USMAN ABUBAKAR v. THE STATE (2017)

citation:LOR(22/5/2017)CA

In The Court of Appeal of Nigeria

On Monday, the 22nd day of May, 2017

CA/AK/68C/2016

Before Their Lordships

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYABJustice of The Court of Appeal of Nigeria


Between

USMAN ABUBAKAR –Appellant

AND

THE STATE –Respondent

…………………….A…………………….

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on the 19th November, 2015 by Hon. Justice D. I. Kolawole.

A resume of the facts culminating in this appeal is hereby made as follows: The Appellant, Usman Abubakar and two others namely Francis Yohana and Sunday James were arraigned before the Ondo State High Court, Akure Judicial Division on a two count charge of Conspiracy to commit Armed Robbery and Armed Robbery. The said offences being contrary to Section 6 and 1(2)(a) of the Robbery and Firearms [Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.

Trial commenced in earnest on 24th April, 2013 with the Appellant and the two other accused persons pleading “Not Guilty” to the charges. The Prosecution fielded 5 out of the 8 witnesses listed in the proof of evidence and tendered exhibits in support of its case. The Appellant opened his defence on 5th June, 2015 and testified as DW3. Upon the conclusion of hearing, written addresses were ordered on 13th June, 2015 and same adopted on 28th September, 2015.In delivering its judgment, the trial Court held that the Prosecution was able to prove to the hilt the charges of Conspiracy to commit Armed Robbery and Armed Robbery and accordingly sentenced the Appellant and the other two accused persons to life imprisonment and to death by hanging respectively.
The Appellant being dissatisfied with the aforementioned decision of the Lower Court challenged same vide a Notice of Appeal dated 3rd February, 2016 containing seven [7] grounds of appeal.
In accordance with the Rules of this Court parties have filed their respective briefs. The Appellant’s brief was filed on 30th June, 2016 but deemed properly filed on the 18th January, 2017. The Appellant in his brief of argument distilled three issues for determination as follows:
1. Whether the Honourable Trial Judge erred in law by convicting the Appellant for conspiracy to commit armed robbery and armed robbery when the Prosecution failed to prove the charge against the Appellant beyond reasonable doubt as required by law.
2. Whether the Honourable Trial Judge erred in law by relying on the statement of a co-accused – the 1st Accused 
– Francis Yohana to convict the Appellant in spite of the decision in the case of ALAKE vs. STATE (1992) 11/12 SCNJ (PART 11) 177 & 84 that the statement of a criminal defendant is not binding on his co-defendant unless the co-defendant adopts the statement
3. Whether the Honourable Trial Judge erred by convicting the Appellant for conspiracy to commit armed robbery and armed robbery when the Prosecution failed to tender the evidence of whatsoever nature of the items robbed and weapons used to inflict harm during the purported robbery attack and other fundamental exhibits.

The Respondent on the other hand filed its brief on the 9th February, 2017. The Respondent in its brief distilled a sole issue for determination as follows:
1. The Respondent submits a sole issue for determination in this case. It is whether the trial Judge was right in law to hold that given all the circumstances of the case, the quality and quantity of evidence before the trial Court, the prosecution was able to prove the charges against the three defendants beyond reasonable doubt.
ISSUE 1
Learned counsel for the Appellant submitted that it is trite law that the burden of proving the commission of an offence lies on the prosecution and that such burden never shifts. It is the contention of counsel that in discharging the burden, the prosecution must prove every essential element of the offence charged, including the rebuttal of any defence that may be raised by the accused beyond reasonable doubt. Counsel referred to the cases of ADEKOYA V THE STATE (2012) 33 WRN 1: RASAKI V STATE(2011) 16 NWLR (Pt 1273) 251: TANKO V THE STATE (2008) 16 NWLR (Pt 1114) 597: BELLO v. THE STATE [2007] 10 NWLR (Pt 1043) 564.
He further contended that to establish an offence of armed robbery the prosecution must prove beyond reasonable doubt
1. That there was a robbery.
2. That it was an armed robbery.
3. That the accused was the robber or one of the robbers.
He cited the case of ADEKOYA V THE STATE (SUPRA)
Counsel further submitted that where the evidence led by the prosecution does not establish all the above ingredients of the offence, it would mean that a reasonable doubt has been created and the accused would be entitled to an acquittal.
It is the contention of counsel that the prosecution

…………………….B…………………….

