ABDULKARIM MOHAMMED & ORS v. THE STATE
(2013)LCN/6082(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2013
CA/K/244/C/2007
RATIO
“The term ‘armed robbery’ is defined in the Black’s Law Dictionary, 9th Edition as robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used. In some other jurisdiction, it is defined as a robbery committed with the presence of an offensive weapon or replica of an offensive weapon. Weapon has been defined to include pistol, revolver or any kind of gun; dirk, bowie knife, switchblade, ballistic knife or other knife with a blade 6f more than two inches, straight edge razor or razor blade, spring stick, knuckles (metal, wood or plastic) blackjack, bat, club or other bludgeon- type weapon, stun gun, or taster, fighting chain, nun chukka, and/or throwing star or oriental dart. In FRN vs. Mohammed Usman & Anor (2012) LPELR-SC.283/2011, the Supreme Court, per Rhodes-Vivour, J.S.C defined armed robbery as; “robbery plus violence used or threatened.” Per ORJI-ABADUA,J.C.A
“In Kayode Vs State (2012) 11 NWLR (Pt.1312) 523, the Court of Appeal defined firearm to include any cannon, gun, rifle, carbine, machine gun, cap-gun, flint lock gun, revolver, pistol, explosive, or ammunition or other firearm, whether whole or in detached pieces. It went further to say that “other offensive weapons” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an art gun, air pistol, bow and allow, spear, cutlass, machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.” Per ABIRU,J.C.A.
“It is settled law that that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or obnoxious or chemical materials or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds any person.” Per ABIRU,J.C.A.
“The courts have stated that to convict for the offence of armed robbery, the prosecution must prove (a) that there was a robbery; (b) that the defendant participated in the robbery; and (c) that the defendant was armed or was in company of those who were armed with offensive weapons- Olayinka Vs State (2007) 9 NWLR (Pt.1040) 561, Ike Vs State (2010) 5 NWLR (Pt.1186) 41 and Attah Vs State (2010) 10 NWLR (Pt.1201) 190.” Per ABIRU,J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. ABDULKARIM MOHAMMED
2. AMINU SADA
3. YUNUSA IBRAHIM CHAMAMA Appellant(s)
AND
THE STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA,J.C.A (Delivering the Leading Judgment): Following an armed robbery that occurred along Charanchi/Ganuwa Road in Charanchi Local Government Area of Katsina State on the 24th December, 2002, the Appellants were, apparently, arrested on 5/1/2003, and, later a charge dated 5/2/2004 was preferred against them before the Katsina State High Court. It reads thus:
“That you (1) Abdul-Kareem Mohammed (2) Aminu Sada and (3) Yunusa lbrahim (Chamama) on or about 24th day of December, 2002 along Charanchi/Ganuwa road in Charanchi Local Government Area attacked and robbed (a) Hambali Ibrahim (b) Ibrahim Halidu while armed with dangerous weapons to wit: Dane guns, Cutlasses (sic) and Sticks, robbing them of the sum of N175,000.00 (One Hundred and Seventy Five Thousand Naira) and thereby committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act 1990”
The Appellants pleaded not guilty to the charge on 18/11/2004 and, on 13/1/2005, trial in the charge started in earnest. Four witnesses testified for the prosecution, while three testified for the defence. After evaluating the evidence, proffered before it, the trial Court held that the prosecution proved its case beyond reasonable doubt. It expressed thus;
“….I hold that the prosecution has proved its case of robbery against the accused persons. This is because section 2(b) of the Robbery and Firearms (Special Provisions) Act CAP 368 Laws of the Federation 1990 provides among other things that “at or immediately before or immediately after the time of the assault the offender wounds or uses any other personal violence to any person.”
I hold that this last aspect of “uses any other personal violence to any other person has been proved by the testimony of PW1 who stated, “the moment I reached one culvert then some people stopped us with three torchlights. Then they started beating us with sticks, and I then ran and left my motorcycle. The other person carrying a bag of money got confused they kept beating him until he fell down.” This piece of testimony was corroborated by that of PW4 the victim of the offence, the one carrying a bag of money. He also stated that they took the bag of money and left him on the ground in view of this I hold that one of the essential ingredients that can established the offence of robbery has been proved.”
The Court then found the three accused persons guilty as charged, and sentenced them to death, i.e., to die by hanging by their necks until they die or by firing squad whichever option is chosen by the Executive Governor of Katsina State.
