ANUKU v. STATE
(2022)LCN/16228(CA)
In the Court of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/269C/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
ABOY ANUKU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
It is now hackneyed statement that the burden of proof in criminal cases lies on the prosecution and that the standard of proof is proof beyond reasonable doubt. See Sections 131 and 135(1) and (2) of the Evidence Act. It is again trite that the phrase “proof beyond reasonable doubt” does not mean proof beyond the shadow of doubt. It means establishing the guilt of an accused person with compelling and conclusive evidence. Once all the ingredients of an offence are established beyond reasonable doubt and the accused person is unable to bring himself within the defence or exceptions provided by the law, the offence is proved beyond reasonable doubt. But if at the end of the trial, there is doubt as to the guilt of the accused person, the doubt must be resolved in favour of the accused person. In such a case, of beyond reasonable doubt has not been attained. See Oteki v. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648, Adamu v. State (2014) 10 NWLR (Pt. 1416) 441 and Philip v. State (2019) 13 NWLR (PT. 1690) 509. PER EKANEM, J.C.A.
ELEMENTS OF THE OFFENCE OF ARMED ROBBERY
I have already set out the offences for which the appellant was convicted. In determining this appeal, I shall first treat the substantive offences before considering the count of conspiracy.
The elements of armed robbery are that;
1. There was a robbery or series of robberies.
2. The robbery or each of the robberies was armed robbery.
3. The appellant was the robber or one of the robbers.
See Bozin v. State (1985) 7 SC 450 and Attah v. State (2010) 10 NWLR (PT. 1201) 190. PER EKANEM, J.C.A.
THE POSITION OF LAW WHEN AN ACCUSED PERSON DEPENDS WHOLLY OR SUBSTANTIALLY ON THE CORRECTNESS OF THE IDENTIFICATION OF AN ACCUSED PERSON
The law has therefore been laid down that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of an accused person, which the accused person alleges to be mistaken, the judge must warn himself of the special need for caution and should weigh such evidence with other evidence adduced by the prosecution before convicting the accused person on the correctness of the identification. This is so, as a mistake could honestly be made in the identification of criminals or even the recognition of known persons. See R v. Turnbull (1976) 3 WLR 445, 447, Abudu v. State (1985) LPELR – 579 (SC) 12 – 13, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633, Sale v. State (2016) 3 NWLR (Pt. 1499) 392, 414 and Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501, 523. PER EKANEM, J.C.A.
THE DEFENCE OF ALIBI
It is correct that the appellant set up a defence of alibi in his statement to the police. The duty of an accused is merely to introduce evidence in respect of alibi and the burden of disproving the alibi falls on the prosecution. See Bozin v. State supra. It is the duty of the prosecution to investigate alibi and rebut it. But the fact that alibi is not investigated is not by itself fatal to the cases of the prosecution. Where the prosecution adduces enough evidence to fix the accused person at the scene of the crime at the material time, the alibi is logically and physically demolished. See Akpan v. State (1986) 3 NWLR (Pt. 27) 258, Madagwa v. State (1988) 5 NWLR (Pt. 92) 60, Umani v. State (1988) 2 SC (Pt. 1) 88 and Ehimiyen v. State (2016) 16 NWLR (Pt. 1538) 173. The appellant was, by the evidence of the PW2, fixed to the scene of the crime at the relevant time and so his alibi was demolished. PER EKANEM, J.C.A.
THE OFFENCE OF MEMBERSHIP OF AN UNLAWFUL SOCIETY
I now turn my attention to his conviction for the offence of membership of an unlawful society. Sections 62 and 62 A of the Criminal Code Law set out what an unlawful society is. Sub-sections (2) (i) (b), (c), (e), (g) of Section 62 provides that:
“(2) A society is an unlawful society –
(i) If formed for any of the following purposes- ……
(b) Killing or injuring or encouraging the killing or injuring of any person: or
(c) Destroying or injuring or encouraging the destruction or injuring of any property: or ……
(e) Committing or inciting to acts of violence or intimidation: or …
(g) Disturbing or encouraging the disturbance of peace and order in any part of Nigeria; or
(ii) If declared by an order of the appropriate commissioner to be a society dangerous to the good government of Nigeria or of any part thereof.”
