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Sani V. State (2020) LLJR-SC

Sani V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from the judgment of the Court of Appeal, Makurdi Judicial Division, delivered on 21 December, 2016 which affirmed the 21 years sentence on the appellant by the Chief Judge of Nasarawa State for conspiracy and armed robbery contrary to Sections 6(b) and 1(2) of the Robbery and Firearms Special Provisions Act, 2004.

The Facts

On 9 March, 2012, PW1, Luka Agbawu, decided to go to Onda, (a village in Nasarawa State) so he got on his motorcycle and the journey commenced at 7 p.m. On getting to a sharp bend on the road, the appellant, Ali Mohammed and Jibain Umar emerged from the bush and attacked him with sticks. The appellant hit him on his head with a stick. He was taken into the bush, but he managed to escape, and got a lift from a motorcyclist who took him to Onda. Meanwhile the appellant and his co-accused went off with his motorcycle. On arrival at Onda, PW1 went to a vigilante group and reported the armed robbery to them. He informed them that he was able to recognize only one of them. The appellant, Yusuf Sani. The next day the vigilante group got in touch with him, informing him that he was to come and identify them. On arrival, he was able to recognize only the appellant. PW1’s motorcycle was found in Nasarawa, and the three accused persons were handed over to the police at their Mararaba Station.

The appellant and his co-accused persons were charged to Court, under Section 6(b) and 1 for Conspiracy and Armed Robbery under the Robbery and Firearms Special Provisions Act, 2004.

PW1 Luka Agbawu and PW2, Inspector Bello Abubakar gave evidence for the respondent. The respondent closed its case on 13 May, 2013. Learned counsel for the appellant made a no case submission, which was overruled on 31 July, 2013.

The appellant, Yusuf Sanni gave evidence in his defence, but did not call any witness to testify on his behalf. His statement to the Police was admitted as Exhibit A.

The learned trial Chief Judge of Nasarawa State found the appellant and his co-accused persons guilty. His Lordship said:

“In the instant case, there is no doubt that robbery has been committed by the accused persons where they threatened the complaint (sic) PW1 and hit him with a stick on his hand. They also stole his motorcycle Suzuki from him. I have no doubt in my mind that prosecution is able to prove the offences of Armed Robbery contrary to Sections 1 of the Robbery and Firearms Special Provisions Act 2004 and Section 6(b) of the same Act…”

The learned Chief Judge, then proceeded to hear allocutus from the learned counsel for the accused persons:

“I have listened to the plea of the learned defence counsel that the accused person are still young and amenable to change … The accused persons are hereby sentenced to 21 years imprisonment inclusive of the years they have spent in prison before the judgment of the Court this morning.”

Dissatisfied with the judgment, the appellant filed an appeal. The appeal was heard by the Court of Appeal (Makurdi Division). That Court affirmed the judgment of the Chief Judge of Nasarawa State in these words:

“In the result and for all the foregoing reasons, I find no merit in the appeal, it fails and is dismissed. Accordingly, the judgment of the High Court of Justice, Nasarawa State sitting in Lafia, in suit No. NSD/LF.78C/2012 between Yusuf Sani & 2 Ors v. The State, delivered on 30 June, 2015 is hereby affirmed. I make no order as to costs.”

This appeal is against that judgment. Briefs were filed and exchanged by counsel.

The appellant’s brief was settled by L. M. Dikko Esq. Four issues were presented for determination of the appeal. They are:

  1. Whether the Court of Appeal was right to have affirmed the decision of the trial Court hook, line and sinker when the plea of non est factum raised by the appellant was not considered by the trial Court.
  2. Whether the Court of Appeal was right to have affirmed the judgment of the trial despite the failure of the trial Court to properly evaluate the evidence of the appellant thereby breaching the appellant’s right to fair trial.
  3. Whether it was right for the Court of Appeal to affirm the decision of the trial Court that the respondent has proved beyond reasonable doubt the charge of conspiracy to commit armed robbery and armed robbery preferred against the appellant in light of the evidence before the trial Court and the inconsistencies in the evidence of PW1.

Whether the Court of Appeal was right to have upheld the decision of the trial Court when it admitted exhibit “A” the alleged confessional statement of the appellant even though the interpreter was not called as a witness by the respondent.The respondent’s brief was settled by E. U. Aliyu Esq., a Principal State Counsel in the Ministry of Justice, Nasarawa State.

Two issues were presented for determination of the appeal. They are:

  1. Whether the trial Court was right in admitting Exhibit A (the confessional statement of the appellant) in evidence and attaching evidential weight to it and using same in convicting the appellant.
  2. Whether the respondent proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.

After examining the issues presented by both sides, and the briefs, it becomes clear that the evidence against the appellant are:

(a) Exhibit A – His confessional statement, and

(b) Testimony of PW1, the victim, or the person who was robbed of his motorcycle.

