Mohammed V. State (2020)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
This is an appeal against the judgment of the Ilorin Division of the Court of Appeal, delivered on 19th December, 2014 in which the death sentence on the Appellant by an Ilorin High Court was affirmed.
The facts are these:
On 28th December, 2011 the Appellant and one Legi Mohammed, while armed with cutlasses and Fulani sticks robbed PW3, his younger brother, Fatai and PW4. They were robbed while returning from Banni Market in Kaiama Local Government Area of Kwara State, where they had gone to sell yams. They rode a motorcycle.
The Appellant and Legi Mohammed emerged from the bush, knocked them off the motorcycle, inflicted fatal machette cuts on their victims. PW3’s younger brother, Fatai fought back but was killed. PW3 was seriously injured with matchette cuts on his head and his lower arm was cut off. PW4 had near fatal matchette cuts on his body. One of his fingers was almost cut off. It was left dangling.
PW3 and PW4 recognised the Appellant and Legi Mohammed before they ran into the bush and made their way to the village. On arriving in the
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village, they reported the gruesome incident to PW7, the head of the vigilante team. The Appellant and Legi Mohammed were subsequently apprehended and taken to the Police Station where they confessed to having committed the crime. The arrest of the Appellant, who was the 1st accused person was easy. PW7 the head of the Vigilante team, after being told of the armed robbery, led other vigilantes to the scene to search for the armed robbers. He told the Mogaji of the town that if anyone saw anyone with matchette cuts, he should be informed, since one of the victims also claimed to have struck one of the armed robbers with a matchette. All hospitals, clinics, and chemists were duly informed. The brutal armed robbery occurred at about 6p.m. and at about 10p.m someone showed up at a chemist with matchette cuts. That someone was the first accused person, the Appellant, Abu Mohammed. The Appellant’s statement and his specimen thumbprint impression was admitted as exhibit P4.
At the trial, the prosecution (the Respondent) called seven witnesses and closed its case.
The Appellant gave evidence in his defence. He did not call any witness. His
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co-accused also gave evidence. A total of seven documents and items, were admitted in evidence as exhibits. Interestingly, one of the exhibits was the severed arm of PW3, marked exhibit P7.
Convicting the Appellant and his co-accused to death for the offence of conspiracy and armed robbery, the learned trial judge had this to say:
“… PW3 and 4 saw it all and suffered seriously from it. Their evidence and that of PW7 is more than enough to ground a conviction.”
Concluding, his lordship said:
“The two accused persons are guilty of the offence of Conspiracy and armed robbery, contrary to Section 97 of the Penal Code and Section 1(2) of the Robbery and Fire Arms (Special Provisions) Act…
The prosecutions has thus discharged the burden of proving the case against the two accused persons beyond reasonable doubt as enjoined by Section 139 (1) of the Evidence Act.
The two accused persons namely Abu Mohammed and Legi Mohammed are hereby convicted as charged.”
Dissatisfied with the judgment, the Appellant filed an appeal. It was heard by the Court of Appeal, Ilorin Division. That Court affirmed the
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judgment of the trial Court in these words.
“The conclusion of the learned trial Judge is unassailable. I am at one with same.
The two other judges that heard the appeal agreed with the leading judgment.
Still dissatisfied, the Appellant filed an appeal to the top Court. Briefs were filed and exchanged. Learned counsel for the Appellant Mr. A. Tunde-Olowu, filed an Appellant’s amended brief on 27 November 2017 which was deemed duly filed and served on 16 May 2018.
Learned counsel for the Respondent, Mr. J.A. Mumini the Kwara State Director of Public Prosecutions filed an amended Respondent’s brief on 21 October 2019 but deemed duly filed and served on 24 September 2020.
Both Counsel were of the view that only a sole issue would resolve this appeal. The issue reads:
Whether the Court of Appeal rightly held that the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt.
At the hearing of the appeal on 24 September 2020, learned counsel for the Appellant and Respondent adopted their briefs and urged this Court to pronounce as per their briefs.
