SALEH DAWAI v. THE STATE
(2013)LCN/6713(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2013
CA/K/5/C/2010
Before Their Lordships
ABDU ABOKIJustice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORII-ABADUAJustice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRUJustice of The Court of Appeal of Nigeria
Between
SALEH DAWAIAppellant(s)
AND
THE STATERespondent(s)
RATIO
THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
In Bello v. State (2007) 10 NWLR (Pt 1043) 564 at 566 – 567, the Court of Appeal held that:
“To discharge the burden of proving the commission of armed robbery by an accused person beyond reasonable doubt, the prosecution has three major steps to accomplish, otherwise referred to as ingedients of the office of armed robbery. They are:
(a). That there was robbery or a series of robberies;
(b). That each robbery was an armed robbery;
(c). That the accused was one of those who took part in the armed robberies”.
Similarly in Olayinka v. The State (2007) 9 NWLR (Pt.1040) 561 at 565, the Supreme Court held that:-
“To secure a conviction for armed robbery the prosecution must prove the following:
(a). that there was an armed robbery;
(b). that the accused was armed; and
(c). that the accused, while with the arm or arms participated in the robbery”.In the instant appeal, the respondent had through the testimonies of Pw1-Pw3 clearly established the fact that the nominal complainant as well as his family were robbed at gunpoint of their money. This piece of evidence had neither been contradicted nor denied by the appellant. PER ABOKI, J.C.A.
WHEN RECOGNITION OF AN ACCUSED PERSON IS SAID TO ARISE
In Emenegor v. State (2010) All FWLR (Pt. 511) 884 at 942 the Court held that:
“Recognition of an accused person arises when a person sees (or acknowledges the identity of) a man or a woman well known to him committing a crime. The value of this acknowledgment or recognition is that it dispels any scintilla of doubt not only about the accused person’s physiognomy but also his personae on the other hand, the identification of an accused person arises when a person unknown to a witness commits a crime in his presence. In such a situation, the identity of the accused person becomes a fact in issue or relevant fact”.
Similarly in Bozin v. State (1986) 2 QLRN 69 at 76, the Supreme Court held that:
“There is a word of difference between ‘I have known the appellant before, he was among those who robbed me’ and ‘I saw one of those who robbed me and if I see him again, I will recognize and identify him’. It is only in the latter instance that identification parade becomes necessary and is thus usually conducted”. PER ABOKI, J.C.A.
RAISING THE DEFENCE OF ALIBI
On the failure of the lower Court to consider the defence of Alibi which might operated in favour of the appellant, the Supreme Court had in Afolalu v. The State (2010) 43 NSCQR 227 held that:
“With regard to the appellant’s defence of alibi, the law is indeed well settled that where, as against the defence of alibi raised by an accused person, there is a visual identification evidence of the accused by the prosecution witness which the Court accepted and believed such evidence will effectively destroy the defence of alibi raised’
Also in Nsofor v. State (2002) 10 NWLR (Pt.775) 274 the Court of Appeal held that:-
“It is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation, of the alibi” PER ABOKI, J.C.A.
ABDU ABOKI J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Kaduna State, Holden at Kafanchan, delivered on the 27th day of April, 2005 by D.S. Wyom, J.
The brief facts of the case are that the appellant on the 31st day of January, 2004 at Kachia, Kaduna State was alleged to have forcefully entered the residence of one Alhaji Maharazu Saidu while armed with a locally made pistol and accordingly robbed the said victim of the sum of N500,000.00 (Five Hundred Thousand Naira Only).
At the trial, the prosecution (hereafter referred to as the respondent) called four witnesses and tendered one exhibit in its bid to substantiate its case against the appellant, while the appellant gave evidence in his defence and tendered no exhibit.
After the conclusion of the trial, the lower Court convicted the appellant for committing the offence of armed robbery and accordingly sentenced him to 14 years imprisonment.
Dissatisfied with the judgment of the lower Court, the appellant appealed to this Court through a notice of appeal containing 6 grounds of appeal.
The appellant in his brief of argument dated and filed on 4/5/2011 distilled two issues for determination to wit:
“. Whether the trial Court was justified in convicting and sentencing the appellant for armed robbery having regard to the evidence before the Court. (Grounds 1, 2, 4, 5 and 6)
ii. Whether circumstantial evidence adduced by the prosecution and relied upon by trial Court irresistibly point to the guilt of the appellant. (Ground Three)”.
The respondent on the other hand in it’s brief of argument formulated a sole issue for determination to wit:
“Whether the trial Court was right to have convicted the appellant for the offence of armed robbery”.