Issues for determination should address Exhibit A, whether it was properly admitted and whether the trial Court should have relied on it to convict the appellant and evidence of PW1, an eyewitness and victim of the robbery.

To my mind, the issues presented by the respondent address the above and in answering them the points raised, by the appellant in his issues such as, whether an interpreter ought to have been called before Exhibit A was admitted in evidence as an exhibit, whether there were inconsistencies in PW1’s testimony, whether evidence given by appellant was properly evaluated and non est factum, would be considered. And so the issues formulated by the respondent would be considered in this appeal.

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At the hearing of the appeal on 24 September, 2020, learned counsel for the appellant, Y.O. Dangama adopted the appellant’s brief filed on 20 April, 2018 but deemed duly filed on 23 January, 2019 and reply brief filed on 15 October, 2018 but deemed duly filed on 23 January, 2019 and urged this Court to allow the appeal. On the other side, Dr. A. A. Kawa adopted the respondent’s brief filed on 13 July, 2018 but deemed duly filed on 23 January, 2019 and urged the Court to dismiss the appeal.

Issue 1

Whether the trial Court was right in admitting Exhibit A (the confessional statement of the appellant) in evidence and attaching evidential weight to it and using same in convicting the appellant.

Learned counsel for the appellant submitted that when an accused person denies making a confessional statement as the appellant did when giving his oral testimony, the appellant has raised the plea of non-est-factum and the trial Judge has to consider the plea at the conclusion of trial, check the surrounding circumstances to see if the accused person did make the confessional statement before attaching any probative value to it.

He observed that the plea was not considered by the trial Court, and was erroneously affirmed by the Court of Appeal. Reference was made to Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380 p. 399. Tayo v. State (2016) ALL FWLR (Pt. 853) p.1757.

Concluding his submissions, he urged the Court to resolve this issue in favour of the appellant since the judgment of both Courts below were arrived at without considering the plea of non-est-factum.

Learned counsel for the respondent observed that at the trial Court, the appellant did not raise an objection to the voluntariness of the confessional statement, instead objection was raised on appeal.

He submitted that objecting on appeal is not tenable in law. See Alo v. State (2015) 2 SCM P. 43; reported as Alor v. State (2015) 9 NWLR (Pt. 1464) 238.

Concluding his submission, he submitted that an accused person can be properly convicted on his confessional statement alone if it is proved to have been made voluntarily and it is positive and admits his guilt. He observed that the Courts below were correct to rely on Exhibit A, the confessional statement of the appellant to convict him.

It is well established practice that where on the production of a confessional statement for the purpose of tendering it as an exhibit during trial, and it is challenged on the ground that the accused person did not make it at all the question of whether he made it or not is a matter to be decided at the conclusion of trial by the judge. Objection by counsel does not affect the admissibility of the statement. Such a statement should be admitted as an exhibit.

If on the other hand, the accused person objects to the confession on the ground that it was not voluntary, i.e. he was forced or induced to make the statement. That is to say it was beaten out of him, then a trial-within-trial or mini trial was held to determine whether or not the confession was voluntary. If at the end of the trial-within-trial it is found that the confession was voluntary, it would be admitted as an exhibit.

PW2 is Inspector Bello Abubakar. During his testimony on oath, he said.

“…The statement of the 1st suspect Yusuf Sani was recorded by me…

Prosecuting counsel: The witness having identified the statement of the suspects I apply to tender same in evidence.

Defendants’ Counsel: Objection, we object to the admissibility of these documents. This is because the witnesses speak Hausa language while the statements are recorded or written in English language. It is stated that this statement was taken in English language and read in English language. There is nothing to show that it was read over to them in the language they understand…”

The objection was overruled by the learned trial Judge, and the appellant’s statement was admitted as Exhibit A.

On Exhibit “A” in the Court of Appeal, learned counsel for the appellant was of the view that the learned trial Judge was wrong to attach probative value to Exhibit A without ordering a trial-within-trial.

The trial Court treated Exhibit “A” as if the appellant said he did not make it and proceeded to act on it after being satisfied that it was made by the appellant.

The trial Court is expected to subject Exhibit A to the necessary tests laid down in R v. Sykes (1913) 8 CAR P. 233 followed in several cases in this country. See Kanu v. King (1952) 14 WACA P.30; R v. Omokaro (1941) 7 WACA P.146; Obosi v. State (1965) NMLR p.119; Kopa v. State (1971) 1 ALL NLR p. 150.

Once there is independent evidence which tends to show that the confession is true, it is safe to convict on the confession. In this case, the evidence of PW1, the victim and eyewitness is unassailable. The trial Court was right in admitting Exhibit A in evidence and attaching evidential weight to it and using same to convict the appellant.

