ALHAJI MUSA SANI v. THE STATE
(2012)LCN/5596(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of August, 2012
CA/K/46/C/2011
RATIO
ALIBI: WHEN AN ALIBI NEED NOT BE INVESTIGATED
It is clear in law that ‘it is not every alibi raised that should be investigated. Alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else, at a place where most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime. See Sowemimo vs. State (2004) 11 NWLR Part 885 page 515; Aiguorehian vs. State (2004) 3 NWLR Part 860 page 367; Onyegbu vs. State (1995) 4 NWLR Part 391 page 510 and Nwaturuocha vs. State (2011) LPELR SC. 197/2010.PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
ALIBI: DEFENSE MUST BE GIVEN IN DETAILS
An Accused must not raise the defence of alibi at large, he must give adequate particulars of his whereabouts at the time of commission of the offence to assist the police to make a meaningful investigation of the alibi. See Nsofor vs. State (2002) 10 NWLR part 775 page 274, Balogun vs. A-G Ogun State (2002) 6 NWLR Part 763 page 512.PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUSA SANI Appellant(s)
AND
THE STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant herein was arraigned together with one Ifanye Amah, before the Katsina State High Court on a charge of Armed Robbery punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation, 2004. The charge read to the Appellant and his co-accused and to which they pleaded not guilty, read thus:
“That you Alh. Musa Sani of behind Zakka House, Kofa Marusa, Low Cost; Katsina and Ifanye Amah of old Olympic Hotel, Kofar Kaura Layout Katsina, Katsina Local Government Area of Katsina State, on or about the 28th day of May, 2008 committed robbery in that you did an act to wit attacked and robbed one Abdullahi Mohammed (alias BODA) the sum of Nine Hundred and Forty thousand Naira (N940,000.00) and at time of the robbery, you were armed with offensive weapons to wit: cutlasses and iron with which you threatened him and thereby committed an offence punishable under Section 1(2)(a) of Robbery and Firearms (special Provisions) Act, Cap R11 Laws of the Federation, 2004.
During the trial, the Prosecution presented about six witnesses, while the Defence called three witnesses.
At the end of the trial, after evaluation of the evidence adduced by both sides, the trial High Court held that the testimonies of the Prosecution witnesses are consistent and credible, that the two accused persons committed the offence as charged and that they had no defence to the commission of the offence. It thereby convicted them of the offence and sentenced them to death.
The Appellant was not satisfied with the trial court’s finding and conclusion that he proceeded to lodging this appeal. The parties filed their respective Briefs of Argument. Two issues were raised by the Appellant for the consideration of this Court thus:
“1. Whether the Prosecution/Respondent can be said to have discharged the onus on it, of proof beyond reasonable doubt in the face of its inability to establish the ingredients of the offence of Armed Robbery or create a nexus between the cutlass (Exhibit 3 and the iron rod (Exhibit 4) to the Appellant?
2. Whether the trial court was right to convict the Appellant for Armed Robbery and sentenced him to death when it held that the Appellant created an alibi in his extra judicial statement which was not investigated?
The Respondent adopted the two issues excogitated by the Appellant for determination by this Court.
Then, in the argument presented on behalf of the Appellant, Seth Nixon Esq; the Appellant’s Counsel contended that the three ingredients for the establishment of the offence of armed robbery, have not been proved by the Prosecution. He referred to Osuagwu vs. State (2009) 1 NWLR Part 1123 page 523 at 536, paragraphs D – E and Oguntola v. State (2007) 12 NWLR Part 1049 page 617 at 635 paragraphs G – H, and stated that the prosecution must prove that (a) there was robbery; (b) the robber or robbers were armed with offensive weapons; and (c) the robbery must have been committed by the accused person. Counsel stated that the ingredients were not proved by the prosecution. He said that P.W.1 did not state the source of the N940,000.00 he claimed was robbed of him by the Appellant. He argued that the day of Saturday on which P.W.1, claimed he was robbed, did not tally with the date of 28th May, 2008, the robbery allegedly took place. He said that 28th May, 2008 was a Wednesday and not a Saturday which resulted to a huge discrepancy and created doubts in the evidence of P.W.1. He submitted that the prosecution failed woefully to establish the ingredients of the offence of armed robbery against the Appellant, in that, there is nothing indicative of the fact that the alleged victim Abdullahi Mohammed was indeed robbed of N940,000.00. The alleged victim did not disclose the source of the said sum of N940, 000.00; whether he collected it from the bank, or he cashed it by providing bank teller, cheques, etc, or if it were money realized from a business, and the nature of the business transacted. He referred to the evidence of P.W.1 where he listed the number of items he was robbed of, and reiterated that no robbery actually took place.
He stressed that there was no armed robbery on 28th May, 2008 which was a Wednesday as against Saturday mentioned by P.W.1; otherwise it means that the purported armed robbery was reported before it occurred. He stated that the non- disclosure of his source of the said sum of N940, 000.000 which he claimed was taken by the Appellant and his cohort cast a serious doubt as to whether there was an Armed Robbery at all. He relied on the State vs. Azeez (2008) 14 NWLR Part 1108 page 439 at 483 paragraphs B-E; 501 paragraphs D-E.
Learned Counsel observed that none of the Prosecution witnesses, aside from P.W.1, mentioned what Abdullahi Mohammed was robbed of. The police in their investigation did not ascertain what P.W. 1 lost to the robbery.
Counsel further stressed that there was no evidence proffered at the lower Court that linked the Appellant to the said Armed Robbery, in that none of the items and cash purportedly stolen by the Appellant was found on the Appellants. He explained that the residences, of P.W.3, the Appellant and Abdullahi Mohammed (the purported victim of the robbery) are in the same vicinity i.e. Kofar Kaura, Katsina, therefore, the Appellant and P.W.3 could not have robbed in the same environment and remained there without a trace of the stolen items to them at their residence.
