MUSTAPHA ALIU v. THE STATE
(2019)LCN/13548(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/EK/49C/2018
RATIO
CRIMINAL LAW AND PROCEDURE: THE DUTY OF PROSECUTION IN A CRIMINAL TRIAL
It is basic and elementary now to state that, the onus of proving the commission of a crime beyond reasonable doubt is that of the prosecution. The description and explanation of the term beyond reasonable doubt by the apex Court per Oputa JSC as he then was, in the case of MUFUTAU BAKARE V. THE STATE 1987 LPELR -714 SC, is as follows:
Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt means just what it says. It does not admit of a high degree of cogency, consistent with an equally high degree of probability.”
See also the case of ONYEKA MBERI V. THE STATE 2016 LPELR CA/OW/351M/2012. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
THE THREE METHODS OF PROVING GUILT IN A CRIMINAL TRIAL
The burden may be discharged through any of these ways:
i. By the confessional statement of the Defendant,
ii. By circumstantial evidence leading to an irresistible conclusion of the Defendant?s guilt in respect of the offence, or
iii. Eye witness evidence on the defendant?s commission of the offence. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
ARMED ROBBERY: INGREDIENTS TO PROVE ARMED ROBBERY
The following ingredients are required for conviction for armed robbery:
i. That there was a robbery or series of robberies,
ii. that the robbers were armed with offensive weapons during the robbery and
iii. that the defendant took part in the robbery.
See the cases of AFOLALU V. THE STATE 2010 16 NWLR PT. 1220 554, ARUNA V. THE STATE 1990 6 NWLR PT. 155 125, ANI V. STATE 2003 11 NWLR PT. 89 142 and NWACHUKWU V. THE STATE 1985 1 NWLR PT. II 218. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
MUSTAPHA ALIU Appellant(s)
AND
THE STATE Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ekiti State High Court, delivered by Hon. Justice A. L. Ogunmoye on December 13th 2017, wherein the Appellant (2nd Defendant at the Court below) and one Abdulahi Umar (1st Defendant at the Court below), were discharged and acquitted on Counts 1 and 3 and the Appellant alone, convicted of robbery on Count 2.
Hereunder reproduced as contained on pages 132-133 of the printed Record before this Court are the offences with which they were charged:
COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY, contrary to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap R II, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
ABDULAHI UMAR and MUSSTAPHA ALIU, on or about the 3rd day of December, 2015 along Igede/Aramoko Road in Ado Judicial Division did conspire together to commit felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2)a of the Robbery and Firearms (Special Provisions) Act Cap R II, Laws of the Federation of Nigeria 2004.
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PARTICULARS OF OFFENCE
ABDULAHI UMAR and MUSTAPHA ALIU, on or about the 3rd of December, 2015 along Igede/Aramoko Road in Ado Judicial Division robbed one Owonikoko Ramota of the sum of fifteen thousand, Eight hundred Naira (N15, 800. 00) and a Nokia Phone Handset and at the time of the robbery, you were armed with offensive weapon to wit: guns and cutlasses.
COUNT III
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2) a of the Robbery and Firearms (Special Provisions) Act Cap. R II, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
ABDULAHI UMAR and MUSTAPHA ALIU on or about the 3rd day of December, 2015 along Igede/Aramoko Road in Ado Judicial Division robbed one Rotimi Ojo of Nokia Lumia 860 and Nokia Lumia 920 handsets and at the time of the robbery, you were armed with offensive weapon to wit: guns and cutlasses.
The matter went to full trial, with four (4) prosecution witnesses and the Appellant with the said Abdulahi Umar testified and two witnesses in their defence.
The gist of the facts that culminated into the case at the Court below as garnered
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from the printed Record before this Court is that the Appellant in conspiracy with the said Abdulahi Umar along with other persons robbed one Ramota Owonikoko (the PW4 at the Court below) of her phone on December 3rd 2015 with some other passenger on their way to Ado ?Ekiti around Igede/Aramoko road. That, the robbers carried offensive weapons such as guns and others.
According to the Appellant, they were arrested in front of their house by the Police and after searching their room, nothing incriminating was found. On the other hand, the story from the other side is that they were arrested by members of the public at Sabo market in Aramoko Ekiti and taken to the Police Station where the said Ramota Owonikoko and Rotimi Ojo identified them. That, they found Nokia 200, property of said Ramota Owonikoko on the Appellant. The Appellant and the said Abdulahi were thereafter arraigned on November 22nd 2016. The Appellant?s no case submission was overruled on April 3rd 2017 and the trial proceeded to completion.
As earlier stated, the Appellant was convicted and sentenced and being dissatisfied, he has approached this Court with his Notice of
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Appeal dated January 17th 2018 and filed January 22nd 2018 with four (4) grounds of appeal.
The parties in compliance with the Rules of this Court filed and exchanged their briefs of argument. Mr. Adeboye Sobanjo Esq. settled the Appellant?s brief dated November 23rd 2018 and filed November 27th 2018. The Respondent?s dated January 21st 2019 and filed February 5th 2019 was settled by Mr. Olawale Fapohunda Esq. Hon. Attorney-General, Ekiti State.
ISSUES SUBMITTED BY THE APPELLANT
1. Whether the learned trial judge was right in convicting and sentencing the appellant when the prosecution failed to prove beyond reasonable doubt as required by law that the appellant committed the offence of robbery (Grounds 1 and 2).
2. Whether the learned trial Judge was not wrong to have held that identification parade is not necessary when there is a presumption that the Appellant participated in the offence for which he was convicted (Ground 3).