The appellants were distressed by the pronouncements of the trial Court and in consequence thereof, they lodged an appeal against the same via their respective Notices of Appeal dated the 15th January, 2007, and filed on 6/1/2007. As earlier depicted, the Appellants herein filed three distinct Notices of Appeal through the same Counsel but, somehow, the said Notices of Appeal were treated as one by the Registry of this Court and they were given one appeal number, that is to say; CA/K/244/C/2007. A careful study of the said Notices of Appeal depict that they were based on one identical ground of appeal. Only one Brief was filed on their behalf in this appeal. Each Appellant signed his respective Notice of Appeal which is based solely on the identical ground, “that the trial Court erred in law for convicting the Appellant when there was no evidence before the Court.” The Particulars are: “(a) the confessional statement was rejected and no any other Exhibit tendered; and (b) the evidence given by P.W.4 is not reliable as same was given by a tainted witness.” Then, following the compilation and transmission of the record of appeal to this Court, and service of the same on the parties, the parties filed and exchanged their Briefs of Argument.
It is curious that out of the identical sole ground of appeal, the Appellants formulated two issues for determination by this Court, they read thus:
“1. Whether the prosecution has proved the case of Armed Robbery against the Appellants beyond reasonable doubt.
2. Whether the Trial Court could be said to have properly evaluated the evidence of the prosecution when three out of four prosecution witnesses gave hearsay evidence and the other P.W.4 a tainted witness.”
The Respondent adopted the issues as were presented by the Appellants.
In arguing issue No. 1, that is to say; whether the prosecution has proved the case of Armed Robbery against the Appellants beyond reasonable doubt, which he said stemmed from the sole ground of appeal, learned Counsel for the Appellants, Kabir Umar Yarlilu Esq; stressed that in criminal trial, the onus of proof rests on the prosecution to prove beyond reasonable doubt, the commission of the offence by the accused. He relied on the case of Cyracus Ogidi & 3 ors vs. The State (2005) 1 SCNJ page 67 ratio 5 and pages 85-8G. He submitted that in law there are three ingredients of the offence of armed robbery which must be proved by the prosecution to secure a conviction. They are:
1. That there was an Armed Robbery
2. That the Accused was armed; and
3. That the accused, while with the arm or arms participated in the robbery.
Learned counsel cited Fatai Olayinka vs. The state (N.S.Q.R) page 149 at 153 and pages 171-173 in support. He then urged that issue No.1 be resolved in favour of the Appellants. Curiously too, learned Counsel stated that issue No.2 arose out of the Appellants’ sole ground of appeal. I must state that I am not too certain as to how the second issue arose out of the same sole ground of appeal, except Counsel treated the respective sole ground of appeal in the Appellants’ Notices of Appeal disjunctively or separately.
However, dealing with the said issue, Counsel contended that no proper evaluation of the evidence adduced was made by the trial Court, particularly, the evidence of P.W.4. He stressed that if properly reviewed, the trial Court ought not to have relied on the evidence of P.W.4, Ibrahim Haladu, one of the alleged victims of the armed robbery who lodged his complaint with the Police in respect of the said offence about 1-2 days after the alleged armed robbery took place. He noted the trial Court’s comment at page 81 of the record ‘that P.W. 4 could not have been in a position to observe such meticulous details’ regarding the number of people that attacked them, and, then asserted that P. W. 4 is a tainted witness. Counsel, further, made reference to the cases of Samson Uzoka vs. The State (1990) 6 NWLR Part 159 page 680 at 682 ratio 5, and 690 paragraph E; and The State vs. Grace Abraham Akpabio (1993) 4 NWLR Part 285 page 204 at 208 ratios 4 and 5 and, 220-225 paragraphs D-B, and, H-A respectively, and, argued that as a tainted witness, P.W.4’s evidence required corroboration, but no such corroboration was provided. He stressed that a lot of doubt was created by the testimony of P.W.4 on his account of three people holding or flashing a torchlight, and that it was from there he was able to remark the faces of the Appellants. He then submitted that the conviction and sentence of the Appellants lack basis in law, and as such, this appeal ought to be allowed and the conviction and sentence of the Appellants be set aside.
Then, in presenting the Respondent’s argument, it’s learned Counsel, Hassan Yusuf Esq; cited the cases of Idowu vs. State (2000) 12 NWLR Part 580 page 48 at 53 and Olayinka vs. State (2007) 9 NWLR part 1040 page 561 at 555 pages 582 – 583 paragraphs G-A and stressed that the moment the three ingredients of the offence of armed robbery i.e., “that there was an armed robbery; that the accused was armed; and that the accused, while with the arm or arms participated in the robbery,” were established, the prosecution has discharged the onus of proof of the offence beyond reasonable doubt. He argued that the evidence adduced before the trial Court was cogently evaluated before it hence it believed the evidence procured via P.W. 4, relied on it to convict and sentence the Appellants as charged. He referred to the evidence of P.W. 4 at pages 49-50 lines 11.-27 concerning the issue of the Appellants holding torchlights nd flashing them on his face, and equally relied on the case of Olayinka vs. State (supra), and, submitted that the testimony of P.W.4 established the said three ingredients of the offence committed on the 24th December, 2002. He, then, urged that issue No. 1 be resolved against the Appellants.