Counsel referred to the testimony of P.W.1, where he says; it was at the Sabon Gari Police Station at about 10:00am on the date of the purported robbery, he saw the 2nd accused person at the said Police Station and he identified him as one of the robbers who robbed him. He stressed that by the assertion, the Appellant was arrested almost immediately after the purported armed robbery; yet, none of the purported stolen items could be found on or with him.
He said that by the position of the law, the prosecution ought to prove its case beyond reasonable doubt by establishing all the ingredients of the offence alleged. He referred to the case of Ani vs. State (2009) 16 NWLR Part 1168 page 443 at 457, paragraphs F-G, 458, paragraph B, and Section 138 of the Evidence Act and submitted that it is not the duty of the Appellant to prove his innocence. He further cited Kinnami vs. Bauchi Native Authority (1957) NWLR 42 (sic) and the Supreme Court decision in State vs. Azeez (supra) at 503, paragraphs F-G.
Counsel stressed that the evidence of P.W 1 and his statement at the Police Station are at variance which was the reason for its non-production at the trial. He then urged this Court to invoke the provisions of Section 149(d) of the Evidence Act, “that evidence which could be and is not produced would, if produced be unfavourable to the person who withhold it”, and the decision in State vs. Azeez (supra) at 492 paragraphs C-D.
Counsel further argued that the identification of the Appellant by P.W 1 is suspect in that, P.W.1 in his evidence stated that, the armed robbers were flashing torch light on him and he claimed the illumination in the room (scene of crime) is good enough to identify the Appellant as one of the armed robbers. He then speculated that the torch light was used apparently because there was no light at the scene of crime. However, he categorically stated that the Appellant was not at the scene of the crime and as such could not have been seen by P.W.1. Further, he stressed that there was no link or nexus between the alleged weapons used for the robbery and the Appellant or any evidence connecting the Appellant to Exhibits 3 and 4. He said that the police failed to state how they got or obtained Exhibits “3” and “4”. The policeman who investigated the case never told the trial Court how they came about Exhibits 3 and 4 rather, the evidence of P.W 5 (Inspector Yunusa Adamu), the Exhibit Keeper and, P.W 6 (Sgt. Lawal Ahmed) are materially contradictory. He narrated that while P.W 5 in his evidence on page 22 of the Record said that Exhibits “3” and “4” were brought to him by Cpl. Lawal Ahmed on 11/7/2008 for safe keeping and he registered them, P.W 6 in his testimony at pages 25 – 26 of the records, said he took Exhibits “3” and ”4″ which he labeled Exhibit No. 61 2007 on 1/7/2007 to the Exhibit Keeper.
Learned Counsel drew the attention of this Court to what he termed two material contradictions bordering on an essential ingredient of Armed Robbery, i.e. weapons of Armed Robbery. He stated that going by the evidence of P.W 6 through whom Exhibits “3” and “4” were tendered, the said Exhibits were recovered before the purported Armed Robbery incident occurred. This, therefore, implies that Exhibits “3” and “4” were not used for any Armed Robbery on 28th May, 2008 involving the Appellant as alleged. Counsel said that despite the disjointed evidence regarding Exhibits 3 and 4; the said weapons, the same Exhibits identified by different markings (Exhibit 461/2008 and Exhibit No.61/2007) were admitted in evidence and applied for the conviction of the Appellant and his subsequent sentence to death which he claimed has occasioned a miscarriage of justice. He then called upon this Court to so hold and resolve the doubt created by the prosecution witnesses in favour of the Appellant. He relied on Ekpoisong vs. State (2009) 1 NWLR Part 1122 page 354 at 370-371 paragraphs H – C, and strongly submitted that the law is settled that where there are materially contradictory evidence of witnesses, the said evidence must be disregarded.
Counsel further pinpointed that there was no evidence from the Investigating Police Officer that the Appellant was arrested with Exhibits “3” and “4” or that the said Exhibits were recovered from his residence or from a place connected to him. He submitted that the weapon of armed robbery must be positively connected to an accused person before it can be said that he is guilty of the offence of armed robbery. Turning to the instant case, Counsel observed that the said connection is ‘not just wanting but obviously non-existing and ought to be resolved in favour of the Appellant. He urged this Court to so hold. He said it is visible on the record of appeal that the learned trial Court was overcome by sentiment, morality and emotion in the conviction of the Appellant. He referred to the comment of the trial Court in its judgment at page 39 of the record of appeal, and, submitted that there was no evidence as to the issue of prohibition of the sale of alcohol before the trial Court.
Further, Counsel referred to pages 22 – 23 of the Record where the prosecuting Counsel applied to tender Exhibits ”3″ and “4” but met the objection of the Defence Counsel. Surprisingly, instead of the trial judge ruling on whether to admit or reject the said exhibits, he went on and admitted the said items as Exhibits A and B respectively for identification purposes only.
Counsel then made reference to the cases of Damnia vs. State (1995) 8 NWLR Part 415 page 523 at 534 paragraph H; State vs. Onyeukwu (2004) 14 NWLR Part 893 page 340 at 380 paragraphs C – D, Yakubu vs. F.R.N (2009) 14 NWLR Part 1160 page 151 at 173, paragraphs D – G, and urged this Court to hold that the act of making out a case for the prosecution by the learned trial judge is a clear example of travesty of justice that has no doubt occasioned and produced a grievous miscarriage of justice which the resultant effect is to overturn the judgment of the trial Court. He further urged that issue No. 1 should be resolved in favour of the Appellant.
