CHIKA NWOMEH v. STATE
(2013)LCN/6230(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2013
CA/AK/16C/2010
RATIO
LEGAL DRAFTING: ESSENTIAL ELEMENTS TO BE FEATURED IN A JUDGMENT
Over the years it has become a settled guiding legal principle that a trial judge at the stage of writing a judgment and making findings and decisions, he appraises the evidence on each side of the divide, and gives the evidence on each side the probative value it deserves before arriving at a just conclusion of the case. In the course of this exercise he also determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses. In all these, what is really important is that at the end of it the judgment contains what a proper judgment ought to contain and more important the learned trial judge in writing the judgment must have discharged that responsibility as to enable what he produced to be properly called a judgment. A judgment in this con and circumstance being a fair and just verdict on the case litigated by two or more contending parties. In other words, the discharging of this responsibility must involve the full appraisal, evaluation and weighing the evidence adduced by all the parties on the imaginary scale of justice to enable him make definite findings of fact upon which all applicable and relevant legal principles and stipulations would be considered to come to some conclusion on the case before him. See DURU v. NWOSU (1989) 4 NWLR (pt. 113) 24, AGALA v. OKUSIN (2010) 10 NWLR (Pt. 1202) 412, MOGAJI v. ODOFIN (1978) 4 SC 9 and OGOLO v. OGOLO (2003) 18 NWLR (Pt. 852) 494.
All the above decisions of the Supreme Court emphasize that irrespective of the style of writing adopted by a judge, a judgment must embody certain features or essential elements. These include:-
(1) the nature of the action before the court;
(2) issues in controversy;
(3) a review of the case made out by each of the parties;
(4) specific findings of fact;
(5) a consideration of the relevant laws raised and applicable to the case; and
(6) conclusions and the reasons therefore etc.
These are merely basic elements and some essential features. The list is not fully conclusive. Also, in all these decisions, the Supreme Court has absolutely maintained that it is most significant and of paramount importance that a judge must in the course of the entire adjudicatory process show a very clear understanding of the facts, issues raised in the case and the law applicable. See also ADAMU v. THE STATE (1991) 6 SCNJ 33 at 40, AWOBAJO & ORS. v. THE STATE (2001) 12 SCNJ 293 and DAVID OMOTOLA & ORS. v. THE STATE (2009) 7 NWLR (Pt. 1139) 148. PER ALI ABUBAKAR B. GUMEL, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
CHIKA NWOMEH Appellant(s)
AND
THE STATE Respondent(s)
ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court sitting in Akure delivered on 28th January, 2010. The Appellant was arraigned before the court on a two count charge of conspiracy and armed robbery under the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. XXII Laws of the Federation of Nigeria, 1990. The charge read thus:-
1. Conspiracy to commit armed robbery contrary to and punishable under S.5 (b) of the Robbery and Firearms (Special Provisions) Act.
2. Armed robbery contrary to and punishable under S.1 (2) of the Robbery and Firearms (Special Provisions) Act.
Upon arraignment, the Appellant pleaded not guilty to the 2 count charge. To prove the guilt of the Appellant, the Prosecution called and led evidence through 5 witnesses as well as tendered 6 Exhibits while the Appellant defended himself through his own oral evidence. He called no witnesses.
The case of the prosecution against the Appellant was that the complainant (PW1) who was the owner of a Petrol Station reported an armed robbery incident to the police on the 24/10/2005. In the course of his complaint PW1 told the police that while he was at his Petrol Station at about 7.00 p.m. on 24/10/05 with his wife and daughter, the Appellant came and pretended that he wanted to buy petrol. It was reported that at that time it had started getting dark and the complainant had ordered his daughter to close down for the day and to lock up the gates, as had always been the practice of the complainant and his staff.
As the Appellant was being asked by the complainant where he was going to put the petrol he claimed he wanted to buy, he told the complainant to “shut up” whereupon he brought out a gun and soon thereafter marched both the complainant and his daughter to inside the office at the Petrol Station at gun point. While inside the office he ordered the duo to lay face down. He proceeded to rob them of all monies in their possession including the proceeds of the days petrol sales. PW3 (complainant’s daughter) was able to recognize the Appellant when she saw him at the market some days later. At the time she recognized the Appellant she was in the company of her mother (PW2) and other family members. The sighting of the Appellant was reported to the police. He was tricked and lured to the police station where he was formally identified by PW1. He was arrested and charged to court.