With respect to issue No. 2; learned Counsel referenced the cases of Kareem vs. FRN No. 1 (2002) 8 NWLR Part 770 page 536 at page 651 – 552 paragraphs H-C; Agwu vs. State (1998) 4 NWLR part 544 page 90 at 95 ratio 9; and Afeki vs. A.G; Bendel State (1986) 2 NWLR part 24 page 648 at page 650 ratio 9, and contended that the inconsistency in the evidence of P.W.4 at the trial and his statement at the Police Station on the number of people that attacked them does not in any form qualify him to be treated as a tainted witness. He stated that that does not amount to material contradiction that will cast doubt on his testimony, or discredit him as a tainted witness, therefore, his evidence did not require corroboration. He submitted that P.W.4 recognised the Appellants as the people who attacked them with sticks and took away his money. He stressed that no doubt existed as to the actual identity of the Appellants, and, then urged that this appeal be dismissed for lacking in merit.
Having perused the issues postulated by the Appellants and their respective sole ground of appeal, it seems clear the only deducible issue therefrom for the determination of this Court is as posited in the Appellants’ issue No.1. I must observe that there is no ground in the Appellants’ respective Notices of Appeal that specifically complained of or implied that P.W.4 was a tainted witness. It is only in the Particulars of Error in respect of the Appellants’ sole ground that that fact was introduced. I am not unmindful of the fact that the Respondent’s Counsel did not raise it or put it forward for consideration, therefore, the parties did not address this Court on the implications of issue No.2 not having been raised from the Appellants’ sole ground of appeal. As I noted earlier, the only issue capable of being determined in this appeal is; “whether the prosecution has proved the case of armed robbery against the Appellants beyond reasonable doubt,” and that is what I intend to consider in this appeal. The Appellants were charged with the offence of armed robbery punishable with death.
The term ‘armed robbery’ is defined in the Black’s Law Dictionary, 9th Edition as robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used. In some other jurisdiction, it is defined as a robbery committed with the presence of an offensive weapon or replica of an offensive weapon. Weapon has been defined to include pistol, revolver or any kind of gun; dirk, bowie knife, switchblade, ballistic knife or other knife with a blade 6f more than two inches, straight edge razor or razor blade, spring stick, knuckles (metal, wood or plastic) blackjack, bat, club or other bludgeon- type weapon, stun gun, or taster, fighting chain, nun chukka, and/or throwing star or oriental dart.
In FRN vs. Mohammed Usman & Anor (2012) LPELR-SC.283/2011, the Supreme Court, per Rhodes-Vivour, J.S.C defined armed robbery as; “robbery plus violence used or threatened. His Lordship stated that before there can be a robbery, something must be stolen. It was stated therein that the prosecution must prove the elements of the offence strictly as contained in the charge. His Lordship further opined that a charge under section 1 (2)(b) of the Robbery and Firearms (Special Provisions) Act succeeds if the prosecution establishes beyond reasonable doubt that the accused persons stole something capable of being stolen and at the time of the stealing, the accused person threatened to use violence or used violence immediately before or immediately after the time of stealing. The violence could be on either a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
As clearly submitted by the respective Counsel for the parties, the three elements of the offence of armed robbery are: (a) that there was a robbery or a series of robberies; (b) each robbery was an armed robbery; and (c) that the accused was one of those who took part in the armed robbery.
This proposition was explicated by Belgore, J.S.C., (as he then was) in Okpulor vs. State (1990) NWLR Part 164 page 581 when he held that in law, it matters not that the appellant does not carry weapon. Once it is established that the Appellant was among the robbers not as a casual onlooker, but a full participant and his accomplices carried weapons, the Appellant is guilty of the offence of armed robbery. Therefore, for there to be a conviction of armed robbery, the prosecution must prove the three elements or ingredients conjunctively.
Let us now examine the quality of the evidence proffered by the prosecution during the trial to ascertain whether the prosecution discharged the onus placed on it by our Evidence Act, i.e. proof of commission of the offence of armed robbery against the Appellants beyond reasonable doubt.
