DAVID AMADI V. ATTORNEY – GENERAL, IMO STATE
(2012)LCN/5382(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2012
CA/PH/417A/2007
RATIO
CRIMINAL LAW: REQUIREMENT FOR THE PROPER RAISE OF THE DEFENCE OF ALIBI
It is settled law that for the defence of alibi to be properly raised it must be raised at the earliest opportunity when the accused person is confronted by the Police with the commission of an offence so that the police will be in a position to investigate the alibi.
See, Ebenchi v. The State (2009) 179 LRCN 91 at 101. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: ON WHOM LIES THE DUTY TO INVESTIGATE AN ACCUSED’S ALIBI
Truly, the prosecution has a duty to investigate an accused person’s alibi, but that is only when such alibi is set up at the earliest opportunity during the investigation stage preferably in the accused person’s statement to the Police.
See, Ikemson v. The State (1998) 3 NWLR (Pt. 1110) P.479. PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: WHAT CONSTITUTES PROOF OF EVIDENCE IN CRIMINAL TRIALS
Finally, on this score, proof of evidence is to criminal trials what pleadings is to civil trials. The proof of evidence in a criminal trial does not have to contain every bit of evidence that the prosecution requires as long as it contains relevant and sufficient facts to sustain the case of the prosecution. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVING THE OFFENCE OF ARMED ROBBERY
I agree with the learned counsel for the Respondent that the prosecution proved all the ingredients of the offence of armed robbery against the Appellant by the evidence of PW1, PW2 and PW3.
In particular, the prosecution succeeded in this case to prove.
(i) Theft by the accused person(s)
(ii) The causing of hurt or wrongful restraint on the victims by the accused persons(s)
(iii) The act(s) complained of were done in the process of committing the theft or in order to commit the theft and or carry away the property by theft.
See, Abdullai v. The State (2008) 16 LCRN page 96. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DAVID AMADI Appellant(s)
AND
ATTORNEY – GENERAL, IMO STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of A.O.H. Ukachukwu J. of the High Court of Imo State sitting at the Owerri Judicial Division in charge No. HOW/ART/11/99 delivered on 28th September, 2006.
The Appellant was jointly charged with one Ikechi Ukanacho and Matthew Nwokocha with the offence of armed robbery contrary to Section 1(2) (b) of the Robbery and firearms (special provisions) Act Cap. 398 Vol. XXII Laws of the Federation of Nigeria 1990 as applicable in Imo State. He was the 1st accused person in the said charge.
Before the lower court, the Appellant and the other two accused persons pleaded not guilty to the charge.
The prosecution called a total of three (3) witnesses. The Appellant testified on his behalf and called no witness. The 2nd accused testified on his own behalf and called a witness. The 3rd accused refused to testify.
The case for the prosecution was that on 3-5-1998 at about 2 a.m, armed robbers invaded the house of PW1, one Mr. Vitalis Abareke, at Umuebe in Akabor. PW1 who was sleeping by that time was awoke by the barking of his dogs. He drew near the window and saw people dressed in black shirts and trousers. The robbers tried to force the door open and he was shouting “thieves, thieves” when the robbers eventually gained entrance into his house they robbed him of various sums of money totaling N90, 000.00 (Ninety Thousand Naira) and a trident radio worth N7, 400.00 (Seven Thousand, Four Hundred Naira).
In the course of the robbery, he saw and recognized the robbers as David Amadi (the Appellant, Ikechukwu Ukanacho the 2nd accused, Matthew Nwokocha Onyemeze the 3rd accused and one Kingsley Amadi still at large. During the robbery the 3rd accused, Mattew Nwokocha Onyemeze instructed the others to beat PW1 to death or he will retaliate. The 3rd accused, Matthew Nwokocha Onyemeze then picked up an empty bottle on PW1’s dining table and broke same on PW1’s head and used the sharp edge to stab PW1 on the head.
PW1 recognized the robbers by the aid of moonlight through his window glass he opened a little having drawn the curtain earlier. The robbers were people from his community and he knew them prior to the incident.
In the morning, he reported the incident to the Police at Iho. He made a statement to the Police at Iho and mentioned the names of the accused persons the Appellant and one Kingsley Amadi still at large inclusive as the people that robbed him. The matter was subsequently transferred to the state CID Owerri where he also made a statement on 11-5-98 and mentioned the names of the armed robbers again.
The Appellant, David Amadi testified in his defence and adopted his statement to the Police (Exh. B) as part of his defence. He testified that on the night of 3rd May, 1998 he was in their house throughout the night and that he did not go anywhere. He denied committing the offence charged with and stated further in his evidence that he is a musician and was arrested where he and his musical group went to play music at Uzoagba during a burial ceremony on 10th of May, 1998. At the end of the trial, the learned trial Judge convicted the Appellant and the two other accused persons as charged and sentenced accordingly.