Section 62 A of the same code provides that:
“Without prejudice to the provisions of Section 62, a society is an unlawful society if it is declared by an order of the Executive Council of the Delta State to be a society dangerous to the good government of the State or any part thereof, and for such purpose –
(a) The consent of the Attorney-General of the Federation referred to in Section 65 shall be construed as a reference to Attorney General of Delta State; and
(b) The reference in Sections 67 and 68 to the appropriate commissioner shall be construed as a reference to the member of the Government of the State for the time being charged with responsibility for the maintaining and securing of public safety and public order.” PER EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was the 2nd accused person before the High Court of Delta State, sitting at Asaba (the trial Court) in an information numbered as Charge No. A/65C/2014. In the information, the appellant and his co-accused person were charged with the following offences:
1. Conspiracy to commit armed robbery contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Vol. 14, Laws of The Federation, 2004.
2. Conspiracy to commit felony punishable under Section 516 of the Criminal Code Law Cap C21 Vol. 1 Laws of Delta State 2006
3. Armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act.
4. Assault punishable under Section 351 of the Criminal Code Law of Delta State
5. Malicious damage punishable under Section 451 of the Criminal Code Law of Delta State
7. Membership of unlawful association punishable under Section 64 of the Criminal Code Law of Delta State.
The appellant and his co-accused person pleaded not guilty to the charge and the case proceeded to trial, at which the prosecution called three witnesses and tendered two exhibits. The appellant testified for himself and did not call any other witness. After taking the written addresses of counsel on both sides, the trial Court in a reserved judgment delivered on 5/2/2018 found the appellant guilty on counts 1, 3, 4, 5 and 7 of the information. It accordingly sentenced the appellant as follows:
Count 1 – Death sentence
Count 3 – Death sentence
Count 4 – 6 months imprisonment without option of fine
Count 5 – 1 year imprisonment without option of fine
Count 7 – 2 years imprisonment without option of fine, with the sentences running concurrently.
The appellant was discharged and acquitted in count 2.
Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 4/5/2018.
The facts of the case that resulted in this appeal as presented by the prosecution are as follows: On 5/2/2014 at about 12 pm, the PW1, a retiree who uses his car, a Nissan 1.4, as a taxi, was in the car waiting for his friend in front of a “ joint” called Gray House at Umueze Quarters (Asaba) when suddenly a group of boys who tied red ribbon on their foreheads and wielded cutlasses and axe, shouting “Aro, Aro” broke the windscreen of his car with the cutlasses and axe. The appellant and his co-accused person, whom he knew, were among those who carried out the attack. He made a report of the incident to the police at the A Division. On the same date at about 10 pm, the PW2 was returning from work when he saw the appellant and the co-accused person who stopped him and introduced themselves as vigilante in Umuezei. He told them that there is no vigilante in Umuezei. Immediately he turned his back, he saw 7 boys plus the appellant and his co-accused person who accosted him. The appellant started dragging his bag and pointed a cutlass at him, threatening to cut his neck if he did not release his bag. The co-accused person used his axe to hit him on his back. As he was struggling with them, his money fell and they robbed him of the sum of N150,000.00, master CD, cassettes that he sells and documents which were in the bag. A man that was approaching the scene raised an alarm while one of the assailants started shouting “Aromate”. This attracted people and the assailants started throwing stones, breaking electric lights and glasses. He escaped from them and ran to the police station to report. On the following morning, he reported to the vigilante. The PW2 led in the effort that resulted in the arrest of the appellant and his co-accused person.
The appellant testified denying committing the offences.
In the appellant’s brief of argument settled by O. O. Ofiaeli, Esq. Assistant Chief Legal Aid Officer, Legal Aid Council, the following issues have been identified for the determination of the appeal:
1. Whether in the absence of finding of facts the learned trial Court could validly arrived (sic) at reasonable and logical conclusion to convict the appellant on count 1 of the information. Ground 1
2. Whether the appellant was properly identified by the prosecution witnesses to have fixed them (sic) on the scene of the crime notwithstanding that the event took place by 10pm and 12 pm in the middle of the night. Grounds 2, 3, 4 and 8.
3. Whether the prosecution proved the offences in counts 1, 3, 4, 5 and 7 against the appellant beyond reasonable doubt to earn conviction.
4. Whether the judgment of the trial Court is not perverse, unwarranted and a miscarriage of justice.
In the respondent’s brief of argument, the following issues have been formulated for the determination of the appeal:
1. Whether the learned trial judge was right in holding that the prosecution proved the charges wherein the appellant was convicted beyond reasonable doubt.