P.W.1, Musa Ado, who described himself as a farmer, said that on 24/12/02, some traders came from Lagos to Charanchi, and two of them namely: Ibrahim and Hambali boarded his (P.W.1’s) motorcycle for conveyance to their houses. When they approached one culvert, some people stopped them with three torchlights, and started beating them with sticks. He, (P.W.1) ran away and abandoned his motorcycle. One of his passengers that carried a bag of money was confused. They beat him until he fell down. They, then, raised an alarm by shouting and the villagers gathered. On the arrival of the villagers, they, (the victims), came back and the people ran off. When they asked, apparently, P.W.4, of the money, he said the people ran away. They took, apparently, the one carrying the money home, and, presumably looked for whoever that was not specified by him, and, then went home. He said he knew the accused persons, that they were from his village. He stated that the incident took place at about 8.00pm but, at that time, he could not recognize them.
Under cross examination, he said he was not the one who went to the police to lodge the report of armed robbery.
Then, P.W.2 – a Police Corporal, Abdu Danjuma; the Investigating Police Officer at Charanchi Division Police Headquarters stated that on 5/1/2003 at about 6.30pm, Messrs Haladu Ibrahim and Hambali Ibrahim came to Charanchi Divisional Police Headquarters to lodge a report that on 24/12/2002 when they came back from Lagos and boarded a motorcycle to their village, on their getting to Marabar Dokau, they saw a group of five persons who stopped them and started beating them with sticks and went away with their money in the sum of N137,000.00. He further explained how the investigation was conducted, the arrest of the Appellants and how their respective statements in Hausa language were obtained under caution. He later took the accused person before the DPO where he read their statements over to them which they admitted as their statements. Later, the matter was transferred to the State CID together with their statements. It is imperative to note that P.W.2 said, he was not the one who arrested the Appellants. He saw them for the first time at the Police Station. They were not brought with any money or sticks to the Police station.
Further, P.W.3, Corporal No. 159353, Muktar Alassan, with Katsina State CID, attached to the Anti-Robbery Section, confirmed that on 7/1/2003, a case of armed robbery was transferred from the Divisional Police Headquarters, Charanchi. Their team led by late Sgt. Yusuf Mai-Wada was detailed to investigate the offence. He personally obtained the statements of the 1st and 3rd accused persons, Abdukarim Mohammed and Yunusa Chamama in Hausa language, which he later read over to them. They understood the same and accepted them by the 1st accused writing his name and the 3rd accused thumb printing thereon. He too, counter signed. He later translated the statement to English language. Upon the tendering of the Hausa and English versions of the statements, an objection was raised on the ground of involuntariness. The 2nd Accused person’s statement was recorded by the late Sgt Mai-Wada. The same was objected to on the ground that it was obtained under duress.
Then, trial within trial was slated by the trial Court. It was proceeded with, but, as at 18/10/2006 when p.w.4 commenced his evidence in chief, the trial Court had not concluded its hearing in the trial within trial.
P.W.4, one Ibrahim Haladu, one of the victims of the alleged armed robbery and whom I may describe as the star witness at the Lower Court given the trial court’s opinion of him, testified that on 24/12/2002 when he came back from Lagos and stopped at Charanchi Motor Park, and was being conveyed by a motorcyclist, they passed Dabdanyo, and saw three people with torchlight, when they approached them, they waved their torchlight at them, then the motorcyclist reduced his speed. Immediately they got to their spot, they started beating him, p.w.4, with sticks. He had a bag of money on him, which contained the sum of N175,000.00, the people took it from him when he fell off the motorcycle. They left him on the ground, then some people came and rescued him. He later went home in another motorcycle.
It is remarkable to note that it was only under cross-examination, P.W.4 said he knew the accused persons before the incident. He said, he was able to recognize the accused persons at the time they flashed the torchlight at him, P.W.4, and too, when they had beaten him and he was on the ground, one of them flashed the torchlight at themselves and he saw them.
There is no doubt, that the testimonies of P.W.1 and P.W.4 established the fact that P.W.4 and one Hambali Ibrahim were robbed on the 24th December,2002 by a group of men at about 8.00pm on their way to their village from Charanchi Motor Park along Charanchi/Ganuwa Road.
The evidence of P.W.1 and P.W.4 further revealed that the said group of men were armed with sticks which has been described in this judgment as a weapon, meaning that the first-two ingredients of the offence of armed robbery were proved by their assertions, but, whether the Appellants were those or amongst those who robbed P.W.4 of his money with sticks remain a huge question to be resolved in this appeal. What this entails is that the identity of the Appellants must be distinctively established. There should not be any speculation as to who the robbers might have been or were. They must be seen and identified clearly by the victims with such an impeccable or clarity of description.