Having denied the charge and pleaded not guilty, the Appellant defended himself by putting forward an alibi that at the time of the alleged commission of the crime he was at his place of work at a Barbing Salon. He also put it as part of his defence that he was framed up by the complainant because he did not like his relationship with his daughter (PW3).
At the end of the evidence of the parties respective learned counsel addressed the court. In its judgment the lower court remarked thus:-
“The evidence placed before this court by the prosecution is overwhelming and leaves no room for any doubt as to his involvement in the criminal act of armed robbery perpetrated by him alongside three others on 24/10/2005. While giving evidence, the accused revealed himself as a pathological liar, a questionable character with intrigue up his sleeves. A man who pretended to be fully engaged positively in a work during the day but in the night turned to a criminal inflicting pains and trauma on the people in the community he lives and benefitted from.”
(lines 25 to 32 page 75 of record of appeal)
It is upon this finding and remark, that the lower court found the Appellant guilty and proceeded to convict him on the 2nd count of charge and sentenced him to death.
The Appellant was dissatisfied with his conviction and sentence. He appealed to this court in a notice of appeal dated 11th February, 2010 which was later amended by leave of this court granted on 12th October, 2011. This amended notice of appeal contains 6 grounds of appeal.
To argue the appeal, learned counsel Mr. Ikenna Okoli, filed a brief of argument on behalf of the Appellant. This brief is dated 20/10/2011 and filed on 28/10/11. It was deemed properly filed and served on the Respondent on 19th July, 2012. Learned Counsel I. O. Adejumo filed a brief on behalf of the Respondent. It is dated 22/11/12 and filed on 27/11/12. It was deemed properly filed and served on 28-11-2012.
From the grounds of appeal, learned counsel to the Appellant formulated and argued 2 issues for the determination of this appeal. They are:-
(1) Whether the judgment of the trial court delivered on 28th Januaty, 2010 is a valid judgment in the circumstances?
(2) Whether the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt.
Learned counsel to the Respondent did not formulate any issues but adopted the 2 issues formulated on behalf of the appellant.
At the hearing of the appeal on 5/3/13, learned counsel Mr. L. O. Alabi, appeared in Court, holding the brief of Mr. Okoli, for the Appellant. The Respondent was not represented by counsel. While going through the record, the Registrar told the court that learned counsel Mr. Olusegun Femi was in court on 28/11/12 for the Respondent when the matter was adjourned to 5/3/13. At the prompting of learned counsel Mr. Alabi, the court saw good reason to proceed with the hearing of the appeal. And because briefs have been duly filed and exchanged the appeal was deemed argued by the Respondent on its brief pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011.
Learned Counsel Mr. Alabi, identified the filed and exchanged briefs of argument. He thereafter adopted and relied on the brief of the appellant and urged on the court to allow the appeal and set aside the judgment of the lower court and enter a verdict of discharge and acquittal for the appellant.
Before I go further, I wish to observe that issue one of the Appellant’s issues was formulated out ground 2 of the grounds of appeal, while issue 2 was formulated out grounds 1, 3, 5 and 6. No issue was formulated out of ground 4. Since no issue was formulated out of ground 4, it is hereby deemed as abandoned. It is consequently struck out.
In arguing the 1st issue, learned counsel to the Appellant began by pointing out that the Appellant was arraigned on a 2 count charge but the judgment of the lower court did not consider the 1st count of conspiracy to commit armed robbery. He pointed out further that the lower court made no findings or pronouncements regarding the guilt or otherwise of the appellant on the charge of conspiracy. Against this background, learned counsel submitted that the learned trial judge was obliged to make a specific finding and pronouncement of guilt or otherwise on each count of charge against him before sentencing him.
