In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of May, 2018
Before Their Lordships
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The appellant and five others were arraigned at the High Court of Adamawa State, sitting in Yola, on a two-count-charge, for Criminal Conspiracy to Commit Armed Robbery and Armed Robbery, contrary to and Punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provision) Act, Cap 398 Laws of the Federation of Nigeria, 1990.
Trial commenced immediately after the taking of the plea of accused persons including the appellant but at the close of the prosecution’s case who called evidence of two (2) witnesses, the 3rd and 4th accused persons were each discharged, upon the submission of a no case to answer, made on their behalf.
The appellant and the 2nd and 6th accused persons, in consequence, presented their own defence case. They led evidence of witnesses. The 5th accused person was not that lucky. The man died. He died while still in the custody of the prison authorities hence his name was struck out at the High Court from the list as an accused person The trial Court, nonetheless at the conclusion of evidence of defence, returned a verdict o guilt on the 1st and 2nd accused persons, sentenced them accordingly. They are to die by the will of the hangman or face death by firing squad.
The 6th accused person on his part escaped death by the whiskers. He was discharged and acquitted on the two-count-charge.
I should at this point state albeit briefly, the background facts leadings to this case on appeal. It all started on the 5th February, 2002 when some hoodlums on the said date at dead of night, invaded the homes of one Yusuf Pindar and Martha Kwada, both of Vinikilang, in Gerei Local Government Area of Adamawa State armed with assorted weapons, attacked and made away with some valuables including money, video cassette and players belonging to their victims, one of who later testified as Pw1. She raised alarm and this made the hoodlums to retreat and in the process of running away, the bag they were carrying, fell off their hand. The bag had bullets in it, among other items
Both Pw1 and Pw2 lodged a report with the police, the following morning of the incident and also made their statements.
The appellant was not arrested at the scene of crime but picked up about a month or two later by the police after that robbery incident and subsequently brought to Court along with other accused persons. At the trial, Exhibits B and C were tendered and admitted amid objection through the appellant in his evidence under cross-examination as Dw2. The accused person on his part, in his defence, unsuccessfully raised the defence of alibi. He had also rejected the statements (Exhibits B and C) attributed to him as his Confessional Statements. The trial Court, nonetheless, entered a verdict of guilt and sentenced the appellant accordingly in the Judgment delivered on the 6th March, 2017.
The appeal to this Court is against that Judgment. The Notice of Appeal dated 1st May, 2017 was filed on the 23rd May, 2017. Same contains 12 grounds of Appeal. These are reflected in the record of appeal at pages 216 to 224 of the record. In his brief of argument, the appellant raised 5 (five) issues from the 12 grounds of appeal for determination of Court viz:-
Whether the lower Court was right to have admitted and relied on the statements admitted as Exhibit B, C and D which are inadmissible evidence in the circumstances of this case and whether the lower Court ought not to have expunged Exhibits B, C and D from the record having wrongfully admitted them in evidence (distilled from Grounds 2, 3, 4, 5, 6 and 7 of the 1st Appellant’s Grounds of Appeal)
Whether having regard to the admissible evidence on record, the lower Court was right when it held that the defence of alibi made by the 1st Appellant did not avail him in the circumstances of the case. (Distilled from grounds 8 and 9 of the 1st Appellant’s Grounds of Appeal.)
Whether having regard to the admissible evidence on record, the lower Court was right when it held that the issue of proper identification of the 1st Appellant as being part of the culprits does not arise as a defence in favour of the 1st AppellantDistilled from Ground 10 of the 1st Appellant’s Grounds of Appeal.)
Whether having regard to the totality of a admissible evidence on record, the lower Court was right when it convicted the 1st Appellant on the first count charge of conspiracy to commit armed robbery, ingredients of
which the prosecution failed to proof (Distilled from Ground 11 of the 1st Appellant’ Grounds of Appeal.)
Whether having regard to the totality of admissible evidence on record, the lower Court was right when it convicted the 1st Appellant on the second count on the charge when the essential ingredients of the offence of armed robbery were not proved against the 1st Appellant(Distilled from Grounds 1 and 12 of the 1st Appellant’s Grounds of Appeal)
The Respondent on their part, upon being served with the appellant’s brief of argument, filed the respondent’s brief of argument but same was deemed properly filed on the 23rd January, 2018. In it the respondent formulated just 1 (one) issue for determination thus:
Whether there was legally admissible evidence before the trial Court to support the decision/conclusion of the learned trial Judge that the prosecution proved the guilt of the appellant on the two (2) count charge, beyond reasonable doubt.
The appellant upon the receipt of the respondent???s brief of argument filed a reply brief on the 7th February, 2018.
Same is dated the 6th February, 2018.
Counsel on both sides in their briefs advanced arguments in support of Issues raised by them in those briefs.
On the 6th March, 2018, learned counsel on both sides appeared before us to adopt their respective briefs of argument. Mr. M. J. Ifegwu has urged on the Court to allow the appeal, set aside the Judgment and order of at the trial Court and discharge and acquit the appellant. Mr. Waya on his part, has urged us to dismiss the appeal and affirm the decision of the trial High Court. The basis for those submissions of counsel are contained in their respective briefs of argument.