The law is that it is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person with the offence. His Lordship, Adekeye, J.S.C., in Fabian Nwaturuocha vs. The State (2011) LPELR – SC.197/2010 stated that before a trial Court comes to the conclusion that an offence had been committed by an accused, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged. P.W.1 said he could not recognize the Appellants at the time of the armed robbery.
It is well established that where a suspect disputes identification, the prosecution must prove beyond all reasonable doubt that the accused was the person who committed the offence. Even though P.W.4 asserted under cross-examination that he knew the Appellants before the commission of the offence, and that he was able to recognize them at the scene of the crime as the culprits when they flashed torchlights on him and themselves at the time of the robbery, the Appellants denied being at the scene of the crime. Further, it is of great necessity to note that the confessional statements allegedly made by the Appellants were objected to at their various stages of being tendered on the ground of involuntariness. Then, a trial within trial was conducted by the Lower Court. At the end, the trial Court discerned that those statements were made under duress. As a result the Lower Court refused their admissibility and they were then marked ‘tendered and rejected;’ meaning, there were no statements of the Appellants before the trial court that pinned them to the scene of the crime.
The facts of this case indicate that the incident occurred about 8.00pm on 24/12/02. Obviously, it was dark, and this was stated by P.W.1 and P.W.4. What it portrays is that the state of light at the locus criminis on 24/12/02 was very poor. There was no evidence placed before the trial Court to show that there was electric light around the scene. Further, no evidence was adduced via P.W.1 and P.W.4 to suggest that there was moon in the sky at that time or that P.W.4 was aided by moonlight in his recognition of the Appellants at the scene of the crime at that dark hour.
The questions are; how could P.W.4 have been able to recognize the Appellants when, from the evidence of P.W.1 and P.W.4, the robbers started beating them with sticks immediately they approached them at that dark hour? Also, how could he have recognized them when they beat him to a confused state and he fell off the motorcycle? Was it in that state of pandemonia or frenzy that P.W.4 was able to look at their faces with the rays of their torchlight? Why didn’t any of the victims of the armed robbery, especially P.w.4, who claimed to have recognized them at the scene of the crime, rush to the Police Station the following day being the 25th December or even 26th, 27th, 28th, 29th, 30th, or 31st December 2002 to lodge his complaint? Why must P.W.4 wait till the 5th January, 2003 to go to the Police Station? Why the delay? These are questions I find disturbing and which remain unanswered.
It is imperative to note that there is no iota of fact on the record of this appeal indicating how the Appellants were identified in the first place before their arrest. The record bears out that the Appellants were tortured to volunteer their statements to the Police. So, if the Lower Court believed as it found out during the trial within trial that the Appellants were coerced into making the alleged statements, how did it come to the conclusion that the Appellants were the culprits? The evidence of P.W.4 did not signify how the Appellants were identified and arrested. There was no evidence before the Lower Court that any identification parade was conducted in respect of an armed robbery offence that was allegedly committed on 24/12/12 along Charanchi/Ganuwa Road but, was only reported to the Police about 12 days after.
It ought to be observed that there is always the risk of mistaken identification particularly where the sighting had only been a fleeting glance. It must be appreciated that there is confusion in the difference between recognition and identification cases. Where there had been some form of recognition the risk does not lie in the witness picking out the wrong person at an identification parade, but in the fact that at the time the person witnessed the offence, he was mistaken in his purported recognition of the offender. See R vs. Bentley 1991 CLR 620, where the English Court of Appeal stated that:
“A recognition which was the type of identification evidence here, could not be regarded as trouble free because many people had experienced seeing someone on the street that they know and later discovered they were wrong.”
I must observe that apart from P.W.4 stating that the robbers flashed a torchlight on him, and even on themselves, there was no evidence tendered before the trial Court that aided P.W.4’s eyesight in that dark hour. The only light that existed at the scene was the torchlight.