ISSUES SUBMITTED BY THE RESPONDENT
1. Whether or not there was sufficient evidence before the Trial Court which will warrant the conviction and sentencing of the Appellant;
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2. Whether as against the Submission of the Appellant?s Counsel, the Trial Court was right to have held that identification parade is not necessary in every scenario, such as the present case which led to the conviction of the Appellant.
Carefully considering the above sets of Issues by both sides, one finds that they are very similar in substance. Having so found, I am satisfied that this appeal will be justly and fairly determined with any one of the sets of Issues submitted. I therefore adopt the Appellant?s Issues as submitted.
APPELLANT?S SUBMISSION
Mr. Sobanjo Esq. the learned Appellant?s Counsel submitted that, the prosecution failed to prove the lesser offence of robbery for which the appellant was convicted and sentenced and cited in support the case of KADA V. STATE 1991 LPELR-1641 SC and ZACHEOUS V. PEOPLE OF LAGOS STATE 2015 ALL FWLR PT. 783 1973. He argued that, the Appellant was not arrested at the scene of the offence and that PW4 who was the only witness of the alleged robbery, unequivocally stated in her statement, Exhibit 11 and under cross-examination that she could not identify any of the robbers. Further that, PW1
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under cross-examination stated that no weapon was found on the Appellant but a Nokia phone which PW4 identified as hers and no identification parade took place. He argued that, the Police investigation was shoddy. He contended that, there was no evidence, no call log was investigated to support the PW4?s claim that the last number that called her and the last number she called, were on the phone that was found on the Appellant. Further that, the last numbers referred to were not contained in the PW4?s statement, Exhibit 11, nor mentioned at trial and neither was the PW4?s daughter called to testify. He submitted that, the evidence of PW1-PW3 was not of independent witnesses and fell short of the expected standard. In support, he cited the cases of UGHENEYOVWE V. THE STATE 2005 ALL FWLR PT. 245 1006, OGUNBAYO V. THE STATE 2007 ALL FWLR PT. 365 408, NATSAHA V. STATE 2017 ALL FWLR PT. 898 127 and AKINBAMI V. STATE 2017 ALL FWLR PT. 897 2018. Further that, the Court was wrong to have used the standard of proof for civil matters in the case of proof of ownership of the phone and cited the cases of OSUAGWU V. STATE 2017 ALL FWLR PT. 872 1475,
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AKINRINSOLA V. STATE 2017 ALL FWLR 208, IGBIKIS V. STATE 2017 ALL FWLR 1405 1416 and ADEKUNLE V. STATE 2006 10 MJSC 107. He contended that, the Court was wrong to have concluded that, the phone found on the Appellant was stolen from the PW4 as it was not based on any admissible and credible evidence and therefore occasioned miscarriage of justice. That conclusion was contrary to Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended, Section 131 (1) and (2) and 135 of the Evidence Act 2011, he added. The invocation of Section 167 of the Evidence Act, the learned Appellant?s Counsel argued was wrong and occasioned miscarriage of justice.
The learned Counsel submitted that, the Appellant from the time of his arrest claimed ownership of the phone found on him and denied involvement in any robbery and that, the evidence before the Court was inconclusive to connect him to the offence of robbery. He cited in support the cases of AROGUNDADE V. STATE 2009 ALL FWLR PT. 469 409, OMOPUPA V. STATE 2008 ALL FWLR PT. 455 1648 and ZACHEOUS V. PEOPLE OF LAGOS STATE supra. In conclusion, he urged the Court to hold that the
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Appellants conviction was wrong and allow the appeal.
RESPONDENTS SUBMISSSION
The learned Silk, on behalf of the Respondent, submitted that, the testimony of PW4 to the effect that there was a robbery on the day of the incident remained uncontroverted. That, from the evidence of the PW1-PW4, the fact of robbery was established and the first two ingredients in the offence of robbery were satisfied. Further that, their testimony linked the Appellant with the robbery particularly the testimony of the PW1, which remained unchallenged as he was unable to account for the items found on him. The items that were found on the Appellant were admitted as Exhibits without any objection which would appear to amount to admission of guilt, he added. He contended that, the PW4 was not mistaken about the Nokia phone found been hers and she led undisputed evidence to the manner by which she identified same by the last two numbers therein in respect of which the other side failed to cross-examine her. Therefore, he submitted that, the offence of robbery was established against the Appellant.
On the issue of identification parade, he submitted that,
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identification parade was not necessary in the circumstance of this appeal as it is not every situation that requires identification parade of suspects and cited the cases of IDOWU V. STATE 2014 LPELR-22931 CA. The learned Silk submitted that even though the PW4 stated that she could not see the faces of her attackers as they wore mask, but as she identified her phone, which was stolen and recovered from the Appellant after the robbery incident, without reasonable explanations, that was significant identification. That the Court can make use of such to find the Appellant as the robber who robbed the PW4. It did not matter that the Appellant and the said Abdulahi Umar, 1st Defendant, were not arrested at the scene of the crime, he added. The contradictory pieces of evidence of the defence witnesses, DW2, the Appellant, DW1, DW3 and DW4, on the ownership of the Nokia found, on the man who sold to the Appellant, Yoruba man as opposed to one Ibo man and that the phone dealer could not be produced, were material and did not help the Appellant?s case. In support, he cited the case of ASHAKA V. NWACHUKWU 2013
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LPELR-20272 CA, ODUNLAMI V. THE NIGERIAN NAVY 2013 LPELR-20701 SC. In conclusion, he urged that this appeal be dismissed in its entirety.
THE PO
