CHIDIEBERE OKOLISA v. THE STATE (2016)

CHIDIEBERE OKOLISA v. THE STATE

(2016)LCN/8165(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of February, 2016

CA/E/258C/2013

RATIO

APPEAL: GROUNDS OF APPEAL; THE DUTY OF LITIGANTS TO ONLY RAISE ISSUE(S) FROM THE GROUNDS OF APPEAL ON RECORD

It has been settled by this Court and the apex Court that, litigants are mandatorily required to only raise issue or issues from the grounds of appeal on record. See Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31. Thus, issue or issues for determination formulated by any party no matter how inviting and properly couched, but has no linkage or connection with the ground of appeal on record, the issue would be accordingly discountenanced. Therefore, the issue formulated by the learned counsel to the respondent would be discountenanced by me. That notwithstanding, all the arguments contained in the respondent?s brief of argument which touched on the issue to be adopted and or formulated by me in the resolution of this appeal (if any) would be adequately considered. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

THE DEFENCE OF ALIBI: THE MEANING OF ALIBI

On the issue of alibi. Alibi is a Latin word for ‘elsewhere’ and it is a defence on the physical impossibility of an accused person?s guilt by placing him in a location other than the scene of the incident at the relevant time. See Dagayya v. State (2006) 7 NWLR (Pt. 980) 637. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

THE DEFENCE OF ALIBI: THE DUTY OF THE INVESTIGATING POLICE OFFICER TO INVESTIGATE THE DEFENCE OF ALIBI WHEN IT IS PROPERLY RAISED

When alibi has been properly raised, it behoves on the Investigating Police Officer (IPO) to investigate the same in order to either confirm or disprove it. See Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; WHEN IS CONTRADICTION SAID TO BE FATAL

It is pertinent to observe at this juncture, that it is not every contradiction and or inconsistence in the evidence of the prosecution that are fatal. In order for contradiction and or inconsistence to be deemed fatal, it must be material and fundamental, that is, it must touch on material element or ingredient of the case. See Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525 @ 562 – 563. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

CHIDIEBERE OKOLISA Appellant(s)

AND

THE STATE Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Anambra State High Court, Awka Judicial Division sitting at Awka (hereinafter referred to as the Lower Court), delivered by Justice M. I. Onochie, J. on the 23rd day of June, 2009 in Charge No. A/19C/2005.

The brief facts of the case are as follows: That on the 19th day of August, 2002 a robbery incident took place and the appellant, Chidiebere Okolisa, participated in the said robbery incident. Thus, he was the 1st accused person among the three (3) accused persons who were initially arraigned before the Anambra State High Court, holden at Awka on a five (5) count charge of criminal conspiracy and armed robbery, contrary to Sections (2)(a) and 4(b) of the Armed Robbery and Firearms (Special Provisions Act) Cap. 398, Laws of Federation of Nigeria, 1990 as amended by Act No. 62 of 1999.

?Upon being charged and with their pleas taken and hearing concluded, the prosecution/respondent discovered that the charge upon which the accused persons were being tried was on the charge sheet previously filed at the Magistrate

Court. Hence, with the leave of the Lower Court, the charge sheet was substituted with an information containing a one count charge of armed robbery, contrary to Section 1 (2) (a) of the Armed Robbery and Firearms (Special Provisions) Act Cap. 398 as amended by Act No. 62 of 1999 and promptly thereafter, the pleas of the then two accused persons were re-taken on the 23rd day of June, 2009. The said armed robbery incidents was alleged to have taken place on the 19th day of August, 2002 at Abagana and Nimo. Hearing in the case had hitherto commenced on the 15th day of November, 2007. The prosecution called eight (8) witnesses and tendered seven (7) exhibits.