On 18th October, 2006, the Appellant filed a Notice of Appeal containing four (4) grounds of appeal before this court.
Appellant’s brief of argument dated 12/11/08 was filed on the same day.
Respondent’s brief of argument dated 15/12/2010 was filed on 16/12/2010.
Learned counsel for the appellant nominated five issues for determination.
They are:
“(i) Whether in a criminal trial the burden of proof is on the accused/appellant to prove or substantiate the defence of alibi raised or put forward by him.
(ii) Whether the act of the appellant’s father attending a meeting in the house of the complainant (PW1) to inquire why the name of his son was mentioned in the robbery incident does in law, constitute proof of commission of the offence by the appellant.
(iii) Whether the statement of the 3rd accused person tendered in the course of trial as Exhibit D in the lower court, in Law, constitutes evidence against the appellant or can be used against him when he did not adopt it as his statement.
(iv) Whether the fact of the appellant escaping to Uzoagba and attempting to run on realizing that the Police came to arrest him in law amounts to evidence of commission of any crime.
(v) Whether the prosecution has proved beyond reasonable doubt as required by law, that the appellant committed the offence for which he was convicted and sentenced by the trial court.
The Respondent formulated only two (2) issues as follows:
“1. Whether the prosecution did not proof its case beyond reasonable doubt against the Appellant, David Amadi in this case.
2. Whether the judgment was perverse.”
The appeal shall be decided on the issues formulated by the Appellant.
On issue No. 1, learned counsel for the Appellant submitted that the Appellant was arrested at Uzoagba 7 days after the incidence of robbery on 10th May, 1998, that he then volunteered his statement, Exhibit ‘B’ to the Police.
Counsel submitted that the Appellant told the Investigating Police Officer, Sgt. Emmanuel Igwe Force No. 135 244 in his statement, that “I was not among the robbers that robbed the complainant Vitalis Abareke”. That in his evidence in court on the 9th day of June, 2005, the Appellant maintained his alibi as follows “On the night of 3rd May, 1998, I was in our house. All through the night till morning I did not go to any place, I slept with my father that night.”
Counsel referred to the statement by the learned trial Judge at page 166 of the record that “As stated earlier, the 1st accused (referring to the appellant) David Amadi denied the charge and put up a defence of alibi. He told the court that he slept in their house with his father. Neither his father nor any member of his family testified to substantiate his claim.”
Counsel submitted that from the above position taken by the trial Judge, the burden is on the Appellant to call evidence to prove or substantiate his defence of alibi. This, he said, is a misconception of the law.
He submitted that this misplacement of the burden or onus of proof by the learned trial Judge on the Appellant occasioned a miscarriage of justice in that, because the Appellant neither called his father nor any member of his family to testify to substantiate his claim, his defence of alibi was dismissed.
Counsel submitted that the law is settled that where in a criminal trial, the accused person raises a defence of alibi promptly and properly, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. There is no onus or burden on the accused to give evidence to substantiate the defence of alibi when raised.
He referred to the case of Azeez v. State (2005) 8 NWLR (pt. 927) 312 at 324.
In the case at hand, said counsel, the Appellant successfully raised the defence of alibi in his statement and maintained it in his evidence on oath. According to counsel, the defence of alibi implies that at the time the crime or the alleged crime was committed, the accused was somewhere else not at the place the crime was committed or allegedly committed.
He referred to the case of Dagayya v. State (2006) 4 JNSC (Pt. 15) 596 at 622-623.
He submitted that the law places only evidential burden on the accused/appellant to raise or introduce the defence of alibi. That, the proof of guilt of an accused is on the prosecution and so does the investigation on the defence of alibi. The onus, he said, is on the accused to discharge the evidential burden that he was in fact not at the scene of the crime at the time the offence was committed and that he was somewhere else. Dagayya v. State (supra) at page 624.
Counsel submitted that in the instant case, the Appellant denied being at the scene of the alleged robbery in the house of PW1. That, he told the Police that he was not among the robbers that robbed the complainant and maintained that he slept in their house with his father on the night of the incident.
Counsel said that all the Police needed to do was to investigate the claim as to where the Appellant was at the material time. He said, this, Sgt. Emmanuel Igwe who testified for the prosecution as PW2 did not do, and no reason was given for failing to do so even while testifying in court.
He submitted that it was not the duty of the appellant to have called his father or any member of his family to substantiate his claim; rather it was the duty of the Police investigator to make efforts to investigate the claim either to rebut it or confirm it.
