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YUSUF v. STATE
CITATION: (2018) LPELR-45190(CA)
In the Court of AppealIn the Sokoto Judicial Division
Holden at Sokoto
ON WEDNESDAY, 11TH JULY, 2018Suit No: CA/S/72C/2016
Before Their Lordships:
HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal
BetweenNAFIU YUSUF - Appellant(s)
AndTHE STATE - Respondent(s)
RATIO DECIDENDI
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1. EVIDENCE - HEARSAY EVIDENCE: What amounts to hearsayevidence"Hearsay simply means whatever a person declares oninformation given by someone else. That is not what seems to bethe position here. The PW2's evidence spoke of what he and othermembers of the investigation team did, when the Appellantarrived and was question by them as to his participation in thecrime and with whom as partners where the robberies carried out.The Appellant rose to the occasion and not only gave the names ofhis cohorts but also went on to disclose to the PW2 and the teamwhat was stolen by them in the course of the robbery operationand he reproduced the proceeds of the crime to the PW2 and histeam. As it relates to the evidence of the PW3, which the Appellantalso said was hearsay evidence, the evidence of the PW3 whichthe Court belowaccepted and relied upon, is at pages 40-41 of the printed recordsthus;"I remember 10/10/14, I was at home. I was at home at about 3:20am in the night, when I noticed someone push (sic) on my door Iasked, what is that and a voice answered "you will know". I got upand reached for my stick and the person retreated a bit. He washolding a knife and machete. Another one emerged. He too washolding a knife and machete. I bent down to reach for my cellphone to call for assistance, they thought I was reaching out foranother weapon and they fled. Short while after their departure, Iheard cries in the direction of the house of my elder brother, DanAlhaji. I went out over the house and they inform (sic) me thatthree went into their house with knives and machetes...."The settled position of the law is that a testimony would behearsay where the person making the statement is not the onewho either saw it, heard it, perceived it or gave it as his ownpersonal opinion but rather as what was said to him by anotherperson. See OMONGA vs. STATE (2006) 14 NWLR (PT. 1000) 532;OBIWUNNE vs. TABANSI-OKOYE (2006) 8 NWLR (PT. 981) 1004.It is clear that the PW3 being one of the victims of the robberyattack told the Court below what he witnessed when the robbersstormed his residence and he saw them wielding machetes andknives. How this now becomes hearsay evidence in the conjectureof the Appellant and his Counsel beats the imagination of thisCourt."Per OHO, J.C.A. (Pp. 22-24, Paras. C-B) - read in context
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FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the
Leading Judgment): This Appeal is against the judgment
of the High Court of Kebbi State, sitting at Birnin Kebbi
Coram: IBRAHIM B. MAIRIGA, CJ. in Case No.
KB/HC/RF/14/2015, delivered on the 31st day of March,
2016 wherein the Appellant was convicted and sentenced
to death for the offences of Conspiracy to commit Armed
Robbery and Armed Robbery, contrary to Sections 5(b) and
1(2)(a) & (b) of the Robbery and Firearms (Special
Provisions) Act, 1990.
Trial commenced at the Court below on the 24th day of
June, 2015 after all four (4) Accused persons, one of whom
was the Appellant pleaded not guilty to the charges read
against them. See pages 33 to 37 of the Records of Appeal.
The prosecution called Five (5) witnesses who testified as
the PW1, PW2, PW3, PW4 and PW5 tendered Exhibits 1, 2,
3, and 4 and thereafter closed its case. (See page 46 of the
record of appeal). The Appellant as Accused person
testified for himself and called no witnesses. At the close of
hearing, written addresses of Counsel were duly adopted.
On the 31st day of March, 2016 the learned trial Court,
delivering a
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well considered judgment, found the Appellant guilty for
the offences of Conspiracy to Commit Armed Robbery and
Armed Robbery contrary to Sections 5(b) and 1(2)(a) of the
Robbery and Firearms (Special Provisions) Act, 1990 (as
amended) respectively and sentenced him to death.
