Alhaji Musa Sani V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Appellant herein was arraigned together with one Ifanye Amah, before the Katsina State High Court on a charge of Armed Robbery punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation, 2004. The charge read to the Appellant and his co-accused and to which they pleaded not guilty, read thus:

“That you Alh. Musa Sani of behind Zakka House, Kofa Marusa, Low Cost; Katsina and Ifanye Amah of old Olympic Hotel, Kofar Kaura Layout Katsina, Katsina Local Government Area of Katsina State, on or about the 28th day of May, 2008 committed robbery in that you did an act to wit attacked and robbed one Abdullahi Mohammed (alias BODA) the sum of Nine Hundred and Forty thousand Naira (N940,000.00) and at time of the robbery, you were armed with offensive weapons to wit: cutlasses and iron with which you threatened him and thereby committed an offence punishable under Section 1(2)(a) of Robbery and Firearms (special Provisions) Act, Cap R11 Laws of the Federation, 2004.

During the trial, the Prosecution presented about six witnesses, while the Defence called three witnesses.

At the end of the trial, after evaluation of the evidence adduced by both sides, the trial High Court held that the testimonies of the Prosecution witnesses are consistent and credible, that the two accused persons committed the offence as charged and that they had no defence to the commission of the offence. It thereby convicted them of the offence and sentenced them to death.

The Appellant was not satisfied with the trial court’s finding and conclusion that he proceeded to lodging this appeal. The parties filed their respective Briefs of Argument. Two issues were raised by the Appellant for the consideration of this Court thus:

“1. Whether the Prosecution/Respondent can be said to have discharged the onus on it, of proof beyond reasonable doubt in the face of its inability to establish the ingredients of the offence of Armed Robbery or create a nexus between the cutlass (Exhibit 3 and the iron rod (Exhibit 4) to the Appellant?

2. Whether the trial court was right to convict the Appellant for Armed Robbery and sentenced him to death when it held that the Appellant created an alibi in his extra judicial statement which was not investigated?

The Respondent adopted the two issues excogitated by the Appellant for determination by this Court.

Then, in the argument presented on behalf of the Appellant, Seth Nixon Esq; the Appellant’s Counsel contended that the three ingredients for the establishment of the offence of armed robbery, have not been proved by the Prosecution. He referred to Osuagwu vs. State (2009) 1 NWLR Part 1123 page 523 at 536, paragraphs D – E and Oguntola v. State (2007) 12 NWLR Part 1049 page 617 at 635 paragraphs G – H, and stated that the prosecution must prove that (a) there was robbery; (b) the robber or robbers were armed with offensive weapons; and (c) the robbery must have been committed by the accused person. Counsel stated that the ingredients were not proved by the prosecution. He said that P.W.1 did not state the source of the N940,000.00 he claimed was robbed of him by the Appellant. He argued that the day of Saturday on which P.W.1, claimed he was robbed, did not tally with the date of 28th May, 2008, the robbery allegedly took place.

He said that 28th May, 2008 was a Wednesday and not a Saturday which resulted to a huge discrepancy and created doubts in the evidence of P.W.1. He submitted that the prosecution failed woefully to establish the ingredients of the offence of armed robbery against the Appellant, in that, there is nothing indicative of the fact that the alleged victim Abdullahi Mohammed was indeed robbed of N940,000.00. The alleged victim did not disclose the source of the said sum of N940, 000.00; whether he collected it from the bank, or he cashed it by providing bank teller, cheques, etc, or if it were money realized from a business, and the nature of the business transacted. He referred to the evidence of P.W.1 where he listed the number of items he was robbed of, and reiterated that no robbery actually took place.

He stressed that there was no armed robbery on 28th May, 2008 which was a Wednesday as against Saturday mentioned by P.W.1; otherwise it means that the purported armed robbery was reported before it occurred. He stated that the non- disclosure of his source of the said sum of N940, 000.000 which he claimed was taken by the Appellant and his cohort cast a serious doubt as to whether there was an Armed Robbery at all. He relied on the State vs. Azeez (2008) 14 NWLR Part 1108 page 439 at 483 paragraphs B-E; 501 paragraphs D-E.

Learned Counsel observed that none of the Prosecution witnesses, aside from P.W.1, mentioned what Abdullahi Mohammed was robbed of. The police in their investigation did not ascertain what P.W. 1 lost to the robbery.

Counsel further stressed that there was no evidence proffered at the lower Court that linked the Appellant to the said Armed Robbery, in that none of the items and cash purportedly stolen by the Appellant was found on the Appellants. He explained that the residences, of P.W.3, the Appellant and Abdullahi Mohammed (the purported victim of the robbery) are in the same vicinity i.e. Kofar Kaura, Katsina, therefore, the Appellant and P.W.3 could not have robbed in the same environment and remained there without a trace of the stolen items to them at their residence.

Counsel referred to the testimony of P.W.1, where he says; it was at the Sabon Gari Police Station at about 10:00am on the date of the purported robbery, he saw the 2nd accused person at the said Police Station and he identified him as one of the robbers who robbed him. He stressed that by the assertion, the Appellant was arrested almost immediately after the purported armed robbery; yet, none of the purported stolen items could be found on or with him.