It is instructive to appreciate that evidence of identification is at its best, the recognition of stranger’s face seen momentarily during the stress and excitement of an incident in torchlight or some other artificial light. On this note, I must make reference to the case of Ndidi vs. State (2007) 13 NWLR Part 1052 page 553, where the Supreme Court, per Aderemi J.S.C., expressed thus:
“In the case at hand, P.W.1 in her oral testimony said she had known the accused before this incident occurred. It seems to me that the guideline laid down in R.V. Turnbull (supra) will not apply hook, line and sinker in this case. Her (P.W.1) evidence as it relates to the Appellant, must’ be examined in the light of her saying that she recognized the Appellant in the early hours of that day. Her evidence must clearly demonstrate acquaintance with the Appellant that is, admitting acquaintance with the Appellant by certain signs and/or factors. This is because she said she had seen him before the date of the incident. Whereas if her testimony is examined in the light of identification, all one would be doing is to see whether the testimony of P.W.1 is credible enough to convince the trial Judge that the Appellant now standing trial is the same person P.W.1 saw for the first time on the day of the incident. Recognition therefore presupposes prior knowledge of the Appellant before 4.1.00. But identification connotes knowledge of the person of the Appellant acquired by P.W.1 for the first time on the day of the incident; that is 4.1.00. I must be quick in saying that “recognition” (which translates to evidence of visual observation) is regarded as one of the guidelines laid down in R. v. Turnbull (supra). In Archboid Criminal Pleading, Evidence and Practice (1993) volume 1 paragraph 14-4 which is a confirmation of what I have said, reads:-
“the following guidelines which are to be observed by trial Judges when ‘identity’ is an issue, were laid down by the Court of Appeal (England a five-Judge Court) in R.V Turnbull & ors 53 CR-APPP. Page 132 at 137 – 140 (the paragraph, letters and numbers have been added for ease of reference)
A —
B —
C Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”
These guidelines constitute what the judge must sum up for the jury in England where jury trial still obtains. Jury trial is no longer in vogue in Nigeria. When it was, it was only limited to Lagos territory. Therefore a trial Judge in Nigeria must not only warn himself but must meticulously examine the evidence proffered to see whether there are any weakness capable of endangering or rendering worthless any contention that suspect was sufficiently recognised by the witness. P.W.1 said the time they came was I am.
The trial Judge, it must be remembered, took a judicial notice that it was always dark at that very early hour of the morning. So visibility would normally be blurred at that time. Under cross-examination, she said it was not true that there was no light in Abavo at that time in question. She claimed she told the police that there was light and that she also told the police that she carried a small lantern at that material time. According to her the robbers ordered her to put the small lantern she was carrying down and to quench it was her further evidence that at that time and place, the robbers used their own torchlight to pack her belongings. These pieces of evidence by P.W.1 go to support the findings of the trial Judge; that it was dark at that material time. Visibility was blurred. There was definitely a need for the provision of lighting aid to make everything around to be visible. Also waking up by force at that time of the night, one would not immediately gain consciousness and as such one’s ability to be able to recognize things around one would be considerably reduced. There is no evidence as to the time she woke up from her sleep and the time the Appellant appeared to her. It is a great surprise that the trial Court did not avert its mind to the above crucial issues and neither were any findings made thereon. Tragically, the Court below fell into that grave mistake. The quality of evidence proffered in support of the prosecution’s case that P.W.1 actually saw the Appellant at that material time is very poor. It is not reliable. And the poorer the quality of such pieces of evidence, the grater the danger in convicting on them. Indeed, the quality of evidence at the end of the prosecution’s case on the issue of identity or even recognition of the Appellant by P.W.1 was very low and poor that no reasonable tribunal could be heard to convict on it. I am not unmindful that what is now before us is a concurrent findings of facts by the two Courts below and being an Appellant Court, the apex Court for that matter. It is none of our business to ordinarily disturb the findings of facts made by a trial court and affirmed by the intermediate appellant court except in exceptional circumstances (as in the instant case) where the inferences from established facts are clearly wrong or where the findings just do not flow or follow from the oral testimony of P.W.1 and of course, there was serious error on the ascription of probative values of the said evidence… The result, in my humble view is that the evidence of P.W.1 cannot sustain the conviction and sentence of the Appellant.
Consequently, the only issue formulated by the appellant is answered in the negative. By the same token, issue No 2 is answered in the negative. For all I have been saying, the totality of the tenuous evidence led by the prosecution which I have reviewed above cannot ground the conviction and sentence of appellant, therefore issue No. 1 on the Respondent’s brief is answered in the negative.
The quality of evidence proffered in support of the prosecution’s case that P.W.1 actually saw the Appellant at that material time is very poor, it is not reliable. And the poorer the quality of such pieces of evidence, the greater the danger in convicting on them. His Lordship further stated that indeed the quality of evidence at the end of the prosecution’s case on the issue of identity or even recognition of the appellant by P.W.1 was very low and poor that no reasonable tribunal could be heard to convict on it. He commented that there has been no proper appraisal of the oral testimony of P.W.1 and of course, there was serious error on the ascription of probative values of the said evidence. The result is that the evidence of P.W.1 cannot sustain the conviction and sentence of the Appellant.”