Dissatisfied with the judgment of the Court below, the
Accused person has Appealed to this Court vide a Notice of
Appeal filed on the 5th day of April, 2016. There are two (2)
Grounds of Appeal filed.
ISSUE FOR DETERMINATION;
There is nominated for the determination of this Appeal by
the Appellant, a lone issue thus;
Whether from the evaluated evidence before the trial
Court, the Respondent proved its case against the
Appellant beyond reasonable doubt. (Grounds 1, 2
and 3 of the Amended Notice of Appeal)
On the part of the Respondent, three (3) issues were
nominated for the determination of this Court, two more
than what the Appellant had nominated for the Court’s
determination as follows;
1. Whether from the evaluated evidence by the trial
Court, the Respondent proved its case against the
Appellant beyond reasonable doubt. (Ground 1, of the
Amended Notice of Appeal);
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2. Whether the Trial Judge was right to convict the
Appellant relying on the evidence of PW1, 2, 3, and 4
(Ground 2 of the Amended Notice of Appeal);
3. Whether the Trial Judge relied on Exhibits 1 and 2
or 3 and 4 to convict the Appellant for the offences
charged.
In resolving this Appeal, however, this Court shall rely on
the sole issue nominated by the Appellant for the
determination of the Appeal on the ground that it is all
encompassing and addresses all the issue raised by the
Respondent in one sentence, thus;
Whether from the evaluated evidence before the trial
Court, the Respondent proved its case against the
Appellant beyond reasonable doubt. (Grounds 1, 2
and 3 of the Amended Notice of Appeal)
Learned Counsel for the parties addressed Court in their
briefs of Argument extensively citing a number of
authorities. The Appellant’s brief of Argument settled by
HUSSAINI ZAKARIYAU ESQ., was filed on the 26-3-2017
while the Respondent’s brief of Argument filed on the
25-9-2017 and settled by BAGUDU U. ABUBAKAR ESQ.,
was deemed filed on 26-9-2017. At the hearing of the
Appeal on the 24-5-2018, learned Counsel adopted their
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briefs of Argument on behalf of their respective clients and
urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL;
APPELLANT;
SOLE ISSUE;
Whether from the evaluated evidence before the trial
Court, the Respondent proved its case against the
Appellant beyond reasonable doubt. (Grounds 1, 2
and 3 of the Amended Notice of Appeal)
In arguing this issue, learned Appellant’s Counsel
contended that in proving the ingredients of this offence
against the Appellant, the Respondent relied heavily on the
evidence of the PW1, PW2, PW3 and Exhibits 1 and 2. He
contended that the evidence of the PW2 and PW3 are
hearsay evidence, which is not tenable in proving the
offence against the Appellant and also did not link the
Appellant to the commission of the offence. (See pages 38
to 41 of the record of appeal). Counsel referred Court to
Section 38 of the Evidence Act 2011, for the treatment of
hearsay Evidence in the course of trial.
Counsel conceded that by the oral evidence of the PW1
(victim), there was armed robbery in Wadata Area, Jega
and that the robbers were armed (See page 36 of the
record of
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appeal) but also contended that the ingredients of the
Appellants’ participation in the armed robbery were not
proved by the evidence of PW1 against the Appellant. He
said that the testimony of the PW1 merely said that he
knows the Appellant in their area in Jega and never
identified him as one of the armed robbers who attacked
him. Counsel cited the case ofMUSA IKARIA vs. STATE
(2013) 8 NCC 248 at 252:6.
The submission of Counsel, is that trial Court after
admitting that the testimony of PW1 did not link the
Appellant to the alleged offence went on a frolic to make a
case for the Respondent from the extra-judicial statement
of one NAFIU SAMAILA (co-accused) in Exhibit 1 and 2.
