ADEBAYO IDOWU v. THE STATE
(2011)LCN/4398(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/AE/43/C/2010
RATIO
REPLY BRIEF: FUNCTION OF A REPLY BRIEF
It can be seen above therefore that the function of a reply brief is to reply to new point or points of law raised in the Respondent’s brief. It is not meant to either emphasize or repeat what is contained in the Appellant’s brief of argument. Accordingly, a reply brief that does not deal with any new point arising from the Respondent’s brief is unnecessary as it is not within the contemplation of Order 17 Rule 5 of the Rules of this Court (Supra). See OKPALA AND ANOR V IBEME AND ORS (1989) 2 NWLR (PT.102) P.208; OKENIRA V MILITARY GOVERNOR; IMO STATE AND ORS (1990) 5 N.W.L.R (Pt. 152) P.594; NWALI V. THAT STATE (1991) 3 NWLR (PT.182) PT.663; EZEKWESILI V. ONWUAGBU (1998) 3 NWLR (PT.541) P.217 PER TOBI, JCA (as he then was) and CHUKWUOGOR V. A.G., CROSS RIVERS STATE (1998) 1 NWLR (PT.534) P.375. PER HARUNA M. TSAMMANI, J.C.A.
OFFENCE OF ARMED ROBBERY: NEED FOR THE COURT TO EXERCISE UTMOST JUDICIAL CARE AND CAUTION BEFORE CONVICTING A PERSON FOR THE OFFENCE OF ARMED ROBBERY
…the offence of armed robbery is a very heinous crime and accordingly the law in this country prescribes the ultimate penalty on a person convicted for committing same. In other words, a conviction thereon involves taking away of human life. Consequently, trial Courts have been enjoined to exercise utmost judicial care and caution before convicting thereon. Thus, a trial Court should not convict thereon, until all the ingredients of the offence have been clearly established beyond reasonable doubt. See TANKO V THE STATE (2008) 16 N.W.L.R (Pt. 1114) P.597 and BELLO V THE STATE (2007) 10 N.W.L.R (Pt.1043) P.564. PER HARUNA M. TSAMMANI, J.C.A.
CONFESSIONAL STATEMENT: EFFECT OF A CONFESSIONAL STATEMENT WRITTEN IN ANY LANGUAGE OTHER ENGLISH LANGUAGE
…the statement being in yoruba language, it is a language foreign to this Court and though it is in evidence, it is of no evidential value to the Court, save where it is translated. PER HARUNA M. TSAMMANI, J.C.A.
DEFENCES OF THE ACCUSED: WHETHER A TRIAL COURT IS UNDER AN OBLIGATION OR DUTY TO CONSIDER ALL THE DEFENSES POSSIBLE OR AVAILABLE TO AN ACCUSED AS DISCLOSED OR SUPPORTED BY THE EVIDENCE ON THE PRINTED RECORD
…a trial Court is under an obligation or duty to consider all the defenses possible or available to an accused on the available facts on the record. In other words, 3 trial Court is under an obligation to consider such defenses open to an accused person as disclosed or supported by the evidence on the printed record. Such facts as may support the defense may arise from the testimony of the witnesses. See ASAYA V. THE STATE (1991) 3 NWLR (PT.180) P.442 AT P.451 AND NWUZOKE V. THE STATE (1988) 1 NWLR (PT.72) P.529. SEE ALSO UDOFIA V. D.P.P., VOL 10 Digest of Supreme Court Cases P.343. PER HARUNA M. TSAMMANI, J.C.A.
DUTY OF THE COURT: WHETHER IS NOT ENOUGH FOR A JUDGE TO STATE THAT HE EITHER BELIEVES OR DISBELIEVES A WITNESS , IT MUST STATE THE BASIS OF HIS BELIEF OR DISBELIEF
It is now settled law that it is not enough for a judge to state that he either believes or disbelieves a witness or witnesses. He must go further to state the basis of his belief or disbelief. In other words, he must support same with the facts as contained on the printed record. See BOZIN V THE STATE (1998) A.C.L.R P.1. PER HARUNA M. TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
ADEBAYO IDOWU Appellant(s)
AND
THE STATE Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivered the Leading Judgment): The Appellant and one other, to wit, Popoola Adebayo Rasaki, were charged before the High Court of Ekiti State, quoram, C.I Akintayo, J on three counts viz; conspiracy to commit a felony to wit: armed robbery, armed robbery and murder which are offences punishable under Sections 5(b), 1(2)(a) of the Robbery and Firearms (Special Provisions Act), Cap.398 Laws of the Federation of Nigeria, 1990 (as amended) and Section 319 of the Criminal Code (Cap. 30) Laws of Ondo State, 1978, as applicable to Ekiti State. At the trial, the 3rd count of murder was dropped and upon arraignment the Appellant and his co-accused pleaded not guilty to the two counts of conspiracy to commit armed robbery and the commission of the substantive offence of armed robbery.
At the trial, the prosecution called 8 witnesses in proof of their case and tendered exhibits A, B, C, D and E – E6 respectively. The Appellant and his co-accused testified in their defense and called one other witness but tendered no exhibit. The case of the prosecution against the Appellant is that on the 15/8/2003 at about 11:55 p.m., robbers broke into the house of the 1st and 2nd prosecution witnesses while armed with guns and made away with the sum of Two Hundred and Twenty-One Thousand, One Hundred and Sixty-Five Naira Only (N221, 165.00) belonging to Mustapha Sunmonu (P.W.2). That in the process of the robbery, the P.W.2 was shot on the leg while one Bisiriyu Sunmonu was shot and later died in the hospital. The P.W.1 and P.W.2 testified that they were able to recognize the Appellant and his co-accused as the robbers that robbed them on the night of 15/8/2003. The Appellant and his co-accused denied participating in the robbery and contended that on the night of the robbery, they had spent the night with the Appellant’s sister (D.W.3) at Emure-Ekiti. They therefore raised the defense of alibi.
At the conclusion of the trial, the learned trial judge disbelieved the alibi raised by the Appellant and consequently found him and his co-accused guilty of conspiracy to commit armed robbery and armed robbery and sentenced them to death. The Appellant is dissatisfied with the judgment of the lower court and has now appealed to this Court vide his Original Notice of Appeal dated the 10th day of July, 2007 containing only the omnibus ground of Appeal. The Appellant subsequently filed a motion on Notice dated the 12/10/2009 and filed the 13/10/2009 wherein he sought leave of this Court to file Supplementary Record of Appeal and for leave to amend the Notice and Grounds of Appeal dated 10th July, 2007. The said motion was granted on the 14/10/2009 and accordingly the said Supplementary Record of Appeal, were deemed, Notice of Appeal, were deemed, filed and served on the said 14/10/2009 By the same application, the Appellant was granted an extension of time to file his Brief of Argument. It would appear from the Record of Appeal that, the Appellant did not file the said Brief of Argument, so he filed another motion on Notice dated 31/12/2009 seeking for further extension of time to file the Appellant’s Brief of Argument out of time. The said motion was heard and granted on the 07/06/2010. The Appellant’s Brief of Argument is therefore deemed filed the 07/06/2010. The Respondent filed the Respondent’s Brief of Argument on the 07/06/2010 within time. The Appellant then filed a Reply Brief dated the 16/9/2010 and deemed filed the 21/10/2010 vide Motion on Notice dated 16/9/2010 and filed the 17/9/2010.
As stated earlier, the Appellant was granted leave to amend his Notice of Appeal vide Motion on Notice dated the 12/10/2009 and filed The 13/10/2009. The Grounds of Appeal contained in the Amended Notice of Appeal filed 13/10/2009, without their particulars are as follows:
Record of Appeal and Amended filed and served on the said
1. The Learned Trial Judge erred in law in holding that from the available evidence, the victims of the Robbery were able to identify the Accused persons, that is, the Appellant, along with the 1st Accused, as the Robbers during and after the robbery.
2. The Learned Trial Judge erred in law in holding that the Defense of alibi raised by the Appellant along with the 1st Accused had been demolished by the case of the prosecution, and as such the defense of alibi and other defense that might be available to the Appellant and the 1st Accused even if not raised by them would not avail the accused persons.
3. The trial Court erred in law in holding that the charge against the Appellant and the 1st Accused is not actuated by malice when there exists on record evidence of persistent malice between the family of the deceased and P.W.1 and the Accused since 1994, and prior to the alleged robbery.
4. The Trial Court erred in law in relying on the evidence of prosecution witnesses whose testimonies are apart from being inconsistent and conflicting, many of the witnesses can best be described as “Tainted witnesses” Whose evidence must not only be watched with toothcomb, but is wholly unreliable.
5. The Trial Court erred in law in holding that the prosecution has been able to prove by evidence beyond reasonable doubt the ingredients of the offences of conspiracy to commit Armed Robbery and Armed Robbery as alleged or charged.
6. The findings and Judgment of the Trial Court are altogether unwarranted, unreasonable and unsupported by the available evidence before the Court.
As found earlier, the parties had in compliance with the rules and practice of this Court filed and exchanged briefs of argument. The Appellant’s Brief which is settled by Dr. Femi Jolaoso is dated the 31/12/2009 and filed the same day. It is however deemed filed the 07/06/2010. The Respondent’s Brief settled by Gboyega Adaramola Esq. for Hon. Attorney General of Ekiti State, dated the 04/6/2010 and filed 07/6/2010. The Appellant also filed a Reply Brief dated the 16/9/2010 and deemed filed the 21/10/2010.
At the hearing of the Appeal on the 7th of February, 2011, both Counsel adopted their respective briefs of argument. From the Grounds of appeal as contained in the Amended Notice of Appeal dated the 13/8/2009 and deemed filed the 14/10/2009, the Appellant distilled four (4) issues for determination as follows:
1. Whether it was proper for the Trial Court to have held that by the evidence of identification before the Court, or as available on Record, the Appellant was properly and rightly identified beyond reasonable doubt by the prosecution witnesses, as to dispense with any necessity to conduct identification parade and, or rely on the evidence of alibi promptly set up by the Accused persons. (GROUND 1)
2. Whether the prosecution had fully discharged its burden and, or duty to properly and fully investigate the defense of alibi promptly and fully set-up by, the Appellant, coupled with the detail (sic) particulars laid, or established. (GROUND 2).
3. Whether from the totality of the evidence before the Trial Court as adduced by prosecution witnesses, the Evidence of P.W.1 and P.W.2 is tainted by the hitherto existent malice between the family of the alleged victims of the armed Robbery and the 1st Accused/Appellant since 1994 till date of the alleged offence herein.
(GROUNDS 3 AND 4)
4. Whether from the totality of the evidence before the Trial Court, the prosecution had fully proved beyond reasonable doubt the essential and indispensable ingredients of the offences of conspiracy to commit Armed Robbery and principal offence of Armed Robbery as alleged or charged. (GROUNDS 5 AND 6)
The Respondents on their part also identified four (4) issues for the determination of this Court. These are:
(a) Whether from the available evidence on record, identification parade is still necessary to ascertain the visual identification of the Appellant by the witnesses, especially P.W. 1 and 2.