Learned counsel for the appellant had argued relative to his issue No. 1 that Exhibits B and C, the Statements credited to the appellant as his Confessional Statements, are inadmissible documents and the trial Court having wrongly admitted same in evidence ought to have expunged it from the record and ought not to have relied on those documents to ground conviction of the appellant. He gave his reasons stating that both Exhibits B and C were obtained out of duress hence same are not voluntary statements made by the appellant.
It is further submitted that Exhibits B, C and D are inadmissible evidence on account of same being hearsay evidence. He referred to Exhibits B and C as Statements recorded in English Language and tendered as such in the course of cross-examination of the appellant who was the 1st accused at the trial Court. He argued that neither the recorder of those statements nor the person who translated same into English Language from Hausa, the language spoken by the appellant, was called upon to testify as a witness. He argued that, this omission to call those persons as witnesses rendered Exhibits B, C as hearsay and thus, inadmissible evidence. He relied on a plethora of decided cases including Woru V. State (2011) All FWLR (Pt. 602) 1644, 1672; Olalekan V. State (2002) FWLR (Pt. 91) 1605 at 1622; FRN V. Usman (2012) All FWLR (Pt. 632) 1639, 1652 (SC); Olayinka Vs State(2007) 9 NWLR (Pt. 1040) 561 OR (2007) All FWLR (Pt. 373) 163 173; Nwabuoku Vs. Onwordi & Ors (2006) All FWLR (Pt. 331) 1236; 1251.
Relative to issue No. 2 formulated by him, learned counsel for the appellant argued that the defence of alibi availed the appellant on the evidence led by him in support of his defence at the trial Court stating that the appellant raised this defence at the earliest opportunity at the Police Station and in his initial Statements to the Police but the Police tore those Statements when they forced him to thumbprint a Statement he never made. In reference to the evidence of Dw1, it is argued that the same was corroborative of the alibi set up by the appellant who affirmed that the appellant never left his house after 8pm on the on the 5th February, 2002. He argued further relying on Makeri V State (1994) 3 NWLR (Pt. 330) 55, 63that a point of defence raised by defendant upon which he was not cross-examined ought to be held in his favour. He argued further and submitted that it is wrong of the lower Court to rely on Exhibits B and C to reject the defence of Alibi raised by the appellant whereas Exhibit B and C were inadmissible evidence and the same cannot therefore be relied upon to fix the appellant as having committed the offence for which he was charged.
In reference to the evidence of Pw1 and Pw2, it is argued that it is only Pw2 who testified to say that he recognised the Appellant through his Voice as being part of the
robbery gang but not one of them made statement to the police to that effect since their statement was not tendered or admitted in evidence. He relied on Woru V. The State (2011) All FWLR (Pt. 602) 1644, 1663.
The person, as in the accused/appellant, who seek to rely on the decision in Woru V. State (supra) to discredit the evidence of a witness for the prosecution in terms of the identification of the accused person, should I think, invite the attention of that prosecution witness to his earlier statement to the Police to see whether by that statement, he had disclosed the identity or the description of the accused person to the police.
Having thus laid that foundation, the accused/appellant can thereafter seek to contradict that witness by applying to tender the witness earlier statement made to police in evidence to establish the fact that the piece of evidence which the witness now seek to put across in his oral evidence in chief is afterall an afterthought so far as that piece of evidence was not contained in his earlier statement made to the police. The Prosecution or the witness called by it, is not bound to apply and tender the statement made by any of the witnesses called by it, rather it is the defendant who needs it, that should apply to tender statements of witnesses made to the police. It is him, the duty lies to discredit the evidence of his adversary, particularly so as it relates to the statement or evidence of identification or recognition, he now seeks to give in the trial.
Learned appellant’s counsel has urged us to hold that the defence of alibi raised by the appellant was well grounded as there was no admissible evidence to justify the refusal of that defence in favour of the appellant.
In relation to appellant’s issue No. 3 argued in his brief, his counsel has contended that there was no process put in place for the identification of the appellant as a member of the robbery gang who attacked Pw1 and Pw2, especially viewed from the fact that the arrest of the appellant (in connection with a different case or matter) came about 1 month or two after the robbery incident for which he was arraigned and tried in this case on appeal. Secondly, none of the prosecution witness testified to the fact that he recognised the appellant the member of the gang of robbers except Pw2 who said in his evidence that he recognised the appellant through his Voice. Given that evidence, it is argued, it was incumbent on the police or prosecution to conduct a proper identification process to ascertain the veracity of the claim hence the question of the identification of the appellant cannot be glossed over as the trial Court did when it said, the issue of identification did not arise in this case. Learned appellants counsel urged us therefore to resolve issue 3 in favour of the appellant.
The question raised under issue No. 4 is whether the trial Court was right to enter a verdict of guilt for Conspiracy to commit armed robbery whereas the ingredients for the offence of Conspiracy were not proved. Learned counsel for the appellant answered this question in the negative arguing that the evidence of the Pw1 and Pw2 did not link the appellant to the offence of Conspiracy and the trial Court cannot act on Exhibits B and C which it is argued, are inadmissible evidence, to convict the appellant for that offence. He relied on: State V. Salawu 12 SC (Pt. IV) 191, 234; Akubuiro V. State (2016) LPELR 40143 (CA).
