An unsigned document is worthless – Musale

Count 1:- That you Ali Jombo ‘M’ of Angwan Hausawa opposite Good Sheppard Kurudu, FCT Abuja on or about the 27th day of October, 2012 in Abuja within the jurisdiction of this honourable court did commit an illegal act to wit: You robbed one Muhammed Haruna ‘M’ of Angwan Sarki Orozo, FCT Abuja of his […]

Count 1:- That you Ali Jombo ‘M’ of Angwan Hausawa opposite Good Sheppard Kurudu, FCT Abuja on or about the 27th day of October, 2012 in Abuja within the jurisdiction of this honourable court did commit an illegal act to wit: You robbed one Muhammed Haruna ‘M’ of Angwan Sarki Orozo, FCT Abuja of his Buster Bajaj motorcycle while pointing an AK 47 riffle at him which you put in him fear of instant hurt and /or instant death. You thereby committed an offence contrary to Section 296 (1) & (3) of the penal code law and punishable under Section 298 (b) of the penal code.
Count 2: That you Ali Jombo ‘M’ of Angwan Hausawa opposite Good Sheppard Kurudu, FCT Abuja on or about the 27th day of October, 2012 in Abuja within the jurisdiction of this honourable court did commit an illegal act to wit: you voluntarily caused hurt in committing robbery to one Mohammed Haruna ‘M’ of Angwan Sarki Orozo, FCT Abuja when you shot him with an AK 47 rifle with the knowledge that you are likely thereby to cause hurt and did thereby caused hurt.
You thereby committed an offence contrary to Section 300 of the penal code law and punishable under the same section code.
The case of the prosecution was anchored on the testimonies of two prosecution witnesses. CPL Ayeni Olawale and CPL Ogu Christogonus. According to CPL Olawale, he was on duty at Jikwoyi police station within the FCT on the 28th/10/2012, when Muhammed Haruna came into the Police Station with Insp. Godiya. Muhammed Haruna was said to appear with injury on the right side of his abdomen and his right hand. That both the abdomen and the right hand were plastered.
CPL Olawale as PWI said Muhammed Haruna complained that he was attacked and shot at on the 27th/10/2012. That he knows the person that shot at him. That he carried the person on his motorcycle from Kurundu to Bola area. That he was shot by a policeman that he carried. That the policeman on reaching Bola directed Muhammed Haruna to stop, disembark and handover everything in his possession. That he complied. That the policeman told him to go away that as he left, the police shot him and  he felled down. He managed to escape and was taken to hospital that night. Later he was referred to Asokoro District Hospital for proper medical management.
When he was discharged, an identification parade was conducted and
Muhammed Haruna identified Ali Jombo, the accused as the policeman that shot him.
That accused was transferred to ‘D’ Dept. (CID) for further investigation after he volunteered a statement.
When asked during cross-examination, the witness replied- “I was not there when the incident happened.”
The next witness was CPL Christogonus, PW2. He was at Dept. of criminal
investigation at the Police Command. He said he was on duty on the 7th/11/2012 at the CID when a case of armed robbery and causing grievous hurt was transferred from Jikwoyi Police Station with the IPO, CPL Adewale the nominal complainant Muhammed Haruna and the accused person Ali Jombo to them.
According to CPL Christogonus, PW2, the accused was posted to KC Depot, a subsidiary of Nigerian Breweries on 27th/10/2012 for duty. That the accused was to be there from 1800 hrs to 0600 hrs. that the accused left his duty post at about 2345 hrs unauthorized and took a ride on Muhammed Haruna’s Bajaj motorcycle (Unregistered) to Bola. That along the road, the accused told the nominal complainant to stop and he did. That the accused had AK 47 rifle given to him by Jikwogi Police Station to perform his duty at K. C. Depot. That the accused directed the nominal complainant to handover everything in his possession and he did, leaving also the motorcycle. That the nominal complainant started running as directed. That while he was running, the accused shot him. That he sustained grievous injuries on the right side of his stomach and right hand. The nominal complainant was helped to Karshi. General Hospital and later the case was transferred to Asokoro Hospital.
PW2 continued that after a week, Muhammed Haruna started talking. That before then, he was not talking at Asokoro Hospital for 3 days. That when he stated talking after a week, Muhammed Haruna told the team of PW2 that the accused shot him. That Jikwoyi Police Station conducted identification parade and the nominal complainant pointed at the accused person among the officers on parade.
The accused was then transferred to CID for further investigation PW2, added that the accused was brought to CID with the Bajaj motorcycle that was abandoned at the spot of the incident. That he was assigned to investigate. That he recorded the statement of the accused person under words of caution. That accused made confessional statement that he shot the nominal complainant on the 27th/10/2012.