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Learned counsel for the Appellant observed that whilst it is clear on the fact that there was an attack on PW3 and PW4, it remains doubtful as to who the attackers were and on what occasion, whether it was in the course of a robbery incident or not. He observed that the evidence of PW4 is unworthy of belief because he stated that he had escaped from the scene of the attack into the bush as soon as the attackers made for his two other brothers, contending that it is difficult to rationalize how he knew that the victim that died was matcheted with cutlass on the head and all over his body and died.
He submitted that in the absence of an identification parade, it was wrong for the Court of Appeal to have affirmed the conviction of the Appellant. Reliance was placed on Ikemson v State (1989) NWLR (Pt.110) p.455.
Omotola v State 2009 ALL FWLR Pt.464 p.1490.
Learned counsel for the Appellant observed that the Appellant denied making any statement and did not thumb print it, contending that the procedure adopted by the Judge to resolve the issue as to whether the Appellant’s thumb print is actually the one on the statement was wrong.
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He submitted that it is not possible for the trial Court to have verified the Appellant’s thumb print and ascertain its genuineness by physical comparison, contending that this can only be determined in a forensic laboratory by a finger print expert.
Concluding, he submitted that the Court of Appeal was wrong to uphold the conviction of the Appellant based on his retracted confessional statement, exhibit P3. He urged this Court to interfere with the concurrent findings of fact of the two Courts below and allow the Appellant’s appeal.
Learned counsel for the Respondent observed that the Court of Appeal in affirming the judgment of the trial Court found that the evidence of PW3, PW4 and exhibits P3, P5, established that the Appellant and his colleague Legi Mohammad conspired and did go to Banni/Lele Road to rob these witnesses and their deceased brother.
As regards exhibit P3, the Appellant’s retracted confessional statement which he denied making or thumb printing, he argued that the main function of an expert is to assist the Court, and that a Court is not bound to accept the evidence of an expert.
He further submitted that
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comparing the thumb print of the Appellant on P3 with the thumb print made by the Appellant in exhibit P4 was very much in order, as the judge was only trying to find out if exhibit P3 was made by the Appellant. Reliance was placed on B. Iden v State (1994) 8 NWLR (Pt.365) p.719
COP v. Ogechukwu (1974) ESCLR p.147.
Concluding, he urged this Court not to disturb the concurrent findings of the two Courts below and not to depart from the earlier decision of this Court in Appeal No. SC/294/15 Legi Mohammed v State delivered on 11 January, 2019.
He urged this Court to resolve the sole issue in favour of the Respondent.
In a charge of conspiracy to commit armed robbery and armed robbery, under Section 97 of the Penal Code and Section 1(2) of the Robbery and FireArms (Special Provisions) Act, Cap R 11 Laws of the Federation of Nigeria 2004 as with all criminal offences, the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt by proving the three ingredients of the offence of armed robbery.
In Nwaturuocha v State (2011) 6 NWLR (Pt.1242) p.170, I explained proof beyond reasonable doubt. I said that:
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“Proof beyond reasonable doubt” does not mean proof beyond all doubts or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence; a degree of compulsion which is consistent with a high degree of probability.
See Section 135 (1) of the Evidence Act 2011.
Eke v State (2011) 1-2 SC (Pt. II) p.219.
Ochiba v State (2011) 12 SC (Pt. IV) p.79.
Chukwuma v F.R.N. 2011 5SC (Pt. II) p.84.
For the Prosecution to be said to have proved the case beyond reasonable doubt, it must prove all the essential elements of the offence in the charge, by producing vital material evidence and witnesses to testify during proceedings,
The prosecution must prove:
(a) that there was a robbery;
(b) that the Appellant participated in the robbery;
(c) that during the robbery the Appellant was armed with offensive weapon or was in company of a person who was so armed.
Armed Robbery is stealing with violence.