On this, he relied on the case of Ozaki V. State (1990) 1 NWLR (Pt.124) 92 at 109 and Bozin V. State (1985) 2 NWLR (Pt. 8) 465.
Appellant’s counsel further submitted that where the prosecutor fails, neglects to investigate the facts and circumstances given by an accused person as to his where about on the night of the incident, rendered the alibi is unrebutted and it may vitiate the proof beyond reasonable doubt. He said, the failure of the prosecutor in the case at hand to investigate the alibi raised by the Appellant and in the absence of any explanation for failing to do so will raise or cast a reasonable doubt in the mind of the court, which will lead to the quashing of the conviction.
On this, counsel relied on the cases of Nnunukwu v. State (2003) 14 NWLR (pt. 840) 219 at 236, Okose v. State (1989) 1 NWLR (Pt. 100) 642, Ubani v. State (2003) 8 NWLR (Pt. 851) 224 at 250.
Counsel submitted that the learned trial Judge was therefore wrong in law when he held dismissing the defence of alibi raised by the Appellant that “neither his father nor any member of his family testified to substantiate his claim.”
This wrong view of the law, said counsel, affected the mind of the trial Judge in convicting the Appellant.
on the issue of alibi raised in Appellants Issue No. 1, learned counsel for the Respondent submitted that the appellant did not raise any issue of alibi in his statement to the Police Exhibit “B”. Counsel said, the Appellant in his defence during trial pleaded alibi.
That, he stated while testifying in his defence from the dock.
“That on the night of 3rd May, 1998, I was in our house all through the night till morning, I did not go to any place, I slept with my father that night in my place.”
Counsel said the defence of alibi is a radical one and simply means that the accused was somewhere else at the material time an offence was committed and could not possibly be at the scene of the crime to participate in it. He referred to the case of Ebenchi v. The State (2009) 179 LCRN 91 at 101 and submitted that for the defence of alibi to be properly raised it must be raised at the earliest opportunity when the accused person is confronted by the police with the Commission of an offence so that the Police will be in a position to check the alibi. That, to take advantage of the defence, the accused person must give a detailed particularization of his whereabout on the crucial day of the offence which must include not just the specific place(s) where he was but additionally the people in whose company he was and what if any transpired at the said time and place(s).
On this, Respondent’s counsel referred to the case of Udo Ebere & Ors. V. The State (2001) 5 FWLR (Pt. 59) 1244 at 1258.
Counsel submitted that the alibi of the Appellant raised for the first time from the witness box was an after thought and cannot avail the Appellant. He referred to the decision of the Supreme Court in Ikemson v. The State (1998) 3 NWLR (Pt. 1110) page 479 and the Court of Appeal decision in Ebenezer Aje & Anor. V. The State (2006) 8 NWLR (Pt. 982) 345 at 360 and submitted that the Appellant is duty bound to raise his defence of alibi timeously and having failed to satisfy the evidential burden imposed on him by law to give particulars of his where about on the date and material time of the commission of the crime to enable the Police investigate same, he is duty bound to call witness (es) to proof his alibi which he belatedly pleaded for the first time from the witness box.
On this, counsel referred to the case of Atta & Anor. V. The State (2010) 183 LRCN 1 at 26.
Counsel further submitted that because the prosecution was denied the opportunity to investigate the Appellant’s belated alibi, the learned trial Judge was not wrong to have held that the failure of the Appellant to call his father whom he slept with on the day of incident was fatal to his defence.
In deciding issue No. 1 it must be made clear that the Appellant did not raise any defence of alibi in his statement to the Police Exhibit ‘B’. The learned counsel for the Appellant misunderstood the facts when he categorically asserted that the Appellant raised a defence of alibi in Exhibit “B” and thereafter followed up the same in his evidence in court.
In Exhibit ‘B’ which the Appellant adopted as part of his evidence (see page 13 of the record), he stated, “I am aware that I was alleged to have robbed one Vitalis Ahaneku on 3/5/98 but I wish to state that I am not among the robbers that robbed the complainant as alleged. However, on the 9th day of May 1998 I accompanied our musical group to a burial at Uzoagba. While we were at the burial site playing our music until a point we decided to have some rest. I climb the top of the mango and was sitting there. As I was staying on top of the mango tree my colleague started calling, I climbed down and went to answer the call.