Submitting in respect of issue No. 2 learned Counsel stressed that at the earliest opportunity, the Appellant vide Exhibit 1 (his extra judicial Statement to the police) clearly raised the defence of alibi when he said about the time of the purported Armed Robbery attack, he, in the company of D.Ws’ 2 and 3, were at Lunar Hotel, Katsina, and, were never at the scene of the crime. He stressed that upon this assertion, the police have an inherent obligation to investigate and rebut the said alibi but failed to so do, as the alibi raised by the Appellant was never investigated. He submitted that the duty of the police to investigate an alibi when raised is a mandatory duty and it does not give room for any discretion to act otherwise. He further cited the case of Ani vs. State (supra) at 46, paragraph 11, where the Supreme Court emphasized the compulsory nature of the investigation of alibi by the police once raised, thus:
“It is elementary law that the police must investigate the defence of alibi at the earliest opportunity. That was not done in this case and the Prosecution did not offer any explanation for the lapse. This is also a serious blunder on the part of the Prosecution”.
In the same vein, he noted the exception to the position of the law, i.e., where there is an eye witness to the commission of the offence as decided in Azeez & 5 ors vs. State (2005) 8 NWLR Part 927 page 312 at 323 paragraphs G – H; the eye witnesses’ testimony must be unequivocal, and, circumstances of the identification must not be suspect. He cited Ndukwe vs. State (2009) 7 NWLR Part 1139 page 43 at 92 paragraph H in support. Counsel stressed that P.W.1, the only witness who claimed he saw the Appellant at the scene of crime never met nor saw him prior to the purported armed robbery attack, there was insufficient illumination for P.W.1 to recognise his assailant which informed the use of torch-light, and the police never gave evidence about the conduct of identification parade.
Counsel further referred to the Supreme Court case of Ndukwe vs. State (supra) at 78 paragraphs C – E, where it cautioned trial Courts to be wary of convicting the accused persons on weak testimony on identification in the following words:
“It is true that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused, and the Defence alleges that the identification was mistaken, the Court must closely examine the evidence in acting on it, it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of the doubt”.
He further referred to page 39 of the record of proceeding, where the trial Court said that the police did not properly investigate this case, if they had, it would have been clear whether or not the Appellant was at Lunar Hotel at the time of the robbery. He then argued that the trial judge admitted improper investigation on the part of the Prosecution, and, it should not have held otherwise particularly in the light of the fact that it was not so clear whether or not the Appellant was truly at Lunar Hotel, Katsina at the time the crime was committed. Counsel then urged that issue No.2 be resolved in favour of the Appellant and that the appeal be allowed.
Presenting argument in respect of issue No.1, it was submitted by the Respondent’s Counsel that the ingredients of the offence of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms Act have been established by the prosecution, via the three (3) witnesses it called, i.e. the victims of the crime. He contended that their evidence was neither impeached nor contradicted by the Defence during the trial. He referred to the testimonies of P.W.1, P.W.2 and P.W.3 and the findings of the trial Judge at page 38 of the Record of Appeal that the Prosecution has proved the ingredients of the offence charged. He cited the cases of Oguntola vs. State (2007) 12 NWLR part 1049 page 617 at 635 paragraphs G-H, and Magaji v. Nigerian Army (2008) NWLR Part 1089 page 338 at 393, paragraph D, and submitted that it is not a requirement of the law that a victim of robbery must disclose the source of the items robbed, in this case (940,000:00). He emphasised that the requirement of the law is for the Respondent to prove the ingredients and nothing more. On the alleged discrepancy on the date and day the offence was actually committed, counsel for the Respondent contended that P.W.1 was not challenged or cross-examined on that point. He stated that the crux of the issue in P.W.1’s testimony relates to what he experienced and saw regarding the whole episode which led to the offence, and he testified to that. He argued that the inconsistency did not create any doubt in favour of the Appellant.
In relation to the allegation of non- production of evidence in proof of the fact that P.W.1 was robbed of his N940,000.00; counsel stressed that the prosecution in this case called three witnesses who testified on what transpired at the house of P.W.1 and their testimonies were direct and positive. Counsel, further made reference to the cases of Usufu v. State (2007) 1 NWLR part 1020 page 94 at 112-113, paragraphs H-A in support.
To rebut the Appellant’s contention that the robbery attack on P.W.1 on 28th May, 2008 did not link him, counsel for the Respondent referred to the testimonies of P.W.1, P.W.2 and P.W.3 and said that the witnesses gave a vivid account on the role played by the Appellant in the commission of the crime, that their evidence is direct and not circumstantial and believed by the trial Court.
Reacting to the contention of the Appellant’s Counsel that none of the items and cash purportedly stolen by the Appellant was found after the conduct of a search of the Appellant’s residence, Respondent’s Counsel submitted that in Armed Robbery case, the Prosecution is not required by law to give account of the items stolen, but whether the accused/Appellant did commit the offence charged. He submitted that the Respondent has done so beyond reasonable doubt, and proof beyond reasonable doubt does not mean proof beyond shadow of doubt. He cited the case of Ogidi vs. State (2003) 9 NWLR Part 824 page 1 at 27 paragraphs D-G in support.
It was further contended by the Respondent’s Counsel that it is not correct that the Prosecution withheld evidence by not tendering the statement of P.W.1 as contended by Appellant’s Counsel. He submitted that the law is that the provision of Section 149 (d) of the evidence Act, are concerned with withholding evidence and not with failure of a party to call a particular witness or tender a particular document, as the document (Statement of P.W.1 at Police Station) is not important but rather his testimony before the Court. Further referred to by Counsel were the cases of Ani v. State (2003) 11 NWLR Part 830 page 142 at 173 paragraphs A-C and Ndidi vs. State (2005) 17 NWLR Part 953 page 17 at 31 paragraph H.
Responding to the contention that the identification of the Appellant by P.W.1 is doubtful due to P.W.1’s assertion that the robbers were flashing touch light on him, counsel stressed that the crime scene was proved to have been sufficiently illuminated that the Prosecution witnesses, P.W.1, P.W.2 and P.W.3, were able to see them without difficulty.