He urged us to resolve issue No. 4 in favour of the appellant.
In arguing issue No. 5 formulated in the appellant’s brief of argument, his counsel pointed out in the brief elements which the prosecution is by law, required to establish to succeed in a charge for armed robbery. He relied on Osuagwu V State (2009) All FWLR (Pt. 460) 750; Bolanle Vs. State (2005) 7 NWLR (Pt. 925) page 431; Abeke Vs. State (2007) All FWLR (pt. 366) 644. He argued that the evidence of Pw1 and Pw2 only establish the fact that there was robbery or armed robbery incident in their houses but that evidence failed to link the appellant to that robbery incident hence evidence of Pw1 and Pw2 cannot corroborate, Exhibits B, C and D, which in any case, as argued before, are inadmissible evidence. The prosecution, in effect, it is argued had not proved a case of armed, robbery against the appellant hence the trial Court wrongly convicted the appellant. We were urged to resolve Issue No. 5 in favour of the Appellant.
I have indicated before now, that the respondent in their brief of argument formulated just 1 (one) Issue for determination of Court and the issue being whether there is any legally admissible evidence to support the conviction of the appellant at the trial Court.
Learned counsel for the respondents in his brief of argument in reference to Exhibits B and C was affirmative in his approach stating that Exhibits B and C, being Confessional Statements, is admissible evidence notwithstanding the fact that the accused, the appellant in this case, denied having made it. He relied on the case of: Queen V. Igwe (1960) 5 FSC 55, 56 57; Ikpata V. State (1981) SC 7, 28; The State Vs. Jimoh Salawu (2011) 18 NWLR (Pt. 1279) 883, 905-906; Dawa V. The State (1980) NSCC 334, 345; Solomon Ehot V State (1993) 4 NWLR (Pt. 290) 644, 659 and 672; Ogunye V. State (1999) 5 NWLR (Pt. 604) 548, 570.
He argued that the issue of the voluntariness of Exhibits B and C did not arise at the point the two documents were tendered and admitted in evidence.
Learned counsel further debunked the submission that Exhibits B and C were/are Statements recorded by the police in English Language stating that there is no evidence to that effect as to require the recorder or interpreter being called upon to testify as a witnesses.
He relied on the case of: Nwaeze Vs The State (1996) 2 NWLR (Pt. 428) 1; Shivero V. The State (1976) NSCC 1997; R Vs. Attard (1954) 43 CR Appeal Report, 90; Queen Vs. Zakawa of Yoro (1990) FSC 12. Learned respondent’s counsel argued, stating that the situation in the above stated cases are not apposite in the present case where the appellant made statement in Hausa and same was recorded in English. It is argued that the fact that Exhibits B and C were recorded in English language presupposes that the recorder understood Hausa Language.
Learned respondent’s counsel argued further relying on Demo Oseni V. State (2011) 6 NWLR (Pt. 1242) 138, 165, Olalekan Vs. State (2001) 18 NWLR (Pt. 746) 793, 799, the fact that the Statement of the accused was not recorded in the Language it was made, does not render such statement inadmissible hence the trial Chief Judge was not in error to have admitted and relied on Exhibits B and C.
Learned respondent’s counsel in his brief, in reference to the Issue of alibi raised as defence, argued that the defence of alibi was not raised timeously by the appellant. He argued further stating that alibi raised for the first time at defence stage cannot avail the appellant and the trial Court rightly discountenanced same. He argued further stating in any case that evidence led in proof of defence of alibi was contradictory. He referred us to the evidence of Dw1 and Dw2 (appellant) at pages 112 113 to submit that the date and time the two witnesses put up in their evidence to support the alibi were different, that whereas Dw1 testified as to the where about of the appellant on 2nd February, 2002, the appellant testified as to his where about on the 5th February, 2002. These pieces of contradictory evidence he argued, rendered the defence of alibi useless.
On the question of whether the appellant was properly identified, it is argued that question did not arise before the trial Court hence conducting an identification parade is not a sine qua non to a conviction. He went on to give instances where and when an identification parade will be conducted and he relied on, among others, the decision in: Afolabi Vs. State (2013) 13 NWLR (Pt. 137) 292, 318; Ikemson Vs. State (1989) 3 NWLR (Pt. 110) 455; Sadiku V. State (2013) 11 NWLR (1364) 191, 213.
To him therefore, where the accused is known to the victim before the incident, an identification parade was/is not necessary. In the instant case, he said Pw2 recognised the appellant, Mohammed Abdullahi has been through his Voice as the said Mohammed Abdullahi his customer even before the robbery incident.
Learned respondent’s counsel further argued that by virtue of Exhibits B and C where the appellant admitted he committed the offence for which he was charged, the issue of proper identification became a non-issue.