When I got to that place one man I do not know led me by the hand and was discussing. He led me to a stand by Peugeot 505 saloon car and another person opened the vehicle. Immediately the vehicle was opened I started running away. I was later pursued and arrest…”
Indeed, what might be regarded as a defence of alibi by the Appellant arose for the first time in his examination in Chief from the witness box that:
“….On the night of 3rd May 1998 I slept in our house all through the night till morning. I did not go to any place. I slept with my father that night…”
Obviously, the above by the Appellant is a belated plea of alibi, perhaps an improper plea of alibi.
It is settled law that for the defence of alibi to be properly raised it must be raised at the earliest opportunity when the accused person is confronted by the Police with the commission of an offence so that the police will be in a position to investigate the alibi.
See, Ebenchi v. The State (2009) 179 LRCN 91 at 101.
Truly, the prosecution has a duty to investigate an accused person’s alibi, but that is only when such alibi is set up at the earliest opportunity during the investigation stage preferably in the accused person’s statement to the Police.
See, Ikemson v. The State (1998) 3 NWLR (Pt. 1110) P.479.
Also, to take advantage of the defence of alibi, the accused person must give a detailed particularization of his whereabout on the day of the offence which must include not just the specific place(s) where he was but additionally the people in whose company he was and what if any transpired at the said time and place(s). The complaint of the Appellant in relation to Issue No. 1 concerns the statement of the learned trial Judge at page 166 of the record to the effect that “As I stated earlier, the 1st accused (Appellant) David Amadi denied the charge and put up a defence of alibi. He told the court that he slept in their house with his father neither his father nor any member of his family testified to substantiate his claim.”
By this, the Appellant argued that the burden of disproving or rebutting the defence of alibi which is on the prosecution has been shifted to the Appellant to prove or substantiate his defence of alibi.
The above argument by the learned counsel for the Appellant cannot be sustained in the instant case. In actual fact, the Appellant in this case never raised a defence of alibi or did not properly raise a defence of alibi. This is because, to be proper in the eye of the law, the defence of alibi has its conditions, its prerequisites and its procedural requirements. What the Appellant did in this case was to give evidence of “alibi” that is his whereabout for the first time in the witness box. The learned trial Judge was therefore not wrong and did not in any way err in law when he held that the evidence of the Appellant as to his whereabout on the day of the incident was not substantiated by any member of his family.
Issue No. 1 is resolved against the Appellant.
On Issue No. 2, learned counsel for the Appellant submitted, that assuming but not conceding that the Appellant’s father attended a meeting in the house of PW1 to find out why his son’s name (appellant) was mentioned in the robbery incident in the house of PW1, it does not in law, constitute evidence of commission of the offence by the Appellant.
On this score, learned counsel for the Appellant referred to the finding of the learned trial Judge at pages 166 – 167 of the record that:
“…..Rather there is the un-denied statement of DW3 that the father of the 1st accused (appellant) attended the meeting in the house of PW1 on learning that the name of his son, the 1st accused was mentioned as one of the robbers that attacked the PW1 …My view is that the above acts of the 1st accused and his father’s attendance at meeting sufficiently corroborated the evidence of the PW1 and PW2 as well as the statement of the 3rd accused in Exhibit D that the 1st accused was one of the robbers that attacked and robbed the PW1.”
Appellant’s counsel submitted that the above finding of the learned trial Judge is perverse and occasioned a miscarriage of justice. He said the finding is perverse because there is no evidence from the record that the Appellant’s father attended a meeting in the house of PW1 on learning that the name of his son (Appellant) was mentioned as one of the robbers that attacked PW1. Counsel submitted that the evidence of DW3 is contained at pages 115, 116 and that at page 117 under cross-examination the DW3 – Eugene Emeka, whose evidence the trial Judge relied on in convicting the Appellant emphatically told the court that “No relation of the 1st accused (Appellant) was involved in the oath taking.”
The question, said Appellant’s counsel is, if the Appellant’s father did not attend the said meeting in the house of PW1 as borne out by the printed record, can it be rightly said in law that his attendance at such meeting corroborated the evidence of PW1, PW2 and the statement of the 3rd accused in Exhibit D? He answered in the negative.
The trial Judge, said counsel was in grave error of law to have so found and held, the basis upon which he found the Appellant guilty of the offence. Counsel said, the Appellant’s father did not attend the said meeting and DW3 never said in his evidence that he did as wrongly held by the trial Judge.
Appellant’s counsel referred to the cases of Admin – Gen. & Public Trustee, Della State V. Ogogo (2006) All FWLR (Pt. 293) 256 at 272 and Ogunbayo v. State (2007) All FWLR (Pt.365) 408 at 426 for the definition of “corroboration” as evidence in support, that strengthened, in addition to, tending to confirm, and submitted that from the decided authorities, if a piece of evidence is perverse on ground that it never existed on the records of appeal, it cannot in law be used to corroborate, confirm, support or strengthen the evidence of PW1 and PW2 or any evidence on record.