2. Whether the evidence of the prosecution witnesses was sufficient to have fixed the appellant at the scene of crime and thus effectively demolish the defence of alibi.
I have read the grounds of appeal in the notice of appeal; the complaints therein revolve around proof or otherwise of the offences for which the appellant was convicted. In this light, it is my view that this appeal can be determined on one issue, to wit:
Was the trial Court right in holding that the prosecution had proved the offences for which the appellant was convicted?
In arguing his issue 1, appellant’s counsel contended that there was no legal reasons given by the trial Court to have arrived at the conviction of the appellant for conspiracy in count 1. He noted that the trial Court chose to deal first with the substantive offences before it would go on to determine the count of conspiracy but he stated that the trial Court did not treat the count before arriving at its conclusion that there was a meeting of the minds of the appellant and the co-accused person. This, he submitted, resulted in a miscarriage of justice.
As regards his issue 2, counsel posited that the prosecution rested its case on the identification of the appellant by the PW1 and PW2. He noted that the appellant was not arrested at the scene of the crime and did not admit committing the crime. He added that the appellant pleaded alibi with sufficient particulars which, he said, was not investigated. He set out the factors that the Court is to consider in respect of identification evidence and stated in summary the evidence of PW1 and PW2. He stated that though the PW2 testified that one of the boys who attacked him was tall while the other one was short, he (PW2) admitted that that is not in his statement to the Police. He lamented that the said statement was not produced by the prosecution. He referred to the statement as contained in the proof of evidence and submitted that it is not consistent with the evidence of the witness in Court. He posited that the trial Court was in error in treating the contradiction as a minor discrepancy.
Counsel argued that the evidence of the PW2 that his assailants broke “NEPA” lights is not contained in Exhibit A, his extra-judicial statement. He noted that the statement of the said witness in his extra-judicial statement that Aboy pointed torchlight on his face was not considered along with the evidence about NEPA light and that those pieces of evidence presuppose darkness and blurred atmosphere. He contended that pointing torchlight on a person’s face does not guaranty that the person pointing the torchlight will be recognized automatically. He asserted that the extra-judicial statements of PW1 and PW2 were not produced despite repeated demands and expressed surprise that the trial Court did not invoke Section 167 of the Evidence Act against the prosecution. He stressed that the quality of evidence led through the two witnesses that they saw the appellant in darkness was poor.
With respect to his issue 3, counsel stated straightaway that the prosecution did not prove counts 1, 2, 3, 4, 5 and 7 beyond reasonable doubt. He set out the ingredients of the offence of armed robbery and posited that from the evidence of the prosecution the robbery incident took place on 5/1/2004 but that the contention is whether appellant was one of the robbers. He stated that it is unnatural and improbable for the appellant to rob undisguised within the neighborhood where he lives. Thus, he argued, the trial Court ought to have considered the defence of alibi raised by the appellant. He referred to Exhibit B, the extra-judicial statement of the appellant, and submitted that the appellant did not have to call his sister or mother to substantiate his alibi but the duty was that of the prosecution to demolish it. He contended that the alibi was never investigated and disproved.
Counsel posited that the prosecution did not prove assault and malicious damage against the appellant. He raised a query as to whether or not the appellant has a car and why it was not “exhibited.” It was his assertion that the trial Court relied on “Id D” and “1D” to hold that the PW1 owns a car, which he argued was an error.
He submitted that the prosecution did not lead evidence to establish that the society in respect of which the appellant was convicted for being a member is an unlawful society. He referred to Sections 62 and 64 of the Criminal Code Law of Delta State to support his stance. He finally submitted that the judgment of the trial Court was perverse.
Respondent’s counsel submitted that the prosecution proved the charges beyond reasonable doubt. He set out the ingredients of armed robbery and assault and referred to the evidence of the PW2. He noted that the witness testified that he knew the appellant before the incident and that he mentioned him timeously. He referred to the evidence of the witness in cross-examination and submitted that the trial Court rightly relied on what he termed the uncontroverted and unchallenged evidence of the witness. He urged the Court not to disturb the finding of the trial Court. Counsel posited that the PW2 did not say that he identified the appellant with the light of a torch light and that there was uncontroverted evidence that there was NEPA light at the time that the PW2 was attacked.