Learned respondent’s counsel in his brief alluded to the burden duties, the prosecution is by law required to discharge in a case of Conspiracy to commit armed robbery and armed robbery. He went ahead to set out in his brief of argument at pages 21 – 22 ingredients of those offences of which the prosecution was bound to prove beyond reasonable doubt.
Relying on the testimony of Pw1 and Pw2 and Exhibits B and C, he argued that the prosecution had proved his case beyond reasonable doubt and the trial Court rightly convicted and sentenced the appellant.
I want to adopt the lone issue formulated in the respondent’ brief of argument in addressing this appeal especially so because the issue formulated in the brief transcends the 5 (five) issues formulated in the Appellant’s brief of argument.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended), by virtue of the provision made thereto under Section 36(5) which provides that any person who is charged with a Criminal Offence is presumed to be innocent until he is proved guilty by due process of the rule of law. This trite principle of law has universal applicability, at least in those jurisdictions, where the principles of Common law are in place. Thus, the principle or doctrine of Presumption of Innocence has all through the age guided the Courts of the land in all Criminal prosecutions, the general aim of is to protect the accused person against any judicial decision or other statement by state officials awaiting to an assessment of the guilt of any person without him having previously been proved guilty according to law. See: Chidozie Vs. COP (2018) 1 SCNJ 66, 96.
The innocence of the accused person is however disprovable by the prosecution leading evidence of such quality and standard to establish the guilt of the accused person. That duty is placed on the prosecution to discharge under Section 135 of the Evidence Act which provides thus:-
135 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
So, the duty on the prosecution is to prove all cases beyond reasonable doubt without which a Court cannot make a pronouncement of guilt on the accused person.
The concept of proof beyond reasonable doubt has been given judicial meaning and interpretation in a plethora of decided cases and this, I will revisit shortly in the course of this discourse.
In the meantime, I have to say that the prosecution in the discharge of the daunting task before him, can elect to prove his case by any of 3 (three) methods or a combination of two or more, namely: (1i) Proof by direct eye witness account (ii) Proof by a free and voluntary Confessional Statement which is direct and positive (ii) proof by circumstantial evidence from which the guilt of the accused person can be inferred. See: Emeka Vs. State (2001) 14 NWLR (Pt. 734) 666; Nigerian Navy Vs. Lambert (2007) 18 NWLR (Pt. 1066) 300; Abang Vs. State (2010) 7 NWLR (Pt. 1194) 431; Ibrahim Vs. State (2014) 3 NWLR (Pt. 1394) 305, 338; Adamu V. State 2014) LPELR 24025 (CA).
From the record of appeal before us, it is apparent that the prosecution in the discharge of her duties employed 2 (two) of the 3 (three) methods listed above, that is (i) proof by direct eye witness account and (ii) proof by Confessional Statement of the accused. The prosecution had relied on the evidence of Pw1, Pw2 and Exhibits B and C among others, in an attempt to establish his case at the trial Court.
The trial Court confirmed this as much when it held at page 204 of the record of appeal thus:
I am satisfied that the prosecution has established its case against the 1st and 2nd accused person through the evidence of eye witnesses to the incident Pw1 and Pw2 who were accidentally (sic) victims of the robbery as well as the Confessional Statements of the 1st and 2nd accused person Exhibits B, C and D as required by law.
Permit me, my Lords, for the moment, to look into Exhibits B and C, Statements said to have been made by the appellant as his Confessional Statement. The same was tendered and admitted through him (appellant) in the course of his evidence under Cross examination (see pages 117 – 124 of the record).
Before I go into the question of the propriety or otherwise of the trial Court admitting in evidence Exhibits B and C, I will make a few remarks about Confessional Statements generally and the admissibility of same.
A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Confessions if voluntary are deemed to be relevant facts as against the person who made it. See, Sections 28 and 29(1) of the Evidence Act, 2011
and decision in Olalekan V. the State (2001) LPELR-2561 (SC).
So far as the voluntariness of a confession is not in issue, the Court is bound to admit same in evidence if the confession is direct and positive. Where however the voluntariness of a Confessional Statement becomes an issue in the sense that the Statement was/is not the statement made out of the free will or volition of the accused person, the Court at the point the application is made to tender the Statement and an objection is taken thereto, is bound to conduct a trial within trial to ascertain the voluntariness or otherwise of that Statement Nwangbomu V. State (1994) 2 NWLR (Pt. 327) 380; Igri V. The State (2009) LPELR-4374(CA).
One of the questions raised by defence counsel at the trial is as regards the voluntariness of that Statement so far as the Statement was extracted under duress. A similar submission was made before us in the brief of argument filed for the appellant. However a look at the record of proceedings, the admission of Exhibit B in the proceedings of the record of appeal will disclose at pages 115, 122, 124 of the record that Mr. M. J. Ifegwu, of counsel, opposed Exhibits B, A and C being tendered and admitted on account of the same not being the Statement made and signed by the appellant. On that account the learned counsel urged the trial Court to reject Exhibit B. It was only much later in the proceedings, after the reply made by the counsel on the opposite side that is, Mr. Kyanson arguing to the contrary stating that the objection was not well founded, that the issue of the voluntariness of the Statement (Exhibit B) was raised by defence counsel. I think at this point in time, it is too late to raise as he did, the objection founded on the involuntariness of Exhibit B.
