Usman V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MUHAMMED MUSA SAULAWA, J.S.C.
The present appeal is against the judgment of the Court of Appeal, Akure Judicial Division delivered on December 6, 2018 in appeal no. CA/AW282C/2016. By the judgment in question, the Court below coram Danjuma, Abdullahi and Mahmoud, JJCA, dismissed the Appellant’s appeal and affirmed the judgment of the Ondo State High Court, thereby convicting and sentencing the Appellant to death for the offences of conspiracy and armed robbery, contrary to Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, CAP. R 11, volume 14, Laws of the Federation of Nigeria, 2004.
It was on January 15, 2014 when the Appellant was arraigned before the trial High Court of Ondo State upon a two count charge of conspiracy to commit armed robbery and armed robbery, to wit:
ARMED ROBBERY, Contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004.
ARMED ROBBERY: Contrary to and punishable under Section 1 (Special Provisions) Act, Cap R. 11 Vol. 14, Laws of the Federation of Nigeria, 2004.
Not unnaturally, the Appellant pleaded not guilty to both counts of the charge. The trial proceeded in earnest. At the conclusion of the said trial, the learned counsel addressed the Court, thereby resulting in adjourning the case for judgment.
On 30/4/2016, the trial Court delivered the vexed judgment to the conclusive effect:
The concomitance of my conclusion is that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery leveled against the defendant is that it is incumbent on me to pronounce the defendant is guilty as charged and therefore hold that the defendant, Abdurahim Usman is guilty of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special provisions) Act and for armed robbery contrary to Section 1(2) (a) of the same Robbery and Firearms (special provisions) Act. He is therefore convicted as charged.
See pages 36-50 of the Record of Appeal.
On 20/7/2016, the Appellant filed a notice of appeal, thereby challenging the conviction thereof by the trial Court. On 06/12/2016, the Court below delivered its judgment to the conclusive effect:
I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on the 28th day of April, 2016.
See pages .124-141 Record.
The Appellant’s notice of appeal, filed in the Court below on 18/12/2018, is predicated upon two grounds, thereby urging this Court to allow the appeal and in consequence thereof, grant the following two reliefs:
(i) An order setting aside the judgment delivered by the lower Court on 6th December, 2018 and conviction of the Appellant.
(ii) An order discharging and acquitting the Appellant of the offences of robbery and conspiracy to commit armed robbery.
See pages 152 – 154 of the Record.
On February 24, when this appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in the respective briefs thereof, thereby warranting this Court to reserve Judgment to today.
The extant Appellant’s brief of argument was settled by OA Ojo Esq., on 10/7/2020, albeit deemed properly filed and served on 17/02/2021.
At pages 5 -6 of that brief, three issues have been couched for determination:
(i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged (Ground 4 of Amended Notice of Appeal).
(ii) whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds 1, 2, 3 and 5 of the Amended Notice of Appeal)
(iii) Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).
The issue 1 is canvassed at pages 6-9 of the brief, to the effect that the reasoning of the trial Court at page 47 of the record regarding Exhibits C & D is wrong. That it’s of no moment that the Appellant denied making the statement, or that it is a fact to be resolved by the Court. See R. VS. IGWE (1960) 5 FSC.
It was submitted, that the Appellant was resolute that he did not make Exhibits C & D.
The Court is urged to resolve issue 1 in favour of the Appellant, as reliance on 1D 1 and 1D2(Exhibits C& D) by the two Courts below, was legally wrong.
The issue no. 2 was canvassed upon at pages 9-14 of the brief. In a nutshell, it is submitted that it was not the responsibility of the two Courts below to propound or offer any justification for the discrepancy in the testimonies of the witnesses, as demonstrated by the Court below at page 137 of the record. Secondly, that the reasoning and conclusion of the Court below was founded on extraneous consideration. See ELIAS VS. OMO-BARE (1982) 13 NSCC 92, et al.
The Court is urged to so hold, and resolve the issue no. 2 in favour of the Appellant.
The issue no. 3 is argued at pages 14-16 of the brief, to the effect that the circumstances of this case do not, in any way, justify a conviction for the offences of armed robbery, let alone conspiracy to commit armed robbery. Exhibits 1D1 and 1D2 were clearly inadmissible to convict the Appellant; there was no positive identification of the Appellant as the alleged offender. Therefore, the prosecution has failed to prove its case beyond reasonable doubt against the Appellant.
The Court is urged to so hold, and resolve the issue 3 in favour of the Appellant.
On the whole, the Court is urged to allow the appeal.