has failed to establish the third and final ingredient against the Appellant. He contended that the purported identification of the Appellant by PW1 as one of the robbers was not credible and cogent enough to link the Appellant with the robbery. Counsel also submitted that since the finding of the trial judge as to whether the Appellant could speak English or not creates doubt in the case of the Prosecution who had by the evidence of PW1 testified that the Appellant could speak English.
It is the contention that such evaluation of facts and evidence by the trial judge showed there was no conclusive proof identifying the Appellant as one of the robbers and thus such doubt should have been resolved in favour of the Appellant. He relied on the case of RASAKI V STATE (SUPRA).
Furthermore counsel contended that another issue that raised doubt in the case of the Prosecution was the failure of the Prosecution to adduce any evidence to rebut the Appellant’s defence. The defence of the Appellant was recorded at page 63 of the Record as follows:
“What is the defence of the 2nd Defendant? He said he reared his cattle to a place and he and another left the cattle to their colleague. They wanted to buy food. As the two were walking by the highway a vehicle parked and some people who turned out to be police men arrested him and the other cattle rearer. They were taken to the police station. The people of the other cattle rearer were able to ‘bail’ him but he did not have any relation around to ‘bail’ him. The police then roped him into the case.
Learned counsel for the Respondent on the hand submitted that the prosecution has established beyond reasonable doubt all the elements of the offence of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant.
It is the contention of Counsel that based on the evidence led by the Respondent’s witnesses (PW1-PW5) and Exhibit D [Appellant’s confessional Statement], the prosecution have proved beyond all reasonable doubt the charge against the Appellant and which evidence was unchallenged at the Lower Court. Thus the Court was obliged to act on such unchallenged evidence. He relied on the cases of USUFU V THE STATE (2007) 3 NWLR (Pt.1020) 94: OGUNYADE V OSHUNKEYE & ANOR (2007) 15 NWLR (Pt.105) 218: IMO V STATE (2001) 1 NWLR (Pt 694) 314: AKANINWO V NSIRIM (2008) ALL FWLR [Pt 410] 610: ODUTOLA & ORS V MABOGUNJE & ORS (2013) 3 SCM 115.
RESOLUTION
The Appellant’s counsel had rightly stated that to establish an offence of Armed Robbery, the prosecution must prove beyond reasonable doubt that
(1) That there was a robbery
(2) That it was an armed robbery
(3) That the accused was the robber or one of the robbers.
Learned counsel is not in doubt that the first two ingredients were proved by the Prosecution Witnesses. However, the learned counsel for the Appellant argued that the prosecution failed to prove that the Appellant was one of the robbers who robbed PW1.
In proof of that, that the Appellant was one of the robbers, the PW1 and PW2 stated at the earliest possible time that the Appellant was one of the robbers who robbed them. More especially, PW1 and PW2 categorically identified the Appellant as the one who inflicted matchet cuts on them. The PW1 was matcheted on the head several times. Also she was matcheted on her buttocks and thighs. PW1 also stated that it was the Appellant that stripped her naked.
The PW2 also stated that it was the Appellant who matcheted her hand. You will recall that PW1 said the robbers were with them for upwards of 4 hours. The robbers were taking her up and down her house, from one room to the other looking for valuables to steal. The PW1 also stated that there was electricity all the time the robbery was going on. She stated also that the robbers were not masked. The Appellant denied that he was one of the robbers at the scene on that day.
Whenever the case against the accused person depends wholly or substantially on the correctness of his identification and he alleges that the identification was mistaken, the Court must closely examine the evidence. In acting on it, it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of doubt. UKPABI V. STATE (2004) 11 NWLR (PT.884) PG. 439.
Identification evidence is evidence tending to show that the person charged with an offence is the same person who committed the offence. Where a trial Court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt.

…………………….C…………………….