(b) Whether the prosecution had fully discharged its burden on the defense of alibi as set up by the Appellants.
(c) Whether the evidence of the witnesses especially P.W.1 and 2 is based on alleged malice between the victims and the 1st Appellant.
(d) Whether the prosecution had proved the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt to ground conviction of the Appellant.
I have carefully read and soberly reflected on the grounds of appeal and the issues distilled therefrom by the parties. A sober consideration of the issues as formulated by the parties would show that they are similar in substance. In that respect, I shall adopt the issues as formulated by the Appellant in my determination of this appeal. However I shall begin by considering the second (2nd) issue as formulated by the Appellant. That issue is:
Whether the prosecution had fully discharge its burden and, or duty to properly and fully investigate the defense of alibi promptly and fully set up by the Appellant, coupled with the detail (sic) particulars laid, or established
Arguing this issue, Dr. Femi Jolaoso of learned counsel for the Appellant had contended that, it is settled law that when the defense of alibi has been properly raised by the Accused person, by discharging the evidential burden incumbent on him by giving the particulars of the other place he was at the time when the crime was committed and of persons who can testify to his being there at the time, the duty and, or burden to investigate and disprove the alibi at the trial shifts unto the police or the prosecution. That once the alibi is duly raised and the evidential burden discharged, the accused person has no duty to prove the alibi, as the onus is on the prosecution to disprove the alibi. The cases of ABUDU V THE STATE (1985) 1 S.C 222; OKOSI v. THE STATE (1989) 2 SC. (Pt.1) P.126 AT P.135; NDUKWE v. THE STATE (2009) 2-3 SC. (Pt.II) P.35 and ANI v. The STATE (2009) ALL FWLR (Pt.482) P.1044 at P.1055 among others were cited in support. Learned counsel further ,quoted profusely from the dicta of the Supreme Court in ESANGBEDO V. THE STATE (1987) 7 SC (Pt.1) P.36 at PP.45 – 46 per Nnaemeka, Agu, JSC; OGOALA v. THE STATE (1991) 3 SC P.80 at PP.84 – 85 per Nnaemeka J.S.C; and AZEEZ v. THE STATE (2006) ALL FWLR (Pt.337) P. 485 at 495 per Abdullahi, JCA, to submit that the secondary burden of proof of alibi is on the accused person while the onus is on the police or the prosecution to investigate:
Learned counsel referred copiously to the statement of the Appellant’s co-accused which was admitted in evidence as exhibit “A”, at pages 1 – 2 of the Supplementary Record filed on 13/10/2009 and his testimony in Court which is at pages 40 – 43 of the Record of Appeal.
He also reproduced the statement of the Appellant which is in evidence as exhibit “C” and his oral testimony in Court at pages 44 – 46 of the Record of Appeal. He further made reference to the statement of Mrs. Alake Yemisi Ogunsakin, which was admitted in evidence as exhibit “B” and contained in the Supplementary Record of Appeal, and her oral testimony in Court, to submit that the Appellant had promptly raised the defense of alibi with detailed particulars of the defense. That a patent and latent perusal of the statements of the Appellant and that of his co-accused (exhibits “A” and “C”) show lucidly and in great detail that:
(a) The two accused persons were not at the scene of the crime.
(b) The accused persons raised at the earliest opportunity the defense of alibi.
(c) The two accused persons told the police, their whereabouts on the day of the incident.
(d) The two accused persons gave the name of the person they slept with on the night of 15/8/2003 to 16/8/2003, as Mrs. Oluyemisi Alake Ogunsakin.
(e) The two accused persons gave the police the name of the town they were as Emure and the description to the place of the said Mrs. Oluyemisi Alake Ogunsakin as “The back of the High Court of Justice at Emure-Ekiti.
(f) From exhibit “B” which is the statement of Mrs. Yemi Ogunsakin obtained by the police officers who investigated the case and obtained the statements of the Appellant, his co-accused and that of Mrs. Yemi Alake Ogunsakin did not interview or interrogate the said Yemi as regards the defense of alibi on the 15/8/2003 to 16/8/2003, rather, they chose to irrelevant date to the charge before the Court.
That contrary to the holding of the learned trial judge at P.41 of the judgment, in answer to issue 6 formulated by the learned trial judge, the alibi of the Appellant was neither investigated nor disproved. Learned counsel relied heavily on the decision of this Court, Ilorin Division, in the cases of AZEEZ AND ORS V. THE STATE (2006) ALL FWLR (Pt.337) P.485 AT P.496 per Abdullahi, JCA which was affirmed by the Supreme Court in THE STATE V. AZEEZ AND ORS (2008) 4 SC. P.188 Per Muhammed, JSC at PP.215-126, to further submit that, from the statements of the Appellant and his co-accused (exhibits “A” and “C”) and that of the D.W 3 (exhibit “B”), and their oral testimonies in Court the police had the burden to investigate the defense of alibi raised, but that that was never done. That the police did not investigate the facts, persons and particulars proffered by the Appellant as consisting the alibi raised.
It is therefore the submission of learned counsel for the Appellant that, failure of the prosecution to investigate the alibi promptly raised by the Appellant, who had discharged the evidential burden reposed on him, by law, is fatal to the prosecution’s case, and that the trial Court, ought not to have convicted him. That, this Court therefore has the, power to quash the conviction and sentence passed on the Appellant. The cases of YANOR V. THE STATE (1965) N.M.L.R. P.341 AT P.342; BOZIN V. THE STATE (1985) 7 SC (PT.1) P.450 AT P.472; OKOSI V. THE STATE (1989) 2 SC (PT.1) P.126 AT P.135; and AZEEZ V. THE STATE (2006) ALL FWLR (Pt.337) P.485 AT PP.498-499 were cited in support.
It is also the submission of Dr. Jolaoso of learned counsel for the Appellant that, the trial Court was wrong in law to have held that he disbelieved the testimony of D.W.3 that the police asked her only about the 9/8/2003 which is not relevant to the date of the incident. That it is the trite law that the evidence between D.W.3 and the P.W.8 remain oath against oath and that in the absence of ,any independent evidence to corroborate either of the evidence of P.W.8 or D.W,3, the trial Court ought to have resolved the conflict in the two pieces of evidence in favour of the Appellant. He cited in support the case of SAMSON v. UZOKA v. THE STATE (1990) 6 NWLR (Pt.159) P.680 at P.686 per Akpabio, J.C.A. That in any case, a patent look at the statement obtained from D.W.3 was solely an answer or a response to a question from P.W.8 to D.W.3 concerning the 9/8/2003. Learned counsel accordingly urged us to resolve the 2nd issue in favour of the Appellant.
The Respondent’s response on this issue is contained in pages 9 – 10 (paragraphs 4.02 to 4.08) of the Respondent’s Brief of Argument filed on the 07/6/2010. Therein, learned counsel for the Respondent contended that, there is no iota of evidence that shows that the Appellant slept in the D.W 3’s house in the night of 15/8/2003 to 16/8/2003. Deducing from the testimony of the D.W.3 before the trial Court on the 28/9/2006, learned counsel further contended that, there is absolutely nothing that signifies that the Appellant did not sneak out of their shop in the depth of the night of 15/8/2003 to commit the crime and came back to their shop to cover his track.
Learned counsel for the Respondent went on to submit that, the defense of alibi is a radical one, which simply means that, the accused was somewhere else at the material time an offense was committed and could not possibly be at the scene of the crime to partake in it. That, it is a matter within the knowledge of the accused person and is therefore required to furnish the police with the particulars of that defense. The case of ALMU V STATE (2009) 4 W.R.W. P.1 was cited in support.
That the Appellant in the instant case has not fully complied with that condition, yet the police investigated the defense with its scanty particulars and found same to be baseless in law. That the prosecution was therefore able to demolish the defense of alibi raised by the Appellant through the testimonies of P.W.1 and P.W.2 which fixed and pinned the Appellant to the scene of the crime. The case of OMOTOLA v. STATE (2009) 28 WRW, P.1 was also cited in support. It is therefore, the submission of learned counsel for the Respondent that, the trial Court rightly and correctly applied the principle in its conclusion on the matter because; if the alibi had been true it would have been open to the Appellant to call witnesses beside D.W.3 in support of his defence. The Respondent accordingly urged us to resolve this issue in its favour.
The Appellant filed a Reply Brief to the Respondent’s Brief of Argument. I have carefully, perused the contents of the Reply Brief in the con of the purpose and intent or requirement of a Reply Brief on this issue. Order 17, Rule 5 of the Court of Appeal Rules, 2007 stipulates that:
“The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s Brief’.
It can be seen above therefore that the function of a reply brief is to reply to new point or points of law raised in the Respondent’s brief. It is not meant to either emphasize or repeat what is contained in the Appellant’s brief of argument. Accordingly, a reply brief that does not deal with any new point arising from the Respondent’s brief is unnecessary as it is not within the contemplation of Order 17 Rule 5 of the Rules of this Court (Supra). See OKPALA AND ANOR V IBEME AND ORS (1989) 2 NWLR (PT.102) P.208; OKENIRA V MILITARY GOVERNOR; IMO STATE AND ORS (1990) 5 N.W.L.R (Pt. 152) P.594; NWALI V. THAT STATE (1991) 3 NWLR (PT.182) PT.663; EZEKWESILI V. ONWUAGBU (1998) 3 NWLR (PT.541) P.217 PER TOBI, JCA (as he then was) and CHUKWUOGOR V. A.G., CROSS RIVERS STATE (1998) 1 NWLR (PT.534) P.375.
In the instant appeal, it would be seen that, the Appellant reargued the issue of alibi at page 20, paragraphs 3.01 (iii), (iv) and 3.02 (iii) of the said Reply Brief. He did not allude to any new point of law raised by the Respondent’s Brief on the issue of alibi. In that respect, I am of the view and do hold that those arguments are irrelevant and are hereby discountenanced.
Before I proceed to determine on this issue, I wish to point out that the offence of armed robbery is a very heinous crime and accordingly the law in this country prescribes the ultimate penalty on a person convicted for committing same. In other words, a conviction thereon involves taking away of human life. Consequently, trial Courts have been enjoined to exercise utmost judicial care and caution before convicting thereon. Thus, a trial Court should not convict thereon, until all the ingredients of the offence have been clearly established beyond reasonable doubt. See TANKO V THE STATE (2008) 16 N.W.L.R (Pt. 1114) P.597 and BELLO V THE STATE (2007) 10 N.W.L.R (Pt.1043) P.564. In the instant case, the evidence led at the trial before the lower court by the prosecution is that the P.W.1 and P.W,2 were robbed in the dead of the night of 15/8/2003 by robbers who were armed with guns. That in the process, the P.W.2 was shot and wounded in the leg, while one Bisiriyu who was also shot died a few days later in the hospital, That the P.W.1 and P.W.2 identified the Appellant and one Popoola Rasaki as the robbers who attacked them that night. The Appellant and his co-accused denied participating in the alleged robbery and stated in their statements to the police which are in evidence as exhibits “A” and “C” and in their testimony before the lower court that they spent the night of 15/8/2003 with one Mrs. Alake, a sister to the said popoola Rasaki at Emure-Ekiti. By that fact, they had raised the defense of alibi.
