➥ CASE SUMMARY OF:
Abdulrahim Usman v. The State (SC.61C/2019, Friday May 06, 2022)
by Branham Chima.
➥ SUBJECT MATTER
➥ CASE FACT/HISTORY
The present appeal is against the judgment of the Court of Appeal, Akure Judicial Division delivered on December 6, 2018 in appeal no. CA/AW282C/2016. By the judgment in question, the Court below coram Danjuma, Abdullahi and Mahmoud, JJCA, dismissed the Appellant’s appeal and affirmed the judgment of the Ondo State High Court, thereby convicting and sentencing the Appellant to death for the offences of conspiracy and armed robbery, contrary to Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, CAP. R 11, volume 14, Laws of the Federation of Nigeria, 2004.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the Appellant?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The decisions of the lower courts are correct).
[THE VOLUNTARINESS OF THE STATEMENT IS NOT IN ISSUE
‘The law is well settled, beyond per adventure, that where (as in the instant case) the defendant makes an out right denial of the statement sought to be tendered in evidence by the prosecution, the denial (objection) is tantamount to a retraction of the statement. Thus, such a statement is admissible and reliable without the need of resorting to a trial-within-trial, as its voluntariness is not in issue. See IBEME VS. THE STATE (2013) 10 NWLR (pt. 1362) 333.’
THE APPELLANT WAS APPREHENDED AT THE SCENE OF THE CRIME
‘In my considered view, by virtue of the circumstances surrounding the case vis-a-vis the evidence on record, the Court below was justified and correct in upholding the very apt findings of the trial Court in regards to the discrepancy as to the date on which the offences were allegedly Committed, and the date on which the Appellant was arrested. Indeed, it is evident on the face of the record, that the Appellant was arrested at the scene of the crime. Both the PW 1 and PW2 had the misfortune of being victims of the armed robbery in-question. They were both present at the scene of crime at the very material time the Appellant was apprehended. Neither the PW1 nor the PW2 was shaken when giving evidence about the identity of the Appellant as the very culprit apprehended at the scene of crime, and date the offence was committed.’
‘The PW1, most especially, testified under oath at the trial Court on 15/01/2014, inter alia, thus: “I am Fatima Yusuf. I live at 11, Ojo Ikoko, Owo. I am a trader. I know the defendant. I remember 19th June, 2013. I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down lie down. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour where I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son. He was the one that pointed a gun at my son, Jamiu. I told them to calm down as I had money to give them. I told them not to hurt my son. The two of the robbers came with me to the room. The defendant was still with my son. The two had face mask on. I did not see their face(sic).” In continuation of the testimony thereof, the PW1 stated that the Appellant was actually apprehended at the scene of crime: “As the commotion was going on in my apartment my neighbour who was living at the upstairs of my apartment heard what was going on. She raised alarm that thieves were in my apartment. This caused the neighbours to move towards my apartment. The two who were with me were the first to leave my apartment. The defendant backed as and then pointed his gun toward the direction where the neighbours were coming from. I summoned courage and I grabbed the defendant from the back. I held unto him until help came and we were able to suppress the defendant. The defendant was bound with rope and the Police was called.” Under cross-examination by the defence counsel, the PW 1 had this, inter alia, to say: “I did not know the defendant before the day I caught him in my house…when I grabbed the defendant and we both fell down, I saw that the defendant had hand glove and there was a long scarf beside him. I would not know whether he used the scarf as a disguise during the robbery.” See pages 8-9 of the Record.’
CONSPIRACY WAS ESTABLISHED AGAINST THE APPELLANT
‘In the instant case, the evidence of the PW1 and PW2, who were the unfortunate victims and indeed eye witnesses of the said armed robbery, was direct and unequivocal that the Appellant in company of other persons (still at large) broke into their apartment and robbed them on 19/06/2013. The trial Court in its judgment found as a matter of fact that: “The evidence before the Court is that the defendant in company of two others went to the house of PW1 in the early hours of 18th June, 2013, and they robbed PW1. The fact that three of them went to the place to rob is evident of conspiracy. They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being part of it is guilty of conspiracy as charged.” On its part, the Court below at page 141 of the record upheld the foregoing findings of the trial Court, thus: “I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned armed and took him away in such a quality that without doubt in the words of Achike as quoted by Kekere-Ekun, JSC in the case of YAKUBU V. STATE (2014) 8 NWLR (pt. 1408, III: Irresistibly compels the Court to make an inference s to the guilt of the accused.” I think, I cannot agree more with the foregoing concurrent finding of the Court below, which said finding is cogent, unassailable and duly supported by the circumstances surrounding the case vis-vis-vis the evidence an record.’]
‘Hence, having effectively resolved all the three issues raised by the Appellant against him, there is no gain-saying the fact that the instant appeal fails, and it is hereby dismissed by me. The concurrent judgment of the Court of Appeal, Akure Judicial Division, delivered on 06/12/2018, in appeal no. CA/AW282C/2016, is hereby affirmed by me.’
➥ FURTHER DICTA:
⦿ CONVICTION CAN BE FOUNDED ON RETRACTED CONFESSIONAL STATEMENT
The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. Where an accused person objects to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. See: Dibia v. State (2017) LPELR 48453 SC. — Abdu Aboki, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Muhammed Musa Saulawa, J.S.C.
⦿ FOR THE APPELLANT(S)
O.A. Ojo Esq.
⦿ FOR THE RESPONDENT(S)
Shehu Wada Abdullahi Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)