It was his position that the law does not require corroboration in respect of the offence of armed robbery. He qualified as speculative the assertion by appellant’s counsel that it is unnatural and improbable for the appellant to rob undisguised in his neighborhood. In respect of malicious damage, counsel argued that the evidence of PW1’s ownership of the car that was damaged was uncontroverted. In regard to membership of an unlawful society, he referred to the evidence of the PW2 that the assailants tied red bands on their heads and were armed. He referred to the extra-judicial statement of the appellant where he stated that he was a member of the “two – two” cult group. He posited that a cult group whose intent and purpose is to attack, rob and damage windscreen of a car cannot be classified as a lawful association. Counsel submitted that the prosecution proved the count of conspiracy against the appellant.
In respect of his issue 2, it was posited by him that there was unchallenged evidence from the prosecution fixing the appellant to the scene of the crime. This, he contended, demolished the defence of alibi set up by the appellant.
It is now hackneyed statement that the burden of proof in criminal cases lies on the prosecution and that the standard of proof is proof beyond reasonable doubt. See Sections 131 and 135(1) and (2) of the Evidence Act. It is again trite that the phrase “proof beyond reasonable doubt” does not mean proof beyond the shadow of doubt. It means establishing the guilt of an accused person with compelling and conclusive evidence. Once all the ingredients of an offence are established beyond reasonable doubt and the accused person is unable to bring himself within the defence or exceptions provided by the law, the offence is proved beyond reasonable doubt. But if at the end of the trial, there is doubt as to the guilt of the accused person, the doubt must be resolved in favour of the accused person. In such a case, of beyond reasonable doubt has not been attained. See Oteki v. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648, Adamu v. State (2014) 10 NWLR (Pt. 1416) 441 and Philip v. State (2019) 13 NWLR (PT. 1690) 509.
I have already set out the offences for which the appellant was convicted. In determining this appeal, I shall first treat the substantive offences before considering the count of conspiracy.
The elements of armed robbery are that;
1. There was a robbery or series of robberies.
2. The robbery or each of the robberies was armed robbery.
3. The appellant was the robber or one of the robbers.
See Bozin v. State (1985) 7 SC 450 and Attah v. State (2010) 10 NWLR (PT. 1201) 190.
In respect of assault, the elements are that:
1. There was a strike, touch or application of force on another person.
2. Harm was caused to that person thereby.
3. The strike, touch or application of the force was not authorized, excused or justified by the law.
See Eneji v. State (2013) LPELR – 20393 9 (CA)
With regard to the offence of malicious damage, the offence is committed when the accused person maliciously damages the property of another person. See Nwakire v. COP (1992) LPELR – 2097 (SC).
The trial Court found that the prosecution had proved the offences charged except the offence of conspiracy in count 2. The trial Court also found that the appellant was one of the persons who committed the offences. The complaint of the appellant in this appeal is not in respect of the finding of the trial Court that the offences had been committed but that the identification of the appellant as a culprit was wrong. In the case of Ebenezer v. State (2020) 8 NWLR (Pt. 1727) 572, 594, it was held that whenever a Court is faced with identification evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person was the person who actually committed the offence with which he is charged. It was further held that it was for this important reason that there ought not to be a doubtful identification.
The law has therefore been laid down that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of an accused person, which the accused person alleges to be mistaken, the judge must warn himself of the special need for caution and should weigh such evidence with other evidence adduced by the prosecution before convicting the accused person on the correctness of the identification. This is so, as a mistake could honestly be made in the identification of criminals or even the recognition of known persons. See R v. Turnbull (1976) 3 WLR 445, 447, Abudu v. State (1985) LPELR – 579 (SC) 12 – 13, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633, Sale v. State (2016) 3 NWLR (Pt. 1499) 392, 414 and Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501, 523.
The PW1 and PW2 testified, identifying the appellant as one of the culprits and the trial Court relied on their evidence to find the appellant guilty of the offences. The complaint of the appellant against the evidence of the PW1 is two-fold:
i. In his evidence in Court, he stated that one of the boys who attacked him is short while the other assailant is tall while in his extra-judicial statement he did not mention that fact.
ii. The evidence of the witness shows that the incident happened at night.