(See pages 92 – 95 of the record of appeal). In this
connection, Counsel argued that Exhibits 1 and 2 relied on
by the trial Court in making case for the Respondent fall
short of a confessional statement and upon which a Court
can convict a co-accused. He contended that Exhibits 1 and
2 (see pages 54 – 57 of the record of appeal) relied on by
the trial judge in making a conviction for the Respondent
are not statements made by the Appellant, rather that they
are Exhibits of the
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statements of one NAFIU SAMAILA who was arraigned
along with the Appellant. Hence, the trial judge was wrong
in using this statement in getting a conviction for the
Respondent, Counsel referred Court to Section 29(4) of the
Evidence Act 2011 (as amended) on this issue.
On the count of conspiracy, it was contended by Counsel
that the trial judge in convicting the Appellant with regards
to this offence held thus:
“… There is evidence in Exhibits 1 and 2 that the 1st
and 2nd accused persons along with 2 other persons,
Nazifi Haruna and Shafiu Abdullahi agreed among
themselves to go and steal cell phones and they all
participated in the crime. In view of the above and my
earlier findings I am satisfied that the charge of
conspiracy against the accused persons has been
proved by the prosecution beyond reasonable doubt."
The submission of learned Counsel on this issue is that
from the testimonies of the PW1, 2 and 3 there was nothing
to link the Appellant to this offence and that by law the trial
judge cannot use the confessional statement in Exhibits 1
and 2 made by a co-accused to make a case for the
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Respondent in convicting the Appellant. Counsel also
referred to Section 29(4) of the Evidence Act 2011 (as
amended) provides:
“Where more persons than one are charged jointly
with an offence and a confession made by one of such
persons in the presence of one or more of the other
persons so charged is given in evidence, the Court
shall not take such statement into consideration as
against any of such other persons in whose presence
it was made unless he adopted the said statement by
words or conduct."
Counsel finally urged this Court to discharge and acquit the
Appellant from this charge.
RESPONDENT;
In arguing this Appeal, Respondent’s Counsel submitted
that the prosecution in the instant case proved its case
beyond reasonable doubt against the Appellant as provided
under Section 135 of the Evidence Act, 2011 and as
stipulated in the case cited by the Appellant of MUSA
IKARIA vs. STATE (Supra).
Counsel contended that proof beyond reasonable doubt is
not proof beyond a shadow of doubt and therefore, not a
proof beyond all possible or imaginary doubts; it is proof to
moral certainty such proof as satisfies the judgment and
conscience of the judge
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as a reasonable man and applying his reason to the
evidence before him that the crime charged has been
committed by the defendant and so satisfies him as to leave
no other reasonable conclusion possible. It therefore,
imposes a duty on the prosecution to prove the main
ingredients of the offence charged against the accused
person to the satisfaction of the trial judge. Counsel cited
the case ofAFOLAJU vs. THE STATE (2010) 43 NSCQR
227 AT 242-243.
Against the backdrop of this position, Counsel submitted
that the trial judge was satisfied with the testimonies of
Prosecution Witnesses at pages 36-38, 38-40, 40-42, 42-43,
44-46 of the records and the confessional statement of the
Appellant in Exhibits 3 & 4, hence the conviction of the
Appellant. He further submitted that Exhibits 3 and 4 are
relevant as they established the facts that constitute one of
or all the elements of the crime to be proved and or
identifies the person who committed the offences. Counsel
cited the case of JAMES IGBINOVIA vs. THE STATE
(1981) 2 SC. 5 @ 17-18 and contended that confessional
statements are usually the best means by which criminal
cases are established. See GIRA vs. THE STATE (1996) 4
SCNJ 94.
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On the ingredients of the offence of armed robbery,
Counsel submitted that from the totality of the evidence of
the PW1, PW2, PW3, PW4 and PW5 along with the
confessional statements of the 1st and 2nd accused persons
in Exhibits 1, 2, 3, & 4 to the effect that there was a
robbery or series of robbery on the 10-10-2014. Refer to
pages 36-38, 38-40, 40-42, 42-43, 44-46 of the records
served to establish the ingredients of the offence.
