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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