On the other hand, the Respondent’s brief was settled by Shehu Wada Abdullahi Esq. on 19/11/2020, albeit deemed properly filed on 17/02/2021. It spans a total of 14 pages. At page 4 thereof, a sole issue has been couched for determination:
3.1 Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the Appellant.
It is submitted in the main, that it is clearly shown on the records, that there are no good reasons for this Court to disturb the concurrent decision of the lower Court. See IDAM VS. FRN (2020) LPELR-49564 (SC) @ 10 paragraphs C-E, KURE VS. COP (2020) LPELR-49378(SC) @ 29-31 paragraphs F-A.
Further submitted, that other than Exhibits C and D, the quantum of the evidence before the trial Court was substantial to sustain the conviction of the Appellant. And that the prosecution through the PWI, PW2, PW3 and PW4 and Exhibits A and A1 established that the Appellant was the offender.
The Court is thus urged upon to hold, that the trial Court and the Court below were right to hold that the Appellant was guilty of conspiracy as charged.
Conclusively, the Court is urged to dismiss the appeal and affirm the concurrent decision of the Court below convicting and sentencing the Appellant.
Having accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-avis the record of appeal, as a whole, I am appreciative of the fact that the Appellant’s three issues are very much germaine to the notice of appeal. I accordingly adopt them, mutatis mutandis, for the determination of the appeal, anon.
ISSUE NO. 1
The first issue, as copiously alluded, hereto above, raises the question of whether the Court below was right to ascribe probative value to Exhibits C and D, thereby affirming the Appellant’s conviction on the basis that both exhibits were confessional statements by which the Appellant admitted committing the offences as charged. The issue is distilled from ground 4 of the Amended Notice of Appeal.
As alluded heretofore, the Appellant’s grouse under issue I, in the main, is to effect that Exhibits C and D (Appellant’s confessional statements) were only tendered for identification purpose and marked as 1D1 and 1D2, respectively.
Indeed, the circumstances surrounding the tendering of the Appellant’s two confessional statements in question and the admission thereof as Exhibits E and D, are not far-fetched. It is obvious on the record, that the Appellant was arraigned before the trial Court on 15/01/2014. Consequent upon the plea of not guilty thereof, the trial commenced in earnest, without much ado. Two witnesses called by the prosecution testified as PW 1 (Fatima Yusuf) and PW 2 (Isiaka Jammiu). Both witnesses were not cross-examined by the prosecution.
However, the third prosecution witness (PW3) Police, Corporal Amas Dunbaiji Nimighan (erroneously tagged “PW4”) did not have a ‘smooth sail’ like the PW 1 and PW2 who testified before him.
In the course of his examination-in-Chief, Corporal Nimighan testified that he was made the IPO in the case. He said he recorded what the Defendant (Appellant) told him. The Appellant signed and he too counter-signed that statement.
Consequent upon the identification of the Appellant’s statement in-question, the prosecution counsel, Mrs. Adeyemi Tuki, sought to tender it. However, the Defence counsel vehemently objected thus:
We are objecting on the ground that the statement was not given voluntarily.
The following scenario then registered itself:
Court:- A trial-within-trial will be conducted.
Mrs. Adeyemi- Tuki:- No. objection.
Court:- The trial-within-trial is adjourned to 27th May, 2014.
However, from 16/4/2014 when the case was adjourned for trial-within-trial, it was only on 18/02/2016 that it came up for TWT. On the said date, the PW 1 (Amos Dunbaiju Nimighani, now a Police sergeant) testified but was not cross-examined by the Defence counsel, Bamisele Esq.
Contrariwise, the Appellant equally testified as DW1. However, in the course of his testimony, under the T W T, the Appellant (DW1) stated:
PW1 and two other Police officers started to beat me. I was wounded. I was then taken to the statement room. PW 1 said I should sign a statement I asked him to read to me. He beat me. I asked him that I should be allowed to write my statement as I did at Owo. They refused. I later signed the document after the beating. The document shown to me was not the one I was forced to sign did not sign the document.
It was consequent upon the Appellant’s evidence under the TWT aforementioned, that the trial Court made a u-turn and thereby held:
“Court – The stand taken by the defendant when he said the statement shown to him was not made by him and that he did not sign it makes the trial-within-trial untenable, although he claimed initially that he was forced to make the statement which necessitated the trial-within-trial. His change of mind which he has the right to do has made the trial-within-trial untenable. The question whether he made the statement and signed it is a question of fact. This will be determined at the judgment stage. The document meanwhile should be marked 1D2. It will be marked as exhibit or rejected as the case may be, later while writing the judgment. The main trial will now resume.”
See pages 14-16 of the Record.