The proper time to raise objection against a confessional statement on account of the involuntariness of the statement, must be at the time the statement is tendered. See: Alarape V. State (2001) FWLR (Pt. 41) 1872, 89; Amina Musa Vs. State (2014) LPELR 22912 (CA); Edet Ekpo Vs. State (2008) LPELR -4370 (CA).
Where however the rejection or objection taken is on account of the statement not having been made or signed by the accused, the trial Court is on good authority to admit that statement in evidence as the retraction of a Confessional Statement does not make it inadmissible. See Akpan Vs. State (1992) NWLR (Pt. 248) Ubierho Vs. State (2005) 5 NWLR (Pt. 919) 644. The Court can admit such statement and act on it. The only rider is that the Court in the Judgment, in evaluating that evidence, must subject the Confessional Statement (retracted) to the test outlined in the case of R Vs. Sykes (1913) CR App. Rep. 224, 230 to come to the conclusion whether or not the appellant did make the Statement as alleged by Police authorities. See: Hassan V. State (2001) 15 NWLR (Pt. 735) 184, 199.
The test laid down in the English case referred to above include:-
(i) Is there anything outside the confession (in this case, Exhibit B and C) to show that it is true.
(ii) Is it corroborated no matter how slight?
(iii) Are the facts made in it true as far as they can be tested?
(iv) Was the prisoner or accused one who had the opportunity of committing the offence
(v) Is the confession possible, and
(vi) Is it consistent with other facts which have been ascertain and proved in the matter.
It is apparent from the record of Appeal that the trial Court subjected the rule in R v. Skyes (supra) to that test as can be seen at page 192. At page 193 of the record, the trial Court found as follows:-
These piece of evidence from Exhibit B, C and D were corroborated by the testimonies of Pw1, Pw2 and Fw2 to the effect that robbery incidents took place in houses of Pw1 and Pw3. There was also the evidence from the testimonies of Pw1 and Pw2 that the bandits were armed. Exhibit B, C and D fixed the 1st and 2nd accused person at the scene of crime or locus criminis
All those findings at the trial Court notwithstanding, the issue or question of the admissibility of Exhibits B and C still remain a live issue for different reasons.
The issue of the propriety of admitting in evidence, documents in the nature of Exhibit B and C in the manner the trial Court did during the cross examination of Dw2 is an acceptable practice in Civil litigation. Indeed evidence from a party or his witnesses under cross-examination which goes to support the case of the party cross-examining, constitute evidence in support of the case or defence of that party as the case may be.
See: Akomolafe Vs. Guardian Press Ltd (2010) 13 NWLR (Pt. 1181) 338 , 301; Okogeri Chukwu Linus Vs. Iroko Ogbonna Kingsley & Ors. (2012) LPELR 9227 (CA).
It is another thing altogether in all Criminal Prosecutions where the guilt of the person accused has to be proved by the prosecution beyond reasonable doubt, meaning that the burden of proof does not shift from the Prosecution to the accused or defence. It is not for the accused person to prove his guilt of the offence for which he was charged. It is against the law. Section 135 of Evidence Act refers but such is the effect for admitting Exhibits B and C through the appellant as the accused person at the trial Court in his evidence under cross-examination. In other words, by dint of Exhibits B and C being admitted through the appellant and acted upon at the trial Court, he (appellant) was made to acknowledge and or affirm his guilt over the offences or charges framed against him and this in my view is not proper. Exhibits B and C being Confessional Statements credited to the appellant is admissible only through that person or authority who affirm that the accused person, in this case, the appellant made it.
This is the raison detre behind the complaint raised against the decision of the trial Court for not only admitting Exhibits B and C but also acting or relying on them to convict the appellant in absence of the recorder of those Statements being called upon to testify in the case on appeal.
I have given careful thought and consideration to this question and to the submissions made by counsel on both sides and the plethora of authorities cited by them respectively on this point. There can be no question about the fact that Exhibits B and C are statements recorded in English Language. Exhibit C, ex-facie is indicative of this fact, that is, that the Statement was recorded in English Language. In Exhibit C the recorder of the Statement wrote thus:-
This Statement is recorder (sic) in English Language and read to the suspect in Hausa and agree and sign (sic) and I counter-sign as the recorder.
Cpl. Adamu Usman.”
Cpl. Adamu Usman, the man on record as the recorder of the Exhibit C himself did not testify for the prosecution or at all in the case leading to this appeal.
The law requires of him to come forward and do so being the recorder of the Statement in Exhibit C in English language. The accused (appellant) spoke in Hausa. In the case of Olalekan Vs. The State (2001) LPELR 2561 (SC) the apex Court held:
The general proposition is well settled that where an interpreter has been used in the recording of a Statement, the Statement is in-admissible unless the person who interpreted it is called as a witness as well as the person who wrote down
See further the case inFederal Republic of Nigeria Vs. Usman (2012) All FWLR (Pt. 632) 1639, 1652; Woru Vs. State(2011) All FWLR (Pt. 602) 1644, 1672. Before those Confessional Statement(s) are admitted in evidence, the Police Officer who recorded the Statement and the interpreter if any, of the statement must testify in Court to state the role(s) each one of them had played in the making of the confessional statement, otherwise that statement is hearsay.