The issue formulated by the respondent is all embracing and same is adopted for the determination of this appeal.
“Whether the trial Court was right to have convicted the appellant for the offence of armed robbery”.
On the said issue, learned counsel to the appellant in his brief of argument opined that the lower Court erred in law when it convicted the appellant for the offence of armed robbery based on the premise that the respondent had not proved all the ingredients of the said offence against the appellant beyond reasonable doubt.
Learned counsel to the appellant referred the Court to the cases of Grace Akinfe v. The State (1988) 3 (Pt. 85) 729 at 744;
Muftau Bakare v. The State 1987 NWLR (Pt. 481) 355,
Bolanle v. State (2005) 1 NCC 342 at 345,
Bozin v. State (1985) NWLR (Pt. 8) 465,
Ogba v. State (1992) 2 NWLR (Pt. 222) 164, section 2(1) of the Robbery and Firearms (special provisions) Act, and pages 12, 14 and 15 of the record.
Learned counsel to the appellant further submitted that the lower Court was in error when it relied on exhibit A which was not a Confessional Statement to convict the appellant for the offence of armed robbery.
He referred the Court to the cases of Abor Ole v. State (2006) All FWLR (Pt. 329) page 849
Nwachukuwu v. State (2000) FWLR (Pt. 123) 312 at 335 and Fatilewa v. State (2007) All FWLR (Pt. 347) page 695 at 710 – 711.
Learned counsel to the appellant submitted that a proper identification parade was not conducted in order to ascertain whether the appellant was the person who committed the offence he was charged with. He insisted that the lower Court ought not to have convicted the appellant since the identity of the culprit(s) who committed the offence was still in doubt.
Learned counsel referred the Court to the cases of Alabi v. State (1993) 7 NWLR (Pt. 307) 511,
Almu v. State (2005) All FWLR (Pt, 283) 63 at 85,
Mbenu v. The State (1998) 3 NWLR (Pt. 84) 615 at 625,
Agbor Ele v. State (2006) All FWLR (Pt. 329) 849 at 873,
Iliyasu Musa v. The State unreported Appeal No. CA/K/72/85 of 8/4/87 page 15,
Abdullahi v. The State (2008) 5 SCNJ 197 at 205 -209.
Learned counsel maintained that the circumstantial evidence which the lower Court relied upon in convicting the appellant did not conclusively and unequivocally showed that it was the appellant who committed the offence.
The Court was referred to the cases of lgabele v. The State (2005) All FWLR (Pt. 285) 568 at 585,
Nweke Onah v. The State (1985) 3 NWLR (Pt. 12) 236,
Monday Nwaeze v. The State (1996) 2 SCNJ 42 at 51 and page 36 of the record.
In conclusion, learned counsel to the appellant urged the Court to resolve this issue in favour of the appellant and consequently set aside the judgment of the lower Court.
Learned counsel to the respondent on the other hand contented that the lower Court was not in error when it convicted the appellant for the offence of armed robbery, the respondent having adduced credible and sufficient evidence which tend to establish the culpability of the appellant.
Learned counsel referred the Court to the cases of Agbo v. State (2006) 6 QCCR 48 at 87 -88,
Emoga v. state (1997) 1 NWLR (Pt. 483) 615 at 622 R2,
State v. Danjuma (1997) 5 NWLR (Pt. 506) 529,
Miller v. Minister of Pension (1994) 2 All ELR page 372 at 373 and section 138 of the Evidence Act.
Learned counsel to the respondent submitted that there existed snippets of circumstantial evidence which tend to establish the fact that it was the appellant who committed the offence he was charged with.
He referred the Court to the cases of Akpan v. The State (2001) 7 SCJN 567 at 582,
The State v. Ogunbunjo (2001) 1 SCNJ 86 at 103,
Akinmoju v. The State (2000) 4 SCNJ 179 at 184,
Sule Ahmed (aka Eze) v. The State (2001) 1 SGIN page 9 and the testimony of Pw1.
Learned counsel to the respondent maintained that the lower Court was not in error when it placed reliance on the Confessional Statement that was made by the appellant in convicting him as the said statement was not objected to by the appellant at the trial.
In support of this submission the Court was referred to the case of Hassan v. State (2001) 7 SC (pt. II) 85.
In conclusion, learned counsel to the respondent urged the Court to dismiss this appeal for being unmeritorious.
In Bello v. State (2007) 10 NWLR (Pt 1043) 564 at 566 – 567, the Court of Appeal held that:
“To discharge the burden of proving the commission of armed robbery by an accused person beyond reasonable doubt, the prosecution has three major steps to accomplish, otherwise referred to as ingedients of the office of armed robbery. They are:
(a). That there was robbery or a series of robberies;
(b). That each robbery was an armed robbery;
(c). That the accused was one of those who took part in the armed robberies”.