In the instant case, the incident leading to the arrest and subsequent trial and conviction of the Appellant for committing the offence took place in the midnight of the 15/8/2003. The Appellant was arrested in connection to the said offense about 15 days later, which is the 01/09/2003. He then made a statement to the police on the same day he was arrested in the Yoruba language. The Investigating Police Officer (I.P.O) who testified as the P.W.8 told the Court that the Appellant made a voluntary statement in Yoruba language. That statement is in evidence as exhibit “C”. However the statement being in yoruba language, it is a language foreign to this Court and though it is in evidence, it is of no evidential value to the Court, save where it is translated. Learned counsel for the Appellant gave a translation of the said statement at page 35 of the Appellant’s Brief of Argument.
However, such translation is not in evidence. For such translation to be of any evidential value, it ought to have been tendered, tested and properly admitted as evidence at the trial. Where such is not done, the translation given by the counsel in the brief of argument cannot take the place of such evidence which was never tendered and admitted at the trial. The end result is that this Court has not been afforded the opportunity of knowing the content of the statement the Appellant made to Police immediately he was arrested. This Court cannot therefore speculate on the content of such a statement. The only conclusion, sadly though, I have arrived at is that there is no evidence on the record to show that the Appellant timely raised the defense of alibi upon his arrest. The Supreme Court however, held in the case of FATAI OLAYINKA v. THE STATE (2007) 2 NCC, P505 at P.520 Paragraphs A – C that, the statement of an accused person made to the police if not confessional, is the very foundation of his defense. That the prosecution has a duty to make the said statement available to the Court, as the accused person might have raised his defense or defenses thereon and the Court would have had the opportunity to examine such a statement.
That in the absence of that statement or statements, an Appellant cannot be held to have had a fair trial guaranteed him under the constitution. In the instant case, it is not the case of the prosecution that the Appellant did not make any statement to the police upon his arrest. Indeed, the P.W.8 who is the investigating Police Officer stated in his testimony at the trial that the Appellant was interrogated after his arrest and that he volunteered a statement in the Yoruba language after the word of caution had been administered to him. The practice I am aware of in this country is that, where an accused person makes a statement in a language other than the English language, the recorder of such a statement has a duty to translate same into the English language. That was not done in the instant case. Sadly also, the record of appeal does not show that counsel who represented the Appellant at the trial Court raised the issue. I am of the view that the Appellant was entitled to have the full facts, including the statement he made to the police, presented before the Court, so that the Court could consider all possible defenses available to the Appellant. Where such is not done, the Appellant cannot be said to have had a fair trial or hearing.
From the above stated findings, I am of the view that it would not accord with the principle of fair hearing guaranteed to the Appellant by the constitution for, the Court to shut its eye to the defense raised by the Appellant especially when there is no evidence on the record to show whether or not if any defense was raised by the Appellant in the statement he made to the police and which is in evidence as exhibit “C”.
This is more so as a trial Court is under an obligation or duty to consider all the defenses possible or available to an accused on the available facts on the record. In other words, 3 trial Court is under an obligation to consider such defenses open to an accused person as disclosed or supported by the evidence on the printed record. Such facts as may support the defense may arise from the testimony of the witnesses. See ASAYA V. THE STATE (1991) 3 NWLR (PT.180) P.442 AT P.451 AND NWUZOKE V. THE STATE (1988) 1 NWLR (PT.72) P.529. SEE ALSO UDOFIA V. D.P.P., VOL 10 Digest of Supreme Court Cases P.343.
In the instant case, the Appellant testified before the lower court and stated as follows:
“I was not involved in any robbery on 15/8/2003. On 15/8/03 I was at Emure. In the morning of that day, I went with the 1st accused to Akure to purchase electrical materials. We came back around 5:30 p.m. On our way back, I dropped at Ise to keep the electrical wires at Ise while the 1st accused proceeded to Emure. I later joined him at Emure. On that day, we slept together at Emure where our office is. I know the 1st accused very well, he was arrested on 17/8/03 for this offence. I was with him at our office at Emure when he was arrested. I was not arrested with him on that day. I was not arrested by the police, but when I went to visit the 1st accused on the 1/9/2003”.
He went on to state that he was arrested and charged for the same Offence with the co-accused upon a petition written by Alhaji Musa Sunmonu whose house was said to have been attacked by the robbers because he tried to secure bail for the said co-accused.
The co-accused who was the 1st accused at the trial Court also made a statement to the police immediately he was arrested on the 17/8/2003. The statement which is dated the 18/8/2003 is in evidence as exhibit “A” as contained in the supplementary Record of Appeal. Therein he stated as follows:
“On 14th August, 2003, I was at Emure-Ekiti with one of my sisters by name Alake Ogunsakin “F”, receiving treatment for the ulcer and malaria fever that affected me. My sister is a nurse by profession; she is attached to Health Centre, Emure-Ekiti. I left Emure for Akure on 15/8/03 in the morning to buy 16 mm electric wire as a service wire and returned around 5:00 p.m. to Emure. One Waheed Popoola, one of my younger brothers was equally with me at Emure-Ekiti, he was the one that brought the wire I bought at Akure to Ise-Ekiti. My sister being a nurse treated me at home. Her Emure home is at the back of Emure High Court. I was at Emure-Ekiti on Saturday being 16/8/03. I left Emure-Ekiti around 5:00 p.m. for Ise-Ekiti.
In his testimony during the trial, he stated thus:
On the 16th August, 2003, I was at Ise in our house. I told the police that I was with my Manager the 2nd accused person and my sister, one Alake at Emure where I slept on the night of the incident. Police did not take me to the one Alake… The three of us slept in the same room at Emure on the night of the incident.”
Those pieces of evidence tend to suggest that the Appellant was not at Ise where the robbery took place, but at Emure-Ekiti where, he spent the night in the room of one Mrs. Yemi Alake Ogunsakin a Sister to his co-accused, on the night of the 15/8/03.
As I stated earlier, and on the authorities cited there in, a trial Court has the duty to consider all the defenses available to an accused person on the available record, whether or not such a defense has been raised specifically by the accused. That is more so where the accused has raised the defense. The Appellant in the instant case had testified to the effect that he spent the night of the 15/8/03 together with his co-accused in the house of one Mrs. Yemi Alake Ogunsakin. The co-accused gave evidence which tend to corroborate the testimony of the Appellant. The said Mrs. Ogunsakin was called as a witness by the Appellant and she said:
“I live at Oke Amire, Emure-Ekiti. I know the two accused persons. The 1st accused is my senior brother while the second accused is his Manager. They have a branch of a dry-cleaning outfit where I live.
On 14/8/2003, they both came around our house in the evening, when they came they were doing the dry cleaning job. They were in the shop in the night and they slept there.
On 15/8/03 they went to Akure to buy electrical wire to be used at Ise, they carne back in the afternoon of that day.
They were at home in the night of 15/8/03 doing their job.”
She went on to state that she was in the market when two people met her and asked her whether she knew the two accused persons and whether she saw them on the 09/8/2003 which she answered in the affirmative. That she was not asked about the 14th or 15th of August, 2003. That she reduced her statement into writing which they took away.
The statement is in evidence as “exhibit “B”. It is on those facts that the learned trial judge held at page 100 of the record (P.41 of the judgment) as follows:
“The evidence of the prosecution as to the investigation of the alibi raised by the accused persons is more plausible than the one offered by the defense. I disbelieve the which is not relevant to this case or date of the incident. I believe the evidence of the prosecution witnesses that police went to D.w.3 to check the alibi raised by the accused persons and that the outcome of their investigation was exhibit “B”… ”
It is now settled law that it is not enough for a judge to state that he either believes or disbelieves a witness or witnesses. He must go further to state the basis of his belief or disbelief. In other words, he must support same with the facts as contained on the printed record. See BOZIN V THE STATE (1998) A.C.L.R P.1. In the instant case, the disbelief of the learned trial judge is not supported by the record. The D.W.3 stated clearly that she was only asked about the date of 9/8/2003 and that she reduced her answer into writing. It is in evidence as exhibit “B” Therein she stated that:
“I was at Emure on the 9/8/2002 when Mr Rasaki came to say hello to me, and went back again to Ise-Ekiti.”
By the tenor of the said statement, it is clear that the witness was answering a question with respect to the 9/8/02, She had explained in her testimony and under cross-examination that the police did not ask her about the 14th and 15th of August, 2003. The P.W.8 stated in his testimony at the lower court that the D.W.3 made a statement denying that the 1st accused was with her on the day of the incident. The said statement (exhibit “B”) was then tendered and admitted through him.
However, the said exhibit contradicts what the P.W.8 said in that no reference was made to the 15/8/03, which is the date of the incident, in the said exhibit “B”. That exhibit therefore supports the testimony of the D.W.3. Furthermore, as shown on the record, the only thing the police did as regards the alibi raised by the Appellant’s co-accused was to question the D.W.3 whether the said co-accused was with her on the 9/8/03 which is a date irrelevant to the date the offence was alleged to have been committed.
The record also shows that, the Appellant had stated clearly in his testimony before the Court and which evidence is corroborated by his co-accused that he was with the co-accused when the co-accused was arrested by the police on the 17/8/2003. He also stated that he then followed them to the Police Station on a motor cycle and that he was visiting his co-accused at the Police Station daily to provide him with food. That he also tried to secure bail to the co-accused which infuriated Alhaji Musa Sunmonu whose house was attacked by the robbers, and he wrote a petition against him because he wanted to help the co-accused.
That it was the police who told him of the petition against him by Alhaji Sunmonu and that he was being arrested based on that petition. It was then that he was arrested on the 01/09/2003, fifteen days after the incident. This piece of evidence was not challenged at all during cross-examination.
The evidence on the record shows that the co-accused corroborated this story of the Appellant. He had testified that on the 15th day of his arrest, and in custody, the police called the Appellant and asked him to go and arrange for his bail. That when the Appellant left the police showed him a petition written by Mr. Akanle, S.A.N on behalf of the complainant. The learned trial judge closed his eyes to these pieces of evidence and preferred the testimony of the prosecution. It should be noted that the Investigating Police Officer who testified as the P.W.8 only stated that he visited the scene of crime and that it was at the scene of crime that one of the witnesses mentioned the Appellant as one of the culprits in the robbery incident. He did not however disclose when he visited the scene of crime, when he arrested the Appellant and where he arrested him. The Appellant was not contradicted during the cross examination, yet the learned trial judge did not consider those vital facts given by the Appellant and the defense witnesses. The end result is that the learned trial judge did not consider the defense of the Appellant.
