Olusiyi, J. of the High Court of Justice, Okene, Kogi State on 28th May, 2007.

The appellant was charged along with three (3) other accused persons with the offences of criminal conspiracy and armed robbery contrary to section 97(1) and 298 (c) of the Panel Code. The prosecution called three (3) witnesses and closed its case. A no-case submission was made on behalf of the appellant. The trial judge overruled it. The appellant appealed to the court below which dismissed same. The appellant has further appealed to this court.

It is apt to state the facts of this matter briefly. P.W.1 came from Port Harcourt to visit his family in Okene on 30th April, 2003. At about 11.00 pm, he heard a noise on the deck of his house. When he opened the door to find out the source of the noise, he was confronted by the 2nd accused who had a gun with him. The 2nd accused ordered P.W.1 to produce the money he had on him. P.W.1 said he gave him N25,000.00 which he said was not enough. He further gave the 2nd accused N15,000.00. When the 2nd accused left, P.W.1 said he raised an alarm with P.W.2 and neighbours came to sympathize with him. P.W.1 said the 2nd accused fell into a well in his premises from which he was brought out with a rope. The 2nd accused told P.W.1 that it was the 1st accused who led him to the house of PW1 to rob.

P.W.1 did not see the appellant who was the 3rd accused at the time of the commission of the crime. The P.W.2, the sister-in-law of PW1 did not say anything about the 3rd accused. Under cross-examination, she agreed that she did not see the 3rd accused. The PW3, the investigating Police Officer (IPO) recorded the statement of the 4th accused, to with, Exhibit 1. He did not state any role played by the appellant.

Based on the above evidence, Mr. Aliyu, learned counsel for the appellant, made a no-case submission on behalf of the appellant in that no evidence connected him to the offence. He submitted that by section 27(3) of the Evidence Act, Exhibit 1 is not evidence against the 3rd accused who denied committing the offence. He urged that the 3rd accused be discharged.

Mr. Jamil, the Chief Legal Officer for the prosecution, at page 46 line 6 – 7 of the transcript record of appeal commendably stated thus:-

“We agree with the no-case submission of learned counsel for the 3rd accused.”

On 28/5/2007, the learned trial judge, in his ruling, overruled the no-case submission relying particularly on Exhibit ‘1’, statement of the 4th accused person wherein the name of the 3rd accused was mentioned.

As stated earlier on in this judgment, the court below dismissed the appellant’s appeal. It placed reliance on the evidence adduced by the prosecution; especially Exhibit ‘1’.

In the appeal before this court, briefs of argument were filed and exchanged. On the 28th January, 2010, learned counsel for the parties adopted their respective brief of argument. The sole issue formulated on page 3 of the appellant’s brief reads as follows:-

“Whether the learned justice of the court of appeal were right to hold that a prima facie case had been established against the appellant.”

Learned counsel for the respondent adopted the issue decoded by the appellant as reproduced above.

Learned counsel for the appellant submitted that there is no evidence which linked the appellant with the offences alleged against him from the totality of the evidence adduced by the three witnesses called by the prosecution. He asserted with force that since Exhibit 1 is a statement made by the 4th accused, such a confession statement of a co-accused is no evidence against the appellant who did not adopt the statement. He referred to section 27 (3) of the Evidence Act, Cap E 14 LFN 2004, as well as Rule 7 (1) of the Criminal Procedure (Statement to Police Officers) Rules, 1960 and cited the a cases of R. v. Afose & Ors. (1934) 2 WACA 118; Ozaki & Anr. v. The State (1990) All NLR 94 at 116 – 117; Yongo v. C.O.P. (1992) 8 NWLR (Pt.257) 36 at 58 – 59.