Whether there can be sufficient identification of person by his voice

NAFI’U SAMAILA v. THE STATE

CITATION: ( 2020) LPELR- 52448( SC)

In the Supreme Court of Nigeria

ON FRIDAY, 18TH DECEMBER, 2020 Suit No: SC. 585/ 2017

Before Their Lordships:

OLABODE RHODES- VIVOUR Justice of the Supreme Court

MUSA DATTIJO MUHAMMAD Justice of the Supreme Court

KUDIRAT MOTONMORI OLATOKUNBO KEKEREEKUN Justice of the Supreme Court

AMINA ADAMU AUGIE Justice of the Supreme Court

EJEMBI EKO Justice of the Supreme Court

Between

NAFI’U SAMAILA

Appellant( s)

And

THE STATE Respondent( s)

Leading judgment delivered by Musa Dattijo Muhammad, J. S. C.

Fact

The appellant ( Nafi’u Samaila) and two others were charged on two count charge of Conspiracy and Armed Robbery contrary to Sections 5( b) and 1( 2)( a) of the Robbery and Fire Arms Act, 2004 at the High Court of Kebbi State before Hon. Justice I. B. Mairiga, CJ ( as he then was).

The Prosecution’s case at the Trial Court was that, the appellant and the two others while armed with cutlasses and knives, attacked their victims and dispossessed them of money and other valuable items.

At the end of trial, the trial judge relying on Exhibits 1 and 2, 1st and 2nd accused persons’ extra- judicial statements, and the evidence of PW1- PW3, convicted and sentenced the Appellant to death. Dissatisfied, the appellant appealed to the Court of Appeal, Sokoto Division where his appeal was dismissed on. Still dissatisfied, the appellant further appealed to the Supreme Court.

Issues for determination

The Court of Appeal determined the appeal on a lone issue viz:

Whether from the evaluated evidence the respondent proved its case against the appellant beyond reasonable doubt.

Appellant’s submissions

The appellant’s counsel contended that the respondent failed to prove its case against the appellant beyond reasonable doubt, that the appellant’s conviction on the basis of the evidence of PW1- PW3, exhibits 1 and 2 and on the purported confessional statements of 1st and 2nd accused persons, is not sustainable.

Counsel argued that the evidence of PW2 and PW3 were hearsay and untenable. Counsel stated that though by the testimony of PW1, proof of robbery at Wadata Area Jega by persons who were armed may have been established, the appellant had not been successfully fixed at the venue of the robbery as a participant by PW1.

Furthermore, counsel stated that the evidence of PW1 who only asserted that he heard the appellant’s voice at the scene in the middle of the night was not treated with the caution the law required the trial Court to exercise.

Learned counsel relied on MUSA IKARIA V. STATE ( 2013) 8 NCC 248 at 252.

Concerning Exhibit 2, the appellant’s confessional statement, counsel stated that the failure of the PW4 in reading or explaining the words of caution to the appellant including the failure of taking the appellant to a Superior Officer for the latter to confirm that he had indeed voluntarily confessed to committing the two offences amounted to breach of the law.

Counsel mentioned that the appellant told the Court that he did not make the confessional statement.

Citing OWHORUKE V. COP ( 2015) 39 WRN 1 at 9; STATE V. GWANGWAN ( 2015) 28 WRN 1 at 21, learned Counsel submitted that Exhibit 2 is inadmissible and without any evidential value to justify the Court of appeal’s affirmation of the trial Court’s findings based on the statement. Hence, that the affirmation is perverse.

Appellant’s counsel stated that there is nothing in evidence suggesting the type of weapons used by the Appellant to commit the robbery.

Respondent’s submissions

Learned DPP, Ministry of Justice Kebbi State, for the respondent stated that from the evidence on record, the Prosecution proved the ingredients of the offence and that the appellant committed the offence.

In response to the submission of appellant’s counsel on Exhibit 2, relying on ULUEBEKA V. STATE ( 2000) 4 SC ( PT 1) 203, respondent’s counsel submitted that being the appellant’s free and voluntary confession of guilt which is direct, positive and which was properly established, it is sufficient proof of guilt which led to the lower Court affirming the trial Court’s reliance on the Exhibit.

Counsel relying on EYISI V. STATE ( 2000) 3 NSCQR 60 at 104, contended that the appellant’s insistence that PW1 could not have identified the appellant by his voice is a hollow argument because it was in evidence that PW1 had known the appellant very well before the robbery.

On the argument of the appellant’s Counsel that the failure of PW4 in reading or explaining the words of caution to the appellant including the failure of taking appellant to a Superior Officer for the latter to confirm that he had indeed voluntarily confessed to committing the two offences amounted to breach of the law, respondent’s counsel contended that it goes to no issue. That these breaches of the Judges Rules do not render voluntary confession inadmissible.