Failure of the trial Court to consider those defenses of the Appellant could be fatal to the prosecution’s case in the absence of any other credible and cogent evidence fixing the Appellant to the scene of crime.
This now brings me to issue No: 1 which is:
Whether it was proper for the Trial Court to have held that by the evidence of identification before the Court, or as available on Record, the Appellant was properly and rightly identified beyond reasonable doubt by the prosecution witnesses, as to dispense with any necessity to conduct identification parade and, or rely on evidence of alibi promptly set up by the Accused persons.
Dr. Jolaoso of learned counsel for the Appellant contended that the prosecution’s case was simply that some persons whom the p.W.1 and P.W.2 identified as the Appellant and his co-accused robbed them on the night of the 15/8/2003 at about 11:55 p.m. He then reproduced the testimony of the P.W.1, P.W.2, the 1st Accused (D.W.1), the D.W.3 and that of the Appellant to further contend that contrary to the findings and holdings of the trial Court, it is discernable from the record that there is a material contradiction, conflict and, or apparent inconsistencies in the evidence of P.W.1 and P.W.2 in that, while P.VV.1 stated that the accused persons pushed down her husband with a torchlight and he fell down and has not recovered since that day, the P.W.2 stated that the 1st Accused pushed the deceased with the bud of a gun. That while the P.W.1 stated that she was able to recognize the faces of the accused persons when her husband put torchlight on their faces, the P.W.2 said the Accused persons were carrying a chargeable lamp and a torchlight and that the place was “light like an afternoon.” That while the P.W1 said that she was able to see the accused persons clearly and her husband shouted to 1st Accused “Rasaki you are killing your young ones”, the P.W.2 stated that his father shouted “Rasaki you are beating your junior brother like this, please, as they are the one taking care of me”. That while the P.W.1 stated that it was when her children came back to see what has happened to her that the Accused persons shot at them, the P.W.2 stated that, immediately the 1st Accused person saw him he started shooting at him. Learned counsel then submitted that the trial judge did not consider those contradictions or conflicts in the testimonies of those two prosecution witnesses before jumping into the erroneous or wrong conclusion that there was no conflict and that the variation in their testimonies is not such as to create substantial discrepancy so as to create doubts in law.
Learned counsel for the Appellant went on to submit that before a trial Court can attach credibility and probative value to evidence of a witness who has shown before the Court that prior to the incident or crime alleged, he had known the accused, he must disclose the name of the suspect, the dress he wore at the time of the incident and what transpired between him and the suspect. That those facts must be disclosed to the police at the earliest opportunity as the only way the prosecution can prove beyond reasonable doubt the existence of such facts of recognition, is by tendering the statement made by the witness to the police at the earliest opportunity which shall be considered alongside the oral testimony of the witness in Court. Learned counsel cited and quoted profusely from the cases of R Vs TURNBULL (1976) C.A.R. P.132; IKE, V THE STATE (1985) N.S. C.C (Pt.1) P.561 at P.572; BOZIN v. THE STATE (1985) 1 SC (pt.1) P.450 at P.483; ABDULLAHI v. THE STATE (2008) 5 – 6 S.C. (pt.1) P.1 at Paragraphs 11-12 to support his submission.
Based on those authorities, learned counsel for the Appellant submitted that the statements the P,W.1 and P.W.2 made to the police were never put in evidence at the trial, and that there was no way the trial judge would have found the identification of the accused persons to have been proved beyond reasonable doubt, That in the absence of any identification parade, the prosecution owed it a duty to have placed the statements of P,W.1 and P.W.2 side by side with their oral testimonies.
He also relied on the cases of OMOGODO V THE STATE (1979) – (1981) 12 N.S.C.C., P.119; OPAYEMI v. THE STATE (1985) 16 NSCC (Pt.11) P.919 at paragraph 929 – 932; ONAH v. THE STATE (1985) 16 NSCC (Pt.II) P.1361; THE STATE v. NNOLIM (1994) 6 SCNJ, P.48 at P.59 and STATE v. AZEEZ (2008) 4 SC, P.188 at Paragraphs 237 and 257, to further submit that P.W.1 and P.W.2 are material or vital witnesses, whose evidence can afford the opportunity to determine whether or not, the accused person (Appellant) was identified or recognized by those witnesses. That as such their statements made to the police ought to have been tendered, but were never tendered during the proceedings. He therefore submitted that failure of the prosecution to tender in evidence the statements the two witnesses made to the police if fatal to the case of the prosecution, as there is the presumption of law that such evidence which could be and is not produced would, if produced, be unfavourable to the prosecution who withheld same. He accordingly urged us to invoke Section 149(d) of the Evidence Act, Cap E.14 Laws of the Federation, 2004 against the Respondent. The cases of OKUNZUA v. AMOSU (1992) against the Respondent. The cases of OKUNZUA v. AMOSU (1992) 7 SCNJ P.123 at paragraphs 261-262 and OGUONZEE v. THE STATE (1998) 4 SCNJ P.226 at Paragraphs 251 – 252 were cited in support. Learned counsel then urged us to hold on the authority of OPAYEMI v. THE STATE (Supra) at P.921; ISAH v. THE STATE (2008) 4 – 5 SC (Pt.11) P.176 at Paragraph 183 – 185; and THE STATE v. AZEEZ (2008) 4 SC P.188 at P.252, that failure of the prosecution to tender in evidence the statements of P.W.1 and P.W.2 given to the police at the earliest opportunity of the incident is fatal to the prosecution’s case. That failure of the police to arrest the 2nd accused (Appellant) who was seen with the 1st Accused when arresting the 1st accused, show clearly that there was no complaint against him or that he was never mentioned by the P.W.1 and P.W.2 to the police. It is also his submission that it shows that the Appellant was only arrested and implicated with the robbery offence because of his assistance in trying to secure the release on bail of the 1st Accused.
It is the submission of learned counsel for the Appellant therefore that, it is settled law that, whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused, which the defense alleges to be incorrect or mistaken, the trial judge should warn himself of the danger of relying on such challenged identification, or of the special need for caution before convicting in reliance on the correctness or otherwise of such identification evidence, the cases of UKPABI V. THE STATE (2004) ALL FWLR (PT.218) P.814 AT P.820; EBRI V. THE STATE (2004) ALL FWLR (PT.216) P.420 AT P.437; ABUDU V. THE STATE (1985) 1 SC. P.222 AT P.242 AND ARCHIBONG V. THE STATE (2006) 5 SC (PT.III) P.1 AT P.8. It is also the submission of learned counsel for appellant that it is not in doubt that the conviction of the Appellant by the learned trial judge was based wholly on the purported identification or recognition of the Appellant by P.W.1 and P.W.2. That it is also not in dispute that the purported identification was what the trial Court relied upon in rejecting the defense of alibi promptly and regularly put up by the Appellant. That accordingly the conviction of the Appellant on such improper and irregular identification or reliance on same by the trial Court to fix the Appellant at the scene of crime and then convicting him thereon has resulted in a miscarriage of justice to the Appellant. That since there is doubt on the evidence of identification of the Appellant, such doubt must be resolved in favour of the Appellant. The cases of BOZIN V THE STATE (supra) at paragraph 489 – 490; Ifeanyichukwu v. THE STATE (1996) 9 – 10 SCNJ p.18 at P.33; IBE v. THE STATE (1997) 1 SCNJ p.256 at P.265 and AZEEZ v. THE STATE (Supra) at P.498 were cited in support.
Learned counsel for the Respondent contended in response, that the above arguments of the Appellant are greatly misplaced. That it will be superfluous to conduct an identification parade in the instant case in view of the cogent and uncontradicted evidence before the trial Court.
That on the decisions in the cases of AMOSHIMA v. THE STATE (2009) 32 WRN P. 49 at paragraphs 53 and 68 lines 5 – 20, and BALOGUN v. A.G. OGUN STATE (2002) 19 WRN P1, and identification parade is basically conducted to enable an eye-witness to the commission of a crime, who never knew the accused before, but had some degree of encounter with such person during the commission of the crime or at the scene of the crime charged, to pick him out from amongst other people in a line up. That from the record, it is established beyond doubt that PW.1 and PW.2 and the Appellant had know each other for a very long time and the Appellant was adequately recognized and identified at the scene of the crime, which competently rendered identification parade unnecessary.
It is further submitted by learned counsel for the respondent that, to ascertain and to ascribe any value to the evidence of an eye-witness identification of a criminal, the courts in guarding against cases of mistaken identity consider the following factors:
(a) Circumstances in which the eye-witness saw the suspect or defendant.
(b) The length of time the witness saw the defendant.
(c) The lighting conditions.
(d) The opportunity of close observation; and
(e) The previous contacts between the two parties
Learned counsel relied further on the case of AMOSHIMA V THE STATE (Supra) at p.67 lines 15 – 30 to submit that the above stated issues were carefully and holistically considered by the trial judge before he arrived at his decision, as those issues were well established by the prosecution witnesses.
On the issue of contradictions raised in the arguments of the Appellant, learned counsel for the Respondent, contended that no such contradictions can be identified from the testimony of the witnesses and that if such exists, it is not material. The case of DOMINIC PRICET & ORS v. THE STATE (2003) 7 WRN P.54 was relied on. That the argument of learned counsel for the Appellant at pages 10 – 11 of the Appellant’s Brief, especially on the lighting condition of the scene of crime is rootless because, a careful perusal of the evidence of PW.1. and PW2 reveal that they were referring to different stages of the operation which does not amount to contradictions as to case doubt on the lighting condition of the scene, which paved way for the recognition of the appellant. That in law, for a contradiction or discrepancy in the evidence if witnesses, for the prosecution to be fatal to the prosecution’s case, the conflict or contradiction must be substantial to the main issue in question before the trial court and that until that is so, the accused is not entitled to any benefit of doubt. The cases of AKPOVETA v. THE STATE (2008) 9 WRN P.75 at P.103 lines 25-30 and MUSA v. THE STATE (2009) 51 WRN P1. at paragraph 6-7 were cited in support.
On the failure of the prosecution to tender in evidence the statements of P.W.1 and P.W.2, learned counsel for the Respondent submitted that, Section 149(d) of the Evidence Act is merely declaratory and not mandatory, hence not indispensable, That the provision if read in conjunction with Section 4(1) of the Evidence Act will show that the Court: has some measure of discretion to exercise as far as the issue of presumption is concerned, especially so, as the operative word in the provision is “May”. Learned counsel then submitted that the discretionary power of the trial Court was judicially and judiciously exercised in this case.
