Abdulkarim Mohammed & Ors V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA,J.C.A (Delivering the Leading Judgment)

Following an armed robbery that occurred along Charanchi/Ganuwa Road in Charanchi Local Government Area of Katsina State on the 24th December, 2002, the Appellants were, apparently, arrested on 5/1/2003, and, later a charge dated 5/2/2004 was preferred against them before the Katsina State High Court. It reads thus:

“That you (1) Abdul-Kareem Mohammed (2) Aminu Sada and (3) Yunusa lbrahim (Chamama) on or about 24th day of December, 2002 along Charanchi/Ganuwa road in Charanchi Local Government Area attacked and robbed (a) Hambali Ibrahim (b) Ibrahim Halidu while armed with dangerous weapons to wit: Dane guns, Cutlasses (sic) and Sticks, robbing them of the sum of N175,000.00 (One Hundred and Seventy Five Thousand Naira) and thereby committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act 1990”

The Appellants pleaded not guilty to the charge on 18/11/2004 and, on 13/1/2005, trial in the charge started in earnest. Four witnesses testified for the prosecution, while three testified for the defence. After evaluating the evidence, proffered before it, the trial Court held that the prosecution proved its case beyond reasonable doubt. It expressed thus;

“….I hold that the prosecution has proved its case of robbery against the accused persons. This is because section 2(b) of the Robbery and Firearms (Special Provisions) Act CAP 368 Laws of the Federation 1990 provides among other things that “at or immediately before or immediately after the time of the assault the offender wounds or uses any other personal violence to any person.”

I hold that this last aspect of “uses any other personal violence to any other person has been proved by the testimony of PW1 who stated, “the moment I reached one culvert then some people stopped us with three torchlights. Then they started beating us with sticks, and I then ran and left my motorcycle. The other person carrying a bag of money got confused they kept beating him until he fell down.” This piece of testimony was corroborated by that of PW4 the victim of the offence, the one carrying a bag of money. He also stated that they took the bag of money and left him on the ground in view of this I hold that one of the essential ingredients that can established the offence of robbery has been proved.”

The Court then found the three accused persons guilty as charged, and sentenced them to death, i.e., to die by hanging by their necks until they die or by firing squad whichever option is chosen by the Executive Governor of Katsina State.

The appellants were distressed by the pronouncements of the trial Court and in consequence thereof, they lodged an appeal against the same via their respective Notices of Appeal dated the 15th January, 2007, and filed on 6/1/2007. As earlier depicted, the Appellants herein filed three distinct Notices of Appeal through the same Counsel but, somehow, the said Notices of Appeal were treated as one by the Registry of this Court and they were given one appeal number, that is to say; CA/K/244/C/2007. A careful study of the said Notices of Appeal depict that they were based on one identical ground of appeal. Only one Brief was filed on their behalf in this appeal. Each Appellant signed his respective Notice of Appeal which is based solely on the identical ground, “that the trial Court erred in law for convicting the Appellant when there was no evidence before the Court.” The Particulars are: “(a) the confessional statement was rejected and no any other Exhibit tendered; and (b) the evidence given by P.W.4 is not reliable as same was given by a tainted witness.” Then, following the compilation and transmission of the record of appeal to this Court, and service of the same on the parties, the parties filed and exchanged their Briefs of Argument.

It is curious that out of the identical sole ground of appeal, the Appellants formulated two issues for determination by this Court, they read thus:

“1. Whether the prosecution has proved the case of Armed Robbery against the Appellants beyond reasonable doubt.

2. Whether the Trial Court could be said to have properly evaluated the evidence of the prosecution when three out of four prosecution witnesses gave hearsay evidence and the other P.W.4 a tainted witness.”

The Respondent adopted the issues as were presented by the Appellants.

In arguing issue No. 1, that is to say; whether the prosecution has proved the case of Armed Robbery against the Appellants beyond reasonable doubt, which he said stemmed from the sole ground of appeal, learned Counsel for the Appellants, Kabir Umar Yarlilu Esq; stressed that in criminal trial, the onus of proof rests on the prosecution to prove beyond reasonable doubt, the commission of the offence by the accused. He relied on the case of Cyracus Ogidi & 3 ors vs. The State (2005) 1 SCNJ page 67 ratio 5 and pages 85-8G. He submitted that in law there are three ingredients of the offence of armed robbery which must be proved by the prosecution to secure a conviction. They are:

1. That there was an Armed Robbery
2. That the Accused was armed; and
3. That the accused, while with the arm or arms participated in the robbery.

Learned counsel cited Fatai Olayinka vs. The state (N.S.Q.R) page 149 at 153 and pages 171-173 in support. He then urged that issue No.1 be resolved in favour of the Appellants. Curiously too, learned Counsel stated that issue No.2 arose out of the Appellants’ sole ground of appeal. I must state that I am not too certain as to how the second issue arose out of the same sole ground of appeal, except Counsel treated the respective sole ground of appeal in the Appellants’ Notices of Appeal disjunctively or separately.

However, dealing with the said issue, Counsel contended that no proper evaluation of the evidence adduced was made by the trial Court, particularly, the evidence of P.W.4. He stressed that if properly reviewed, the trial Court ought not to have relied on the evidence of P.W.4, Ibrahim Haladu, one of the alleged victims of the armed robbery who lodged his complaint with the Police in respect of the said offence about 1-2 days after the alleged armed robbery took place. He noted the trial Court’s comment at page 81 of the record ‘that P.W. 4 could not have been in a position to observe such meticulous details’ regarding the number of people that attacked them, and, then asserted that P. W. 4 is a tainted witness. Counsel, further, made reference to the cases of Samson Uzoka vs. The State (1990) 6 NWLR Part 159 page 680 at 682 ratio 5, and 690 paragraph E; and The State vs. Grace Abraham Akpabio (1993) 4 NWLR Part 285 page 204 at 208 ratios 4 and 5 and, 220-225 paragraphs D-B, and, H-A respectively, and, argued that as a tainted witness, P.W.4’s evidence required corroboration, but no such corroboration was provided. He stressed that a lot of doubt was created by the testimony of P.W.4 on his account of three people holding or flashing a torchlight, and that it was from there he was able to remark the faces of the Appellants. He then submitted that the conviction and sentence of the Appellants lack basis in law, and as such, this appeal ought to be allowed and the conviction and sentence of the Appellants be set aside.