Samaila V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

My lords, this is yet another appeal against the concurrent findings of guilt of an appellant by the two Courts below. By charge No: KB/HC/RF/14/2015, the respondent preferred a two count charge of Conspiracy and Armed Robbery Contrary to Sections 5(b) and 1(2)(a) of the Robbery and Fire Arms Act 2004 against the appellant and three others at the Kebbi State High Court with Hon. Justice I.B. Mairiga, CJ as he then was, presiding. The appellant and the two others were alleged to have armed themselves with cutlasses and knives when they attacked their victims and dispossessed them of money and other valuable items.

To prove its case at the trial Court, the respondent called five witnesses. The appellant was DW2 of the four witnesses called by the defence.

At the end of trial, the Court relied principally on exhibits 1 and 2, 1st and 2nd accused persons’ extra-judicial statements, and the evidence of PW1, PW2 and PW3, to convict and sentence the appellant to death on 31st March 2016.

The dismissal of appellant’s appeal on 7th June 7 by the Court of Appeal, Sokoto Division, hereinafter referred to as the lower Court, informs the instant appeal on a notice containing three grounds filed on the 3rd of July 2017.

A sole issue for the determination of the appeal has been distilled by the appellant in his brief of argument settled by Hussain Zakariya’u Esq of counsel. The issue reads:-

“Whether from the evaluated evidence the respondent proof (sic) its case against the appellant beyond reasonable doubt. (Distilled from grounds 1, 2, 3).”

The similar issue formulated at paragraph 2:2 of the respondent’s brief of argument prepared by Mika’ilu Usman Makera, Deputy Director of Public Prosecutions at the Kebbi State Ministry of Justice is:-

“Whether on the strength of credible evidence led before the trial Court, the Court of Appeal was right to affirm the conviction and sentence of the Appellant.”

​Learned appellant’s counsel contends that the respondent did not prove its case against ‘the appellant beyond reasonable doubt. Appellant’s conviction on the basis of the evidence of PW1, PW2, PW3 and Exhibits 1 and 2, the purported confessional statements of 1st and 2nd accused persons, it is submitted, is not sustainable.

The evidence of PW2 and PW3 learned counsel argues, is hearsay and untenable. Even though by the testimony of PW1 proof of robbery at Wadata Area Jega by persons who were armed may be said to have been established, the appellant had not been successfully fixed at the venue of the robbery as a participant by PW1. Besides, the evidence of PW1 who only asserted that he heard appellant’s voice at the scene in the middle of the night was not treated with the caution the law required the trial Court to exercise. Learned counsel relied on MUSA IKARIA V. STATE (2013) 8 NCC 248 at 252 and OBI V. STATE (2013) 5 NWLR 68 at 74.

Exhibit 2, appellant’s confessional statement, learned counsel further submits, were recorded by PW4 in clear breach of the law. PW4 had testified at the trial that he neither read nor explained the words of caution to the appellant. Appellant was also not taken to a superior officer for the latter to confirm that appellant had indeed voluntarily confessed to committing the two offences. In his own testimony at trial the appellant, it was submitted, told the Court that he did not make the confessional statement. Citing OWHORUKE V. COP (2015) 39 WRN 1 at 9, STATE V. GWANGWAN (2015) 28 WRN 1 at 21 and AL- MUSTAPHA V. STATE (2013) 34 WRN 88, learned counsel submits that Exhibit 2 is inadmissible and without any evidential value to justify the lower Court’s affirmation of the trial Court’s findings based on the statement. Again, there is nothing in evidence suggesting the type of weapons used by the convicts to commit the robbery. Learned counsel entreat that the concurrent findings of guilt of the appellant by the two Courts be quashed for respondent’s failure to prove the ingredients of the offences charged beyond reasonable doubt.

Per contra, MIKAILA USMAN MAKERA, learned DPP, Ministry of Justice Kebbi State, contends that the evidence on record establishes that the appellant had committed the offences he has concurrently been convicted for. The evidence of PW1, PW2, PW3 and Exhibit 2, the extra judicial statement of the appellant, it is submitted, clearly prove all the ingredients of the offences. Learned counsel refers to Exhibit 2 at pages 27 and 28 of the record of appeal and additionally cites in support the decisions in OLAYINKA V. STATE (2007) 9 NWLR (PT 1040) 561 and OKOSI V. STATE (1989) 1 NWLR (PT 100) 642.

Exhibit 2, learned counsel further submits, being appellant’s free and voluntary confession of guilt that is direct, positive and properly established is sufficient proof of guilt and sustains the lower Court’s reliance of the truth the statement contains to affirm the trial Court’s findings of appellant’s guilt. Learned respondent’s counsel refers the Court inter-alia to SOLOLA V. STATE (2005) 11 NWLR (PT 937) 460, ULUEBEKA V. STATE (2000) 4 SC (PT 1) 203 and ALARAPE V. STATE (2001) 14 WRN 1 SC.