According to Counsel, the testimonies of the PW1 that he
heard the voice of the 2nd accused person and noticed that
the robbers were holding machetes and one of them
pointed a short-gun at him, ordered him to lie down,
demanded that he should give them money and that they
took away his cell phones further served to establish that a
robbery not only took place but that the robbers were also
armed. See page 37 of the records. In respect of the PW3’s
testimonies, Counsel said that he questioned the person
that pushed his door; he saw two of the robbers were
holding knives and machetes. See pages 40-41 of the
records. Similarly,
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Counsel enthused that the confessional statements of the
1st and 2nd Accused persons in Exhibits 3, 4, 1 & 2
confirmed that the robbery or series of the robbery was an
armed robbery.
Counsel also submitted that testimonies of the PW1 who
identified the voice of the 2nd accused person as one of the
robbers and his cell phones stolen by the said robbers
coupled with the testimony of the PW2 in whose presence
the 2nd accused person admitted taking part in the robbery
and even confessed to stealing of the cell phones and some
monies and same were found in his possession also served
to establish the ingredients of the offence. See pages 37
and 39 of the records. Furthermore, he said that both
confessional statements of the 1st and 2nd accused persons
in Exhibits 3, 4, 1 and 2 clearly proved beyond reasonable
doubt that the 1st and 2nd accused persons were among
those that robbed.
Counsel also argued that identification of an accused
person by his voice is sufficient to establish identity of a
person. See EUGENE IBE vs. STATE (1992) 5 NWLR
[PT. 244] 642 at 649 Para. D.
It was also argued by Counsel that where by his confession,
as in Exhibits 3 and 4, an accused person identified himself
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or where circumstances show his involvement in the
commission of the offence as in the instant case,
identification parade is not necessary. Counsel cited the
cases of SEMIU AFOLABI vs. THE STATE (2014) 9 NCC
333, DECISION 8, PARTICULARLY AT 360-361, Paras.
H and A-D; KAYODE BABARINDE and 2 ORS vs. THE
STAT E (2014 ) 10 NCC 567 DECIS ION 3 ,
PARTICULARLY AT 606 paras A-C.
The contention of Counsel is that the pieces of evidence of
the PW1, 2, and 3 have not been contradicted or
controverted in cross examination. He argued that where
there is nothing to contradict or controvert evidence, the
Court will be on a firm ground to admit and rely on same.
He cited the case of MUDASIRU vs. ABDULLAHI (2011)
7 NWLR (PT. 1247) 591 AT PAGE 600 and submitted
that all the ingredients of the offence under Section 1 (2)
(a) of the Robbery and Firearms (Special Provisions) Act,
2004 were proved beyond reasonable doubt and that the
trial judge rightly held at pages 92 of the records:
“I am convinced that the 1st and 2nd accused along
with 2 other persons at large have participated in
robbery in the houses of Zainal Abidina and Surajo
Abubakar on the 10/10/2014 at about 3:30am
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at Wadata Area in Jega Town where they took 4 cell
phones and the sum of ₦5000.”
As it relates to the offence of criminal conspiracy under
Section 5(b) of the Robbery and Firearms (Special
Provisions) Act, 2004, Counsel submitted that conspiracy to
commit an offence is quite often inferred from
circumstantial evidence and that it is based on common
intent, or purpose. He cited the case of AIGBE vs. THE
STATE (1976) NMLR 184 and argued that when once
there is such evidence to commit the substantive offence, it
is settled that it does not matter, what any of the
conspirators did what. See also SULE vs. STATE (2009)
38 NSCQR 1069 at 1097.
It was also submitted that going by the testimonies of the
PW1-5 as well as confessional statements of the 1st and
2nd accused persons in Exhibits 3, 4, 1 and 2, the
prosecution proved that the Appellant along with three
others agreed and went further to commit armed robbery
leading the trial Court into holding thus;
“…in view of the above and my earlier findings, I am
satisfied that the charge of conspiracy against the
accused persons has been proved by the prosecution
beyond reasonable doubt. See page 94 of the
records.”