Further, in Abdu vs. State (1985) 1 NWLR Part 1 page 55, the Supreme Court held that where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a court must be careful in accepting his evidence given later implicating the person or persons charged unless satisfactory explanation is given. This is because such delay makes the evidence of identity suspicious and reduces the truth content of the evidence below acceptable probative level.
It is trite that when the conditions favouring correct identification are difficult, what is needed is other evidence pointing to the guilt of the accused from which it can reasonably be concluded that the evidence of identification can safely be accepted as free from the possibility of error. In the instant case, the conditions in which P.W.4 claimed to have recognized the Appellants were doubtful, and there was no other evidence before the Lower Court establishing the identification or recognition of the Appellants at the scene of the armed robbery.
The trial Court recognized that P.W.1, the driver of the motorcycle said he could not identify any of the accused. It should, also, be noted that P.W.2 was not the officer who arrested the Appellants, therefore, how the Appellants were described, identified and arrested were not placed before the Lower Court. P.W.1 stated that the other person carrying a bag of money got confused and they kept beating him until he fell down. The question is; how did P.W.1, a motorcyclist, who was apparently running a motorcycle transport business, know that his passenger, P.W.4 was carrying a bag of money? How did he come by that knowledge? It is natural that P.W.1, a motorcyclist running transportation business with his motorcycle, ought not to have known the contents of his passenger’s luggage. I must state that this piece of evidence gave him away as someone who was tutored as to what to say. The material fact is, he could not identify any of the Appellants. P.W.2 was not the one who received the complaint nor was he the one who effected the arrest of the Appellants. Even the trial Court appreciated that there could have been confusion at the scene when it held that P.W.4 could not have been in a position to observe such meticulous details regarding the number of people that attacked them in view of the state of confusion and apprehension which the nature of the ambush put them at the time of the incident. Obviously, there is a lacuna in the evidence of identification of the Appellants before the Lower Court, which the lower did not avert its mind to. I must observe that the trial Court attached unnecessary weight to the evidence of P.w.4 on the issue of recognition of the Appellants by him.
I am convinced that the evidence led by the prosecution does not sufficiently identify and point to the Appellants as the perpetrators of the armed robbery offence. As a result, I entertain a cloud of doubts in my mind whether or not it was the Appellants who committed the offence as charged. It is the law that once the prosecution fails to establish the ingredients of the offence and where there are doubts in the mind of the Court as to whether or not it was the accused person who committed the offence, such doubts should be resolved in favour of the accused. This principle of law was erroneously applied by the trial Court. I am afraid in view of lack of proper identification of the Appellants as those who participated in the armed robbery, it seems clear that the three ingredients of the offence of armed robbery were not proved before the trial Court, against the Appellants, the identity of the Appellants were not properly established. Accordingly, I find merit in this appeal and therefore, hold that there was no basis whatsoever for the trial Court to have held that the evidence of P.W.4 was unimpeachable.
I hereby allow this appeal. Consequently, the conviction and sentence of the three Appellants, namely; Abdulkarim Mohammed, Aminu Sada and Yunusa Ibrahim (Chamama) by the trial High Court of Katsina State in Criminal Charge No. KTH/3C/2004 are hereby set aside. The Appellants are hereby discharged and acquitted.
DALHATU ADAMU, J.C.A.: I am privileged to have gone through the draft of the judgment of my learned brother Ngolika Orji-Abadua JCA which I hereby endorse. I hereby allow the appeal and set aside the conviction and sentence of the three appellants by the trial court. They are hereby discharged and acquitted.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment just delivered in this matter by my learned brother, Orji-Abadua, JCA. His Lordship has painstakingly considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The Appellants were charged with armed robbery and they were alleged to have attacked one Hambali Ibrahim and one Ibrahim Haladu on or about the 24th of December, 2002 along Charanchi/ Ganuwa Road in Charanchi Local Government Area of Katsina State while armed with dangerous weapons such as dane guns, cutlasses and sticks and of robbing the victims of N175,000.00 and thereby committed an offence punishable under the provisions of Section 12 (a) and (b) of the Robbery and Firearms (Special Provision) Act, 1990. The Appellants pleaded ‘Not Guilty” and the matter proceeded to trial and at conclusion of which, they were found guilty and sentenced to death by the Lower Court. Hence, they filed this appeal. The courts have stated that to convict for the offence of armed robbery, the prosecution must prove (a) that there was a robbery; (b) that the defendant participated in the robbery; and (c) that the defendant was armed or was in company of those who were armed with offensive weapons – Olayinka Vs State (2007) 9 NWLR (Pt.1040) 561, Ike Vs State (2010) 5 NWLR (Pt.1186) 41 and Attah Vs State (2010) 10 NWLR (Pt.1201) 190.