The accused persons (including the appellant) on their own part called five (5) witnesses including themselves. After the closure of the case for the defence, learned counsel for both parties filed written addresses and further addressed the Lower Court. At the end of it all, the learned trial judge found and concluded thus:
?The accused persons in this case were charged with the offence of armed robbery. The facts of this case however show that the 1st accused person committed the offence of

robbery which is a lesser offence than that for which he is being charged I shall therefore convict the 1st accused person for the offence of robbery simpliciter.
As regards the 2nd accused, I am not satisfied as to the evidence of identification given by prosecution witnesses. PW7 was emphatic that only the 1st accused was spontaneously identified by PW4. The failure of the prosecution to investigate the alibi of the 2nd accused person in my view has created doubts which must be resolved in his favour. He is accordingly acquitted and discharged. I find the 1st accused person guilty of the lesser offence of robbery ?
1st accused person is sentenced to 21 years imprisonment with hard labour. Sentence shall begin to run from the date of remand of the 1st accused. Accused does not deserve the sympathy of this Court.?

The appellant was dissatisfied with the said decision of the Lower Court and as a result thereof, filed an appeal against the said decision vide a Notice of Appeal dated the 7th day of December, 2012 and filed on the 10th day of December, 2012, wherein the appellant challenged the said decision on two (2) grounds of

appeal.

In accordance with the rules of this Court, the parties filed their respective briefs of argument. The appellant?s brief of argument and reply brief were settled by Emmanuel O. Achukwu Esq. and filed on the 27th day of June, 2013 and the 4th day of December, 2014 respectively. On the other hand, the respondent?s brief of argument were settled by E. I Okafor Esq. of the Ministry of Justice, Awka. It was filed on the 6th day of June, 2014. Thereafter, it was deemed properly filed and duly served with leave of this Court sought and granted on the 19th day of November, 2014.

The appellant?s counsel in the appellant?s brief distilled one issue for resolution of this appeal. The issue is as follows:
?Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.?

The respondent?s counsel on his own part equally distilled one issue for the determination of this appeal. The issue goes thus:
?Whether the Court was right in law, and under the compelling circumstance of the case to have convicted the appellant on a lesser charge of robbery than armed robbery<br< p=””

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It is pertinent to observe at this point, that the above issue as formulated by the learned counsel for the respondent was not borne out of any ground of appeal. It has been settled by this Court and the apex Court that, litigants are mandatorily required to only raise issue or issues from the grounds of appeal on record. See Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31. Thus, issue or issues for determination formulated by any party no matter how inviting and properly couched, but has no linkage or connection with the ground of appeal on record, the issue would be accordingly discountenanced. Therefore, the issue formulated by the learned counsel to the respondent would be discountenanced by me. That notwithstanding, all the arguments contained in the respondent?s brief of argument which touched on the issue to be adopted and or formulated by me in the resolution of this appeal (if any) would be adequately considered.

?Having perused the evidence on record; the judgement of the Lower Court; and the grounds of appeal, it is my firm view that the issue as distilled by the learned counsel to the appellant is sufficient for the resolution of this

appeal and the same is hereby adopted by me.

ARGUMENT ON ISSUE.
The learned counsel to the appellant submitted and correctly too, that in criminal cases, especially in offences that carry heavy penalties, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. The learned counsel referred us to the case of Cyrracus Ogidi & Ors. V. The State (2005) 1 SCNJ 67 @ 85 – 86; and Section 135 of the Evidence Act, 2011. The learned counsel further submitted that the onus is static and does not shift. The learned counsel submitted in another vein that in order to secure conviction on an offence of robbery, the following elements must be proved beyond reasonable doubt. They are:
a. That the accused stole something;
b. That the thing stolen is in law capable of being stolen;
c. That the accused threatened to use violence or actually used violence immediately before or immediately after the time of stealing the thing; and
d. The violence could be on either a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.<br< p=””

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He referred us to the case of Otti v. State (1991) 8 NWLR (Pt. 207) 103 @ 118. It is the contention of the learned appellant?s counsel that all the above elements were not proved by the respondent beyond reasonable doubt.