The Appellant filed a Reply Brief in answer to the Respondent’s arguments in his Brief of Argument. Therein he submitted that, contrary to the contention of learned counsel for the Respondent, when Section 149(d) of the Evidence Act is read along with Section 4(1) of the said Act, the Court has no discretion but to regard such fact as proved. That by Section 4(2) of the Evidence Act, every presumption of fact by Court is mandatory and not directory, or permissible. It is therefore his submission that, the word “may” when used in a statute does not necessarily mean optional, discretional or permissible, but it is settled law that the way and, manner of interpreting or constructing it depends wholly on the intent of the law makers, or the object of the statute which the word “May” is used, and whether it confers on persons or authority to whom it is directed a duty to do certain right or power. Learned counsel then devoted 14 pages of his Reply Brief on the constitution of the word “May” when used in a statute. In the process he reproduced the definition of the word “May” in Black’s Law Dictionary (9th Edition), 2009 At P.1068; Advanced Law Lexicon; The Encyclopedia Law Dictionary with Legal Maxims, Latin Terms and Words and Phrases (3rd Edition) 2009, Book 3 at P.2947, to submit that, when the word is used in a statute, it is construed in an imperative or mandatory sense when the lawmaker imposes a positive duty, where a public- duty is involved; where a right is given or duty imposed; or where a matter of public policy is involved; where the statute directs the doing of a thing for the sake of justice or the public duty, or it confers a power on a public officer for public purposes or for the purpose of enforcing a right, but not to create one. That in that sense, the word “May” should be construed as meaning “shall” or “must”. The cases of JULIUS V. LORD BISHOP OF OXFORD (1990) 5 A.C, p.214; RE SHUTER (1960) 1 Q.B. P.142; UDE V. NWARA (1993) 2 SCNJ, P.47 AT P.62; DAN MUSA V. PANATRADE (1993) 7 SCNJ P.100 AT P.110; ERASTUS OBIOHA V. IYIBO KIO DAFE (1994) 2 NWLR (PT.325) P.157; ADESOLA V. ABIDOYE (1999) 12 SCNJ, P.61, among others were cited in support.
Based on the above cited authorities, learned counsel for the Appellant contended that by the word “May” as used in the main provision of Section 149 of the Evidence Act, the trial Court had no discretion, but was under a duty or obligation to make the presumption in favour of the Appellant. That as the trial Court failed in its mandatory duty to make the presumption; this Court is in a good position to exercise such mandatory duty by invoking Section 149(d) of the Evidence Act against the respondent. He cited in support the cases of IDOK v. THE STATE (2008) ALL FWLR (PT.421) P.797; ABUBAKAR V. WASIRI (2008) ALL FWLR (PT.436) P.2025 AND ABUBAKAR V. JOSEPH (2008) ALL FWLR (PT.432) P.1065.
Now, I begin the resolution of this issue by stating that the Appellant was not arrested at the scene of crime. Indeed he was arrested about 15 days after the crime was said to have been committed. He has denied participating in the robbery and gave evidence to that effect which is supported by the testimonies of the D.W.1 and D.W.3. The P.W.1 and P.W.2 stated in their oral testimony at the trial Court that they recognized the Appellant as one the robbers that attacked them in the night of 15/8/2003. The identity of the Appellant as a participant in the robbery charged has thereby been put in issue. It is pertinent to point out here that the evidence against him is that of eyewitnesses who said they have known him for a very long time and that they recognized him as a participant in the offence charged. The evidence of identification is therefore that of recognition.
The question, whether an accused person was properly identified as a party to the commission of a crime is a matter of fact to be determined by the trial Court on the evidence adduced at the trial for the purpose of such identity. Accordingly, where the case against an accused, such as in the instant case, depends wholly or substantially on the correctness of his identification which he alleges was mistaken, the Court has a bounden duty to closely examine the evidence, The Court must therefore cautiously examine the evidence led thereon, so that if there are weaknesses discovered in such evidence which creates doubt in the mind of the Court, it must be resolved in favour of the accused.
This is because the purpose of such identification evidence is to show that the accused person is the same person who was seen committing the offence. Where the victim did not know the accused person before or prior to the date of the incident, and was confronted for a very short time in the course of the commission of the offence and in which time he might not have had full opportunity of observing the features of the accused, an identification parade will be necessary. Identification parade will therefore not be necessary where a witness or victim knew the culprit or accused well prior to the incident and gave his name. In other words, an identification parade is not necessary where the witness or victim claims to have recognized a person he knows as the offender or the person who committed the crime alleged. See EBENEHI V. STATE (2008) 10 NWLR (PT.1096) P.596; AGBI V. OGBEH (2005) 8 NWLR (PT.926) P.40; TANKO V. STATE (2008) 16 NWLR (PT.114) P.591; NDUKWE V. THE STATE (2009) 7 NWLR (PT.1139) P.43 AND NDIDI V. THE STATE (2007) 13 NWLR (PT.1052) P.653.
The law is that, where the identity of an accused person is in issue, a trial Court is enjoined to warn itself and meticulously examine the evidence adduced to see whether there are any weaknesses capable of endangering or rendering worthless any allegation that the accused was sufficiently identified or recognized by the witness or witnesses at the time of commission of the offence charged as a participant. This requirement is more desirable in situations where the offence of armed robbery is alleged, where the penalty is the highest known to our law; which is death, Thus, even where the evidence of identity is that of recognition, a trial judge must warn himself and carefully examine the evidence led at the trial to see whether there are such weaknesses capable of rendering worthless or creating doubt in the contention that he accused was sufficiently recognized by the witness. This is so because mistakes are sometimes made in recognition of close relatives and friends. See NDIDI v. STATE (Supra). In that respect, a trial court must warn itself on the need for caution and carefully weigh such evidence alongside other evidence adduced at the trial before convicting the accused thereon. See ARCHIBONG v. STATE (2006) 5 SC P1 at P.8 TANKO v. STATE (supra) at P.640; AGBI v. OGBEH (Supra) at PP.119 – 120, Paragraph H-C.
Now, since the burden of proof in a criminal proceeding rests on the prosecution, to establish all the ingredients of the offence alleged against the accused beyond reason doubt, they have a duty to lead substantial, cogent and credible evidence which should emanate from a credible source, linking the Appellant to the offence charged.
Where the proof of culpability of the accused is hinged primarily on the identification evidence led by the prosecution, such evidence must take into consideration the description of the accused given to the police immediately or shortly after the commission of the offence. In ascribing probative value to the evidence of identity, the Courts have been warned to guard against mistaken identity. As guide, the Courts have been enjoined to take the following ‘factors’ into Consideration:
(a) The circumstances in which the eye-witness saw the suspect or accused;
(b) The length of time the witness saw the suspect;
(c) The lighting conditions;
(d) The opportunity of close observation
(e) The previous contacts between the suspect and the eye-witness
See AMOSHIMA v. STATE (2009) 32 WRN P.47 at P.56 and NDIDI v. STATE (supra) at P.651 Paragraphs E-H per Aderemi, J.S.C.
In the instant case, the P.W.1 and P.W.2 gave evidence to the effect that the robbery incident took place at about 11:55 p.m. on the 15/8/2003. The P.W.1 stated thus:
“On 15/8/2003 night we were hearing the noise of the door at about 11:55 p.m. When he heard the noise of the door, I came out with the lantern and asked for who is that. I saw that the two accused person have broken the door and gained entrance into the house. They took the lantern from me and started to beat me.
They beat me mercilessly. My children they came back, the accused person shot at them. One of the children was wounded and rut outside the other one was also wounded on the leg. My husbands came and light a torchlight on the, faces of the accused persons and that was, house (sic) I was able to see their faces and I was able to identify them. The accused persons were asking for where is the money of the other time1 where the money is. It was when my children came back to the house to see what has happened to me that the accused persons started to shoot at them. The accused persons were holding rechargeable lamp and torchlight. My husband put touch (sic) light on the faces of the accused persons. I was able to see them clearly and: my husband said to Rasaki “Rasak, you are killing your younger ones”
She stated under cross-examination as follows:
“The matter was reported to the police that night and the police came to our house that night. I told the police that it was the two accused persons who attacked me and killed my son. I mentioned their names to the police in my statement but I don’t know what the police put down”.
She stated further under cross-examination that, when the accused persons were beating her, one of them covered his face with a mask.
The P.W.2 (Mustapha Sunmonu) who is a son to the P.W. 1 sated in his evidence before the Court as follows:
“On the night of 15/8/2003 at about 11:55 p.m., I was hearing the sound of the door, i.e. a sound (sic) on the door. I asked who that is. The sound continued and I ran to the front door. I now started hearing the cry of my mother. They were beating my mother. When the noise subsided I now went to the place to see my mother. When I got there I saw them beating my mother and I was annoyed.
As at that time, the 1st accused person was carrying a torchlight with 3 batteries while the, second accused person was carrying a chargeable lamp, I was also carrying a chargeable tamp. The place was all right like an afternoon.
As soon as the 1st accused person saw me what he said to me was “where is the money of the other time”. He immediately shot at me. He started to beat me; he was using the butt of the gun to beat me on my head and my father who was very had to shout at him “Rasaki, you are beating your junior brother like this, please, as they are the one taking care of me”. He asked the man to shot (sic) up and went to push the man down with the butt of the gun. Then Idowu the second accused person shot my younger brother by the side of his stomach and on his upper thigh (sic) and the boy went and fell down outside.”
He then stated that they took away the sum of N221, 165.00 and went away shooting in the air. That it was one Baba Alhaji that reported the matter to the police as soon as the incident happened that night.
Learned counsel had contended that there are material contradictions in the evidence of identification or recognition of the Appellant and therefore the learned trial judge ought not to have convicted on the basis of such evidence. He highlighted such contradiction at pages 10-11 and 19-20 of the Appellant’s Brief of Argument. The law is that for a contradiction to destroy the credibility of witness, it must be material contradiction in the sense that it is likely to create doubt in the mind of the Court. In other words, a contradiction in the prosecution’s case is fatal only when it goes to the substance of the case, and not when it is of a minor nature. See OMONGA V. STATE (2006) 14 N.W.L.R (Pt.1000) P.532; MAIYAKI V. STATE (2008) 15 N.WL.R. (Pt.1109) P.173; NDUKWE V. STATE (Supra) at Paragraphs 72-73; DAGAYYA V. STATE (Supra) at P.664; AKINDIPE V. STATE (2008) 15 N.W.L.R (Pt.1111) P.560 and ISMAIL V. STATE (2008) 15 N.W.L.R (Pt.593).