I am in agreement with the learned counsel for the respondent that there is nowhere in the record of appeal before us indicating that an interpreter was ever engaged in the making of Exhibits B and C, but that notwithstanding, the Police Officer who understood the language or local dialect of the suspect and wrote down the statement of the accused person in English Language at the same time the suspect volunteered to make his statement, is in my view, expected to testify to those facts as a witness. The issue is not about the Police Officer’s failure to take the Statement in the language spoken by the suspect, although it is desirable to have it so, where practicable on the authority of Demo Oseni V. The State(2011) 6 NWLR (Pt. 1242) 138, 165; Olalekan V. State (2001) 18 NWLR (Pt. 746) 793, 799; Olanipekun Vs. State(2016) NWLR (Pt. 1528) 100, 118, it is more about the Police Officer himself, the recorder of the Statement in English Language, coming forward to testify as a witness and to confirm:
(i) Firstly, the fact that he was/is the recorder of the Confessional Statement in issue.
(ii) How the statement was recorded by him.
(iii) Whether and how the words of cautions were administered on the accused/appellant and his reaction to it.
(iv) That the confessional statement he wrote is the replica of the version of the statement made by the accused in his local dialect.
(v) That the statement is free and the voluntary confessional statement of the accused person.
Those steps or procedure I think, are in line with Section 126 of the Criminal Procedure Code of the Northern States of Nigeria, which is the same as Section 126 of the Criminal Procedure Code, Cap 39, Laws of Adamawa State, 1997.
It is only the Investigating Police officer [IPO], the man who wrote the Statement or recorded the Statement, that can come forward to give evidence of his compliance with provisions of Section 126 of the Criminal Procedure Code and the Criminal Procedure (Statement of Police Officers) Rules, 1960. See: Sangara V. State (1965) 1 All NLR 60; Audu Tanko Juwa V. The State (1969) NMLR 168, 172 Or (1969) 1 All NLR 264.Section 126 of the Criminal Procedure Code does not excuse the appearance of the Police Officer as a witness in a matter such as this.
A party is not bound to call a host of witnesses but such material witness or witnesses the law requires of him to prove his case. In this connection, the prosecution in the instant case on appeal needed the presence of the police officer, the recorder of Exhibit B and C, to testify as a witness without which the confessional statements covered by Exhibits B and C cannot be taken as proved otherwise it is hearsay evidence. The trial Court ought to have expunged Exhibits B and C from the record in its Judgment.
In Saidu V. The State (1982) 4 SC 41, the apex Court held that a confession can support a conviction if proved to be made and the first step in proving a confession is to properly tender it in evidence as a confession. The Court went on to hold that:-
In the instant case, there is no record to show that Exhibit C, the confessional Statement was produced and admitted in evidence as a Statement made voluntary by the accused/appellant or that the facts contained therein are true and refer the offence with which the appellant is charged.
See further case of: The People of Lagos State Vs. Mohammed Umaru (2014) LPELR -22466(SC). See also Section 29 (2) Evidence Act, 2011 and, the case of: Federal Republic of Nigeria Vs. Usman (2012) All FWLR (Pt. 632) 16 39, 1652, Where the apex Court held:
When the purpose of tendering a statement is to establish the truth of its contents and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in Court. The statement is hearsay and inadmissible if the interpreter does not testify in Court.
So, the effect of failure to call the police man as witness, who recorded the statement meant that such statement or confession was not proved hence the trial Court was in error to have acted on those documents, in this case, Exhibits B and C as the Confessional Statements of the appellant to return a verdict of guilt against him, whereas those documents, that is, Exhibits B and C are inadmissible evidence. The contents of the two documents (Exhibits B and C) so far as they remain and not confirmed by the recorder, as the same statement that the suspect volunteered in the local language, then the confessional statement written or recorded by the Police in English Language ought to have been expunged from the record of evidence at the trial Court.
The same, that is, Exhibits B and C being inadmissible evidence are hereby expunged from the record of the trial Court and indeed the record of Appeal before us.
The law has it that only voluntary direct and positive confessional statement of the accused person and proved to be so, that relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged is admissible. The accused can be convicted on it. See Ayo V. State (2007) LPELR 8817 (CA) Demo Oseni Vs. State (2012) LPELR – 7833 (SC).
The Judgment delivered at the trial High Court ought ordinarily to be set aside on account of reliance placed on inadmissible evidence as in Exhibits B and C but again, the Court further relied on the evidence of Pw1 and Pw2 to return a verdict of guilt on the appellant for conspiracy to commit armed robbery and armed robbery contrary to Section 5 (b) and punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, LFN, 1990.
The offence of Criminal Conspiracy to Commit Armed Robbery is complete when evidence is led to establish facts as to:-
i. The existence of an agreement or confederacy between the accused and others to commit the offence.
ii. In furtherance of the agreement, the accused took part in the commission of the robbery or series of robbery, and
iii. The robberies or each robbery was an armed robbery.