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On the Appellant's Counsel assertions at pages 4-6 of the
Appellant's brief in paragraph 11.0 that the Respondent
relied heavily on the evidence of PW1, PW2, PW3 and
Exhibits 1 and 2 and also in paragraph 12.0 where he
submitted that the evidence of PW2 and PW3 is hearsay
evidence, Counsel referred Court to the evidence of the
PW2 where he stated thus;
“When he arrived, we questioned (sic) as to whether it
was true that he took part (sic), and with whom. He
said Surajo Abubakar, Alh Arzika, Bashir Umar. He
said they robbed cell phones and monies. We asked
him the where about of the items they robbed, he sent
for (sic) collected from his 2 accomplices and
together with the cell phones in his possession,
making 3 and handed them over to us.”
See page 37 of the records.
Arising from the foregoing, Counsel argued that from the
above piece of evidence it is clear that the 2nd accused
confessed in his presence and some of the stolen items
were recovered from 2nd accused person. He added that
this cannot be said to be hearsay. As for the evidence of
PW3, Counsel reproduced it thus:
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“I remember 10/10/14, I was at home. I was at home
at about 3:20 am in the night, when I noticed
someone push (sic) on my door I asked, what is that
and a voice answered “you will know”. I got up and
reached for my stick and the person retreated a bit.
He was holding a knife and machete. Another one
emerged. He too was holding a knife and machete. I
bent down to reach for my cell phone to call for
assistance, they thought I was reaching out for
another weapon and they fled. Short while after their
departure, I heard cries in the direction of the house
of my elder brother, Dan Alhaji. I went out over the
house and they inform (sic) me that three went into
their house with knives and machetes....” see pages
40-41 of the records.
Once again Counsel argued that this piece of evidence is
not hearsay evidence.
On the issue of whether evidence of the PW1 has linked the
Appellant (1st accused person) to the commission of the
offence, the submission of Counsel is that when the
testimony of the PW1 at pages 36-37 of the records are
compared with the confessional statement of the Appellant
in Exhibits 3 and 4 at pages 58-59 & 60-61
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of the records, it is clear also that there are similarities in
the testimony of PW1 and confessional statement of 1st
accused person in Exhibits 3 and 4, with regards to;
a. Date of the offence i.e. Friday, 10/10/2014;
b. Name of one of the victims i.e. PW1, Zainal Abidina,
mentioned in Exhibits 3 and 4;
c. Items stolen from him, two handsets;
d. Assailants one of them was recognized by PW1 as Nafiu
Samaila the same person is mentioned in Exhibits 3 and 4.
According to Counsel, these pieces of evidence only go to
corroborate the evidence of the PW1 and statements of the
1st Accused Persons in Exhibits 3 and 4.
On the question of whether the ingredient of the
Appellant's participation in the armed robbery was proved
by the evidence of the PW1 and the submission of
Appellant’s Counsel that the testimony of the PW1 did not
link the Appellant to the alleged offence but that the trial
Court went on a frolic to make a case for the Respondent
from the extra-judicial statement of one NAFIU SAMAILA
(Co-accused) in Exhibits 1 and 2; the argument of Counsel
is that a close scrutiny of the confessional statement of the
2nd accused
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person in Exhibits 1 and 2 at pages 54-55 & 56-57 of the
records and that of the 1st accused person in Exhibits 3
and 4 will reveal that contextually the two statements are
the same with little variations. He however contended that
this is not the main issue; that the material issue is whether
the trial Court relied on Exhibits 1 and 2 or 3 and 4 to
convict the Appellant on the alleged offences.
In order to answer the above poser, Counsel took time to
reproduce parts of the judgment of the trial judge thus:
“As I said earlier, the extra-judicial statements of the
accused to the police as contained [in] Exhibits 1 and
2 are also crucial in the determination of this case.