Further, learned Counsel made reference to the following cases; Ekpoisong vs. State (2009) 1 NWLR Part 1122 page 354 at 370-371, paragraphs H-C, Archibong vs. State (supra) at 778-779 paragraphs G-A., Oguntola vs. State (supra) at 635 paragraphs G-H., Damina vs. State (1995) 8 NWLR Part 415 page 523 at 532, paragraph H, State vs. Onyeukwu (2004) 14 NWLR Part 893 page 340 at 380 paragraphs C-D and Yakubu vs. F.R.N (2009) 14 NWLR Part 1160 page 151 at 173, paragraphs D-G, and submitted that failure on the part of the prosecution to link the Appellant to the weapons tendered as Exhibits is not fatal to the case, that the law does not require the prosecution to tender weapons in armed robbery case, but to lead credible evidence, via eye witness account or circumstantial evidence to prove its case. Counsel stated that the evidence of the prosecution was not punctured or controverted by the accused person. Counsel further submitted that the trial Court relied heavily on the evidence of P.W.1, P.W.2 and P.W.3 in convicting and sentencing the Appellant to death, that it was not overcome by sentiment, morality and emotion in the conviction of the Appellant as contended by the Appellant’s Counsel. The trial Court made case for the prosecution, and cited the cases of Damina vs. State (1995) 8 NWLR Part 415 page 523 at 532, paragraph H, State vs. Onyeukwu (2004) 14 NWLR Part 893 page 340 at 380 paragraphs C-D and Yakubu vs. F.R.N (2009) 14 NWLR Part 1160 page 151 at 173, paragraphs D-G.
He, therefore, urged this court to resolve issue No.1 in favour of the Respondent.
Dealing with issue No.2 on the defence of alibi raised by the Appellant’s Counsel learned Counsel for the Respondent submitted that the evidence of P.W.1, P.W.2 and P.W.3 during the trial is vital in this regard, as their evidence clearly pinned down the Appellant at the crime scene. He contended that even though it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and or invariable way of doing this. If the prosecution adduces sufficient evidence to fix a person or an accused person at the scene of crime, at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. He relied on the testimonies of P.W.1, P.W.2 and P.W.3, and the case of Archibong vs. State (supra) at 780 paragraphs G-B. Counsel, further, submitted that in cases of this nature, the law requires cogent, compelling and strong evidence against an accused person. A single witness if believed by the Court is enough to find an accused person guilty of the offence charged. He further stressed that an identification parade would have been necessary had the Appellant’s identity been in question considering the circumstances of the case. Counsel stated that it is not in every case that an identification parade becomes necessary; therefore this case falls under the exception. He referred the Court to the case of Archibong vs. State (supra) at page 755 paragraphs E-G and page 756 paragraph A, and, testimony of P.W.1 at page 10-13 of the record.
Regarding, the contention that the learned trial Judge said the police did not properly investigative the case. Counsel submitted that based on the evidence of P.W.1 at pages 10-13 of the record, and, the findings of the learned trial Judge at page 39 lines 17-24 of the Record, the Appellant and nobody else is the person who attacked and robbed P.W.1, P.W.2 and p.W.3 on the fateful night. He submitted that the defence of alibi as raised by the Appellant was successfully demolished. He then urged that issue No.2 be resolved in favour of the Respondent, and that the Appeal be demised.
I have given an anxious consideration to the issues raised by the Appellant, and all the legal authorities cited therein by the respective Counsel, for the parties. I shall now consider the first issue propounded by the Appellant, that is to say; “Whether the Prosecution/Respondent can be said to have discharged the onus on it, of proof beyond reasonable doubt in the face of its inability to establish the ingredients of the offence of Armed Robbery or create a nexus between the cutlass (Exhibit 3 and the iron rod (Exhibit 4) to the Appellant?”
To prove its case, the Prosecution called six witnesses.
P.W.1., the victim of the alleged crime, Abdullahi Mohammed in his evidence in chief before the trial Court stated thus:
“It was on Saturday in the year 2008 in the month of May, we returned from naming ceremony in the house of A. Dahiru Mangal it was in the night around 3 am. When I returned home I opened the palour of my house. As I sit down suddenly the two Accused person entered the palour my driver was then sitting in my car outside the palour at the time. They entered into the palour, the 2nd Accused person was holding a gun. The first Accused person was standing by the door. The 2nd Accused person pointed the gun at me and ordered me to lie on the floor myself and one Shehu Sani hands were tied up. They started to search bed room when they came out of the bed room they were holding a box where I used to keep my money and documents they opened the box and removed from it the sum of N9040, 000:00k (sic) nine hundred and forty thousand Naira they removed one computer and two video camera, 3 mobile phones As I was trying to untie my hands the 1st Accused person who noticed my movement came and struck me with a cutter at my back. I sustained injury as a result. They demanded the key of my vehicle. There were other persons outside the house they came with. The people they came with who were outside the house I came into the palour together with the driver of my car. My driver called Ibrahim AUU was asked to lie on the floor and both Shehu Sani and Ibrahim AUU was asked to lie on the floor and both Shehu Sani and Ibrahim AUU were searched. The 2nd Accused person asked me to chose between my life and my car. They collected the key to the car and asked me to collect the car after Army Barrack. As they were about to leave me of them shouted that the key be returned to me and the key was thrown to me. At around 10 am in the morning I reported the matter at S/G police station. As I was giving my statement to the police at the station I saw the 2nd Accused person at the police station. I identified the 2nd Accused person one of the people who came into my house. When he came into my house there was light. He was the one holding a sun and he shined light at my face. The DPO asked me if I see the weapon they came into my house if I can identify it. And I said I can identify it. The DPO asked some people to pass near a window I was sitting next to and from the people who passed I identified the 1st Accused person among them. When the DPO asked me whether I could identify any of the weapon they came to my house with I said I could I said there was cutter posted with a red sticker. DPO ordered the weapon the Accused persons were arrested to be produced. When they were produced. Before him I identified the cutter I mentioned if I see the cutter I will be able to identify it from the sticker posted on it.” (Underlining mine)
Then under Cross-Examination, he said:
“There was light in the house when they came. There was sufficient light to enable me see the intruders. The 2nd Accused person shined the torch light on my face despite that there was light in the house. I cannot know the colour of the cloths they wore when they came to my house but the 2nd Accuse person was wearing a 3/4 jean and T shirt. The 1st Accused person was wearing T shirt and jean trouser. The 2nd Accused person was wearing beard. It was the 1st Accused person who struck me with the cutter. I know the amount of the money was kept to renovate my house. They did not touch the money l returned with from the ceremony. I cannot say the number of people who came to my house but I only know the two Accused persons. They came with gun and the 2nd Accused person was stepping on my head despite light I still maintained that I could not tell their number. I was ordered to lie down. All I know is that they removed some money from both my driver and Shehu and their handsets also I informed they were arrested in some body’91s house. I do not know how long they were at the police station. I can always identify them since I saw them. I affirmed to tell the truth. I identify the 1st Accused person as among the people who came to my house”.
