Legi Mohammed V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The Appellant herein was sentenced to death on the 13th day of November, 2013 by the Kwara State High Court presided over by H. R. Saleeman, J. for the offences of Conspiracy and Armed Robbery contrary to Section 97 of the Penal Code and Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Laws of the Federation of Nigeria, 2004.

The background facts are that the Appellant was arrested at Aderan Village and taken to the State CID where he was said to have made a statement in Hausa but recorded in English by one Dada Segun (Force No.171748 SGT) of the Criminal Investigation Department of the State CID Ilorin, he was the IPO as well as the interpreter to the Appellant, also the recorder who testified as PW5. Exhibit 5 is the statement of the Appellant, pages 9 – 10 of the records of appeal.

The Appellant was said to have been arrested seven months after the crime was committed. Exhibit 5 showed that the Appellant voluntarily confessed to having attacked the three victims at Banni-Lele Road, close to Elere Village in concert with one Abu Mohammed who was the co-accused that was charged to court with him. The Appellant was alleged to have forcefully collected the sum of N20,000.00 from one of the victims. The Appellant was said to have been wounded on the head by one of the victims.

The Appellant made out that he was not in town when the crime was committed and that he was arrested while returning from Dagi near Jebba where he lived and taken straight to the State CID in Ilorin. He denied knowing his co-accused.

The two witnesses during trial (victims) testified as PW3 and PW4 while the third victim Fatai, died. The Appellant’s version of the allegation against him is that according to the PW3, the appellant’s co-accused Abu Mohammed attacked the victims while the Appellant removed money from his pocket. The PW3 asserted that his hand was cut off. The deceased brother, Fatai dispossessed the Appellant’s co-accused of the cutlass which resulted in a fight in which Fatai lost his life.

The Appellant challenged Exhibits P1 and P2, the cutlass and stick respectively, allegedly used to commit the offence as no forensic analysis was carried out. The Appellant denied being at the scene or connected with the crime. It was contended that the Appellant’s defence of alibi was not investigated.

In the Appellant’s appeal against the decision of the trial court, a sole issue was distilled for determination by this court, that is:

“Whether the prosecution was able to establish a prima facie case of criminal conspiracy and Armed Robbery against the Appellant beyond reasonable doubt, to warrant the verdict returned by the Lower Court and the consequent sentence which followed?”

The Respondent on its part adopted the sole issue formulated for determination by the Appellant.

When the appeal was argued the learned counsel to the Appellant Ms Toyin Bashorun adopted and relied on her brief of argument filed on 28/3/14 and a reply brief filed on 25/6/14 in urging us to allow the appeal. It was submitted that the burden of proof in any criminal trial is proof beyond reasonable doubt and not beyond any shadow of doubt, see, BAKARE VS. THE STATE (1987) 1 NWLR (PT.52) 529; (1987) 3 SC 1; AT 33 AND SEBASTINE MARTINS AND ANOR VS. STATE (1997) 1 NWLR (PT.481) 355 AT 367 PARAGRAPH F.

It was alleged that apart from Exhibit 5 the alleged confessional statement of the Appellant there was no evidence of what was stolen or robbed from PW3, and that the PW3 and PW4 only said they, were attacked. Further, that it was not established that the appellant was a robber. It was argued that there ought to have been forensic examination of all the materials connected with the crime so as to connect the Appellant with handling any of these.

It was submitted that the appellant who was arrested over six months after the incident raised the defence of alibi which was not investigated, see, SHEHU VS. THE STATE (2010) 3 MJSC (PT.11) 75 AT 103 PARAGRAPH C. Further, that the evidence of the PW7 (a vigilante) did not touch on the Appellant but centred only on the Appellant’s co-accused Abu Mohammed. Also, that Exhibit P3, the confessional statement of the co-accused which was retracted, was not endorsed by a Superior Police Officer (SPO) and that the trial court ought to have cautioned itself before utilizing same, see, USMAN VS. THE STATE (2010) ALL FWLR (PT.542) 1691. The learned counsel to the Appellant faulted the method of comparing the thumb-print on Exhibit p3 and the one made by the Appellant’s co-accused in open court.

It was the contention of the learned counsel to the Appellant that there was no concert between the Appellant and his co-accused, see, YAHAYA BARBA V. COMMISSIONER OF POLICE (2007) 16 NWLR 378 AT 405 PARAGRAPHS A – B. The Appellant was argued to have denied Exhibit P3 made by his co-accused which implicated him, see OLA-OLU TITILAYO AND ORS VS. THE STATE (1998) 2 NWLR (Pt.537) 235 at 243 – 244 PARAGRAPHS G – A, D. ALSO, R VS. AJANI (1936) 3 WACA 3; AND OZAKI VS. STATE (1990) 1 NWLR (PT.124) 92.