Considering the fact that both the 1st and 2nd
accused persons denied making any statement to the
police (Exhibits 1 & 2), it is necessary to address the
issue of whether a Court can act upon such
evidence…”
See pages 91-92 of the records and specifically at page 92
of the records, where the learned trial judge said:
“In order to answer the above questions, it is
necessary to look at the statements of the accused
persons in
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Exhibits 1 and 2 and relate them to the evidence of
PW1, 2, 3, & 4 respectively. I will start by considering
the statement of Nafiu Samaila, the 2nd accused
(Exhibit 2). The statement inter alia reads as follows:
“On Friday 10/10/14 at about 12:30 hours...”
See page 92 paragraphs 3, 4 and 5 more specifically at
lines 10-26. On lines 27 of page 92 of the records, the trial
judge has this to say:
“The statement of the Nafiu Yusuf, the 1st accused reads as
follows:
“….on Friday 10/10/14 at 01:00 hours, one Nafiu
Samaila met me at the football field…”
See lines 28-41 of page 92, lines 1-10 of page 93 of the
records. On lines 11-27 of page 93, the trial judge has this
to say:
“After a careful consideration of Exhibits 1 and 2 vis-
à-vis the evidence of PW1, 2, & 3, I am of the view
that the confessional statements in question are
materially corroborated by the evidence of PW1, PW2,
and PW3. In particular, the evidence of PW1 that he
heard and recognized the voice (sic) the 2nd accused
is in harmony with the statement of the 2nd accused
where he inter alia stated and I quote
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"…the confessional statements of both the first and
2nd accused positively revealed that on the 10/10/14
in the mid-night, the 1st and 2nd accused in the
company of two other person(s), Nazifi Haruna and
Shafiu Abdullahi, still at large, have entered the
houses of Zainu (PW1), Atiku and Alhaji Arzika where
they took handsets and some money. There is also an
unchallenged evidence of PW2 that they recovered 3
handsets from the accused persons. Based on the
above, it is apparent that confessional statements
under consideration are in many respects consistent
with the evidence of PW1, 2 & 3 respectively. I am
therefore, of the view that confessional statements in
question have satisfied the tests set out earlier and
consequently, I am convinced that the 1st and 2nd
accused along with 2 other persons at large have
participated in robbery in the houses of Zainal
Abidina and Surajo Abubakar on the 10/10/14 at
about 3:30am at Wadata Area in Jega Town where
they took 4 cell phones and the sum of ₦5000."
The contention of Counsel is that the combined effect of all
the references made by the trial judge to Exhibits 1 and 2
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will reveal that he referred to Exhibits ‘1 & 2’ to convict
Nafiu Samaila, the 2nd Accused person; and mistakenly
refers to Exhibits 3 & 4 as 1 and 2 to convict the 1st
accused person, Nafiu Yusuf, who is the Appellant. Counsel
therefore submitted that notwithstanding the trial judge’s
reference to Exhibits 1 and 2 in his judgment, the 1st
accused person who is the Appellant is convicted based on
his confessional statements in Exhibits 3 and 4. He referred
to page 92 of the records [the statement of the Nafiu Yusuf,
the 1st accused person].
According to Counsel, the said Exhibits are fully
corroborated by pieces of evidence of the PW1, 2, and 3
and that the reference made to Exhibits 3 and 4 as Exhibits
1 and 2 is a mistake, slip or an error of the trial judge. He
submitted that it is such a mistake, slip or error that would
not result to allowing the Appellant's Appeal and he cited
the case of OLUSOLA ADEYEMI vs. THE STATE (2015)
11 NCC, 376 DECISION 4 AND 6 AT 410-411 AND
414, PARAS G-H, A AND E-H respectively.
It was further contended that the Appellant has to show
that this error is so substantial, that it has occasioned a
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miscarriage of justice and the Appellant having failed to do
so, he urged this Court to resolve this issue in favour of the
Respondent.