Now, what is the evidence for, and against the Appellant?
- A retracted confessional Statement was
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admitted in evidence as exhibit. The Appellant claimed that he did not thumb print the statement. He did not make the statement.
- Eye witness evidence.
I take the 2nd first.
The Court of Appeal said (see page 131 of the Record of Appeal.)
“…The evidence of the PW3, PW4 and PW7 with or without exhibits P3 and P5 are sufficient to ground the conviction of the Appellant.”
Earlier, the trial Court examined evidence as it was expected to and found that armed robbery took place and the Appellant was one of the armed robbers when it said:
“..The matrix of evidence of the prosecution and even that of defence particularly the 1st accused showed that robbery took place and the accused persons were armed. This fact was specifically highlighted by the evidence of the victims PW3 and PW4.
PW3 said:
“These two accused persons standing before the Court suddenly appeared from the bush and started to matchet our body (sic) with cutlasses. They collected our sales proceeds.”
PW4 said:
“My brother who was driving the motorcycle was scared and we fell from the
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motorcycle.”
PW3 and PW4 are eyewitnesses, while P3 is the Appellant’s retracted confessional statement.
The best evidence that an accused person committed an offence is his confessional statement which would state clearly that he committed the crime for which he is charged. This is conclusive evidence that the accused person committed the offence, provided that the evidence was not beaten out of him. That is to say the confessional statement must have been voluntary made. “I did it” concludes the case.
The next best evidence is the testimony of an eyewitness, provided it is true. “I saw you committing the offence.”
It is the duty of the trial judge to assess the credibility of the witnesses.
There is no rule of law or practice which says that a Court should hesitate in convicting upon the evidence of an eye witness in a case where there is no suggestion that the witness is an accomplice, if the Court is satisfied with the evidence given.
I agree with the findings of the Court of Appeal which affirmed the judgment of the trial Court when it said:
“… It is without doubt that the evidence of the PW3 and PW4
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and exhibits P3 and P5 established that the Appellant and his colleague Legi Mohammed conspired and did go to Banni/Lele Road to rob these witnesses and their deceased brother Fatai.”
After examining evidence led I am satisfied with the judgment of the Court of Appeal which affirmed the judgment of the trial Court, that PW3 and PW4 are indeed eyewitness. They gave similar evidence of how the Appellant and his co-accused, Legi Mohammed attacked them, inflicted near fatal matchette cuts on them and killed their brother, Fatai, ending up stealing from them all the money from the sale of their Yams.
It is abundantly clear that the respondent (prosecution) proved to the satisfaction of both Courts below that there was a robbery on 26 December 2011, at about 6 p.m along Banni/Lele Road. The Appellant participated in the robbery.
During the robbery the Appellant was armed, and in the company of Legi Mohammed, his co-accused who was also armed. This is clear evidence that the Appellant participated in armed robbery on the day in question.
Learned counsel for the Appellant in his sole issue was only
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concerned about whether the offence of armed robbery against the Appellant was proved beyond reasonable doubt. He said nothing about the charge of conspiracy. I say nothing also, but conspiracy is easily inferred.
I now turn to exhibit P3. The Appellant’s retracted confessional statement.
Exhibit P3 is the Appellant’s retracted confessional statement. The well laid down practice is that when a confessional statement is challenged on the ground that the accused person did not make it, whether he made it or not is a matter to be decided at the end of the trial by the trial judge. Objection by counsel does not affect the admissibility of the statement. The statement should be admitted in evidence. The issue of voluntariness or otherwise of the statement does not arise for consideration and decision. See Queen v, Igwe (1960) 5 F.S.C. p.55, Ikpasa v Bendel State (1981) 12 NSCC p.300.
It is only when the accused person says the statement was not voluntary, that a trial within trial is conducted as the issue of voluntariness of the statement arises for consideration and must be resolved.