It is settled law that that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or obnoxious or chemical materials or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds any person.
In Kayode Vs State (2012) 11 NWLR (Pt.1312) 523, the Court of Appeal defined firearm to include any cannon, gun, rifle, carbine, machine gun, cap-gun, flint lock gun, revolver, pistol, explosive, or ammunition or other firearm, whether whole or in detached pieces. It went further to say that “other offensive weapons” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an art gun, air pistol, bow and allow, spear, cutlass, machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.
There was clear evidence in the testimonies of the prosecution witnesses that indeed the persons called Ibrahim Haladu and Hambali Ibrahim were robbed on the 246 of December, 2002 by some men along Charanchi/Ganuwa Road in Charanchi Local Government Area of Katsina State and that their attackers were armed with sticks. It is obvious that “sticks” come within the definition of offensive weapon. Thus, the core issue before the trial Court in this matter was whether the Appellants participated in the robbery. The case against the Appellants revolved around their identification by the Prosecution as the persons that committed the robbery.
Now, identification means a whole series of facts and circumstances for which a witness associates an accused person with the commission of the offence charged. It may consist of or include evidence in the form of finger prints, hand writing, voice, identification parade, photographs identity, of the recollection of the features of the culprit by a witness who saw him in the act of commission of the crime or a combination of two or more of these. Identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. The question whether an accused person was properly identified or not is a question of fact to be resolved by the court.
The law is that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the court must closely examine and receive with caution the evidence alleged before convicting the accused on the correctness of the identification. The trial Court must meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused was sufficiently recognized by the witness – Ikemson Vs State (1989) 3 NWLR (Pt 110) 455, Eyisi Vs State (2000) 15 NWLR (Pt.691) 555, Archibong Vs State (2006) 14 NWLR (Pt.1000) 349, Ndidi Vs State (2007) 13 NWLR (Pt.1052) 633.
In the instant case, the only evidence before the lower Court on the identification of the Appellants as the perpetuators of the attack on the victims was in the testimony of the fourth prosecution witness, Ibrahim Haladu. The evidence on records showed that the robbery incident took place around 8pm and that the attackers had torch lights. There was no evidence as to the state of light or visibility in the surrounding areas of the scene of the incident. The fourth prosecution witness testified that the assailants started beating him with sticks from the top of a motorcycle he was travelling on with the first prosecution witness and they fell on the ground. There was no evidence as to the length of time the witness viewed the assailants. The law is that to ascribe any value to the evidence of an eye witness regarding identification of a criminal, the courts in guarding against cases of mistaken identity must meticulously consider the following (a) circumstances in which the eye-witness saw the suspect; (b) the length of time the witness say the suspect; (c) the lighting conditions; (d) the opportunity of close observation; and (e) the previous contacts between the parties – Ndidi Vs State (2007) 13 NWLR (Pt.1052) 633.
The evidence further showed that although the robbery incident took place on the 246 of December, 2002, the fourth prosecution witness did not attend the Police Station to point fingers at the Appellants as the assailants until the 5th of January, 2003, almost two weeks after the incident, when he went to lodge a complaint to the second prosecution witness. No explanation was offered for this delay in making the report. It is trite that a proper identification will take into consideration the description of the accused given to the police shortly after the commission of the crime. In Oguntola Vs State (2007) 12 NWLR (Pt.1049) 617, the Court of Appeal stated that where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a Judge must be careful in accepting his evidence given later and implicating the person charged unless a satisfactory explanation is given and that this was so because delay makes the evidence of identity suspicious and reduces the true content of evidence below acceptable and probative level.
The testimony of the fourth prosecution witness on the identification of the Appellants as the persons who attacked and robbed him and his colleague on the day of the incident leaves a lot to be desired. It creates a doubt which must be resolved in favour of the Appellants. It is for these reasons, and fuller expositions contained in the lead judgment, that I also allow this appeal and set aside the judgment of the Katsina State High Court in Suit No KTH /3C/2004 delivered by Honorable Justice Abdullahi Yusuf delivered on the 10th of January, 2007. I abide the consequential orders in the lead judgment.
Appearances
Kabir Umar Yarlilu EsqFor Appellant
AND
Hassan Yusuf Esq, State Counsel, Min. of Justice, Katsina StateFor Respondent