When an accused person (in this case the appellant) sets up a defence of non-est-factum in relation to a confessional statement the prosecution says he made, what he is saying is that he never made the statement.

The learned trial Judge acted correctly by admitting the appellant’s confessional statement, Exhibit A, in evidence and relying on it after being satisfied that it was made by him.

Learned counsel for the appellant submitted that there ought to have been an interpreter before Exhibit “A” is admitted in evidence as an exhibit, because the appellant does not understand English.

On 6 November, 2012, the plea of the appellant and his co-accused persons was taken. This is what transpired.

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“Prosecuting Counsel: The case is for the plea of the accused persons. They have been served the charges as directed by the Court.

Defence Counsel: We are fully ready for the plea of the accused persons to be taken.

Court: Court clerk read and explain the charges to the accused persons in the language they understand.

1st Accused person: I understand English.

2nd Accused person: I understand Hausa.

3rd Accused person: I understand Hausa language.

Count 1 Plea

1st accused person: I understand the charge against me. Plea I am not guilty.”

The 1st accused person was Yusuf Sani. It is clear that he understands English language since he said so and that he understands the charge against him. To say that there ought to be an interpreter for Exhibit “A” is an afterthought.

There was no need for an interpreter for Exhibit “A”.

Issue 2

Whether the respondent proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.

Learned counsel for the appellant observed that the prosecution failed to prove that the appellant was involved in the alleged robbery as evidence of PW1 contained inconsistencies and discrepancies viz-a-viz his extra-judicial statement. He further observed that the prosecution failed to establish the third ingredient of the offence of armed robbery, that the accused while armed participated in the robbery. Reliance was placed on Olayinka v. State (2007) 9 NWLR (Pt.1040) 561 p.582; Umaru v. State (2016) ALL FWLR (Pt. 853) p.1668.

He further observed that it is fatal to the prosecution’s case not to tender in evidence the stick used in the robbery, and recovered at the scene. Concluding he submitted that when the evidence of the prosecution is found to be contradictory on material issue as in this case, the benefit of doubt should be given to be accused/appellant, and he should be discharged. Reliance was placed on State v. Azeez (2008) 14 NWLR (Pt. 1108) p.439.

He urged this Court to set aside the conviction and sentence and return a verdict of acquittal and discharge.

Learned counsel for the respondent submitted that evidence reveals that the appellant and his co-accused persons conspired among themselves to commit the offence of armed robbery against PW1. Reliance was placed on Exhibit A. See Waziri v. State (1997) 3 NWLR (Pt. 496) P. 699, Upahar v. State (2003) 6 NWLR (Pt. 816) p. 689.

Section 135 of the Evidence Act.

He urged this Court to resolve this issue in the affirmative and dismiss this appeal and affirm the conviction and sentence of the Court of Appeal.

In Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) p.170, I explained proof beyond reasonable doubt. I said that:

“Proof beyond reasonable doubt does not mean proof beyond all doubts or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence; a degree of compulsion which is consistent with a high degree of probability. See Section 135 of the Evidence Act 2011.

The crime of conspiracy is complete, the moment a person agrees with any other person or persons to do an unlawful act or to do a lawful act by unlawful means. The agreement must be communicated between the parties to the conspiracy. It is not necessary for every party to a conspiracy to be aware of the existence of every other party. The agreement can take the form of a chain, where A agrees with B who then agrees with C and so on. Where numerous parties agree on the same course of conduct with one central figure.

Conspiracies are easily inferred from the evidence available and admitted in Court. See Osetola & Anor v. State (2012) 6 SC (Pt. iv) P.148; (2012) 17 NWLR (Pt. 1329) 251; Daboh v. State (1977) SC p.197; Adejobi & Anor v. State (2011) 6-7 SC (Pt. iii) p.65; (2011) 12 NWLR (Pt. 1261) 347.

There is compelling and conclusive evidence provided by the testimony of PW1 that the appellant and his co-accused, armed with sticks, attacked him at a sharp bend on the road to Onda, and stole his motorcycle. It is easily inferred that the appellant and his co-accused must have agreed with each other to arm themselves with sticks, for the purpose of way laying and stealing from anyone who comes along.

The offence of conspiracy is proved beyond reasonable doubt and both Courts below were right to so find.

The prosecution would succeed in a charge under Section 1(2) (a) of the Robbery and Firearms Act if able to prove beyond reasonable doubt that:

(a) there was a robbery, or series of robberies;

(b) the appellant participated in the robbery;

(c) during the robbery the appellant was armed with offence weapon or was in company of a person/s who were so armed. See Eke v. State (2011) 1-2 SC (Pt. II) P. 219; (2011) 3 NWLR (Pt. 1235) 589, State v. Oladotun (2011) 5 SC (Pt. II) P.133; (2011) 10 NWLR (Pt. 1256) 542, Ogudo v. State (2011) 12 SC (Pt. I) p. 71; (2011) 18 NWLR (Pt. 1278) 1, John & Anor v. State (2011) 12 SC (Pt.1) P.130; (2011) 18 NWLR (Pt. 1278) 353.