Counsel submitted that the learned trial Judge quoted evidence purported to have been given by DW3 to find corroboration in the evidence of PW1, PW2 and Exhibit D, when in fact, DW3 never gave such evidence as borne out by the record of appeal.
He submitted that when a court in adjudicating over a matter, delved into a finding of fact which is merely speculative and not based on any evidence before it, such a finding of fact is a perverse finding.
On this, counsel referred to the cases of Iwuoha v. Nipost Ltd. (2003) 8 NWLR (Pt.822) 308 at 344 and Inyay v. State (2005) 5 NWLR (Pt. 917) 1 at 24.
Counsel submitted that although the general rule is that an appellate court will not ordinarily disturb or interfere with the findings of fact by the trial court, where, as in this case, it is shown that such a finding is perverse and leads to miscarriage of justice, the court can interfere with such finding in the interest of justice.
He referred to the case of Avop Plc. V. A.G. Enuqu State (2000) FWLR (Pt.2) 251 at 270.
Counsel submitted that the finding upon which the trial Judge in the instant case convicted the Appellant, ran counter to the evidence before the court, and the learned trial Judge took into account matters which he ought not to in arriving at the verdict of guilt of the Appellant.
This error of law, said counsel has occasioned a miscarriage of justice and the judgment ought to be quashed by this Honourable Court.
The learned counsel for the Appellant may well be right in relation to issue No.2 that there was a mix up in the findings of the learned trial Judge as to whether DW3 did say that the father of the Appellant also accompanied the 2nd accused and his (2nd accused’s) father to the PW1 either for oath taking as to participation in the robbery as, was the case for the 2nd accused, or to plead for mercy as claimed by the prosecution.
This view of the learned trial Judge expressed at page 167 of the record in which he sought to find corroboration of the evidence of PW1 and PW2 in the fact of the Appellant’s father attendance at meeting as well as in the statement of 3rd accused, Exhibit D does not in the circumstances of the case lead to any miscarriage of justice.
The finding of the learned trial Judge at page 167 of the record clearly shows that the trial Judge had already believed the eye witness account of PW1 as to the events and the people that were involved in the robbery as well as the evidence of PW2 before finding corroboration in other pieces of evidence.
At page 167, the learned trial Judge said:
“…..My view is that the above acts of the 1st accused (Appellant) and his father’s attendance at meeting sufficiently corroborated the evidence of the PW1 and PW2 as well as the statement of the 3rd accused in Exhibit “D” that the 1st accused was one of the robbers that attacked and robbed PW1…
Meanwhile, the review by the learned trial Judge of the evidence of PW1 at pages 144 – 145 of the record shows that the PW1 actually identified the Appellant and the other accused persons on the day of the incident.
At pages 144 – 145, the learned trial Judge noted:
“It was as the robbers were trying to gain entry that the witness noticed the three accused persons as they stood by the door trying to force it open. He also saw one Kingsley Amadi who is still at large…”
And still at Page 145,
“Soon after the departure of the robbers, his relations gathered and took him to report to the Police and from there to the hospital. Upon his return from the hospital the Police accompanied him to arrest the accused persons. They fled upon sighting the police in his company he concluded.”
The identification of the Appellant by PW1 as one of those who robbed him was enough evidence devoid of any form of corroboration on which the Appellant could have been convicted. The belated alibi put forward by the Appellant was rightly rejected by the learned trial Judge.
The attempt by the learned trial Judge to find corroboration either in the Appellant’s father’s visit or meeting in the house of PW1 or in the statement of the 3rd accused – Exhibit D was an unnecessary surplausage, in the circumstances of this case.
The Appellant would still have been rightly convicted on the evidence of PW1 and PW2 without any corroboration or confirmation of the evidence of those two witnesses from any other source(s).
The finding of the learned trial Judge at page 167 of the record does not occasion any miscarriage of justice in this case.
Issue No. 2 is resolved against the Appellant.
Appellant’s Issue No. 3 is closely related to Issue No. 2. The complaint therein is that the learned trial Judge was wrong and in grave error of law to have relied on Exhibit ‘D’ being the statement of the 3rd accused jointly charged with the Appellant in convicting the Appellant when there is no evidence on record showing that the appellant adopted the said statement made by the 3rd accused.
Counsel submitted that a confessional statement of an accused is deemed to be admissible against its maker. It cannot in law, be used as evidence against a co-accused except adopted by the co-accused expressly or by conduct.