See decision in Okoh v. State (2014) 8 NWLR (Pt. 1410) 502, 523. As regards the offence of armed robbery, to succeed the Prosecution must lead evidence to prove the following ingredients namely:-
i. There was robbery or series of robberies.
ii. Each robbery was armed robbery.
iii. The accused participated in the armed robbery.
It is apparent from the printed record of Appeal that the homes of Pw1 and Pw2 were invaded and ransacked by some hoodlums who held their victims hostage in their own homes while armed. They made away with money, properties and other valuables all belonging to Pw1 and Pw2.
The offence of conspiracy is established by two or more people agreeing to perpetrate an illegal act or an act which is legal by illegal means. The mere meeting of minds of the conspirators is enough to consummate the offence of conspiracy. See: Kayode Babarinde Vs. State (2013) LPELR – 21896 (SC).
In the instant case, the hoodlums were not just contented in nursing their evil plans but went further to unleash their plan. The multi million naira question however, is whether the appellant was properly convicted and sentenced for conspiracy and armed robbery on the evidence supplied by Pw1 and Pw2. This is the cause aspect of the case. Who perpetrated the crime?
In the heat of their operations, Pw1 heard one of her attackers call the name of one of them, as Black. See page 98 of the record.
The appellant was however not linked to that name, at least evidence was not led to establish the fact that the appellant also go by the name Black
The evidence of Pw2, Yusuf Pindar at pages 100 102 of the record of appeal presented more challenges in relation to the appellant. He had said that he recognised the appellant through his voice even though he was blinded by the torch lights directed on his face at the time that his attackers arrived his house. He also indicated in his evidence that the appellant has been his customer. See page 101 of the record of appeal. This piece of evidence was not seriously challenged or controverted in the course of cross-examination of the witness (Pw2) at page 102 of the record of appeal.
Learned appellants counsel in his brief of argument has made heavy weather on the identification of the appellant. He argued that the appellant was not properly identified, and since the issue of identification of the culprit has direct relevance to the question on whether or not the accused took part in the robbery, a proper identification was necessary. He had relied on Ndidi V. State (2007) 5 SC 175, 189; Osuagwu V. The State (2009) All FWLR (Pt. 460) 760; Abdullahi V. State (2008) All FWLR (Pt. 432) 1042; Eyonaowa V. COP (2014) LPELR – 22339 (CA) 39-40.
It has been held times without number that an identification parade is not necessary in all cases. It is however necessary in the following circumstance where:
i. The accused was not arrested at the scene and he denies taking part in the crime, or
ii. The victim did not know the accused before the commission of the crime. See James Ufor V. State (2016) LPELR (CA); Okiemute V. State (2016) LPELR 40639 (SC).
An identification parade is very essential and useful whenever there is doubt as to the ability of the victim to recognise the suspect who participated in carrying out the crime. Where however the identity of the accused person as regards the commission of the offence is not in doubt, the Police is not bound to conduct any identification parade. See Ojukwu & Ors Vs. State (2002) 4 NWLR (Pt. 756) 80; Fabiyi Vs. State (2015) LPELR 24834 (SC). As a rule therefore, an identification parade is not a sine qua non for the identification of suspects in every case where there has been a fleeting encounter with the victim of the crime if there is evidence leading to the identity of the perpetrator. See: Omopupa V. The State (2007) LPELR 8571 (CA); Ugwumba Vs. The State(1993) 6 SCNJ 217.
I have observed a short while ago, that the witness, Pw2, was not cross-examined on the issue that he recognised the appellant through his voice, being his customer even before the incident.
I am not unmindful of the submission made by learned appellant’s counsel who in his brief has argued that the witness who claimed he recognised the culprits should at the earliest opportunity in the course of Police investigation, indicate in his statement to the Police that the appellant
was known to him even before the incident. He argued further stating that since the witness statement to the Police was not tendered by him (Prosecution) in evidence to confirm this fact, the evidence given viva voce by the witness that he had known the appellant before the incident should be taken with a pinch of salt. He had relied on Woru Vs. State (2011) All FWLR (Pt. 602) 1644.
The Prosecution in my view has no legal duty to tender in evidence the statement made by witness called by it to prove a fact where that fact can be established by some other means. Rather it is the party on the other side who seek to discredit evidence elicited by the Prosecution that should, I think, apply to tender such statement of witnesses extra judicially made to the Police so as to confirm whether the witness indeed, by the statement he made to the Police, identified the appellant as one of the culprits. The defence must seek to destroy the case of the adversary by whatever means possible within the limits of the law.
Where therefore they (defence) failed to take advantage of the opportunities available to them, the adversary, that is the party on the other side, should not be punished for failing to take those steps.
Therefore, all the hullabaloo raised by counsel on the failure of the Police to conduct proper identification parade comes to nothing in a case such as this where the accused/appellant was/is before the incident, known to the victim. No matter how strong or brilliant a counsel’s submission is on the point, it cannot take the place of evidence legally admitted and is before the Court. See: Oduola V. Coker (1981) 5 SC 197; Ajayi Vs. Total Nigeria Plc(2013) LPELR-20898 (SC).