RESOLUTION OF APPEAL
The brief facts of this case is that the Appellant, on or
about the 10th day of October, 2014, in the company of
three (3) other robbers at about 3:30 am at Wadata Area in
Jega Town, Jega Local Government Area of Kebbi State
agreed among themselves to commit armed robbery and
indeed robbed a number of persons, some of whom are
Zainal Abidina, Surajo Abubakar and Bashiru Umar, and in
the process stole five (5) different brands of cell phones
and the sum of Four Thousand and Fifty (N4,050.00) Naira
only. Five witnesses testified for the Respondent and
tendered four Exhibits amongst, which were the
confessional statements of the Appellant. The Hausa
version was marked Exhibit 3 while the English version was
marked Exhibit 4; hence the Appellant was convicted based
on the testimonies of PW1, 2, and 3 along with his
confessional statement in Exhibits 3 and 4.
The contention of Appellant’s Counsel was that the
Respondent did not prove the ingredients of the offence
and that to secure conviction, the Court
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below relied heavily on the evidence of the PW1, PW2, PW3
and Exhibits 1 and 2. What seem to be rather clear is the
fact that the Court below by a careful examination of the
records was satisfied with the testimonies of Prosecution
Witnesses at pages 36-38, 38-40, 40-42, 42-43, 44-46 of the
records and the confessional statement of the Appellant in
Exhibits 3 & 4. A close perusal of Exhibits 3 and 4 not only
established the facts that discloses a clear case of armed
robbery, but also the elements of the crime proved and in
addition identified the persons behind the commission of
these offences.
The contention of Appellant’s Counsel furthermore, was
that the evidence of the PW2 and PW3 are hearsay
evidence and which did not also link the Appellant with the
commission of the offences charged. (See pages 38 to 41 of
the record of appeal). It is important once again to refer to
the pages of the records of appeal on the issue of whether
the evidence of the PW2 and PW3 were hearsay evidence of
not. Specifically, at page 37 of the printed records, the
evidence of the PW2 which the Court below accepted and
relied upon goes thus;
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“When he arrived, we questioned (sic) as to whether it
was true that he took part (sic), and with whom. He
said Surajo Abubakar, Alh Arzika, Bashir Umar. He
said they robbed cell phones and monies. We asked
him the where about of the items they robbed, he sent
for (sic) collected from his 2 accomplices and
together with the cell phones in his possession,
making 3 and handed them over to us.”
Hearsay simply means whatever a person declares on
information given by someone else. That is not what seems
to be the position here. The PW2’s evidence spoke of what
he and other members of the investigation team did, when
the Appellant arrived and was question by them as to his
participation in the crime and with whom as partners
where the robberies carried out. The Appellant rose to the
occasion and not only gave the names of his cohorts but
also went on to disclose to the PW2 and the team what was
stolen by them in the course of the robbery operation and
he reproduced the proceeds of the crime to the PW2 and
his team.
As it relates to the evidence of the PW3, which the
Appellant also said was hearsay evidence, the evidence of
the PW3 which the Court below
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accepted and relied upon, is at pages 40-41 of the printed
records thus;
“I remember 10/10/14, I was at home. I was at home
at about 3:20 am in the night, when I noticed
someone push (sic) on my door I asked, what is that
and a voice answered “you will know”. I got up and
reached for my stick and the person retreated a bit.
He was holding a knife and machete. Another one
emerged. He too was holding a knife and machete. I
bent down to reach for my cell phone to call for
assistance, they thought I was reaching out for
another weapon and they fled. Short while after their
departure, I heard cries in the direction of the house
of my elder brother, Dan Alhaji. I went out over the
house and they inform (sic) me that three went into
their house with knives and machetes....”
The settled position of the law is that a testimony would be
hearsay where the person making the statement is not the
one who either saw it, heard it, perceived it or gave it as his
own personal opinion but rather as what was said to him by
another person. See OMONGA vs. STATE (2006) 14
NWLR (PT. 1000) 532; OBIWUNNE vs. TABANSI-
OKOYE (2006) 8 NWLR (PT. 981) 1004.
