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.
Further relying on DEBIE V. STATE (supra) learned counsel submits that the testimony of PW1, PW2 and PW3 provide evidence outside appellant’s confessional statement in proof of the offences he has been convicted for. As held in OBIORA V. STATE (2002) NCC 930, learned Deputy Director of Public Prosecution submits, from the evidence proffered in proof, the offence of conspiracy by the appellant and the others has also been justifiably inferred by the two Courts.
It is in evidence that PW1 had known the appellant very well before the robbery. Relying on EYISI V. STATE (2000) 3 NSCQR 60 at 104, it is contended that appellant’s insistence that PW1 could not have identified him by his voice is a hollow argument. Similarly, appellant’s complaint on PW4’s failure to read and explain to him the words of caution before recording Exhibit 2 and reading over the statement to him after recording same or taking him to a superior officer for confirmation that the appellant indeed voluntarily made the recorded statement all go to no issue. These breaches of the Judges Rules, learned respondent’s counsel submits, do not tender voluntary confession inadmissible. Concluding, he urges that the unmeritorious appeal be dismissed.
Now, the crucial question to ask and answer at this stage is whether the appellant has advanced the right reasons on which basis to allow his appeal against the concurrent findings of the two Courts below. It is elementary that this Court hardly reverses such findings unless where they are shown to be perverse. See ADEKOYA V. STATE (2017) LPELR-41564 (SC) and KARIMU SUNDAY V. THE STATE (2017) LPELR- 42259 (SC).
In the instant case appellant’s complaint against his conviction by the two Courts below hinges on the failure of the respondent to discharge the burden of proof the law places on it: that there is paucity of admissible evidence to establish the two offences of conspiracy to commit and the armed robbery he is held to have participated in; that exhibit 2, his confessional statement is not admissible and/or not corroborated by other evidence; that PW4 had violated all known rules relating to the recording of the statement and that the two Courts had relied on the hearsay evidence of the witnesses led by the respondent.
Appellant was charged along with two others on a two count charge of criminal conspiracy and armed robbery. Both sides are right in their concurrence that the ingredients of the offence of armed robbery which the respondent must jointly prove beyond reasonable doubt are:-
(i) That there was robbery or series of robberies
(ii) That the robbery or each of the robberies was an armed robbery
(iii) That the accused took part in the robbery.
The reliance of counsel inter alia on OLAYINKA V. STATE (2007) 1 NWLR (PT 1040) 56 and STATE V. SALAWU (2011) LPELR-8252 (SC) is beyond reproach.
Appellant’s main grudge is that the two Courts are wrong, to have situated him at the scene and time of crime. Yes, there were robberies, armed robberies, at Wadata Area of Jega on the fateful day. However the appellant, his counsel insists, never took part in any of the armed robberies. Appellant, it is contended, had successfully raised an alibi, being at home in the presence of his mother DW3 and his sister DWA Rukayya on the date of the robbery and time. The lower Court’s affirmation of the trial Court’s reliance on inadmissible evidence of PW1, PW2, PW3 and PW4 and/or Exhibit 2, appellant’s inadmissible extra- judicial statement, appellant counsel argues, is perverse.
In holding that evidence abound which positively fixed the appellant at the scene of crime and that he had taken part in the armed robbery, the trial Court posits at page 90 – 91 of the record inter-alia as follows:-
“… I am of the view that the confessional statements in question are materially corroborated by the evidence of PW1, PW2 and PW3. In particular, the evidence of PW1 that heard and recognized the voice of the 2nd accused is in harmony with the statement of the 2nd accused where he inter alia stated ‘The person we met sleeping woke up and he recognized me. I heard him called my name ‘Nafiu and upon hearing that we separated’
… It is apparent that the confessional statements under consideration are in many ways… consistent with the evidence of PW1, 2 & 3 respectively. I am therefore of the view that the confessional statement in question have satisfied the tests set out earlier and consequently, I am convinced that the 1st and 2nd accused along with 2 other persons at targe participated in robbery in the houses of Zainal Abidina and Surajo Abubakar on the 10/10/14 at about 3:30 am at Wadata Area in Jega town where they took 4 cell phones and the sum of N5000″.
The Court inferred conspiracy on the part of the appellant and the other accused persons from the same pieces of evidence and accordingly convicted them for the two offences. These are the trial Court’s findings which affirmation by the lower Court forms the basis of this appeal.
Appeals succeed, even as in the instant case where they are against concurrent findings, if it is established that the findings of the trial Court, as affirmed by the appellate Court, are perverse. Is that the case in the case at hand? I think not.
In ALH ISIYAKU YAKUBU V. ALHAJI USMAN JAUROYEL & ORS (2014) LPELR-22732 (SC) at 55 – 56 thereof, it is emphasized that a finding is perverse if it does not evolve from the evidence on record or in arriving at the finding the Court had taken into account extraneous matters or excluded relevant matters from its consideration. A finding would also be perverse where the Court which decision is being reviewed applies a wrong principle of law or applied the correct principle of law wrongly to the facts in dispute in a matter and thereby occasioned miscarriage of justice. See ADIMORA V. AJUFO (1988) 3 NWLR (PT 80) 1 and ALHAJI OSENI OLANIYAN & ORS V. CHIEF MRS. E.T. FATOKI (2013) LPELR – 20936 (SC).