On this, Appellant’s counsel relied on the provision of Section 27 (3) of the Evidence Act and a host of cases including the cases of Solola v. State (2005) 11 NWLR (Pt. 037) 460. S.C. Emeka v. State (2001) FWLR (Pt. 66) 682 SC, State v. Onyeukwu (2004) 7 S.C. (Pt. 1) 1. Nsofor v. State (2005) All FWLR (pt.242) 397 at 417 – 418 and Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 at 113.
Counsel submitted that the reliance placed on Exhibit D not having been adopted by the Appellant to secure conviction of the Appellant is a travesty of justice and a gross violation of all known rules of evidence and as such the conviction must be quashed by this court.
In response, learned counsel for the Respondent submitted that the learned trial Judge was not in error to have taken into account Exhibit ‘D’, the statement of the 3rd accused in reaching his decision on the Appellant. He relied on the provision of Section 178 (2) of the Evidence Act LFN 1990 (now Section 199 of the Evidence Act, 2011) to the effect that “when defendants are tried jointly and any of them gives evidence on his own behalf which incriminates a codefendant, the defendant who gives such evidence shall not be considered to be an accomplice.”
Counsel submitted that Exhibit ‘D’ is the evidence of the 3rd accused person and by virtue of Section 178 (2) of the Evidence Act 1990 (now Section 199 of the 2011 Evidence Act) the learned trial Judge was not in error in using the content of Exhibit ‘D’ to corroborate the evidence of PW1, and PW2.
The pertinent question, said counsel is if Exhibit ‘D’ is expunged from the decision as affecting the Appellant, would the learned trial Judge have still reached the decision he did.
Counsel answered the above question in the affirmative and submitted that Exhibit ‘D’ is a mere emphasis or suplausage.
He furthered that by expunging the phrase or appendage “and the statement of the 3rd accused in Exhibit “D”, the learned trial Judge would have still reached the decision he did, as he had earlier reached a decision in the issue.
And, finally, that the learned trial Judge considered the totality of the evidence adduced before him in the trial before reaching his decision.
The more important part of the submission of the Respondent’s counsel in relation to issue No. 3 is that the decision to convict the Appellant on the eye witness account of PW1 and the evidence of PW2 cannot be faulted with or without Exhibit ‘D’.
In other words, as I similarly noted in the consideration of issue No. 2, the reference to Exhibit D at page 167 of the record as corroborating the evidence of PW1 and PW2 for the purpose of convicting the Appellant was a mere surplausage.
This, however, does not incur any miscarriage of justice as the learned trial Judge was not indeed obliged by law to find any further corroboration to the eye witness account of PW1 which had already fixed the Appellant with the crime charged. In Okoro v. State (1998) 14 NWLR (Pt. 584) 181 at 216, Wali JSC held that:
No law says that an accused person cannot be convicted on the clear and unimpeachable evidence of a single witness, such evidence does not require corroboration.”
See also Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 691, Anthony Igbo v. The State (1975) 1 All NLR (Pt. 2) 70 at 75, Ali & Anor. V. The State (1988) 1 NWLR (Pt. 68) 1, Emine v. State (1991) 7 NWLR (Pt. 204) 480 at 413.
Issue No. 3 is also resolved against the Appellant.
On Issue No. 4, learned counsel for the Appellant submitted that assuming but not conceding that the Appellant escaped to Uzoagba and attempted to run or escape when he realized that the police came for him, the acts cannot in law, amount to or constitute evidence of commission of crime.
The truth of the matter said counsel is that the Appellant owned a musical group called “Obinwanne” and had gone to Uzoagba with his group to play in a burial ceremony. That, this piece of evidence was not controverted by the prosecution.
Counsel then submitted that the holding of the learned trial Judge that “there is finally the fact of escaping to Uzoagba and an attempt to escape when he realized that the police came for him” is not supported by evidence and is perverse in the circumstances of the case. Counsel said, it is this perverse finding the trial Judge stated in his judgment at page 167 which in his view corroborated the evidence of PW1 and PW2 as well as the statement of the 3rd accused in Exhibit D and came to a wrong conclusion that the 1st accused was one of the robbers that attacked and robbed the PW1.
Counsel further submitted that the appellant attempting to escape on realizing that the police came for him is not evidence that he has committed any crime or amount to or constitute evidence that he was one of the robbers that allegedly attacked and robbed the PW1.
That, at page 107 of the record, the Appellant explained and gave the reasons why he attempted to run which evidence was not impeached by the prosecution at the trial. He said, the facts given as to the circumstances the Appellant found himself and his attempt to run is consistent with human behavior, and cannot be taken to amount to or constitute evidence of commission of any crime.