Resolution of the issue

The Court citing ADEKOYA V. STATE ( 2017) LPELR- 41564 ( SC); KARIMU SUNDAY V. THE STATE ( 2017) LPELR- 42259 ( SC), mentioned that it is trite that the Supreme Court hardly reverse findings of the lower Courts except in the instance where such findings are perverse.

The Court aligned with the submission of both counsel that the ingredients of the offence of armed robbery which the Prosecution must jointly prove beyond reasonable doubt are: -

( i) That there was robbery or series of robberies

( ii) That the robbery or each of the robberies was an armed robbery

( iii) That the accused took part in the robbery.

In response to the appellant’s counsel submission that the finding of the lower Court is perverse, the Court citing ALH ISIYAKU YAKUBU V. ALHAJI USMAN JAUROYEL & ORS ( 2014) LPELR- 22732 ( SC) at 55 - 56, stated that a finding is perverse if it does not evolve from the evidence on record or in arriving at the finding, the Court had taken into account extraneous matters or excluded relevant matters from its consideration. That a finding would also be perverse where the Court which decision is being reviewed applies a wrong principle of law or applied the correct principle of law wrongly to the facts in dispute in a matter and thereby occasioned miscarriage of justice. The Court stated that the trial Court who had the opportunity of seeing and assessing the witnesses in the course of their testimony found their evidence credible. That this led to the affirmation of the trial Court’s findings by the lower Court.

On appellant Counsel’s argument that the appellant’s identification with his voice by PW1 is insufficient to sustain appellant’s conviction for such capital offence, the Court stated that identification is a whole series of facts which a witness or witnesses link an accused person with the commission of the offence he is being charged for relying on SHINA AKINRINLOLA V. STATE ( 2016) LPELR - 40641 ( SC). The Court opined that there might be sufficient identification of a person by his voice.

Citing EUGENE IBE V. THE STATE ( 1992) LPELR- 1386 ( SC).

The Court reiterated the facts of the case, that PW1 had testified that he recognized the appellant by his voice as he spoke during the armed robbery. That PW1 knew the appellant for a very long time, that indeed they grew up together. The Court mentioned that the witness was not cross- examined on this point, that where a witness who gave evidence of voice recognition of the accused is not cross- examined or remained unshaken inspite of the cross- examination, then nothing stops a trial judge from accepting his evidence. Citing STATE V. OLASHEHU SALAWU ( 2011) LPELR - 8252 ( SC). The Court mentioned that from the record of appeal, the appellant did not at any time during his trial claim that PW1 never knew him and/ or that they did not grow together. The Court agreed with the findings of both Lower Courts that PW1 and the appellant had grown together and that the former had recognized the latter by his voice. ATTAH V. STATE ( 2010) LPELR - 597 ( SC) was relied upon.

On the argument of appellant’s counsel that Exhibit 2 is inadmissible for breach of Judges Rules, the Court stated that the non- observance of the rules, on the authorities, will not necessarily be fatal to the admissibility of the statement. That the breach of the rules becomes fatal only where it affects the voluntariness of the statement.

Citing IGAGO V. STATE ( 1999) LPELR - 1442 ( SC); SAMUEL OJEGELE V. THE STATE ( 1988) LPELR - 2370 ( SC).

The Court stated that Exhibit 2 was not the only evidence the Courts relied upon to convict the appellant, that there was the evidence of PW1, PW2 and PW3 which proved all the ingredients of the armed robbery and the appellant’s participation in it. The Court relied on OFORDIKE V. STATE ( 2019) LPELR- 46411 ( SC)

In response to the appellant’s contention that there was nothing in the evidence suggesting the type of weapons used by the convicts to commit the robbery, the Court stated that there was sufficient evidence on record that appellant with others had sticks, machetes, knives and even a gun during the robbery. The Court opined that no principle of law requires the Prosecution to tender the weapons used in the alleged robbery for it to secure conviction. That this is so because most armed robbery offenders do away with the weapons to avoid detection. Citing IBRAHIM V. STATE ( 2016) LPELR - 42803 ( SC).

Finally, the Court held that the appellant failed to show that the concurrent findings of the Courts below are perverse.

HELD

On the whole, the appeal was dismissed. The Court further affirmed the concurrent conviction and sentence of the appellant for armed robbery and conspiracy to commit same by the lower Courts.

Appearances:

HUSSAIN ZAKARIYAU, with him, EZRA EMWEREN

For Appellants( s)

RESPONDENT SERVED BUT

NOT IN COURT OR REPRESENTED

For Respondent( s)