In the instant case and as Poll out earlier in the course of this judgment, the offence charged was said to have been committed in the midnight of 15/8/2003 and the Appellant, from the evidence on the record was arrested 15 days after the incident. The learned trial judge relied solely on the testimonies of the P.w.1 and P.w.2 in convicting him. The testimonies of the said p.w.1 and P.w.2 on how they were able to recognize the Appellant as one of the culprits to the robbery incident has been reproduced by me. The p.w.1 in her testimony stated that when she came out of her room, holding a lantern, the robbers took it from her and started to beat her. That her children which include the P.W.2 came back from where they had run to, the robbers immediately shot at them on sighting them. That one of his sons was shot and he ran out while P.W.2 was also shot and wounded on the leg. That her husband later came and lighted his torchlight on the faces of the robbers, that is how she was able to see the faces of the robbers whom she recognized as the Appellant and his co-accused. Though she stated that the robbers were holding a rechargeable lamp and torchlight. P.W.1 did not say she was able to recognize them through the light exuded by the lamp. She said it was when her husband lighted their faces that she was able to recognize them. That shows clearly that the scene of the incident was not bright enough for her to have recognized her assailants until when her husband lighted his torchlight. She however stated under cross-examination that one of the accused persons was wearing a mask on his face but she did not mention which of them covered his face with a mask and how she was able, to recognize that other person whose face was covered with a mask.
The P.W.2 gave a completely different picture of the circumstance under which he was able to recognize the suspects, one of who was the Appellant. He said that he was carrying a rechargeable lamp when he got to the scene and that the suspects were also carrying three batteries torchlight and a rechargeable lamp, so the place was as bright as the afternoon, which is just as saying that the place was as bright, as daylight. It is clear from the testimony of the P.W.1 that the P.W.2 and his deceased brother came to the scene before their father. If that is the correct scenario, and the place was as bright as the afternoon, certainly there would have been no need for their father to light his torchlight on the faces of the suspects. There is therefore a serious, substantial and material contradiction between testimonies of P.W.W1 and P.W.2 on the lighting condition of the scene robbery. Again, P.W.2 contradicted the P.W.1 when he stated under cross-examination that when he was the suspects none of them had a mask on his face. Those contradiction in my view, are material and have created a doubts as to whether indeed the P.W.1 and P.W.2 saw the Appellant as on the persons that robbed them on the 15/8/2003. In the absence of any other evidence outside the testimonies of P.W.1 and P.W.2, I will be reluctant to believe the evidence adduced by the prosecution that the Appellant and his co-accused were identified, recognized and or fixed to the scene of rime.
Learned counsel for the Appellant contended that the evidence of identification or recognition of the Appellant by the prosecution witnesses and the manner and basis of his arrest was shrouded or clothed with uncertainties which ought to result in his discharge and acquittal. That the determination of his identification could only be evidence the possible, if and only if the prosecution had tendered in evidence the statement made by the p.w.1 and p w 2, so that the court would be, in position of placing the said statements side by side with the oral testimonies on oath of the P.W.1 and P.W.2. He then submitted that failure of the prosecution to tender in evidence the statements of P.W.1 and p.w.2 made to the police at the earliest opportunity of the incident is fatal to the prosecution’s case. That this court should invoke section 149 (d) of the Evidence Act against the prosecution in that respect. The law is that, it is not necessary for the prosecution to tender the statement made by a witness who is called to testify in the case. This is because such a statement which was made by a witness called by the prosecution, and relates to any matter on which the witness has given evidence, is not evidence of facts contained in it. The only way the defence can put it in evidence is to cross-examine the witness with a view to impeach his credit, and then put the extra-judicial statement in evidence for purpose. Though, it is good practice for the prosecuting counsel whose duty is not to secure conviction, but to see that justice is done, to make such statement available to the defense counsel so that the defence may make use of such statement in their defense, there is no law that compels the prosecution to tender such extra-judicial statement in evidence at the trial. It therefore means that the defense counsel has the responsibility to formally request for the production of the prosecution. The learned defense counsel failed to do so ask for such statements. He cannot now complained and push the blame to the prosecution for the blunder committed by him or for his inadvertence. This court cannot also come to his aid at this stage by invoking the provision of section 149(d) of the Evidence Act against the prosecution. In any case, section 149(d) of the Evidence Act is concerned with withholding evidence and not with failure of a party to call a particular witness or tender a particular document. See Section 199 and 209 of the Evidence Act. See also LAYONU AND ORS V. STATE (2003) 3 A.C.L.R and NDIDI V. STATE (2005) 17 N.W.L.R (Pt.953) P.17. In the instant case, it cannot be said that the prosecution had withheld evidence as to require the invocation of section 149(d) of the Evidence Act against them on the issue of evidence of identification.
I have observed however that the testimony of the prosecution witness 1 and 2 on the issue of identification fell below the requirement of the law. The P.w.1 only stated that she recognized the accused persons when her husband lighted his torchlight on their faces and that her husband called the name of Rasaki during the incident and that, that night she was calling the names of Idowu and Rasaki. That is even when she had stated that one of the robbers covered his face with a mask.
The P.W.2 also said the matter was reported to the police that night by one Baba Alhaji. The P.W.1 and P.W.2 did not therefore report the matter to the police. The P.W.8 who said he investigated the matter only stated that he took statements from the complaint but did not mention who it was and no person gave evidence on the printed record that he was the complaint. He however stated that the complainant confirmed seeing Popoola Adebayo Rasaki on the day of the incident. He did not mention the name of the Appellant. Sadly, from the record, the said P.W.8 did not conclude his evidence as can be seen at pages 19-20 of the record of proceedings and so was never cross-examined.
The P.W.2 also stated that he saw the Appellant during the incident and that it was the Appellant, who he called by name, that shot his brother. There is however doubt in his testimony as to whether he disclosed those facts to the police at the earliest given opportunity. This is because he had admitted under cross-examination that he made two statement to the police on the 16/8/2003 and 17/8/2003 and that the two statements were different (or inconsistent) from each other. He tried to explain why he made those inconsistent statement, though, I am however of the view that the circumstance of the arrest of Appellant has created a serious doubt as to whether the P.W.2 mentioned his name to the police either in his statement of the 16/08/03 or 17/8/03.lf the name of the Appellant had been given to the police, and as there is evidence that the P.w.1 and p.w.2 knew the Appellant very well prior to the incident and where he lives, why did it take about 15 days after the incident to arrest him? The p.w.5, one Ogunleye who said he is chairman of National conscience party, Ise-Ekiti and a protector of human right in the society, he said he is a relation of the Appellant when he heard that the Appellant had been arrested and released, he was not happy so he put in motion the machinery to ensure he was rearrested. He did not state why he insisted that the Appellant be rearrested since the police had released him. The question put to him under cross-examination suggests that there was a family quarrel between him and the Appellant. In any case, the P.W.8 contradicted him when he stated that the Appellant was arrested upon information he received when he visited the scene. He did not say that the Appellant had tried to evade arrest. What I have labored to point out is that no acceptable explanation has been given why the Appellant was not arrested 15 days after the incident considering the testimonies of P.W.1 and P.W.2. There is also evidence that the Appellant was with his Co-accused on the 17/8/2003 when the said co-accused was arrested, but the Appellant was not arrested. Since the police did not arrest the Appellant at that time but 15 days later, it is safe to conclude that the P.W.1 and. P.W.2 had no complaint against him at that time. If they had mentioned him to the police at the earliest given opportunity, he would have been arrested. It is also safe to hold that the Appellant was arrested because of his assistance and act of trying to secure bail for the co-accused. I therefore resolve this issue in favour of the Appellant.
The 3rd issue for determination is:
Whether from totality of the evidence before the Trial court as adduced by the prosecution witnesses, the Evidence of P.W.1 and P.W.2 is tainted by the hitherto existent malice between the family of the of alleged victims of the Armed Robbery and the 1st Accused/Appellant since 1994 till date of the alleged offence herein.
In arguing this issue, Dr. Jolaoso gave a long thesis on the definition of the term “tainted witness” spanning about 7 pages (pages 43 – 49) of his Brief of Argument. Several authorities were also cited by him on the definition of the term. The long and short of his argument is that a tainted witness is one who is either an accomplice or one who by the evidence he gives, whether for the prosecution or defence, may and could be regarded as having a purpose of his own to serve. The cases of ISHOLA V. THE STATE (1978) 11 S.C, P.499 at P.509; OGUONZEE V. THE STATE (1998) 4 S.C.N.J. P. 226 at P.255; OMOTOLA V. THE STATE (2009) 3 S.C.N.J, P.113 at P.152 among others were cited in support. Learned counsel for the Appellant further cited the cases of OGUNLANA V. THE STATE (1995) 5S.C.N.J, P.202; OLALEKAN V THE STATE (2001) 12 S.C (Pt.1) P.38 at P.55 and NDUKWE V THE STATE (2009) 2-3 S.C (Pt.11) P.35 at P.77, to submit that evidence of a person whose evidence has a purpose of his own to serve must be treated with caution and be examined with tooth comb.
That the learned judge did not allow himself to be guided by the principles of law enunciated in the cases cited therein, in the receipt of and reliance on the evidence of the prosecution witnesses 1 and 2 before according credibility and probative value to their evidence. That there is uncontroverted evidence on the record that there had been malice between the Appellant’s co-accused and the father of his former wife and husband to the P.W.1, who is also father to the P.W.2. That as a result of such malice, the father-in-law to the said co-accused had written a petition to the police as a result of which he was arrested and detained, before investigation exonerated him. He also submitted that evidence on record show that the said accused was to be released on bail but for the petition of and threat by Alhaji Musa Sunmonu (the father-in-law) against the Appellant which led to the arrest and implication of the Appellant with the alleged robbery. That the said father-in-law used to write petition to the, police: against anyone who attempted to come to the aid of the Appellant’s co-accused. That the Appellant was arrested 15 days after the incident when a petition was written by Mr. Akanle, S.A.N on behalf of the complainant (Alhaji Sunmonu) for his effrontery to assist the said co-accused.
Learned counsel for the Appellant then submitted that P.W.1 who is mother to Mustapha Sunmonu, (the deceased), and P.W.2 who is brother to the said deceased cannot be said to be disinterested in the matter, and as such their evidence would have a purpose to serve, being evidence out of malice from persons bereaved, and who would ensure the conviction of any person tried for the robbery and death of the deceased son and brother. He accordingly urged us to resolve the issue in favour of the Appellant.
On this issue, the Respondent submitted that the P.W.1 and P.W.2 are victims of the robbery and they gave direct and cogent evidence of the identity and participation of the accused persons in this case. That raising issue of malice of 1994 is an after-thought and whipping up of sentiments to score some undeserved points by the Appellant. Learned counsel then contended that, in view of the overwhelming evidence against the Appellant, this charge was never based or activated by malice.