The learned counsel contended that the appellant was alleged to have taken part in two (2) separate robbery incidents which occurred at close intervals on the same day. The learned counsel argued that it is very difficult and does not follow natural occurrence of an event for the appellant who was alleged to have taken part in a robbery incident at UNTH Abagana, where gun shots were allegedly fired and subsequently thereafter proceeded to carry out another robbery operation at the home of a pastor of Holy Ghost Power Ministry at Nimo, which was close to the location of the first place whereat the robbery incident occurred without anyone alerting security operatives. The learned counsel stated that it was by the virtue of a tip off from one of the victims of the second robbery incident that the appellant was arrested.

?The learned counsel then submitted that it was improbable for the appellant to have been at the alleged

scenes of crimes in the given circumstances. He relied on the case of Ikuepenikan vs. The State (2011) 1 NWLR (Pt. 1229) 449 @ 465 ? 466. The learned counsel equally submitted that the Lower Court was in error to have relied on the extra ? judicial statement of the appellant which he has objected to on the basis of involuntariness in convicting the appellant.

?It was also the contention of the learned counsel that the appellant was not properly identified, and that the identification by a 10 years old boy without the necessary corroboration was unsafe to be relied upon to convict the appellant. He relied on the case of Sunday Ndidi vs. The State (2007) 41 WRN 1 @ 16, (2007) 5 SCNJ 274 @ 287 ? 288 among others.

?The learned counsel contended further that, there are material contradictions and/or inconsistencies in the evidence of the respondent?s witness which should have cast doubts on the evidence of the respondent?s, and the said doubts are required to be resolved in favour of the appellant. The learned counsel argued that, whereas PW5 testified that several dangerous instruments were recovered from the appellant (and the former

2nd accused person); PW7 and PW8 testified to the fact that no such instrument was recovered, and that none of the alleged instrument was tendered in evidence. The learned counsel contended that the said pieces of evidence are contradictory and/or inconsistent, and as such, they should have been rejected and the doubts created thereby should have been resolved in favour of the appellant.

In conclusion, the learned counsel submitted that based on the above highlighted reasons, the respondent has failed in its duty to prove the guilt of the appellant and which said failure must result in the discharge and acquittal of the appellant. The learned counsel supported his submission with the case of Shehu v. State (2010) NWLR (Pt. 1195) 112 @ 137.

On the other hand, most of the arguments proffered by the learned counsel to the respondent were in respect of issue that is not within the purview of this appeal. Thus, I find no need to review the same herein. The only point raised by the learned respondent?s counsel that is useful to this appeal is with regard to the submission that, it is trite, that once the prosecution proves the ingredients embedded in

an offence beyond reasonable doubt, the failure of the prosecution to tender any instrument or weapon allegedly used to carry out the offence as charged is not fatal to its case.

It is not in dispute that the appellant was convicted and sentenced ?for the offence of robbery simpliciter?. In order to secure a conviction for the offence of robbery, the respondent is saddled with the responsibility of proving the following ingredients beyond reasonable doubt. They are:
i. Something was stolen;
ii. That the thing was stolen by the accused or he was one of the persons that stole the thing;
iii. The thing is capable of being stolen in law;
iv. That the accused threatened to use or actually used violence immediately before or after the time of stealing the thing; and
v. The violence could be either on a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

?It is in evidence on the printed record placed before this Court, that there was indeed robbery. This fact was established by the learned trial judge in his judgement. This fact has

not been appealed against or challenged by the appellant. Thus, it is deemed as properly established and admitted by the appellant. However, the area of disagreement which led to this appeal lies on the issue as to whether the appellant was one of the robbers who attacked and robbed the nominal complainants (PW1, PW2 and PW3).

The appellant?s counsel contended, that he was not properly identified by the respondent?s witnesses and that considering the circumstances of the case, it is improbable that he could have participated in the two (2) robbery incidents with which he was charged. True to the learned appellant?s counsel contention, that it was improbable for the appellant to have participated in the two (2) robbery incidents; the learned trial judge held that there was no sufficient evidence to hold that the appellant took part in the robbery incident that took place at Nimo.