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It is clear that the PW3 being one of the victims of the
robbery attack told the Court below what he witnessed
when the robbers stormed his residence and he saw them
wielding machetes and knives. How this now becomes
hearsay evidence in the conjecture of the Appellant and his
Counsel beats the imagination of this Court.
On the question of the submission of the Appellant that the
Court below “went on a frolic to make a case for the
Respondent” from the extra-judicial statement of one
NAFIU SAMAILA (co-accused) in Exhibit 1 and 2.(See
pages 92 – 95 of the record of appeal) and upon which the
Court relied in convicting the Appellant, it would be
recalled that the said Exhibits 1 and 2 were extra-judicial
confessional statements made by NAFIU SAMAILA, a co-
accused of the Appellant and that in the Court’s evaluation
of the evidence before him, rather than refer to Exhibits 3
and 4 made by the Appellant, went ahead and referred to
Exhibits 1 and 2.
It is to this issues that learned Appellant’s Counsel had
made a storm out of a tea-cup in his arguments on the
issue. It would be further recalled that Appellant’s
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Counsel as a result had made heavy reliance on Section
29(4) of the Evidence Act 2011 (as amended) dealing with
the reliance of a Court on the confessional statement of a
co-accused person. It is important to note while reading the
records of Appeal that the confessional statement of the
said 2nd accused person, the said NAFIU SAMAILA in
Exhibits 1 and 2 at pages 54-55 & 56-57 of the records and
that of the 1st accused person, who is Appellant herein in
Exhibits 3 and 4 will reveal that contextually the two
statements are the same with little variations, the
possibility of mistakes on the part of the Court below in
referring to one instead of the other cannot be ruled out.
What should however, be the concern of this Court is not
whether the Court made a mistake in referring to the
wrong set of exhibit, but rather whether the Exhibits 3 and
4 credited to the Appellant contained extra-judicial
confessions capable of leading to the conviction and
sentence of the Appellant as an accused person. A close
scrutiny of the records at page 60, where the statement of
the 1st accused person NAFIU YUSUF who is the Appellant
is pasted and
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where he confessed copiously to the commission of the
crimes charged alongside his co-accused persons; NAFIU
SAMAILA, NAZIFI HARUNA and SHAFIU ABDULLAHI.
I therefore have no hesitation in accepting that the
Appellant was convicted based on his own confessional
statement. Besides this point, Appellant has to show that as
a result of the error of the Court below in referring to
Exhibits 1 and 2 rather than Exhibits 3 and 4 have
occasioned a miscarriage of justice against him. The
Appellant having fai led to do so, in the face of
overwhelming confession, which he had himself made in
the said Exhibits 3 and 4 and which the Court below took
cognizance of in convicting him, the point is therefore of no
moment.
This Appeal therefore fails and it is accordingly dismissed.
The judgment of the High Court of Kebbi State, sitting at
Birnin Kebbi Coram: IBRAHIM B. MAIRIGA, CJ in Case No.
KB/HC/RF/14/2015, delivered on the 31st day of March,
2016 is hereby affirmed.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of
reading in advance, the lead judgment just rendered by my
learned brother, Frederick O. Oho, JCA. I agree with the
reasoning therein and the conclusion that the appeal is
bereft of substance.
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The unmeritorious appeal is hereby dismissed. I subscribe
to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: Having been
privileged to read in draft the judgment of my learned
brother, Frederick O. Oho, JCA just delivered.
I am in entire agreement with the reasoning and conclusion
that the appeal lacks merit. I accordingly dismiss it and
affirm the judgment of the trial Court delivered on
31/3/2016.
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Appearances:
Hussaini Zakariyau, Esq. For Appellant(s)
Bagudu U. Abubakar, Esq. (DCL, Ministry ofJustice, Kebbi State) with him, Lawal H. Garba,Esq. (DDPP)For Respondent(s)
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