It is evident from the record of this appeal that the trial Court’s decision the lower Court affirmed was arrived at on the basis of Exhibit 2, appellant’s extra-judicial statement both Courts found confessional and the evidence of PW1, PW2 and PW3. The trial Court which had the opportunity of seeing and assessing the witnesses in the course of their testimony found their evidence credible.
PW1 had told the Court that at the venue and time of the armed robbery for which appellant is convicted, he heard appellant’s voice and identified him from the voice. Learned appellant counsel’s submission that such mode of identifying an accused is fraught with danger and is insufficient to sustain appellant’s conviction for such capital offence is not supported by law.
This Court has repeatedly held that identification is a whole series of facts which a witness or witnesses link an accused person with the commission of the offence he is being charged for. See THE STATE V. COLLINS OJO AIBANGBEE & ANOR (1988) LPELR– 3208 (SC) and SHINA AKINRINLOLA V. STATE (2016) LPELR – 40641 (SC). It has long been settled that there may be sufficient identification of a person by his voice. See EUGENE IBE V. THE STATE (1992) LPELR-1386 (SC). Respondent’s reliance on EYISI V. STATE (2000) LPELR – 1186 (SC) is apposite here as well.
In the case at hand, PW1 had testified that he recognized the appellant by his voice as he spoke during the armed robbery. He knew the appellant for a very long time. Indeed they grew up together. The witness was not cross-examined on this point. Where a witness who gave evidence of voice recognition of the accused was not cross-examined or remained unshaken inspite of the cross-examination, nothing stops a trial judge from accepting his evidence. See TAJUDEEN ADEYEMI & ORS V. THE STATE (1991) LPELR – 168 (SC) and STATE V. OLASHEHU SALAWU (2011) LPELR – 8252 (SC). It is glaring from the record of this appeal that the appellant did not at any time during his trial claim that PW1 never knew him and/or that they did not grow together. Both Courts below, I entirely agree, are correct to have found that PW1 and the appellant had grown together and that the former had recognized the latter by his voice. See OTTI V. STATE (1993) 4 NWLR (PT 290) 675, and ATTAH V. STATE (2010) LPELR – 597 (SC).
It must be stressed that beyond the evidence of PW1, PW2 and PW3, the two Courts’ below had, in the exercise of the required caution, also relied on Exhibit 2, appellant’s extra- judicial statement it found to be confessional. The statement was admitted without objection.
Be it outrightly restated that the voluntary confessional statement of an accused that is shown to be properly admitted and is a direct, positive and unequivocal admission of the commission of the offence for which the accused is charged is unarguably the best proof that he had committed the offence. See FRN V. IWEKA (2011) LPELR- 9350 (SC) and HASSAN V. STATE (2016) LPELR – 42554 (SC).
Learned appellant’s counsel also claims that it is wrong of the lower Court to convict the appellant purely on Exhibit 2, his confessional statement which, in any case, is inadmissible. PW4, it is asserted, recorded Exhibit 2 in breach of the Judges Rules.
Firstly, evidence on record does not sustain counsel’s claim that Exhibit 2 was recorded in breach of the rules. At any rate, the non-observance of the rules, on the authorities, is not necessarily fatal to the admissibility of the statement. The breach of the rules becomes fatal only where it affects the voluntariness of the statement. See UCHE V. QUEEN (1964) 1 ALL NLR 195 AND IGAGO V. STATE (1999) LPELR – 1442 (SC) and SAMUEL OJEGELE V. THE STATE (1988) LPELR – 2370 (SC).
Secondly, Exhibit 2, is not the only evidence the Courts relied upon to convict the appellant. There is also the evidence of PW1, PW2 and PW3 which proves all the ingredients of the armed robbery and the appellant’s participation in it. The relevant findings of the trial Court in this regard which the lower Court affirmed have elsewhere been reproduced in this judgment.
In OFORDIKE V. STATE (2019) LPELR- 46411 (SC) this Court held thus:-
“The law is also trite that an accused person can be convicted based on his confession alone.
… there is however the need to test the truth of the confession in the light of other credible evidence before the Court. Such test as enunciated in the case of R V SYKES (1913) 8 CAR 233 include … Whether the confession is consistent with other facts which have been ascertained and which have been proved”.
The concurrent decision of the two Courts which are in compliance with, the principle laid this Court in the foregoing cannot be faulted.
Lastly, appellant’s entreaty that his appeal be allowed because of respondent’s failure to proffer in evidence the weapons the appellant and the others used in the robbery must also be ignored. There is sufficient evidence on record that appellant with others had sticks, matchetes, knives and even a gun during the robbery. At any rate there is no principle of law that requires the prosecution to tender the weapons used in the alleged robbery for it to secure conviction. This must be so for the simple reason that most armed robbery offenders do away with the weapons to avoid detection. See OLAYINKA V. STATE (supra), MARTINS V. STATE (1997) 1 NWLR (PT 481) 355 and IBRAHIM V. STATE (2016) LPELR – 42803 (SC).
In the result, the appellant having failed to show that the concurrent findings of the Courts below are perverse, the appeal fails and is hereby dismissed. His concurrent conviction and sentence for armed robbery and conspiracy to commit same by the lower Courts is hereby accordingly further affirmed.
SC.585/2017