Through PW2, the statement of the accused person was admitted in evidence as exhibit ‘O’ despite objection. The doctor’s report from Asokoro District Hospital and the nominal complainant’s statement were all tendered through PW2 as Exhibits O1 and O2 respectively. PW2 concluded during cross-examination that he was not at the scene of crime the prosecution closed their case after the testimony of PW2.
In their defence, the accused person testified as DWI in Hausa. Ibrahim Abubakar Sadiq did the interpretation.
In his testimony, DWI inter alia said that he was on special duty at the Police Command Headquarters, Abuja and he was there since September, 2012 for the legal year of the Court of Appeal. That he was invited at Jikwoyi Police Station sometime in November, 2012 and was locked up. At night, the DPO met him in the cell and told him that a person reported being shot and the victim said Ali shot him. That the DPO accepted he was on special duty but that the DPO had to arrest him since a report was made against him.
Counsel should have appealed against the Ruling.
For the determination of this matter, the defence formulated six issues.
The prosecution also formulated six issues for the determination of the matter.
They are:-
1. Whether the prosecution has proved its case beyond reasonable doubt.
2. Whether confessional statement in a criminal case is fundamental.
3. Whether the prosecution has proved beyond reasonable doubt the
offence of robbery.
4. Whether the prosecution has proved beyond reasonable doubt the
offence of voluntarily causing hurt.
5. Whether the prosecution has proved beyond reasonable doubt the
offence of attempt to count culpable homicide.
6. Whether the defence of alibi can benefit the accused person.
To my mind, the issues formulated by the prosecution are more apt in the
circumstance, even though both have raised issues that torch on the charges against the accused person.
Let me start with the evidence of PW1 and PW2. Both are Police Officers and none was at the alleged scene of crime. According to PW1, the victim of crime met him while he was on duty at Jikwoyi Police Station on 28th October, 2012. The victim told him he was shot at on 27th October, 2012. He (PW1) did not even mention the name of the accused at all until after the identification parade as the victim did not probably tell him. PW1 said accused volunteered a statement before his case was transferred to D. Dept. (CID).
PW2 on his part inter alia said the accused was brought to the CID on the 7th November, 2012 and the he was on duty. Everything he mentioned prior to 7th November, 2012 were things that he was told. According to PW2, the victim, Muhammed Haruna was not talking for one week. That he recorded the statement of the accused person under caution.
If we stop here, one could see the contradiction between the statements of the two prosecution witnesses. While PW1 said the victim was with him on the 28th October, 2012 and he spoke to him, PW2 said the victim could not talk until after one week. PW1 said, the accused made a statement at Jikwoyi Police Station, PW2 said he recorded the statement of the accused. If the statement of PW2 is accepted, it will mean that PW1 said a lie that the victim spoke/talked to him on the 28th October, 2012. In any case, the statements of both witnesses are hearsay relating to what they said since they were not there when the event took place.
The Supreme Court in Ijioffor Vs. The State (2001) NWLR (Pt 718) 371 inter alia held- the hearsay rule is a very salutary rule indeed, it is a rule which is grounded upon commonsense as the focus yet is to prevent a person from being accused or found guilty of an offence which he did not commit. It is a self-evident fact, malevolent people could manufacture such evidence as they would to falsely accuse persons of offences which they did not commit. By reason of this rule, courts are enjoined and indeed under a duty not to accept and /or convict accused upon testimony of witnesses who did not see, hear, or perceive by any other sense or in any other manner, the facts given in testimony at a criminal trial of an accused person. This rule, is mandatory for all courts.
In appreciation of the above, I now declare that the evidence/testimonies of PW1 and PW2 are discountenanced for being hearsay.
The next issue is the confessional statement of the accused person. Two were tendered together in evidence by PW2. The two statements are Exhibit ‘O’. In his testimony, PW2 inter alia told the court that he recorded the statement of the accused. The accused signed and the statement was counter signed the two statements credited to the accused person, one dated 8th November, 2012 and the other dated 29th November, 2012 have not been signed by the officer that recorded them. PW2 did not sign any of them. In Fasehun Vs. AG Federation (2006) 6 NWLR (Pt 975) 141, the court held that an unsigned document is worthless and void. See also Section 91 (4) Evidence Act.
It is trite law that it is not the duty of an accused person to prove his innocence as a matter of law, there is always a presumption of innocence in his favour per Section 36 (5) constitution.
I am afraid, the confessional statement attached to the accused person did not comply with the rule governing the taking of the statement.
The prosecution in this case, owes the court the duty to place before the court all available relevant evidence. The failure of the prosecution to call the victim of crime, Muhammed Haruna when his evidence will settle this matter one way or the other left a lot to be desired. The evidence of Muhammed Haruna certainly is very vital to this case and he ought to have been called. In the absence of direct evidence of witnesses and having ruled that the confessional statement did not comply with the rule governing the taking of it, I do not consider it desirable to discuss the other issues for the determination of this case. That will be academic. The accused person Ali Jombo is acquitted and discharged.