First, it is not the case as suggested in relation to the fourth issue, by the learned counsel for the Appellant, that there was no evidence on record to show that the Appellant took to his heels on sighting the police before he was eventually arrested.
At page 45 of the record, the PW2 Emmanuel Igwe, force No. 135244 Sgt. Stated inter alia as follows.
“On the 9th May, 1998 information reached us that the 1st accused, David Amadi was sported at Uzoagba. I led a team of detectives to Uzoagba. Uzoagba is in Ikeduru Local Government Area. There we met the 1st accused on top of a tree. He was lulled down as I told him I was an intending customer on coming down he sighted the other men with me and took to his heels. We pursued and arrested him. He was brought down to the office where I charged and cautioned him with an offence of armed robbery. He volunteered statement which I recorded, read it over to him and he admitted it as his and signed…”
The above piece of evidence is part of the record of the lower court, it was not manufactured or conjured by the learned trial Judge and therefore, a finding based on such evidence cannot be said to be perverse.
On the question of whether the learned trial Judge was in error to have used the fact of Appellant’s escaping to Uzoagba and attempt to escape when he sighted the police as corroboration of the evidence of PW1 and PW2, the simple answer as was the case with issues Nos. 2 and 3 is that the evidence of PW1 and PW2 which the learned trial Judge had believed and acted upon do not in fact need any corroboration. Thus, here again, the conviction of the Appellant would still stand irrespective of the fact of using the evidence of the appellant’s attempt to escape as corroboration and clearly there was no miscarriage of justice.
Issue No. 4 is resolved against the Appellant.
On issue No. 5, learned counsel for the Appellant submitted that the prosecution had failed to prove beyond reasonable doubt that the appellant was one of the robbers that attacked and robbed PW1 on the 3/5/1998.
He submitted that the only eye witness to the incident was PW1 himself and that though not an accomplice, PW1, has an interest to serve being a victim in this case, and that therefore, the trial court ought to be cautious in acting upon his sole evidence in the absence of any corroboration.
Appellant’s counsel further submitted that the claim of PW1 that he saw the Appellant among the robbers on the night in question raises a lot of doubts as to the truthfulness of his testimony having regards to the following facts.
(a) That, he reported the matter to the police at Iho where he made statement which was read to him and he signed.
(b) That, under cross-examination he was challenged that he did not mention the name of the Appellant at Iho, he insisted and said except the Police did not write it down.
(c) That, PW2 at page 64 of the record says he retrieved the case file from Iho police and the statement of Pw1 at Iho in an appendage to the case file. He cannot remember if the Appellant was mentioned.
(d) That, this all important first statement of the PW1 at the earliest opportunity when the alleged incident was fresh in his mind was not tendered but withheld both from the proof of evidence and the evidence in open court.
(e) That the only statement of PW1 included in the proof of evidence before the court is the one dated 11/5/1998 which statement was made after the Appellant has been arrested.
Counsel submitted that a possible inference from these facts is that if the statement which PW1 admitted he made and signed at Iho Police Station, which statement PW2 said he retrieved with the case file was tendered, it would have been against the prosecution in that at the earliest opportunity, the PW1 never mentioned the name of the appellant as one of the robbers that attacked him.
Counsel submitted that the mentioning of the Appellant’s name in PW1’s statement made on the 11/5/1998 (9 days after the incident) was an after-thought and a statement made out of interest. What is more, said counsel, even the petition of Obinna Opara dated 7/5/98 (Exhibit F) and who led the police to arrest the Appellant on the 9/5/98 did not mention the name of the Appellant.
Appellant’s counsel referred to the provision of section 149 (d) of the Evidence Act Cap. 62 LFN 1990 (now Section 167 (d) Evidence Act 2011) and said that if the evidence of PW1 is viewed along side the facts highlighted above, it will certainly create a doubt as to whether PW1 in fact, saw the Appellant as claimed.
Learned counsel for the prosecution on the other hand submitted that the prosecution proved all the ingredients of the offence of armed robbery against the Appellant. That, PW1 both in his evidence in court and Exhibit ‘A’ his extra judicial statement to the police made on 11/5/1998 mentioned the names of all the accused persons the Appellant inclusive as those that attacked him in his house on 3/5/98. He narrated what they did and how the 3rd accused hit him on the head with an empty bottle during the robbery. The robbers carted away his money and stole his trident radio. Respondent’s counsel also reviewed the evidence of PW2 and PW3
That, PW2 testified that on taking over the case file from the Police Station Iho, he saw inter alia the statement of the PW1 in the said file and that PW1 made statement to him also. And, that, the Appellant volunteered his statement Exhibit ‘B’ to PW2.