The original copy of the extra-judicial statement of the PW1 was not tendered in evidence but the “duplicate” copy was available although appellant’s counsel insisted on the original copy being produced but in vain. However, the witness admitted at page 43 of the record that, “It is not in my statement that one is short and the other person is tall.” Therefore the need to tender the statement did not arise. Section 232 of the Evidence Act provides for the cross-examination of a witness as to his previous statement made in writing or reduced into writing relative to matters in question in the suit or matter in which he is cross-examined. The statement in writing need not be shown to the witness or tendered in evidence once the cross-examiner is satisfied with the answer or he does not intend to pursue the matter further. Since the witness had admitted that that part of his oral evidence was not in the written statement, that was sufficient and tendering the statement would have been superfluous. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248, 261 – 261, Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637 also reported in (1996) 37 LRCN 652, 663 – 664 and (1996) LPELR – 1810 (SC) and Kekong v. State (2017) 18 NWLR (Pt. 1596) 108, 136 – 137. I do not therefore appreciate the surprise expressed by appellant’s counsel that Section 167 (d) of the Evidence Act was not invoked by the trial Court against the prosecution for failure to produce in evidence the PW1’s written statement.
The trial Court held at page 89 of the record that:
“The fact that the PW1 identified the 1st and 2nd accused persons in Court as “short one and tall one” and this is not contained in the statement of the PW1 to the Police does not amount to a contradiction but a mere discrepancy.”
I agree with the trial Court. In Gabriel v. State (1989) LPELR – 1298 (SC) – 1298 (SC) 19, Nnaemeka-Agu, JSC, highlighted the difference between contradiction and discrepancy in the following manner:
“A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just minor discrepancy between them. It is useful to bear in mind the fact that the word’ contradict’ comes from the Latin words contra (opposite) and dicere (say). Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, 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. I think the law also looks at the two different situations differently. If a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable. See Onubogu v. State (1974) 9 SC1. On the other hand, minor discrepancies between a previous written statement and a subsequent oral testimony expected do not destroy the credibility of the witness. Indeed, where such do not occur, it may lead to a suspicion that the witness has been tutored.”
Counsel for the appellant in regard to his submission on alleged contradiction as highlighted above only stirred a storm in a tea-cup. The above has given a quietus to the storm.
The second aspect of the complaint is that the PW1 testified that the incident occurred at night. The witness testified that the incident occurred at 12 pm. This would suggest that the incident happened at 12 O’clock noon, that is, in broad daylight. However, I think that this is a misstatement of the time as a communal reading of the evidence of the prosecution witnesses shows that the incident was at 12 midnight. I take judicial notice of the fact that mid-night is a time of darkness based on the authority of Section 122 (1) (g) of the Evidence Act. The question is by what means did the PW1 identify the appellant as one of the persons who broke the windscreen of his car? Was it by moonlight, electric light or torchlight? I have perused the evidence of the witness and I see no answer to this question. I do not also see an answer to the question in the evidence of any other witness. This creates a doubt as to the identification of the appellant by the PW1 which doubt must be resolved in favour of the appellant. See Okonji v. State (1987) 3 SC 179.
It is therefore my view that the trial Court erred in convicting the appellant of the offence in count V, viz; malicious damage to the vehicle of PW1.
In respect of the testimony of the PW2, it was the contention of appellant’s counsel that the oral evidence of the witness contradicts his extra-judicial statement to the Police. What was the contradiction? At page 10 of the appellant’s brief of argument, it is asserted that the witness stated in his oral evidence that” when they saw people started coming out they started stoning everywhere breaking NEPA lights and some glasses over there” but that the statement is not in his extra-judicial statement to the police which was tendered as Exhibit A. Apart from the complaint of the counsel being a question of discrepancy, I have also read carefully the testimony of the witness on the record. There is not one moment that the witness was cross-examined on the “contradiction” as required by Section 232 of the Evidence Act.
In Madumere v. Okafor supra at page 18 of the electronic report, Ogwuegbu, JSC, set out the procedure required as follows:
“In my view, the essential requirements of Section 199 (now Section 232) are that where a party intends to impeach the credit of a witness by showing that what the witness said in the present proceedings contradicts his evidence in the previous proceedings, his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him, he must be reminded of what he said on that previous occasion and he must also be given an opportunity of making an explanation.” (words in brackets are mine) See also Kekong v. State supra. 137. Since the procedure was not followed in respect of the testimony of the witness regarding his evidence highlighted above, the contention of appellant’s counsel is a non-starter and I reject it. Even if counsel’s submission can be considered, and I have found to the contrary, it is clearly stated in Exhibit A that “They were shouting Aromate Aromate and damaging any white bulb that was reflecting to their face in that area.”
I need to mention that Exhibit A was admitted in evidence in respect of the oral evidence of the PW2 that he knew the boys who attacked him and that included Aboy Anuku, the appellant. In the statement, the witness clearly stated that he knew those who attacked him including “Aboy but his father I do not know.”