Ibrahim A. U. U., testified as P.W.2, and stated that:
“On 28/5/2008 I saw a friend asked him where was then. He told me that he was at Katsina Motel for naming ceremony. He is called Abdullahi Moh. I met him there on our returned from Katsina Motel to his house. There other people we were together with. I can recall some of the names is Shehu Sani. When we reached Abdullahi Moh house I told him that I was proceeding but Abdullahi asked to stay. Abdullahi Moh and his members of his troop moved into the house I remember (sic) in the car making telephone calls. I just saw the 2nd Accused person he shouted to him “where are your oga”. I told them that I was not the oga. He asked me to lead to him to my brother. He when we entered the polour of Abdullahi the 2nd Accused person asked me to lie down on the floor. They searched me and tied my hands and my legs. They removed my money reached N4, 000:00k when I looked at them a gun was pointed at me. It was the 2nd Accused person who pointed the gun at me.”
In his cross-examination P.W.2 said:
“It was around 3.30am I Moh Abdullahi and Shehu Sani tied up lying on the floor. There was also one Bala was also there also were tied up lying down. I met 3 of the 2nd Accused person’s people making 4 of them with the 2nd Accused person. The 2nd Accused person was holding a gun when we entered the palour. One of them was carrying a sword. I did not see others with any weapon. I cannot remember the colour of the dresses they wore. All I know is that they were wearing small dresses.”
P.W.3, Shehu Sani testified thus:
“I know the two Accused persons. I came to know them when they came to the house of A Abdullahi Moh. In the month of May, 2008. When they came to the house they ordered all of us to lie down on the floor and tied our hands. Myself Abdullahi Moh and Ibrahim hands were tied. My money and hand set were removed. The money taken was N3000:00k I cannot remember how many came into the house I was not chanced to count them.”
He confirmed in his cross-examination that there was light in the house when the accused and his group came in, that they were about to watch television. P.W.4., one Umaru Abdullahi, the Police Sergeant No. 170552 with S/G Dura Police Station attached to CID office Katsina State. Who recorded the statement of the Appellant, testified in chief saying?
“I know the Accused persons. There was a transfer of robbery case from S/G Katsina to State C/D office Katsina. The case was assigned to my team for investigation I was detained (sic) to record the statement of a Musa Sani I administered words of caution to him. He understood. He volunteered statement in English Language and recorded it in English Language. If I see the statement I will know it from my hand writing and my signature.”
Under cross-examination, P. W. 4 said that no money nor gun was recovered from the accused.
P.W.5, Yunusa Adamu, Inspector of Police, State CID office, Katisna, the Exhibit Keeper at the State CID, testified in chief saying;
“On 11/7/2008, I was on duty at the Exhibit room state CID office Katsina Cpl Lawal Ahmed of Robbery Section brought to me two items for keeping in connection with the case against the Accused person they are one machete and one small iron rod. The matched (sic) is about 2 feet long while the rod is about 1 1/2 feet long. I marked them collectively as Exhibit 461/2008 if I see them I will be able to identify them from the description I gave the Exhibit number I gave them I posted it on them. The machetes has wooden handle also.”
He tendered the machete as Exhibit A and the iron rod as Exhibit B for identification Purposes only.
P.W.6., one Sgt. Lawal Ahmed attached to S/G Police Station, Katsina, formerly at State CID office, Katsina stated as follows:
“On 1/7 /2007 at about 1300 hrs I was at State C.I.D office katsina as investigator. When the case of robbery was transferred from S/G to state C/D Office Katsina. The case was assigned to our team to investigate. I recorded the statement of the 2nd Accused person I explained the allegation to him first I cautioned and read over the cautioned to him and he signed thereafter he volunteered statement to me which I recorded in English Language. I read it over to him he understood and signed. I also counter signed it as the recorder. I took the Accused person before the Exhibit keeper and registered the Exhibit if I see the statement I will know it from my hand writing and signature this is the statement I recorded. The Exhibits are cutlass and an iron rod.”
He identified IDs A and B, which were then admitted in evidence as Exhibits 3 and 4 respectively.
It is clearly spelt out in the Evidence Act that the obligation to convince the Court of commission of any crime rests squarely on the prosecution, and that duty, the prosecution must discharge beyond reasonable doubt. To establish the crime of armed robbery, the prosecution must prove that (a) there was a robbery or a series of robberies; (b) each robbery was an Armed Robbery and (c) the accused was one of those who took in the robbery.