Similarly in Olayinka v. The State (2007) 9 NWLR (Pt.1040) 561 at 565, the Supreme Court held that:-
“To secure a conviction for armed robbery the prosecution must prove the following:
(a). that there was an armed robbery;
(b). that the accused was armed; and
(c). that the accused, while with the arm or arms participated in the robbery”.In the instant appeal, the respondent had through the testimonies of Pw1-Pw3 clearly established the fact that the nominal complainant as well as his family were robbed at gunpoint of their money. This piece of evidence had neither been contradicted nor denied by the appellant.
The main issue before this Court is to ascertain whether the respondent had adduced sufficient evidence before the lower Court which established the fact that the appellant was part of the gang of armed men who robbed the nominal complainant.
A critical perusal of the respective testimonies of all the witnesses that were called by the respondent as well as the sole exhibit tendered by the respondent before the lower Court to substantiate its case against the appellant indicate that the only evidence incriminating the appellant was the testimony of Pw1 and exhibit A. Both Pw2 and Fw3 who were physically present at the scene of the crime had in the course of their respective testimony categorically stated that they could not identify the armed robbers because of the fear that enmeshed them. See pages 14 and 15 of the record,
Pw4, stated in the his evidence that they arrested the appellant sequel to the complaint that was lodged by the nominal complainant at their station, wherein the nominal complainant said he strongly suspected the appellant was part of the armed robbers who attacked his house.
The incriminatory evidence which Pw1 gave against the appellant reads thus:
“As we were going to my wife’s room, I noticed the accused standing by the door trying to cover his face. I then led the others to my wife’s room and told her to give them all the money she had so that they do not kill me. She then gave them N57,0000.00 . Having collected the money, they locked my wife ad myself inside the room. The accused met me in my shop on Thursday and the robbery took place the next day Friday around 1.00a.m after the robber left 6 0’clock in the morning, I reported the matter at the Police Station.
Two weeks after, the accused came to me and said when he saw me he became frightened and said, I am sure nothing happened after he left. I did not reply him but asked my friend to go and call the police. The police came while the accused was taking soft drink and arrested him and took him to the police station”.
See pages 12 -13 of the Record.
The summary of the evidence that could be discerned from the testimony of Pw1 is that the said Pw1 i. e. the nominal complainant had met the appellant prior to the day he was robbed. The appellant was said to have given the complainant a charm which the appellant purportedly alleged will protect the nominal complainant against attack by armed robbers. The next day the nominal complainant and his family were robbed at gunpoint in his house.
During the said armed robbery, the nominal complainant said the appellant attempted covering his face in order to evade being recognition by him.
Two weeks after the said robbery, the appellant visited the nominal complainant to inquire whether anything had happened to him.
It is succinctly clear from the testimony of Pw1 that the appellant was culpable vis-a-vis the armed robbery that took place in the nominal complainant’s premises. Furthermore, Pw1-Pw3 had in their respective testimonies stated that the armed robbers did not cover their faces and the scene of the crime where the robbery took place was not dark as there was light in the room.
The question that must be posed at this juncture is whether in the light of the snippets of the circumstantial evidence that was garnered from the testimony of Pw1, it was still imperative to conduct an identification parade in order to ascertain whether the appellant was part of the gang of armed robbers who robbed Pw1?
In Emenegor v. State (2010) All FWLR (Pt. 511) 884 at 942 the Court held that:
“Recognition of an accused person arises when a person sees (or acknowledges the identity of) a man or a woman well known to him committing a crime. The value of this acknowledgment or recognition is that it dispels any scintilla of doubt not only about the accused person’s physiognomy but also his personae on the other hand, the identification of an accused person arises when a person unknown to a witness commits a crime in his presence. In such a situation, the identity of the accused person becomes a fact in issue or relevant fact”.
Similarly in Bozin v. State (1986) 2 QLRN 69 at 76, the Supreme Court held that:
“There is a word of difference between ‘I have known the appellant before, he was among those who robbed me’ and ‘I saw one of those who robbed me and if I see him again, I will recognize and identify him’. It is only in the latter instance that identification parade becomes necessary and is thus usually conducted”.
What could be deciphered from the cases referred above is that where an accused person is well known to the witness prior to the commissioning of a particular offence by the said accused person, there will be no need to carry out an identification parade. See Williams v. State (1992) 10 SCNJ 74.It is also worthy to note that Dw1 i.e the appellant had in the course of his examination before the lower Court stated that he knew Pw1 i.e the nominal complainant. The appellant had under cross-examination admitted that he met Pw1 in his shop.