The evidence of the PW2 was that the incident occurred at 10pm and I take judicial notice of the fact that there is darkness at that time. By what means did the witness identify the appellant? First, there is evidence from the witness that he knew the appellant before the incident. I have already set out the evidence of the witness that the appellant and others broke “NEPA” lights. He insisted that he saw him “one on one” and that the appellant dragged his bag and brandished a cutlass at his face and threatened to cut his neck if he did not let go of the bag. It is therefore clear that the witness recognized the appellant by the means of light from the electric bulbs that illuminated the scene of the crime. The identification evidence was strong enough for the trial Court to rely on it. This is further strengthened by the fact that, certain of the identity of the appellant, the witness also reported him to the vigilante and embarked on a hunt for him and eventually had him arrested by the help of the vigilante three days after the incident.
The argument of appellant’s counsel about the improbability of the appellant robbing without a mask in his neighborhood is nothing but mere speculation and flight of fanciful thought. I shall therefore discountenance the same.
Again, the evidence of the appellant on assault was unassailable.
It is correct that the appellant set up a defence of alibi in his statement to the police. The duty of an accused is merely to introduce evidence in respect of alibi and the burden of disproving the alibi falls on the prosecution. See Bozin v. State supra. It is the duty of the prosecution to investigate alibi and rebut it. But the fact that alibi is not investigated is not by itself fatal to the cases of the prosecution. Where the prosecution adduces enough evidence to fix the accused person at the scene of the crime at the material time, the alibi is logically and physically demolished. See Akpan v. State (1986) 3 NWLR (Pt. 27) 258, Madagwa v. State (1988) 5 NWLR (Pt. 92) 60, Umani v. State (1988) 2 SC (Pt. 1) 88 and Ehimiyen v. State (2016) 16 NWLR (Pt. 1538) 173. The appellant was, by the evidence of the PW2, fixed to the scene of the crime at the relevant time and so his alibi was demolished.
I now turn my attention to his conviction for the offence of membership of an unlawful society. Sections 62 and 62 A of the Criminal Code Law set out what an unlawful society is. Sub-sections (2) (i) (b), (c), (e), (g) of Section 62 provides that:
“(2) A society is an unlawful society –
(i) If formed for any of the following purposes- ……
(b) Killing or injuring or encouraging the killing or injuring of any person: or
(c) Destroying or injuring or encouraging the destruction or injuring of any property: or ……
(e) Committing or inciting to acts of violence or intimidation: or …
(g) Disturbing or encouraging the disturbance of peace and order in any part of Nigeria; or
(ii) If declared by an order of the appropriate commissioner to be a society dangerous to the good government of Nigeria or of any part thereof.”
Section 62 A of the same code provides that:
“Without prejudice to the provisions of Section 62, a society is an unlawful society if it is declared by an order of the Executive Council of the Delta State to be a society dangerous to the good government of the State or any part thereof, and for such purpose –
(a) The consent of the Attorney-General of the Federation referred to in Section 65 shall be construed as a reference to Attorney General of Delta State; and
(b) The reference in Sections 67 and 68 to the appropriate commissioner shall be construed as a reference to the member of the Government of the State for the time being charged with responsibility for the maintaining and securing of public safety and public order.”
The appellant confessed that he is a member of the group that is called “Two – Two.” No evidence was produced at the trial to show that the group had been declared as an unlawful society pursuant to Section 62 A supra. How then did the trial Court arrive at the conclusion that the appellant was a member of an unlawful society? At pages 91 and 92 of the record, the learned trial judge reasoned as follows:
“There is evidence before the Court that the boys that attacked the PW1 and PW2 had red bands on their heads and were shouting Aro! Aro! While armed with cutlasses and axes which they used in damaging the car of PW1 and attacked the PW2, there is also evidence before this Court that the 2nd Accused person in Exhibit C admitted being a member of the cult known as two-two. The sum of all this is that there is sufficient evidence before this Court establishing that the 1st and 2nd accused persons are members of an unlawful association. The Court finds the offence in counts 6 and 7 proved against the 1st and 2nd accused persons beyond reasonable doubt.”