Whereas identification evidence is however weak, the trial Court should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. UKPABI V STATE (SUPRA). 
It is trite that for a conviction which rests wholly or substantially on evidence of identification to be sustained, such evidence of identification must as a matter of law be corroborated. The learned counsel for the Appellant made heavy weather about the fact that PW1 said the Appellant spoke to her in English but the Appellant maintained that he does not speak English. Whether he speaks English or understands English is beside the point. It doesn’t remove him from the scene of crime. For all you know this is a ploy by the Appellant to confuse the issue.
The PW1 and PW2 put the Appellant squarely on the scene PW1 was categorical about the identity of the Appellant. The Appellant inflicted the injuries on the PW1. The robbery lasted for about 4 hours.
The PW1 had never seen the Appellant before. She had enough time to observe the robbers. The Appellant also stripped her naked. This was not a very fleeting encounter. The robbers took her up and down her house.
PW1 had many verbal intercessions with the robbers. The robbers interrogated her about a lot of things. The money her son supposedly came back with, from London, and about jewelry. The PW1 had time to observe the robbers. She noted that they dressed like Fulani herdsmen with Fulani straw hat.
Where the witness has ample opportunity to identify the accused, a parade is not necessary. Recognition of an accused may be more reliable than identification. EYISI V THE STATE [2001] 8 WRN PG. 1.
The victim of this robbery, PW1 had ample time to identify the Appellant, the robbery having gone on for about 4 hours. She had interactions with them all the time they were robbing. She properly identified the 2nd Accused/Appellant as the one who inflicted the injuries i.e. matchet cuts on her. The Appellant stripped her naked. These encounters made an indelible impression on the PW1. Therefore I dare say that both, the PW1 and PW2 identified the Appellant positively. The PW1 and PW2 each corroborated the other’s story.
In NDIDI V THE STATE [2009) 13 NWLR (PT. 1052) PG. 633, the Supreme Court gave guidelines to follow while considering evidence of identification.
“To ascribe any value to the evidence of an eye witness the Courts in guarding against cases of mistaken identity must meticulously consider the following issues:
(a) Circumstances in which the eye-witness saw the suspect or Defendant.
(b) The length of time the witness saw the subject or Defendant.
(c) The lighting conditions
(d) The opportunity of close observation
(e) The previous contacts between the two parties.”

The Appellant was not masked throughout the 4 hours robbery. More so, the 1st Accused Francis Yohana named him specifically as one of the robbers in his extrajudicial statement which he resiled. Be that as it may, the PW1 and PW2 positively identified the Appellant as one of the members of the gang who robbed them that night.
The law is settled that the identity of an accused will not be in doubt if there is evidence before the Court showing the opportunity the witnesses had to identify the accused as the assailant vide OLALEKAN V STATE(2001) 18 NWLR [PT.746] PG. 793. AJIBADE V. STATE (1987) 1 NWLR (PT.48) PG.205. But such evidence should be received with caution and it must be weighed against the other available evidence. See ABUDU V STATE (1985) 1 NWLR (PT.1) PG. 55. ARCHIBONG V STATE LPELR 537.
In his defence, the Appellant claimed he did not speak or understand English. He claimed he was arrested together with one other when they were on their way to buy food. The Appellant claimed that his friend, he was arrested with was bailed by his relation but he had no relation to bail him. It is common knowledge that the police would not grant bail to an armed robber suspect. The other person arrested during the investigation must have been granted bail as their investigation did not connect him to the crime.
This issue is resolved against the Appellant as the Prosecution proved that the Appellant was one of the Robbers who robbed the PW1.
ISSUE 2
Learned counsel for the Appellant submitted that it is trite law that a statement of a co-accused cannot constitute evidence against an accused person unless the accused has adopted the statement by words or conduct. Counsel relied on the cases of ALAKE V THE STATE (1992)

…………………….D…………………….