See page 21 of the record.
This piece of evidence further strengthens and corroborates the evidence that was given by Pw1 that he knew the appellant prior to the day he was robbed.
Pw4 unambiguously stated in the course of his examination that as at the time Pw1 reported the robbery incident, he (Pw1) was strongly suspecting the appellant. See page 18.
It is manifestly clear from their snippets of evidence which when clustered together tends to establish the fact that the appellant was part of the gang of armed men that attacked Pw1 in his premises.
The appellant had in his confessional statement, contained in Exhibit A categorically admitted partaking in the said armed robbery that took place in Pw1’s premises. The admissibility of the said exhibit A was neither objected to by the learned counsel to the appellant when it was sought to be tendered at the lower Court. See page 18.
Similarly, Pw1 had in the course of his examination also stated that the appellant had admitted before the D.P.O at Kachia Police Station that he was part of the gang of armed robbers attacked his premises. The said witness had in page 13 of the record stated thus:
“The D.P.O asked me to ask the accused question. I then ask the accused that he gave me a charm to protect me from armed robbery but I never rob why? Accused then said he cheated me, He said himself and four were the people that robbed me. He said himself, Yau, Wada, Manu and Sani”.
It could be deduced from the testimony of Pw1 that the appellant had orally confessed to the commissioning of the offence for which he was convicted. It is also imperative to note that the testimony of Pw1 had neither been controverted nor contradicted by the appellant his defence. In Jua v. State (2010) 4 NWLR (Pt. 1184) 217 at 230 the Supreme Court held that:
“In the instant case, the Court of Appeal rejected the confessional statement of the appellant but accepted the oral confession made by the appellant to the police. A conviction on oral confession is proper in law”.
In the instant appeal even though the appellant did not raise an objection to the admissibility of exhibit A the lower Court can also convict the appellant upon the oral confession he made to the police which was neither denied nor contradicted by him in his defence.
On the failure of the lower Court to consider the defence of Alibi which might operated in favour of the appellant, the Supreme Court had in Afolalu v. The State (2010) 43 NSCQR 227 held that:
“With regard to the appellant’s defence of alibi, the law is indeed well settled that where, as against the defence of alibi raised by an accused person, there is a visual identification evidence of the accused by the prosecution witness which the Court accepted and believed such evidence will effectively destroy the defence of alibi raised’
Also in Nsofor v. State (2002) 10 NWLR (Pt.775) 274 the Court of Appeal held that:-
“It is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation, of the alibi”.In the instant appeal, the summary of the appellant case before the lower Court as discerned from his testimony was that he did not commit the offence of armed robbery against Pw1 and that he made the confessional statement contained in exhibit A involuntarily. See page 21 of the record.
Pursuant to the testimony of Pw1 which visually pinned the appellant to the scene of the robbery and in view of the fact that the appellant had not furnished the police with a detailed particulars of the alibi i.e the particular place he was at the time of the robbery, the lower Court was therefore not in error when it failed to examine the defence of alibi.
In Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 at 376, the Supreme Court held that:-
“where an accused person raised the defence of alibi and it is not investigated, he can still be convicted if there is a stronger and credible evidence before the Court which falsifies the alibi”.
In the instant appeal, the testimony of Pw1 as well as exhibit A clearly and categorically placed the appellant at the scene of the robbery attack and the purported defence of alibi which the appellant sought to raise before this Court could not have availed him.
In conclusion therefore, from the weighty evidence adduced before the lower Court the Court was correct in convicting the appellant for the offence of armed robbery and accordingly sentencing him to 14 years imprisonment. This appeal lacks merit and it is hereby dismissed. The conviction and sentence imposed by the lower Court is affirmed.
THERESA NGOLIKA ORJI-ABADUA J.C.A: I had the opportunity of reading in advance the leading judgment of my learned brother, Abdu Aboki, J.C.A, and I agree with him that this appeal lacks merit, therefore, it should be dismissed. I, too, dismiss the appeal and affirm the conviction and sentence of the Appellant.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: I have had the privilege of reading the lead judgment just delivered by my learned brother, Aboki, JCA. His Lordship has painstakingly considered and resolved the issues in contention in this appeal. I agree with the reasoning and conclusions. I have nothing to add. I too dismiss this appeal and affirm the decision of the lower Court and the sentence passed therein on the Appellant.
Appearances
Tajudeen Oladoja with Muritala Abdulrasheed and M. T. RashidFor Appellant
AND
Sakwatu H. Idris (Principal State Counsel Ministry of Justice, Kaduna)For Respondent