The trial Court accordingly proceeded with the trial, and at the conclusion of which delivered the vexed judgment on the 28/4/2016 in-question. Most specifically, at page 47 of the Record the trial Court held, inter alia:
“PW3 said that he took the statement of the defendant which he signed and PW3 then counter-signed. The statement was tendered as an exhibit.
The defendant objected on the ground that he did not make any statement to the defendant (sic). I then said that the document should be marked 1DI and that I will determine at the judgment stage whether he made the statement or not. I think I should have admitted the document straight because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R. V. IGWE (1960) 5 ESC. 55; THE STATE V. SALAWU (2011) 8NWLR (pt. 1279) 580 @ 625 B-D. In view of this, the document is to be marked Exhibit C. The same scenario played out when the statement of the defendant which PW4 claimed to have recorded from him was tendered. He claimed not to have signed the document which was brought to Court.
… I should have straight away marked the document as an exhibit in the circumstances but unfortunately I said it should be marked ID2. The document marked ID2 should be marked Exhibit D.”
On its part, the Court below in the judgment thereof (pages 124-150, especially @ 144 of the printed record) held:
“When Exhibits C&D were being sought to be tendered, the appellant only said he did not make it He did not make any direct allegation of lack of voluntariness that he was tortured, threatened, induced etc. Yet the trial judge conducted a trial within trial (another surplusage) and admitted the statements in evidence as Exhibits C and D. The learned counsel made heavy weather about the fact the appellant retracted his confessional, statement. A confessional statement does not become inadmissible because the accused retracted the confession on Oath. Nor can it be regarded as unreliable just because of a retraction. The proper consideration always is that the denial or retraction is taken into consideration in deciding the weight to be attached to it. See DIBIE VS. STATE (2007) 9 NWLR (pt. 1038, 30.”
The law is well settled, beyond per adventure, that where (as in the instant case) the defendant makes an out right denial of the statement sought to be tendered in evidence by the prosecution, the denial (objection) is tantamount to a retraction of the statement. Thus, such a statement is admissible and reliable without the need of resorting to a trial-within-trial, as its voluntariness is not in issue. See IBEME VS. THE STATE (2013) 10 NWLR (pt. 1362) 333.
In the circumstances, the first issue ought to be, and it is hereby resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether or not the Court below was right to regard the discrepancy in the date of the alleged commission of the offences, and that of the Appellant’s arrest as a mere mistake. The second issue is distilled from grounds 1,2,3 and 5 of the Amended Notice of Appeal.
At page 46 of the record, the trial Court made some findings, thereby alluding to the discrepancy in the date the offences were allegedly committed and on which the Appellant was supposedly arrested. Allegedly, the trial Court dismissed the discrepancy as mere mistake. According to the trial Court:
There is no doubt that the discrepancy is nothing but a mistake and should not affect the case of the prosecution in any significant way. PW1, PW2 and PW3 all talked about one robbery in which the defendant was a participant.
It is not possible for the defendant to be in the Police station at 3am of 18th June, 2013 when PW1 and PW3 had not caught him and when he was not caught until I am on the 19th June, 2013.
On the part thereof, the Court below made a finding on the issue of the discrepancy in question at page 137 of the record:
“I am unable to see any contradiction in the evidences of PW1 and PW2 as to the date or in any other particular… If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.3am on the 19th of June. This is English culture that any past 12 midnight is the next day. In most African cultures that would still be explained as the night of the 18th.
Therefore 3.20am of 18th is actually the same thing as the early hours of the 19th since it is past midnight… I do not agree with the appellant’s learned counsel that it was wrong for the trial judge to explain this minor discrepancy in the way he did, that perhaps PW3 made a mistake. This is especially is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the trial judge.”
In my considered view, by virtue of the circumstances surrounding the case vis-a-vis the evidence on record, the Court below was justified and correct in upholding the very apt findings of the trial Court in regards to the discrepancy as to the date on which the offences were allegedly Committed, and the date on which the Appellant was arrested.
Indeed, it is evident on the face of the record, that the Appellant was arrested at the scene of the crime. Both the PW 1 and PW2 had the misfortune of being victims of the armed robbery in-question. They were both present at the scene of crime at the very material time the Appellant was apprehended. Neither the PW1 nor the PW2 was shaken when giving evidence about the identity of the Appellant as the very culprit apprehended at the scene of crime, and date the offence was committed. The PW1, most especially, testified under oath at the trial Court on 15/01/2014, inter alia, thus:
“I am Fatima Yusuf. I live at 11, Ojo Ikoko, Owo. I am a trader. I know the defendant. I remember 19th June, 2013. I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down lie down. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour where I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son. He was the one that pointed a gun at my son, Jamiu. I told them to calm down as I had money to give them. I told them not to hurt my son. The two of the robbers came with me to the room. The defendant was still with my son. The two had face mask on. I did not see their face(sic).”