In the case of Ibe Vs. State (1992) NWLR (Pt. 244) 642 the apex Court held that there may be sufficient identification of a person by his voice. I hold therefore that the appellant herein was properly identified or recognised through his voice as active participant in the crime that led to his prosecution and trial hence the trial Court was/is right in holding that the issue of proper identification did not arise.
The appellant has raised alibi as his defence. See his evidence at pages 133- 114 of the record stating that he was home on the night of 5th February, 2002, the date of the robbery incident.
The witness (Dw1) earlier called by him also testified that the appellant was at home at the material time the robbery incident took place. See evidence of Dw1 at page 112 of the record of appeal. The material difference in the evidence of the two witnesses, that is, Dw1 and Dw2 is the fact that their evidence on alibi relate to 2 (two) different dates. Whereas the evidence of Dw1 on the alibi he set up for the appellant relate to the incident (if any) of the 2nd February, 2002, the alibi set up by Dw2 (appellant) relate to the incident of the 5th February, 2002. The two set of alibi, cannot stand side by side, the 1 (one) being incompatible with the other on all material particulars. Both set of defences must fail.
In any case, the defence of alibi which seeks to establish the fact that the accused/appellant was elsewhere at the material times of the incident for which he was alleged he was part, must be raised at the earliest opportunity when the suspect is confronted with a charge so as to enable the party making the allegation or charge to investigate the alibi put up by the accused and ascertain the truth or otherwise of the claim or alibi. See: Ozaki Vs. State (1990) 1 NWLR (Pt. 124) 92.
The appellant has claimed that the alibi put up by him before the Police in his statement at the Station, where he was taken was destroyed by the police. How are we to know? The burden duty, in any case, is for him (appellant) to prove the alibi relied on by him by leading evidence to that effect. See:Etim Etim Udo V. State (2015) LPELR 25767 (CA). If he fails in his duty to prove the alibi, the prosecution has nothing to disprove hence the prosecution on whom lies the general burden of proof at the guilt of the accused person is taken as having established his case beyond and reasonable doubt. See Gachi V. State (1965) NWLR 333. In any case, the defence of alibi pales into insignificance where evidence unquestionably fixes the accused person (appellant) to the scene of crime. Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 2; Yahaya V. State (2016) LPELR- 40254 (CA).
If however the accused at the earliest opportunity raised the defence of alibi and the Police or the investigating authority failed to follow it up to verify or disprove the claim or
defence, the Court may hold that the prosecutionhad failed to prove his case. See: Nma Dogo Vs. The State(2001) LPELR 956(SC).
The case before us is one which the accused/appellant had been fixed to the scene of crime by the evidence of prosecution witnesses such that the defence of alibi can no longer avail the appellant.
I have taken a close look at the case presented by the Prosecution. The burden of proof lies with him and the standard of proof is beyond reasonable doubt. Pw1 and Pw2 are two witnesses called to prove the case for the Prosecution. Evidence of Pw1 (Martha Kwada) including evidence under cross-examination is at pages 98 99 of the record. She painted a gory picture of her ordeals with her attackers. See particularly page 98 of the record of Appeal.
Evidence of Pw2 is at pages 100 – 102 of the record. He gave an account similar to those of Pw1. In essence, the appellant and his cohorts attacked their victims while armed with assorted weapons including guns, knives etc. and forced them to part with valuables. This attitude of the appellant and his co-accused constitute the offence(s) for which they were charged.
I am with the trial Court that the Prosecution did prove the case against the appellant beyond reasonable doubt hence he (appellant) was rightly convicted and sentenced.
The concept of proof beyond reasonable doubt does not entail proof beyond all shadow of doubt. It only means that there is credible evidence upon which the Court can safely convict even if it is upon the evidence of a single witness. See Afolalu Vs. State(2010) 6-7 MJSC 87.
On the whole therefore the lone issue adopted by me in this exercise is resolved against the appellant and in favour of the respondent.
The appeal in effect fails and same is dismissed for lacking in merit hence the Judgement delivered at the High Court of Adamawa State, holden in Yola on the 6th March, 2017 in Suit No. ADSY/6C/2003 is affirmed.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment just rendered by my learned brother, Saidu Tanko Husaini, JCA, in this appeal.
I agree in toto with his Lordship that the appeal is devoid of a jot of merit for the well articulated reasons, stated in the said leading judgment, which I equally adopt as mine. I accordingly dismiss the appeal.
JAMES SHEHU ABIRIYI, J.C.A.: I read before now in draft the lead judgment just delivered by my learned brother Saidu Tanko Husaini JCA.
The evidence of PW2 in my view clearly fixed the Appellant to the scene of crime.
The appeal therefore has no merit and is also dismissed by me.
The conviction and sentence of the Appellant by the Court below are affirmed by me.
M. J. Ifegwu, Esq.-For Appellant
J. A. Waya, Senior State Counsel II, Ministry of Justice Adamawa State-For Respondent