With all due respect, I do not agree with the learned trial judge. The fact that the appellant confessed to belonging to a cult group called “Two-Two” does not for that reason imply that the group is an unlawful society within the meaning of Sections 62 and 62 A of the Criminal Code Law. There must be evidence, direct or indirect, from which it can be found or inferred that the society was formed for any of the reasons set out in Section 62 (1) or that it was declared to be so pursuant to Section 62 (2) (ii) or 62 A of the said law. There is no evidence from which it can be found that the “Two – Two” cult group is an unlawful society as contemplated by the provisions above. There is no evidence that it was that group, as a body of persons, that carried out the attack.
The conviction of the appellant in respect of count 7 cannot therefore stand.
I now return to the conviction of the appellant for conspiracy. The learned trial judge at page 82 of the record stated that in the absence of direct evidence, he would deal with the substantive offences first and thereafter determine from the established facts whether conspiracy can be inferred. That was the right approach to the counts of conspiracy. However, the learned trial judge, after dealing with the substantive offences, did not make any assessment regarding conspiracy as charged in count 1. His lordship went ahead to convict the appellant of the offence of conspiracy as charged in count 1 for which he was sentenced to death. In the case of Ojogbue v. Nnubia (1972) 1 ALL NLR (Pt. 2) 226, it was held that the judgment of a Court must demonstrate in full a dispassionate consideration of the issues properly raised and heard, and must reflect the result of such an exercise. Furthermore, in the case of Nwosu v. State (1986) LPELR – 2134 (SC) 20 Aniagolu, JSC, opined that:
“A judgment sending a man to the gallows must be seen to be the product of logical thinking, based upon admissible evidence in which the facts leading to his conviction are clearly found, and the legal deductions therefrom clearly made. It cannot be allowed to stand if founded upon scraggy reasoning or perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly so in capital offences.”
Counsel for the appellant argued that the omission by the trial Court led to a grave miscarriage of justice. In Larmie v. Data Processing Maintenance and Service Ltd (2005) LPELR – 1756 (SC) 24 – 25, Onnoghen, JSC, as he then was, stated thus:
“The term ‘miscarriage of justice’ has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard, miscarriage of justice means a reasonable probability of more favourable outcome.”
It is the law that where a trial Court failed to evaluate evidence, the appellate Court is entitled to do so provided that the evaluation does not involve the credibility of witnesses. See Baytide (Nig.) Ltd v. Aderinokun (2014) 4 NWLR (Pt. 1396) 164, 205 and Okafor v. Bende Division Union, Jos Branch (2017) 5 NWLR (Pt. 1559) 385, 416 – 417.
Evaluation of evidence in respect of conspiracy in count 1 does not involve the credibility of witnesses. This is because conspiracy is mostly proved by inference and in this instance the trial Court righty found the appellant guilty of armed robbery. The trial Court could therefore convict him for conspiracy on that basis by inference. In Sale v. State supra 411 Ogunbiyi, JSC, re-stated the law on this point thus:
“The decision by this Court in Bozin v. The State (1985) 2 NER (Pt. 8) page 465 at 469 and Aruna v. State (1990) 6 NWLR (Pt. 155) 125 are also trite that where ingredients of armed robbery have been established, then criminal conspiracy can properly be inferred; a further authority is Sule v. State (2009) 17 NWLR (Pt. 1169) 33 at 63.”
The error of the trial Court therefore did not occasion a miscarriage of justice.
I therefore enter an affirmative answer to the lone issue for determination in respect of the conviction in counts 1, 3 and 4 but in respect of counts 5 and 7, I enter a negative answer.
On the whole, I come to the conclusion that the appeal succeeds in part and it is allowed in part. I set aside the conviction of the appellant in respect of counts 5 and 7 and accordingly discharge and acquit him in respect of count 5 (malicious damage) and count 7 (membership of unlawful association). I however affirm the decision of and sentences imposed by the trial Court in respect of count 1 (conspiracy) count 3 (armed robbery) and count 4 (assault).
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in advance, the judgment of my learned brother, JOSEPH EYO EKANEM, JCA. I agree with his reasoning and conclusion therein. I abide by the consequential orders made therein.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the advantage of reading before now the draft of the judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA and I agree with the well thought out process of arriving at the reasoning and conclusion therein, he has covered the field in an erudite manner that I have nothing more to add.
I allow the appeal in part and abide by consequential orders.
Appearances:
E. N. BONIFACE, ESQ, For Appellant(s)
P. A. OKOH, ESQ, (Assistant Director — Ministry of Justice, Delta State) with him, MRS. O. EYESIO, (Senior State Counsel) For Respondent(s)