The evidence of P.W.1, P.W.2 and P.W.3, the victims of the alleged offence distinctly elaborated that the offence of robbery took place in the house of P.W.1. They were consistent in their evidence both in chief and under cross-examination about the commission of the act of robbery on them at the house of P.W.1 after they came back from a naming ceremony between 3.am and 3.30am in the Month of May, 2008. Although P.W.1 had explained the day of the incident to be a Saturday, P.W.2 and P.W.3 were ad idem on the incident having taken place on the 28th May, 2008. The witnesses respectively mentioned the items they were individually robbed of. It was in this respect, the Appellant’s Counsel strongly contended that the discrepancy in the dates or day mentioned by P.W.1 on the one hand and P.W.2 and P.W.3 on the other hand had cast a great doubt on the testimonies of the prosecution witnesses as to the commission of the offence by the Appellant. Learned Counsel, further hammered on non-disclosure (a) of P.W.2 and P.W.3 of the amount P.W.1 was robbed of, and (b) of the source of the said sum of N940,000 P.W.1 was allegedly robbed of. Pivoting his argument on the alleged non disclosure, Counsel invited this Court to resolve the inconsistencies in this sphere in favour of the Appellant.
There is no doubt, as was clearly borne out in the evidence of P.W.1, P.W.2 and P.W.3, that they were attacked between 3.am and 3.30am in the month of May, 2008, in the house of P.W.1, but the question is whether the discrepancy in the evidence as to the date of commission of the offence, or the day, the non disclosure by P.W.2 and P.W.3 of the amount P.W.1 was robbed of, and too, non disclosure by P.W.1 of the source of the alleged sum of N940,000 he was robbed of, would affect the outcome of the trial. It is an established principle of law that for contradiction to affect a conviction, they must be capable of raising doubt as to the guilt of the accused. They must affect the substance and materiality of the offence.
In Uwagboe vs. State (2008) 12 NWLR Part 1102 page 621, the Supreme Court relying on Ayo Gabriel vs. the State (1989) NWLR Part 122 page 457 opined that; “two pieces of evidence contradict one another when they are by themselves inconsistent “and that a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains, some minor differences in details.
In Oxford Advanced Learner’s Dictionary, the word discrepancy is said to occur when there is difference between two or more things that should be the same, while contradiction is described as; ‘a lack of agreement between facts, opinions, actions, etc.”
In expounding these terms; the Supreme Court in Isibor vs. State (2002) 4 NWLR Part 758 page 741, per Uwaifo; J.S.C., stated thus:
“In considering a case where contradictions have been recorded in the evidence of witnesses, it is always important to assess the materiality of these contradictions of the case presented. Contradictions which do not affect the substance of the issue to be decided are irrelevant. The contradictions must be shown to amount to a substantial disparagement of the witness or witnesses.”
Learning on the decision in Isibor vs. State (supra), it seems clear that the issue to be considered herein is whether P.W.2 and P.W.3 were robbed at all in the month of May, 2009 by persons armed, and, whether the Appellant herein was one of those persons. It is enough if the evidence is that the Appellant was present at the scene, and was armed or in the company of armed persons.
I must observe that there is no prevarication or equivocation in the evidence P.W.1, P.W.2 and P.W.3 that they were attacked by a group of men in the house of P.W.1 between 3.am and 3.30am, the early hours of 28th May, 2008, notwithstanding, that P.W.1 described the day as a Saturday.
It is instructive to note that the evidence of P.W.1, P.W.2 and P.W.3 on the allegation they were attacked was never impeached nor contradicted by the defence. There was no conflicting evidence established before the trial court tending to show that they were not attacked by a group of young men at the house of P.W.1. Also P.W.1, P.W.2 and P.W.3 were consistent in their claim that their attackers had with them gun, cutter with red sticker pasted on it which P.W.1 alleged the Appellant struck him at the back with and he sustained an injury. It is clear that an identification parade was conducted at the station by the D.P.O of the S/G police station. That explained the reason why the D.P.O asked some people to pass near the window P.W.1 was sitting next to, and P.W.1., was able to identify the 1st Accused person.
The Appellant was distinctly and physically identified by P.W.1. He even, gave description of the type of clothes worn by the Appellant on the fateful night. By his narration, P.W.1 identified the Appellant without any hindrance. He neither speculated on his identity nor quivered. He identified the Appellant from amongst those shown to him via the window.
Even, the Appellant, in his evidence before the Court, stated that when they came back from Lunar Hotel, the brother of the 2nd Accused person went to ease himself. He, the Appellant saw a group of people, about four (4) of them, passing. They asked him, the Appellant, whether he saw any person passing through, he answered, ‘No! But, what a coincidence! It was the same set of people the Appellant said he saw on the street after he came back from Lunar Hotel with his friend, and, his friend’s brother, in those early hours, were those who reported the case of armed robbery against him and who, equally identified him at the police station as one of those perpetrators of the crime.
It is my view that the Appellant, somewhat gave himself away in his evidence. He betrayed himself. Why was it after the attacker, had, presumably, left the house of P.W.1; that the Appellant saw a group of four men including P.W.1, passing and looking for some men? By the evidence of D.W.2, i.e. the Appellant, the coincidence in him, seeing P.W.1 and three other people in the early hours of 28/5/08 looking for people passing, after they had come back from Lunar Hotel, about 2.30am they claimed they left Lunar Hotel, was overwhelming and inexplicable. The Appellant’s assertion actually gave credence to P.W.1’s evidence that he had previously seen the Appellant, i.e., at the time of commission of the offence. Whatever must have orchestrated P.W.1’s and Appellant’s meeting and seeing each other within the period P.W.1, P.W.2 and P.W.3 alleged that the robbery attack on them occurred, is beyond my imagination. It is crystal clear that the Appellant’s testimony indisputably supports the fact that they were not at Lunar Hotel at the time the robbery incident occurred at the house of P.W.1. They were still awake at that time of 28/5/08 because the Appellant saw P.W.1 too in the street. The Appellant, further, mentioned cutlass and rod, saying that P.W.1 and those other people came to the police station with them.