11/12 SCNJ (PT.II) 177; COP V. UDE (2011) 17 WRN 120: YONGO V COP (1992) NWLR (Pt.257) 36: DANLAMI OZAKI & ANOR V. THE STATE (1990) 1 NWLR (PT.124) 92; EVBUOMWAN C. V. COP (1961) WNLR 257. See Section 29(4) of the Evidence Act 2011. Thus counsel submitted that the trial judge reliance on the statement of the 1st accused person, Francis Yohana, DW1 (Exhibit B) as corroboration to convict the Appellant was wrongful.
He urged this Court to interfere and re-evaluate the evidence before the trial Court, he cited the cases ofFATAI OLAYINKA V STATE (2007) 9 NWLR [Pt 1040) 561: AKINBISADE V THE STATE (2006) 17 NWLR (Pt 1007) 184.
Learned counsel for the Respondent submitted that the learned trial judge did not rely on the statement of a co-accused [Exhibit B] to convict the Appellant as contended by the Appellant. Counsel contended that the trial Court relied on the evidence of PW1 and Exhibit D (Confessional Statement of the Appellant) to convict the Appellant and not Exhibit B as canvassed by the Appellant. It is the contention of counsel that the trial judge merely made reference in passing to the fact that the 1st accused person in his statement (Exhibit B) mentioned the 3rd accused person/Appellant as one of the robbers, which can only be qualified as an obiter dictum and not the ratio decidendi and thus not appealable. He relied on the cases ofAKIBU V. ODUNTAN (2000) 13 NWLR (Pt.685) 406: ODESSA V FRN (2005) 10 NWLR (Pt 934) 528: SARAKI & ORS V KOTOYE (1992) 3 NSCC 331.
He thus urged this Court to hold the Appellant’s argument on this issue incompetent.
RESOLUTION
It is also the law that when more persons than one are jointly charged with a criminal offence, and one of them makes a confession, and such a statement is given in evidence, the Court shall not take such statement into consideration against a co-accused unless such co-accused adopts it. OZAKI V STATE [1990) 1 NWLR (PT. 1124) PG. 92 per Mustapha JCA.
What is the evidential worth of that confession? The co-accused resiled on that statement. It is not uncommon that an accused person may resile from his confessional statement made to the police. A confessional statement to the police does not become inadmissible because the accused that made it denies ever making it or retracts the confession on oath. The confessional statement cannot also be regarded as unreliable by mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. DIBIE V STATE (2007) 7 NWLR (PT.1038) PG. 30, OCHE V. STATE (2007) 5 NWLR (PT.1027) PG. 214; UKPONG V. QUEEN (NO.1) (1961) 1 SCNLR PG. 53.
The co-accused Francis Yohana mentioned the Appellant in his statement as his friend and co-accused in the armed robbery.
What is important here is the weight the trial Judge attached to this confession that Francis Yohana resiled on. The learned trial Judge in his judgment stated
“I know that the statement of a Defendant is not binding on his co-Defendant but Exhibit B is before the Court. It was a statement from the 1st Defendant who was the initiator of the robbery. In Exhibit B, the 1st Defendant mentioned the name of Abubakar Usman who had been arrested as part of the robbery gang. The 2nd Defendant is Usman Abubakar.”
Apart from the co-accused mentioning the Appellant in his statement Exhibit B, the evidence of PW1 and PW2 placed the Appellant firmly at the robbery scene. The robbers were not masked throughout the robbery.
The evidence of the co-accused did not weigh heavily on the mind of the trial judge as there were other overwhelming evidence as stacked up against the Appellant.
This issue is also resolved against the Appellant.
ISSUE 3
Learned counsel for the Appellant submitted that the failure of the Prosecution to tender in evidence the items allegedly stolen or the weapons used in the robbery attack is fatal to the case of the Prosecution/Respondent which ought to have created sufficient doubt in the mind of the learned trial judge. Counsel relied on Section 1(2) of the Robbery and Firearms Act, 2011 and the case of THE PEOPLE OF LAGOS STATE V UMARU [2014] LPELR 22466 (SC).
He thus urged this Court to set aside the conviction of the Appellant.
RESOLUTION
The offence of Armed Robbery is committed when at the time of the commission of the robbery the accused was proved to be armed with dangerous and offensive weapon.
The PW1 in her testimony in Court stated that the Appellant matcheted her severally on the head, thighs and buttocks. She said she was bleeding from the cuts on her head.

…………………….E…………………….

She also saw PW2 in a pool of blood of which the PW2 stated that she was matcheted by the Appellant. The PW1 also gave in evidence that her mum had a gun to her head in her room. The Appellant and his co-accused were armed whilst robbing PW1 and her household.
There is no principle of law which requires the prosecution to tender the weapons used in an alleged robbery in order to establish the guilt of the accused person. Whether or not the prosecution needs to tender the weapon with which an accused allegedly committed the robbery depends on the character and circumstances of the case.
OLAYINKA V STATE (2007) 9 NWLR (PT.1040) PG. 561.
The police might recover the stolen items in some cases but not all cases. Failure to recover the stolen item does not mean that the things were not stolen.
The prosecution was able to prove the 3 ingredients of armed robbery i.e.
(1) That there was a robbery
(2) That it was an armed robbery
(3) That the Appellant was the robber or one of the robbers.
The three (3) issues articulated by the Appellant have all been resolved against him. This appeal is unmeritorious. It is dismissed. I affirm the judgment of the trial court convicting him of Conspiracy to commit Armed Robbery and Armed Robbery as charged.
The Appellant is sentenced to death by hanging. I also affirm the judgment and sentence of the trial Court.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with the apt reasoning and conclusion that this appeal be dismissed.
A reading of the draft of the judgment just rendered by my Lord Uzo I. Ndukwe Anyanwu, JCA in the lead and the Record of Appeal compels a concurrence to the views therein in reasoning and conclusion arrived thereat. Appeal is dismissed.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Uzo I. Ndukwe – Anyanwu, JCA, I endorse, in toto, the reasoning and conclusion in it. I, too, find the appeal bereft of merit and dismiss it in the terms decreed the leading judgment.
Appearances

Micheal Edeko –For Appellant

AND

A. O. Adeyemi-Tuki (DPP, Ondo State Ministry of Justice) with him, Tunde-Alarape E.B and F. Idehai –For Respondent

Leave a Reply

Your email address will not be published. Required fields are marked *