?However, with regard to the case of the robbery incident that took place at UNTH Quarters, Abagana, PW4?s prompt and spontaneous identification was corroborated by/with the evidence of PW 1, who incidentally stated that she had earlier (a day before

the incident), seen the accused persons drinking with their security guard. Flowing from this evidence on record, I am unable to agree with the learned counsel to the appellant?s contention, that the appellant was not properly and sufficiently identified as one of robbers who robbed the complainants.

On the issue of alibi. Alibi is a Latin word for ?elsewhere? and it is a defence on the physical impossibility of an accused person?s guilt by placing him in a location other than the scene of the incident at the relevant time. See Dagayya v. State (2006) 7 NWLR (Pt. 980) 637.

?In the instant case, the appellant on several occasions raised different alibis and gave varying particulars as to his alleged whereabouts. But on each occasions, the Investigating Police Officer, investigated each of the alibis and found them to be false. On the first occasion, the appellant claimed that he was in his father?s compound and slept

in his room, but his brother (Emmanuel Okolisa in Exhibit E) gave contrary evidence that the appellant did not sleep in the house on the night preceding the robbery incident. On the second occasion, the appellant claimed to have slept with one Chibuzo Aniero Akaigwe, but the said Chibuzo Aniero Akaigwe denied this claim stating that he slept alone in his room together with his family members who were in their respective rooms but in the same house with him. Thus, with the alibi having been investigated and found to be false, it cannot under any circumstance be held to have availed the appellant.

?Again, on the alleged contradictions and/or inconsistencies in the evidence of respondent?s witnesses. The learned appellant counsel contended that PW5 stated in his evidence that several dangerous items were recovered from the appellant and his co-accused, but none of this items/equipments were tendered in evidence. He also contended that PW8 who was one of the investigating police officers admitted that nothing incriminating was found in the house of the accused persons. The learned counsel submitted that these pieces of evidence are contradictory and must

have created doubts in the evidence of the respondent and also that of the Lower Court. He urged this Court to resolve the said doubts in favour of the appellant.

It is also instructive to observe on this score, that the appellant was indeed convicted and sentenced for offence of robbery and not armed robbery. Thus, it is my firm view point, that these contradictions as acclaimed by the appellant are immaterial to the case, and cannot form sound basis upon which the respondent?s evidence would be regarded as having been discredited and thereby warranted a resolution in favour of the appellant.

?On the whole, with the finding by the learned trial judge and which said finding was predicated on unchallenged evidence of PW1 and PW4, that the appellant was one of

the robbers who attacked, raided/robbed the nominal complainants in the instant case. I am therefore of the firm viewpoint and on the same page with the learned trial judge, that the appellant took part in the said robbery incident as rightly so found by the learned trial judge. Thus, in view of the foregoing, the sole issue raised and adopted for determination in this appeal is thereby resolved against the appellant.

Having resolved the issue formulated and adopted for the resolution of this appeal in the manner stated above, I hereby found that this appeal is unmeritorious. The appeal is accordingly dismissed. Thus, both the conviction and sentence imposed by the Lower Court on the appellant in Charge No.A/19C/2005 are hereby affirmed and Upheld by me.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, MASSOUD ABDULRAHMAN OREDOLA, JCA. I agree with reasoning, conclusions and orders therein.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by learned brother, MASSOUD ABDULRAHMAN OREDOLA, JCA. I

agree with his reasoning and conclusions. I also hold that this appeal has no merit and is accordingly dismissed. I too uphold the decision of the trial Court convicting the appellant for robbery and sentencing him to 21 years imprisonment.

Appearances:

Emmanuel Achukwu, Esq. with him, J. N. OkongwuFor Appellant(s)

Sunday Okonkwo, Esq. (Senior State Counsel, Ministry of Justice, Awka, Anambra State )For Respondent(s)

Appearances

Emmanuel Achukwu, Esq. with him, J. N. OkongwuFor Appellant

AND

Sunday Okonkwo, Esq. (Senior State Counsel, Ministry of Justice, Awka, Anambra State )For Respondent