The question is, could the meeting of P.W.1, the victim of the Armed Robbery attack, and the Appellant, the alleged armed robber, in the early hours of 28/5/2008, have been providential? Whatever it was, I believe the trial Court fully assessed the evidence adduced before it and came to the conclusion that the two accused persons jointly committed the offence as charged, and that they have no defence to the commission of the offence, notwithstanding its remarks at page 39 lines 5-23 of the record which I would extensively deal with later. Both the Appellant and P.W.1, the victim of the robbery attack talked about cutlass being brought to the station, though the Appellant alleged it was brought by P.W.1. There is nothing showing on the record that P.W.1 was confronted with the claims of the Appellant that he P.W.1 brought the cutlass in order to incriminate the Appellant. P.W.1 was, also, not challenged on the fact that he was given a cut with the cutlass by the Appellant as he alleged. I must reiterate that the coincidence in the Appellant’s and P.W.1’s meeting each other that night is still a puzzle to me in the face of the Appellant’s Counsel’s argument. This explains why the Appellant was properly identified as one of the armed robbers and that he was properly linked to the crime of Armed Robbery committed on P.W.1, P.W.2 and P.W.3 on that fateful day.
It was, also, the Appellant’s contention that the stolen items must be recovered and tendered and that the weapon used during the robbery must, also, be tendered. Now, the question is, must these items stolen be recovered and the weapon used be tendered, and the victim of the offence of armed robbery state the source of his stolen items or property before the prosecution can be said to have proved its case.
In Olayinka vs. State (2007) 9 NWLR Part 1040 page 561; the Supreme Court, held:
“There is no principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person. Whether or not the prosecution needs to tender the weapons with which the Appellant allegedly committed robbery depends by and large on the character and circumstances. Once the prosecution proves the ingredients of the offence of Armed Robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in acquittal of the accused person. This is because of the possibility of the accused doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility, nothing stops an accused from throwing away or holding the offensive weapon completely outside the investigative eyes of the Police. If there is compelling evidence that the accused person committed the Armed Robbery, failure to tender the offensive weapon in the circumstance, cannot therefore be the basis for acquittal.”
P.W.1 stated in his evidence that as he was trying to untie his hands bound together, the Appellant observed his movement and then struck him at his back with a cutter as result of which he sustained injury. He further said that at the police station, the D.P.O ordered the weapon the accused persons were arrested with to be produced, when they were produced before the D.P.O, he identified the cutter with red sticker on it. He confirmed under cross-examination that it was the 1st accused person, i.e. the Appellant herein, who struck him with the cutter. He said that the 2nd Accused person pointed a gun at him, though the gun was not recovered.
The law, as had already been stated, is that even if the prosecution failed to recover the offensive weapon used by the robbers and also failed to produce and tender them at the trial, it would not affect the substance of the case if there is proof beyond reasonable doubt that there was indeed robbery, that the robbers were armed with offensive weapon at the time, and, that under threat with the offensive weapon, the victim was robbed of his personal items or property. P.W.6, Sgt Lawal Ahmed to whom the case was assigned when it was transferred from S/G Police Station to the State CID, said that the case was assigned to him and after taking down the statement of the Appellant, he took him before the Exhibit Keeper and registered the Exhibit consisting of cutlass and iron rod. P.W.5, the Exhibit Keeper confirmed, that P.W.6 brought the machete and a rod to him in connection with the Appellant’s case which he indeed registered. I must observe that machete and cutlass were used interchangeably by P.W.5 and P.W.6. Cutlass is described by Oxford Advanced Learner’s Dictionary, as “a short sword with a curved blade”, and Machete as a broad heavy knife used as a cutting and as a weapon’. While “Cutter is said to be a tool for cutting”. I must state that no matter the nomenclature given to the weapon allegedly recovered by the police from the Appellant and his co-accused, the fact remains that P.W.1 identified the cutter or cutlass at the Police station.
It was never disputed that the robbers who raided P.W.1’s house and robbed him of his personal belongings came with offensive weapons including the machete or cutlass as the case may be. Also, the evidence of P.W.1, being struck at the back with the said cutlass or machete depending on the nomenclature ascribed to it by the parties, was never debunked by the Defence. P.W.1 had already demonstrated in his evidence how the Appellant struck him at his back with a cutter. He was shown the cutter or cutlass at the police station which he identified. In my view, there seem to be sufficient nexus between the Appellant and Exhibit 3. Be that as it may, the case of Olayinka vs. State (supra) has put to rest the issue of non-production of the weapon used during the robbery at the trial, so long as there is sufficient proof before the court that the robbers were armed at the time of the operation. In the light of the reasons given above, I hereby resolve issue No.1 against the Appellant.
I will now turn to issue No.2, which is; “Whether the trial Court was right to convict the Appellant for Armed Robbery and sentenced him to death when it held that the Appellant created an alibi in his extra judicial statement which was not investigated?”