Counsel added, that PW3, the medical doctor confirmed that what he observed on the head of the PW1 was a jiggered laceration injury.
In deciding Appellant’s issue No. 5, it must be noted that none of the observations of the learned Appellant’s counsel on the evaluation of evidence in the trial impeaches the finding of the trial court in convicting the Appellant of the offence charged.
For example, contrary to the suggestion of the learned counsel for the Appellant, there is no law which says a conviction for the offence of armed robbery cannot be sustained solely on the evidence of a victim eye witness to the commission of the offence.
Again, the statement of PW1 at page 38 of the record that he mentioned the name of the Appellant in his statement to the police at Iho except the police did not write it down was a positive and consistent reaction to cross-examination by PW1. That, statement did not indicate any inconsistency with either his evidence in chief or his previous statements on the issue.
Finally, on this score, proof of evidence is to criminal trials what pleadings is to civil trials. The proof of evidence in a criminal trial does not have to contain every bit of evidence that the prosecution requires as long as it contains relevant and sufficient facts to sustain the case of the prosecution.
In the instant case, the non-inclusion of the statement first made to the police at Iho by PW1 in the proof of evidence does not derogate from the facts proved by the prosecution in the case.
On the whole, I agree with the learned counsel for the Respondent that the prosecution proved all the ingredients of the offence of armed robbery against the Appellant by the evidence of PW1, PW2 and PW3.
In particular, the prosecution succeeded in this case to prove.
(i) Theft by the accused person(s)
(ii) The causing of hurt or wrongful restraint on the victims by the accused persons(s)
(iii) The act(s) complained of were done in the process of committing the theft or in order to commit the theft and or carry away the property by theft.
See, Abdullai v. The State (2008) 16 LCRN page 96.
Issue No. 5 is resolved against the Appellant.
Having resolved the five (5) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The conviction and sentence of the appellant for the offence of armed robbery is accordingly affirmed.
UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading the Judgment of my learned brother Owoade (JCA) just delivered and I agree with his reasoning and conclusion that the Appeal lacks merit, I also dismiss the Appeal.
The conviction and sentence of the Appellant is also hereby affirmed.
HARUNA M. TSAMMANI, J.C.A.: I had a preview of the judgment just delivered by my learned brother Owoade, JCA.
My learned brother has adequately summed up the facts of the case and admirably resolved all the issues that arose for determination in this appeal.
The Appellant in this case was properly recognized by the P.W.1 as one of the robbers that robbed him in the night of the 3/5/1998 at about 2a.m. The Appellant lives in the same community as the P.W.1 and so were easily identified by the P.W.1 that night. This fact of recognition of the Appellant by the P.W.1 as a victim of the armed robbery on him has not been contested at the trial and in the appeal before us. It is therefore safe to conclude that the evidence of the identity of the Appellant as a participant in the robbery charge is not in dispute. Such evidence of identification was direct and positive, and made at the earliest opportunity by the P.W.1, when he reported the attack on him by the robbers in the morning of the incident. See BOZIN v. STATE (1998) 1 A.C.L.R Pg. 2 at P 3. This evidence by the P.W.1 who was a victim of the crime is the best evidence of identification. See OKASI v. STATE (1998) A.C.L.R Pg. 284 at 294.
In the abundance of the evidence of his recognition by the P.W.1, the Appellant did not make any effort to discredit such evidence. Indeed in his statement to the police which is in evidence as Exhibit B, as part of his defence, and which was made immediately upon his arrest, he did not give any explanation as to his whereabout in the night of the 3/5/1998. The explanation expected of him was a belated one, made when he testified at the trial, when he attempted to lead evidence that he was sleeping in his house with his father in the night of the robbery attack on the P.W.1. In other words, he attempted to raise the defence of alibi. Alas, that defence came too late. This is because, the law is that where an accused person intends to rely on the defence of alibi, he must do so timeously, so as to enable the police investigate. See ADELE v. STATE (1992) 2 NWLR (Pt. 377) Pg. 290 and ONUCHUKWU v. STATE (1998) 4 NWLR (Pt. 547) Pg. 576. The Appellant did not raise the defence of alibi timeously. That defence cannot therefore avail him.
For the above reasons and the fuller reasons contained in the lead judgment, I am of the view that this appeal lacks merit. It is therefore dismissed. The conviction and sentence passed on the Appellant by the trial court is accordingly affirmed.
Appearances
D.O. Agbo, Esq.For Appellant
AND
Mrs. C.C. Dimkpa, Esq, Director of Estate and Trusts, Ministry of Justice, Imo StateFor Respondent