In continuation of the testimony thereof, the PW1 stated that the Appellant was actually apprehended at the scene of crime:
“As the commotion was going on in my apartment my neighbour who was living at the upstairs of my apartment heard what was going on. She raised alarm that thieves were in my apartment. This caused the neighbours to move towards my apartment. The two who were with me were the first to leave my apartment. The defendant backed as and then pointed his gun toward the direction where the neighbours were coming from. I summoned courage and I grabbed the defendant from the back. I held unto him until help came and we were able to suppress the defendant. The defendant was bound with rope and the Police was called.”
Under cross-examination by the defence counsel, the PW 1 had this, inter alia, to say:
“I did not know the defendant before the day I caught him in my house…when I grabbed the defendant and we both fell down, I saw that the defendant had hand glove and there was a long scarf beside him. I would not know whether he used the scarf as a disguise during the robbery.”
See pages 8-9 of the Record.
The PW2 under Oath equally testified narrating his direct encounter with the Appellant, thereby corroborating the evidence of the PW 1 regarding the date of the commission of the armed robbery and the resultant apprehension of the Appellant at the scene of the crime. According to the PW 2:
“I know the defendant. I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken. I look up and I saw three men with me. They said they will kill me, the defendant pointed gun at me.”
The PW3 also testified corroborating the evidence of both the PW1 and PW2 regarding the Appellant’s arrest at the scene of crime on 19th June, 2013.
The Court below in the vexed judgment resolved the alleged discrepancy regarding the date on which the armed robbery was commissioned, and when the Appellant was apprehended at the scene of crime on 1-9/6/2013, in favour of the prosecution.
I am unable to appreciate, let alone uphold the Appellant’s preposterous submission, to the effect that the inconsistencies and discrepancies highlighted cast doubt in the prosecution’s case, that the Appellant was the one arrested at the scene of crime on 19/6/2013 and time (1.30am) in-question.
In the circumstances, the second issue is hereby resolved against the Appellant.
ISSUE NO. 3
The third issue raises the question of whether there was any justification upon which the Court below could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery.
In the instant case, the evidence of the PW1 and PW2, who were the unfortunate victims and indeed eye witnesses of the said armed robbery, was direct and unequivocal that the Appellant in company of other persons (still at large) broke into their apartment and robbed them on 19/06/2013. The trial Court in its judgment found as a matter of fact that:
“The evidence before the Court is that the defendant in company of two others went to the house of PW1 in the early hours of 18th June, 2013, and they robbed PW1. The fact that three of them went to the place to rob is evident of conspiracy. They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being part of it is guilty of conspiracy as charged.”
On its part, the Court below at page 141 of the record upheld the foregoing findings of the trial Court, thus:
“I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned armed and took him away in such a quality that without doubt in the words of Achike as quoted by Kekere-Ekun, JSC in the case of YAKUBU V. STATE (2014) 8 NWLR (pt. 1408, III: Irresistibly compels the Court to make an inference s to the guilt of the accused.”
I think, I cannot agree more with the foregoing concurrent finding of the Court below, which said finding is cogent, unassailable and duly supported by the circumstances surrounding the case vis-vis-vis the evidence an record.
In the circumstances, the third issue equally ought to be, and same is hereby resolved against the Appellant.
My Lords, it’s indeed settled, that if a Court came to a decision which no reasonable Court or tribunal applying its mind to proper considerations and giving itself proper directions can come, then an appeal Court having jurisdictional competence to entertain an appeal from such a decision only on a point of law, would reverse such a decision. The reason being that, the position is exactly the same as if the Court had to come to a decision of fact that no evidence whatsoever supports, which must be considered erroneous in law, and equally perverse. See NAFIU RABIU VS. KANO STATE (1980) LPELR-2936 (SC) per Idigbe, JSC @ 57 paragraphs A-E.
In the case of BRACEGIRDLE VS. OXLEY (1947) 1 ALLER 126 (a decision of the Court of 5 justices, cited with approval by this in NAFIU RABIU VS. KANO STATE, supra), it was aptly held:
“In this Court, we only sit to review the justices’ decision on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.”
Hence, having effectively resolved all the three issues raised by the Appellant against him, there is no gain-saying the fact that the instant appeal fails, and it is hereby dismissed by me.
The concurrent judgment of the Court of Appeal, Akure Judicial Division, delivered on 06/12/2018, in appeal no. CA/AW282C/2016, is hereby affirmed by me.