A careful study of all the facts proffered by the parties particularly the Appellant and other defence witnesses give credence to the fact that issue of defence of alibi did not arise at all. Even though the charge did not specify the time of commission of the offence, the evidence of the Appellant, D.W.1 and D.W.3 categorically stated that they went to Lunar Hotel around 9.pm on the 28th May, 2008, and they left Lunar Hotel at 2.30am for the 2nd Accused person’s house. It is clear on the record that the allegation against the Appellant and the 2nd Accused person was said to have occurred after the victims had returned from a naming ceremony at about 3.am. By the testimony of the Appellant, it is clear that as at 3.am of 28/5/08, the Appellant, the 2nd Accused person and the brother of the 2nd Accused person were no longer at Lunar Hotel, they had left the Hotel, so, there was no basis for the Investigating Police Officer to conduct any investigation at the Lunar Hotel. In fact, the Appellant and his cohorts in their evidence before the Court testified to the fact that they were outside, in front of the house of the 2nd Accused when the brother of the 2nd Accused person was urinating outside. At that time, some men passed them and enquired whether they saw some people passed, to which they said, ‘No’. This was after they left Lunar Hotel. I would, for purposes of clarification reproduce the evidence proffered by the Appellant, his co-accused, and D.W.1. They read thus:
D.W.1., one Felix Uwazie, a trader asserted that:
“I know the 2 Accused persons particularly 2nd Accused person on 28/5/2008. It was a Wednesday. I came to Katsina that day. There was a job to do at Katsina that day. He told me that he has work to do at Katsina He asked me to stay and go to the work I was in his house waiting for him. Toward evening around 6 he came back. I saw the 1st Accused person that day also the came back together. We went Lunar Hotel Katsina around 9 pm. Before we left to lunar we were all at their house. We left Lunar around 2.30 am to 2nd Accused persons house all the three of us I went to ease my self I heard some asking them whether they saw some body person in front of the house. They told him that they did not see any body. In the morning someone came into the house and asked them to report of the police station. I asked the men whether he was the person who came earlier in the night and he said he was the same person.” (Underlining mine)
D.W.2., the Appellant, A. Musa Sani stated as follows:
“On 28/5/2008 I was in Katsina I returned home from my working place around 630 pm. I was together with Ifenyi Amah the 2nd Accused person. The 2nd Accused person told me that his brother came from Kano. After that the 3 of us myself Ifenyi and the brother of Ifenyi went to Luna hotel around 6 – 630. When we came back from Luna Hotel, the brother of the 2nd Accused person went to ease himself. I saw a group of people about 4 of them came passing. They asked me whether I saw any body passing through I told them I saw no body. They left. Town people where the house early in the morning two police men came and invited me to- S/G police station. When the D.P.O came in the same men who came returned with cutlass and iron rod and told the D.P.O we were the people that entered his house. We denied the allegation. One person called Audu came when were at the police station and said he recognised the cutlass as one he saw in his house.” (Underlining mine)
D.W.3., one Efenye Emah, stated and say:
“On 28/5/2008 I was in Katsina. When I returned from work around 5 pm my brother came from Kano. I was with 1st Accused person we left to Lunar Hotel and returned 2.30 am we came home my brother went to ease himself some people 4 in number came and asked us in whether we saw someone passing and we said we have not. They left we entered into the compound. In the morning a man came and invited us to the police station. We were detained. They asked the man. Another man came in with cutlass and iron rod a search was conducted in our house but nothing was discovered some people made allegation against us which was investigated.” (Underlining mine)
The question is; ‘why is it that, on the same date and about the same time the incident allegedly occurred, the Appellant, and the 2nd Accused person went to Lunar Hotel and left between 6-30pm and 2.30am, were still awake, up to about 3.00am-3.30am and up to the time they saw P.W.1 and his men after the robbery attack on them in the same vicinity? They said they saw the men in the early hours of 28/5/08 and they asked them whether they saw some people passing. To me, the coincidence was more than one could comprehend.
It is clear in law that ‘it is not every alibi raised that should be investigated. Alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else, at a place where most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime. See Sowemimo vs. State (2004) 11 NWLR Part 885 page 515; Aiguorehian vs. State (2004) 3 NWLR Part 860 page 367; Onyegbu vs. State (1995) 4 NWLR Part 391 page 510 and Nwaturuocha vs. State (2011) LPELR SC. 197/2010.
An Accused must not raise the defence of alibi at large, he must give adequate particulars of his whereabouts at the time of commission of the offence to assist the police to make a meaningful investigation of the alibi. See Nsofor vs. State (2002) 10 NWLR part 775 page 274, Balogun vs. A-G Ogun State (2002) 6 NWLR Part 763 page 512.
In the instant appeal, and as I earlier opined, alibi does not arise because it was after the Appellant and his friends left Lunar Hotel that the alleged robbery took place. If the robbery incident was said to have occurred between 6.30pm and 2.30am on that day, the Police should have been under obligation to investigate the defence of alibi by extending their tentacles to Lunar Hotel to ascertain whether they were indeed there, but, that is not the situation here at. Since, by the statements of the Appellant and his co-accused they had already left, and were on the street in front of the house of the 2nd Accused, and were there until some people whom he later identified as P.W.1 and his men were passing and asked them whether they saw some people passing, they had relieved the police of the burden of investigating the defence of alibi. It is on this footing I would register my displeasure with the remarks of the learned trial Judge at page 39 lines 5-23 of the record that no proper investigation was conducted by the police on the defence of alibi. The point is, no alibi existed and none was there for any investigation since it was after the Appellant and his co-accused left Lunar Hotel that the robbery attack took place.
Furthermore, I would not hesitate to take refuge under the Supreme Court’s decisions in Nwaturuocha vs. The State in Suit No. S.C.197/2010 delivered on 11/3/11, in which it was held that where the Appellant was identified by the prosecution witness, without any equivocation, a straight issue of credibility will arise, that is to say, where an alibi has been raised and there is visual positive identification of the accused, which is believed by the trial Court, the Appellate Court should not disturb such a finding i.e. where there is more credible evidence fixing the accused person with the commission of the crime, the defence of alibi will not avail him, per J. A. Fabiyi; J. S. C. His Lordship went further to say that proof beyond reasonable doubt is not proof beyond all iota of doubt, and it not be stretched beyond reasonable limit, otherwise it will cleave. It should be recalled that the incident was said to have taken place after about 3.00 am, and that was after the Appellant and his friends had allegedly left the Lunar Hotel at 2.30 am.
In view of the foregoing, I entirely agree with the conclusion reached by the trial court which I believe did not allow any sentiment to overrun its reasonings. Accordingly, this Appeal is hereby dismissed. I hereby affirm the conviction and sentence of the Appellant by the trial High Court.
ABDU ABOKI, J.C.A.: I agree.
AHMAD O. BELGORE, J.C.A.: I agree.
Appearances
Soth Nixon, Esq; with N.T. Azai Esq;For Appellant
AND
Ahmed Aliyu, Esq; State Counsel Ministry of Justice, Katsina StateFor Respondent