Now, the evidence on record shows that the P.W.1 is a victim of the robbery and mother to Mustapha Sunmonu who died from the injury he sustained during the robbery. The P.W.2 is the brother of the said deceased. The law is now settled that blood relationship with a deceased person does not make such a blood relation who testifies in the matter a tainted witness. Such a witness is a competent witness. It therefore means that the mere fact of the relationship of a witness with the victim of the offence does not affect the probative value of the testimony of such a witness. See YAHAYA V. THE STATE (2005) 1 N.C.C, P.120 BEN V. THE STATE (2007) 2 N.C.C, P.55 and OMOTOLA V. THE STATE (2009) 4 N.C., P.89. Thus, where the witness is the father, mother, wife or any other blood relation of the deceased his testimony will be accorded probative value. All that is desirable in such a circumstance is for the trial, court to warn itself veracity of the testimony of that witness. The same principle applied even when the witness is sworn enemy of the accused. Even where the trial court fails to warn itself of the dangers of the evidence of such a witness, failure to do so will not ipso facto affect a conviction based on the evidence of such a witness. In the instant case, the P.w.1 and P.w.2 apart from being blood relations of the person who died in the robbery, they were also victims of the robbery. Incidentally, the charge of the murder of the said deceased was dropped. So, the Appellant was charged for the conspiracy and armed robbery only. Thus, though they might have the death of their relation at the back of their mind, the fact still remains that they were also victims of the armed robbery. The p.w.1 was severely beaten while the P.w.2 was beaten and shot in the leg. They victims of the robbery. It is therefore Preposterous to brand them as tainted witnesses. See OKOSI V. THE STATE (1989) 2 S.C. (Pt.1) P.126 at P.141. Once their testimony is direct, positive and credible it does need any corroboration. See OLAYINKA V. THE STATE (2007) 2 N.C.C, P. p.505. I am of the view therefore that in the absence of any evidence on the record, the credibility of p.w.1 and P.w.2 could not be impinged on the ground of the relationship to the deceased Mustapha Sunmonu, since they were also victims to the robbery incident and therefore eye witnesses.
On the issue of the existing animosity between the Appellant’s co-accused and the husband of the P.w.1, the law is that, though the existence of a grouse or other unhappy physical relationships between an accused and a witness may not affect the credibility of such witness, the effect of such a grouse or settling scores should place a trial Court at its guard, The trial Court is therefore to warn itself as to the credibility of the evidence of such a witness before convicting thereon. In the instant case, the existing animosity as disclosed on the record is between the complainant’s family and the Appellant’s co-accused. It is not the evidence that the Appellant was invited into the existing animosity. The only evidence is that the, Appellant tried to secure bail for the co-accused, but Alhaji Musa Sunmonu whose house was robbed wrote a petition against him which resulted in his, being arrested. I am therefore of the view that if the learned trial judge had, adverted his mind to it, it would certainly have affected his finding on whether or not the Appellant was seen by the P.W.1 and P.W.2 at the scene of crime or whether his arrest was motivated by the assistance he tried to render to the co-accused. I however hold on this issue that the evidence on the record does not show that the arrest of the Appellant was motivated by the existing animosity between the family of the complainants and the Appellant’s co-accused.
The fourth issue that arose for determination in this appeal is:
Whether from the totality of the evidence before the trial Court, the Prosecution had fully proved beyond reasonable doubt the essential and indispensable ingredients of the offences of conspiracy to commit Armed Robbery, and the principal offence of Armed Robbery as alleged or charged.
On the issue of conspiracy, learned counsel for the Appellant gave the definition of the term conspiracy as contained in the Black’s Law Dictionary 6th Edition) P.309 as adopted by the Supreme Court in KAZA V. THE STATE (2008) 1 – 2 S.C, P.151 at P.193. He then submitted that for an offence of conspiracy to be said to have been proved beyond reasonable doubt, the prosecution must have laid and proved the following essential elements beyond reasonable doubt:
(i) An agreement of two or more persons;
(ii) The two or more persons must plan to carry out an unlawful or illegal act;
(iii) A bare agreement to commit an offence is sufficient.
He further cited the cases of IKEMSON V THE STATE (1989) 3 NWLR (Pt.110 at P.115 AMINU V. THE STATE (2005) ALL FWLR (Pt.224) P.933 at Paragraph 956-947; AMINU V. THE STATE (2007) ALL FWLR (Pt.38) at 1810 and ODUNLEYE V THE STATE (2001) F.W.L.R (Pt.38) P.120 at P.213.
Learned counsel for the Appellant then submitted that the gist of the offence of conspiracy is embedded in the agreement between the parties, and is therefore, rarely capable of direct proof. That it is invariably an offence that is deduced by inference from the acts of the parties thereto which are focused towards the realization of their common criminal purpose; that the proof of conspiracy is therefore a matter of inference to be drawn from all collateral circumstances of the case. He went on to submit that, it is not necessary that there should be communication between each of the conspirators, but the criminal design must be common to all; that the conspirators may not have seen each other. Learned counsel then submitted that, the prosecution has the duty to prove beyond reasonable doubt the offence of conspiracy against the accused persons.
It is therefore the submission of learned counsel that, contrary to the trial judge’s decision or holding in the judgment at pages 44 – 45 of the record, there was never a review, finding or appraisal of the evidence on the count of conspiracy at all as shown from the review of the entire ten issues formulated for determination of the learned trial judge; that no issue was formulated and discussed in respect of the count of conspiracy. He accordingly urged us to resolve this issue in favour of the Appellant in respect of the count of conspiracy and to discharge and acquit him thereon.
On the count of armed robbery, learned counsel submitted that for the prosecution to succeed in a charge of armed robbery, they must prove beyond reasonable doubt that:
(a) There was armed robbery or series of robberies;
(b) Each of the robbery was an armed robbery, and
(c) The accused person/Appellant was one of those who took part in the armed robbery.
The cases of BOZIN V. THE STATE (19851 2 N.W.L.R (Pt.8) P.465 at P.469 and TAJUDEEN ALABI V. THE STATE (1993) 9 S.C.N.J (Pt.1) P.109 at P.118 were cited in support. That all the essential ingredients must be proved beyond reasonable doubt and that where any of the ingredients, is lacking in proof, the prosecution would have failed to prove the case against the accused beyond reasonable doubt and the accused shall be entitled to discharge and acquittal. The cases of ALONGE V. I.G (1959) 4 F.S.C, P.203 and BAKARE V. THE STATE (19871 3 S.C. P.1 were also cited in support. It was therefore submitted by learned Appellant’s counsel that, from the review of the totality of the evidence before the trial Court, the submissions and legal authorities cited under the discourse on issue No.1 for determination in this appeal, it is clear that the 1st and 2nd ingredients of the offence of armed robbery have been proved, but the 3rd element has not been proved beyond reasonable doubt. That since the 3rd ingredient has not been proved beyond reasonable doubt, the trial Court ought to have returned a verdict of discharge and acquittal; that this Court can reverse such perverse finding that has resulted in miscarriage of justice to the Appellant. We were then urged to resolve this issue in favour of the Appellant.
On this issue, learned counsel for the Respondent submitted that the duty placed on the prosecution is to prove the guilt of the Appellant beyond reasonable doubt. He restated the elements of armed robbery as enunciated in the cases of EBEBENIWA V. THE STATE (2009) 1 W.R.N, P.167 and ISIBOR V. THE STATE (2001) F.W.L.R (Pt.78) P.1077 at P.1083. Learned counsel then contended that there is no controversy that there was a robbery on the 15/8/2003 at Ise-Ekiti and that the robbery was an armed robbery; that the involvement of the Appellant is also not in doubt as he was cogently and unequivocally fixed and pinned to the scene of crime and a perpetrator of the alleged offence.
On the issue of conspiracy, it was submitted by learned counsel for the Respondent that, conspiracy can be inferred from the proof of the substantive offence; that direct evidence is not indispensable and it is open to the trial Court to infer compliance from the fact of doing things towards a common end. EMENEGOR V. THE STATE (2009) 31 W.R.N, P.69 at P.75 was cited in support. It was therefore submitted that the records show grounds for believing the existence of a conspiracy, as the prosecution has proved that the Appellant entered into an agreement with the co-accused to commit armed robbery, and did enter the apartment of P.W.1 and P.W.2 and carried out the dastardly and illegal act.
Learned Respondent’s counsel submitted finally that, it is not within the province of an appellate Court to interfere with the findings of facts of a trial Court which had the opportunity of hearing and watching the demeanor of witnesses except, where the trial Court failed to properly evaluate the evidence or make proper use of the opportunity of seeing and hearing the witnesses or where its findings are shown to be perverse. He further cited the case of EMENEGOR V. THE STATE (Supra) and ATIKU V. STATE (2002) 4 N.W.L.R (Pt.757) at paragraphs 278-279 to submit that the prosecution had established beyond reasonable doubt the offences charged against the Appellant, and that the Appellant has not shown that those findings are perverse.
In reply, learned counsel for the Appellant contended that, the trial Court failed to properly evaluate the evidence before it in that it failed to observe and appreciate the material contradictions in the evidence of P.W.1 and P.W.2 on the evidence of the recognition; that the trial Court failed to consider whether P.W.1 and P.W.2 actually named the accused persons, the dresses they wore, their addresses and conduct on the crime day; that the defense put up by the Appellant was not considered. It was then submitted that, the failure of the trial Court to consider and appreciate the testimonies of the prosecution and defense witnesses resulted in the trial Court’s arrival of wrong, erroneous and perverse findings which ultimately resulted in a miscarriage of justice. He relied on the cases of ABDULLAHI V. THE STATE (2008) ALL F.W.L.R (Pt.432) P.1047 at P.1059; SOKWO V. KPONGBO (2008) 1-2 S.C, P.117 at paragraphs 130-131 and 139-1400; IWUOHA V. NIPOST (2003) 4 S.C.N.J, P.258 at P.284 etc. Learned Appellant’s counsel then urged us to disturb, interfere and reverse the perverse findings of the trial Court, and set aside the findings, conviction and sentence passed on the Appellant.
Now, the law is that it is within the judicial role of a trial judge to hear and evaluate evidence with a view to either believe or disbelieve the witnesses called at the trial, to make findings of fact based on the credibility of such witnesses and to decide the merit of the case based on the findings. An appellate Court does not have such advantage of seeing and hearing the witnesses that testified at the trial. It is therefore the prerogative of a trial judge who sees and hears the witnesses to choose which to believe and ascribe probative value to the evidence of such witnesses: either oral, or documentary. A trial court being the master of the facts, his inference, evaluation or assessment and findings must be premised on the available evidence adduced before him. It must not be based on extraneous facts outside the evidence given at the trial. See AKINBISADE V. STATE (2007) 2 N.C.C, P. P.76; ABEKE V. STATE (2007) 2 N.C.C, P.451; STATE V. AIBANGBE (2007) 2 N.C.C, P.648.