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A retracted confessional statement should be admitted in evidence and it is the duty of the trial judge to determine the weight to be attached to it. Great weight would be attached to the confessional statement if the trial judge is satisfied after testing the truth of the statement by determining:
(a) Is there anything outside it to show it is true?
(b) Is it corroborated?
(c) Are the facts stated in it true so far as can be tested?
(d) Did the accused have an opportunity to commit the Offence?
(e) Is the accused’s confession possible?
(f) Is the confession consistent with other facts which have been ascertained and proved? See
Queen v Obiasi (1964) 2 NSCC p.412
Onochie & Ors v. The Republic (1966) NMLR p.307.
After examining the above carefully, it becomes clear that the evidence of PW3, PW4 and PW7 was very damaging against the Appellant. It is obvious that exhibit P3, the retracted confessional statement of the Appellant is indeed true. Both Courts below came to the correct conclusion that the evidence led by the prosecution established the guilt of the Appellant beyond reasonable doubt.
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The conviction of the Appellant is justified by the evidence.
I must observe that the evidence of PW3, PW4 and PW7, even without exhibit P3 is more than enough to the Appellant beyond reasonable doubt.
Concurrent findings of the lower Courts will not be disturbed by the Supreme Court except there has been exceptional circumstances such as there has been miscarriage of justice or violation of some principle of law or procedure, or the findings are not perverse or unsupportable from the evidence before the Court. See
Ugwanyi v F.R.N (2012) 3 SC (Pt. III) p.169
R-Ben Kay Nig Ltd v Cadbury Nig PLC (2012) 3 SC (Pt. III) p. 169.
Learned counsel for the Appellant was unable to proffer any good reason why these concurrent findings should be disturbed. In the circumstances those findings represent what happened when PW3 and PW4 were robbed by the Appellant and Legi Mohammed.
I must explain for the benefit of trial Judges and lawyers the correct procedure, when an accused person says that he did not make any statement nor thumb print any statement. Learned counsel sought to tender the
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retracted statements of both accused persons. This is what transpired:
“State Counsel – I seek to tender the two accused persons statements in evidence.
Accused Counsel – The accused said they did not make any statement not thumb printed any statement.
State Counsel – I pray the Court to admit the statement.
Court – The accused persons are not questioning the voluntariness of the statement but merely denying making any. The making of the statement is a matter of fact to be established. Each of the two accused will thumb print a sheet of paper each with a view to comparing same with their alleged thumb print impressions on the statement. The accused persons having thumb printed a plain sheet with their thumb printed impressions on the sheets are the same with the thumb prints on the statement said to be made by the accused. The statements and the thumb printed sheet will be admitted in evidence and they are admitted and marked as follows”.
The statements were admitted and marked accordingly.
As quite rightly pointed out by the learned trial Judge, that the making of
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the statement is a matter of fact, but sadly the judge followed the wrong procedure and practice, by ordering the Appellant to thumb print on a plain sheet of paper. The trial judge ought to have admitted the statement as the issue of whether the Appellant made it or not is a matter to be decided at the conclusion of trial by the trial judge. Objection by counsel does not affect the admissibility of the statement, so the statement should be admitted in evidence, since the issue of voluntariness of the statement does not arise for consideration.
The trial judge decides whether the Appellant made the statement, or not, at the conclusion of trial by testing the truth of the confession. This is done by considering and answering the questions, (a) to (f) earlier listed in this judgment.
At the end of the exercise if the confession is found to be doubtful, no weight would be attached to it, but if, as in this case the confession is found to be true, the issue of making the statement by the Appellant and affixing his thumb impression on it is resolved as true, and the statement becomes cogent and compelling evidence that the Court can rely on.
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Appeal No. SC/294/2015- Legi Mohammed v State.
This Appeal was decided by this Court on 11 January 2019. The Appellant, Legi Mohammed was the co-accused of the Appellant in this Appeal. The facts are identical. As with this Appeal there were no redeeming features.
In the end there is no merit in this Appeal.
The Appeal is dismissed.
SC.293/2015