Armed robbery is stealing with violence, and each of the three ingredients must be proved beyond reasonable doubt. PW1 is the victim and eyewitness to the armed robbery, carried out on him by the appellant and his two co-accused.

The best evidence that an accused person committed an offence is his confessional statement provided it was not beaten out of him, and he is well aware of the consequences of his confession.

The next best evidence is the evidence of an eyewitness provided he is telling the truth. “I saw you committing the offence”, or “you were one of the robbers who attacked me and stole my motorcycle”. It is the duty of the trial judge to assess the credibility of an eyewitness and in my view the trial Judge was correct in relying on the evidence of PW1.

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I am satisfied that PW1 is a witness of truth. At every opportunity he had, he said he knows the appellant, but that he does not know the two other accused persons. In fact under cross-examination he said:

Yes, I know Yusuf Sani even before the date of the attack on me. I know him at Nasarawa (see page 111 of the record of appeal).

In the absence of even a question to debunk that statement, the Court would take it that PW1 knew the appellant before the armed robbery. I am in the circumstances satisfied that PW1 knew the appellant before the armed robbery and that that the appellant in company to two others, armed with sticks stole his motorcycle from him.

The three ingredients or elements are answered admirably in PW1’s testimony. That testimony together with Exhibit A are proof beyond reasonable doubt that the appellant while armed with sticks and in the company of others so armed robbed PW1 of his motorcycle.

The offences of conspiracy to commit armed robbery and armed robbery against the appellant were proved beyond reasonable doubt.

I must observe that both in his extra-judicial statement and his testimony in Court, PW1 narrated how the three accused persons attacked him with sticks at a sharp bend on the road to Onda. Hit him repeatedly with sticks and took away his motorcycle. He was taken into the bush, where he managed to escape and got a ride from a motorcyclist who took him to Onda where he reported the robbery to the Vigilante group. These are material facts and no contradiction exists to doubt the testimony of PW1.

Before I conclude this judgment, I must highlight an error by the learned trial Judge and explain the correct procedure, when presiding over offences that carry the death sentence, and why this Court cannot correct the error.

The appellant was charged under Section 6(b) and 1(2) of the Robbery and Firearms Special Provisions Act, 2004. The section states that:

“6 Any person who –

(b) Conspires with any person to commit such an offence.

Whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

And 1

(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than twenty-one years.

(2) If –

(a) any offender mentioned in subsection of this section is armed with any firearm or any offensive weapon or is in company with any offensive weapon or is in company with any, person so armed; or

(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person.

The offender shall be liable upon conviction under this Act to be sentenced to death.

What were the findings of the learned trial Judge. I quote his lordship:

“… In the instant case, there is no doubt that robbery has been committed by the accused persons where they threatened the complaint PW1 (sic) and hit him with a stick on his hand. They also stole his motorcycle, Suzuki from him I have no doubt in my mind that the prosecution is able to prove the offences of armed robbery contrary to Section 1(2) of the Robbery and Firearms Special Provisions Act, 2004 and Section 6 (b) of the same Act as charged. The accused person standing before me, that is to say 1. Yusuf Sani, 2. Ali Mohammed and 3. Jibrin Umar are hereby convicted as charged.”

What did the learned Chief Judge do thereafter? This is what he did.

Allocutus:-

A. U. Muhammed – the Court should temper the sentence with mercy. The accused persons are still young and they have the opportunity of changing their characters.

Court:

I have listened to the plea of the learned defence counsel that the accused persons are still young and amenable to change.

Sentence:-

The accused persons are hereby sentenced to 21 years imprisonment inclusive of the years they have spent in prison before the judgment of the Court this morning.

The learned trial Chief Judge was clearly swayed by sentiments. Sentiments have no place in offences that carry the mandatory sentence of death. It is either the death sentence or an acquittal. Once an accused is found guilty under Section 1 of the Robbery and Firearms Special Provisions Act 2004, as in this case, the trial Judge has no alternative but to pronounce the death sentence. The trial Judge has no discretion. The proceeding on allocutus is wrong and uncalled for.

Why this Court cannot correct the error.

All appeals are a rehearing. The aggrieved party files a notice of appeal which shall contain grounds of appeal, stating clearly his complaint from the decision of the Court below and the exact nature of the relief sought.

The appellant did not appeal against sentence, so such an issue is not before this Court. If on the other hand the respondent cross-appealed on sentence, the Court of Appeal or this Court would be in a good position to correct the error. In view of the nature of our rules, the appellant shall benefit from the error by not having to face a death sentence.

In the end, there is no merit in this appeal, it is hereby dismissed.


SC.108/2018

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