Where the trial Court has properly evaluated and made correct findings on the evidence led before him, an appellate Court will be reluctant to disturb such findings unless such findings are shown to be erroneous or perverse. A perverse finding is one which ignores the evidence or facts adduced before the Court. It is one which is not borne out of the evidence and is therefore against the weight of the evidence led. In such a situation, an appellate Court has the power or jurisdiction to deduce or reassess those findings of the trial court as borne by the record. See ANYEGWU V. ONUCHE (2009) 3 N.W.L.R (Pt.1129) P.659; AKINFE V. U.B.A PLC (2007) 10 N.W.WL.R (Pt.1041) P.186 and LAGGA V. SHARHUNA (2008) 6 N.W.L.R. (Pt.114) P.427. In the instant case the Appellant complains about the findings and conclusions of the trial Court which led to his conviction, and sentence to death for the offences of conspiracy to commit armed robbery and for the commission of armed robbery.
I have carefully perused the submissions of counsel and perused the authorities relied thereon by them. I wish to state at this juncture that in an accusatorial system of administration of justice as practiced in this country, the general burden of proof lies always on a party or person who alleges. In criminal trials, the general or legal burden of proof lies on the prosecution and does not shift, to prove the guilt of the accused person. This is in consonance with Section 36(5) of constitution of the 1999 Federal Republic of Nigeria, which guarantees to, all persons accused or charged with a criminal offence, the right to be presumed innocent until he is proved guilty, This constitutional provision therefore squarely places on the prosecution the ultimate burden of proving the guilt of the accused. The prosecution must discharge this burden beyond reasonable doubt, by proving every ingredient of the offence charged by credible evidence. This includes countering or rebutting any defence raised by the accused. See MUSTAPHA V. STATE (2007) 12 N.W.L.R (Pt.10490 P.637; CHUKWU V. STATE (2007) 13 N.W.L.R (Pt.1052) P.430 and ABDULLAHI V. THE STATE (2008) 17 N.W.L.R (pt.1115) p.203. See also sections 135 and 138 0f the Evidence Act. Where at the close of evidence an essential ingredient of the offence has not been proved, a doubt would have been created as to the guilt of the accused and he shall be entitled to a discharge and acquittal.
In the instant case, the Appellant was convicted on the two counts of conspiracy to commit armed robbery and armed robbery respectively. In a charge of armed robbery, for the prosecution to prove the allegation or charge against the accused beyond reasonable doubt. The following ingredients of the offence must be proved beyond reasonable doubt:
(a) That there was a robbery or series of robberies;
(b) That each of the robberies was an armed robbery;
(c) That the accused was one of the robbers or was one who took part in the armed robbery or robberies.
See BELLO V. THE STATE (2007) 10 N.W.L.R (Pt.1043) P. 564; ISIBOR V. STATE (2001) F.W.L.R (Pt.1077) and JOSHUA V. STATE (2010) 1 W.R.W, P.41. I had held elsewhere in this judgment that the offence of armed robbery is one which carries the ultimate penalty upon conviction; which is death. A trial Court hearing such a case must therefore exercise extreme and utmost caution by carefully examining the evidence led in proof thereof, so that any doubt created thereby must be resolved in favour of the Appellant. For as it is said, it is better, for ten guilty persons to be set free than for one innocent person to be convicted.
From the evidence led and especially the testimonies of the P.W.1 and P.W.2, it is not in doubt that there was an armed robbery and that the robbery was an armed robbery; that the robbery took place in the residences of the P.W.1 and P.W.2 at No. 41, Ireke Street, Ise-Ekiti in the midnight of 15/8/2003 and that in the process, one Mustapha died as a result of gunshot wounds he sustained during the robbery; that the P.W,2 sustained fracture on his leg from gunshots he sustained from the robbers. Indeed, both counsel agreed that the fact that there was a robbery and that the robbers were armed has been proved; that the contention that arises from this appeal is therefore whether the prosecution proved beyond reasonable doubt that the Appellant was one of the robbers that robbed the P.W.1 and P.W.2 on the 15/8/2003.
On the issue of identity of the Appellant, I had earlier considered that issue when dealing with issue two (2) formulated for determination in this appeal. Therein I found that there is a material contradiction or conflict between the testimonies of P.W.1 and P.W.2 on the identity of the Appellant. There is also doubt as to whether those witnesses mentioned the Appellant to the police at the earliest opportunity, in view of the evidence on the record that when his co-accused (Popoola Rasaki) was arrested on the 17/8/2003, the Appellant was with him, but he was not arrested. There is also evidence on the record to show that the Appellant was arrested 15 days thereafter based on a petition written against him by one Alhaji Musa Sunmonu for daring to assist the said Popoola Rasaki, his co-accused. This fact was neither challenged nor contradicted by the prosecution. There is also the uncontradicted testimony of the D.W.1 and D.W.3 that the Appellant was with them at Emure-Ekiti in the night of the robbery. All these facts were not carefully assessed or evaluated by the learned trial judge. If the learned trial judge had carefully assessed and weighed those facts, doubt(s) would have in my view, been created in his mind about the identity of the Appellant as one of the persons that took part in the robbery charged. It is therefore my view and, I do hold that the finding of the learned trial judge on the robbery charge is erroneous. It has therefore led to a perverse decision. This is because if the learned trial judge had carefully evaluated and weighed the totality of the evidence led at the trial, it would have been clear to him that the prosecution did not prove that the Appellant was properly identified as one of the robbers that robbed P.W.1 and P.W.2 on the 15/8/2003. I accordingly hold that the totality of the evidence adduced by the prosecution on the identity of the Appellant in the commission of the offence of armed robbery is tenuous and therefore cannot ground: or support the conviction and sentence passed on the Appellant for armed robbery.
On the charge of conspiracy, it is clear from the entire judgment of the trial Court that the learned trial judge did not make a single finding on the charge of conspiracy. Indeed, of the numerous issues formulated by the learned trial judge for determination, none touched on the conspiracy charge. Yet, without assessing the evidence on the conspiracy charge, the learned trial judge held that the prosecution has been able to prove the conspiracy charge. He therefore proceeded to convict and sentence him thereon to death. If this is not a perverse decision, nothing else can be. This Court therefore has the power to evaluate, the evidence to see if the, evidence led, and as borne out of the record can support a conviction on the charge of conspiracy.
The law on conspiracy has been sufficiently discussed by the learned counsel for the Appellant at pages 50 – 52 of the Appellant’s Brief of Argument. The gist of the offence of conspiracy is that it is an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. The two or more persons must be shown by the prosecution to have agreed or combined in order to ground a conviction for the offence of conspiracy. The offence is therefore complete when the evidence shows that two or more parties formed a scheme or agreed between them, before the doing of the overt act or omission for which the conspiracy was hatched. Conspiracy is generally proved by inference deduced from the criminal acts of the culprits done in the pursuit of the criminal or illegal purpose common to the conspirators. It is pertinent at this stage to point out that, proof of the actual agreement which is the hub or essential ingredient of the crime is not always easy to prove, since the agreement is almost always shrouded in secrecy. The facts of each particular case will therefore always determine whether or not a charge of conspiracy has been established. See TANKO V. STATE (2008) 16 N.W.L.R (Pt.1114) P.591; OMOTOLA V. STATE (2009) 4 N.C.C, P89.
In the instant case, the Appellant was charged along with one Popoola Rasaki with conspiracy to commit a felony, to wit armed robbery. The general principle of law is that an accused person cannot be convicted of conspiracy where he has been acquitted of the substantive offence for which he has been accused of conspiring to commit. The only exception is where the accused has admitted or confessed the conspiracy and or there is other evidence to sustain conspiracy charge. Where an accused is charged with committing conspiracy simpliciter along with other substantive offences, he may till be convicted of the conspiracy even where the substantive offence is not proved. However, where he is charged for conspiracy to commit the substantive offence and for committing the substantive offence, he cannot be convicted of the conspiracy to commit the substantive offence, if he is acquitted of the substantive offence. See ABIOYE V. THE STATE (19870 7 N.W.L.R (Pt.58) P.645; AMADI V. STATE (1993) 8 N.W.L.R (Pt.313) P.664 at P.677; OLADEJO V. STATE (1994) 6 N.W.L.R (Pt.3480 P.101 at P.127. Each case however can be considered on, its peculiar circumstances. The charge of conspiracy in the instant case is that, the Appellant and one Popoola Adebayo Rasaki “Conspired together to commit a felony to wit armed robbery”. The evidence led at the trial in proof of the conspiracy is intricately connected to the evidence in proof of the charge of armed robbery. There is no iota of evidence on the record in proof of the conspiracy distinct from that in proof of the robbery charge. In that respect, I am of the view that since the evidence led could not establish the charge of robbery and in the absence of any confession by either the Appellant or his co- accused, and in the absence of other evidence which could sustain the charge of conspiracy, the finding of the trial Court, on the count of conspiracy cannot be sustained.
There is also no iota of evidence on the records which suggests or tends to lead to the inference that the Appellant entered into an agreement with his co-accused to commit the robbery alleged. I therefore hold that the charge of conspiracy has also not been proved beyond reasonable doubt.
On the whole, I am of the firm view that this appeal has merit.
Accordingly, it is my judgment that for the reasons, stated in the judgment, this appeal is meritorious. It is hereby allowed. The judgment of C.I Akintayo; J in suit NO: HAD/3C/2004 is hereby set aside. The conviction and sentence passed on the Appellant on the 29/6/2007 by the Court below is hereby set aside. The Appellant is accordingly discharged and acquitted on both counts of conspiracy to commit armed robbery and armed robbery.
UWANI M. ABBA AJI, J.C.A: I have had a preview of the judgment just delivered by my brother H. M. Tsammani, J.C.A.
My learned brother has admirably dealt with all the issues which the parties canvassed in this appeal and I entirely agree with his reasoning and conclusion that the appeal: has merit and ought to be allowed. I also allow the appeal.
The judgment of the trial court convicting and sentencing the Appellant to death for the offences of conspiracy to commit armed robbery and robbery on the 26th June, 2007 is hereby set aside. I also enter an order of discharge and acquittal on the said counts of conspiracy to commit armed robbery and robbery respectively.
CHIDI NWAOMA UWA, J.C.A: I read before now the judgment delivered by my learned brother Haruna M. Tsammani, JCA.
I am in total agreement with the resolution of the appeal in favour of the appellant, same being meritorious. I also set aside the conviction and sentence of the appellant and in agreement with His Lordship discharge and acquit the appellant.
Appearances
Dr. Femi JolaosoFor Appellant
AND
Dayo Akinlaja Esq. (A.G, Ekiti State), with (Bola Wale-Awe (Mrs.); D.P.P. Ekiti State; Gbemiga Adaramola Esq; D.D.C.L, Ekiti State, I. Ajibare Esq; (A.C.L.O) and A.E Arogundade Esq (Legal Officer) with him.For Respondent