In his attack on the judgment of the lower court, learned counsel referred to S.245 of the Criminal Procedure Law of Ondo State and pointed out that it provides and makes it mandatory for the lower court to record its judgment in writing and every such judgment shall contain the points for determination, the decision thereon and the reasons for the decision etc. Using this provision as a yardstick, learned counsel argued that the judgment of the lower court in this appeal does not pass the statutory test for it to be valid because the issue of conspiracy constitutes a point for determination in the criminal trial of the Appellant. He then submitted that there was no decision or any reasons for such a decision and also no reasons were given in the judgment why no pronouncement was made on it. According to learned counsel it was clear that the judgment on appeal falls short of the requirements of a valid judgment.
While referring to the decision of the Supreme Court in ONUOHA v. STATE (1988) 3 NWLR (Pt. 83) 460 at 477 where its earlier decision in R v. FADINA (1958) 3 FSC 11 at 12 was approved and applied, learned counsel explained that a person who stood a criminal trial was entitled to have his case fully considered on the points that arose for decision. Learned counsel went further to refer to the decision of this Court in MICHIKA LOCAL GOVT. v. N.P.C. (1998) 11 NWLR (Pt. 573) 201 at 213 where it was emphasized that a good judgment must have resolved all the issues in controversy and reach a verdict upon such resolution of issues and also where necessary, make consequential orders. In view of all the foregoing learned counsel maintained that the learned trial judge was wrong to have failed to make findings and pronouncements on the count of conspiracy to commit armed robbery. He urged on this court to so hold and proceed to resolve this issue in favour of the Appellant and set aside the invalid judgment.
In his response learned counsel to the Respondent began by referring to S. 294(1) of the 1999 Constitution (as amended) and explained that it deals with the determination of causes and matters by all the superior courts of record established under the Constitution. Learned Counsel submitted that though learned counsel to the Appellant did not refer to this provision of the Constitution, the judgment of the lower court on appeal did not violate any of the requirements of S.294 (1). Upon this background learned counsel maintained that the judgment of the lower court is valid in all its ramifications.
On the alleged failure to make findings or pronouncements on the 1st count of conspiracy, learned counsel to the Respondent referred to and quoted from page 66 of the record of appeal and pointed out that it is not correct for learned counsel to the Appellant to say that the learned trial judge did not review and considered the case on the 1st count of conspiracy. While also referring and quoting from page 75 of the record learned counsel also faulted any suggestion by learned counsel to the Appellant that the lower court did not consider and make findings on the 1st count of the charge against the Appellant. And while referring and quoting Section 245 of the Criminal Procedure Law of Ondo State, learned counsel explained that against this provision, the judgment of the lower court was in writing; it decided the points raised; it was dated and signed by the learned trial judge, Against this background, he argued that the cases cited by learned counsel to the Appellant are irrelevant and inapplicable because S. 294 of the Constitution regulates the determination of cases by Superior Courts.
While assuming, though without conceding, that the learned trial judge did not fully consider and make findings and pronouncement on the 1st count of conspiracy, the judgment would still remain valid because, the Appellant has not shown how that failure or omission had occasioned any miscarriage of justice to him. Learned Counsel argued further that by virtue of S. 294 (5) of the Constitution, the decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of S.294 (1) unless the court exercising appellate jurisdiction over such judgment was satisfied and formed a view that the party complaining has suffered a miscarriage of justice by reason thereof. In conclusion, learned counsel submitted that even if the Appellant was not found guilty and sentenced on the 1st count he suffered no miscarriage of justice to warrant this court to find that the judgment was invalid and a nullity. According to learned counsel the Appellant had been saved the burden of having to serve a jail term for conspiracy to commit armed robbery and to later face the sentence of death for the offence of armed robbery. Learned counsel urged on the court to so find and resolve this issue against the Appellant.
In resolving this issue, I wish to put certain parameters in perspective. The complaint of the Appellant from the ground of appeal from which this issue was formulated is that the judgment of the trial court falls short of the requirements of a valid judgment because it failed to consider and make findings and/or pronouncements on the 1st count of charge for which the Appellant took a plea and stood trial. And to the extent that that the lower court is by law obliged to make such findings and pronouncements the judgment must remain invalid.
Though learned counsel to the Appellant did not make any reference to S.294 of the 1999 Constitution, it is nonetheless relevant as pointed out by learned counsel to the Respondent. Also the reference to S.245 of the Criminal Procedure Law of Ondo State by both learned counsel in their respective arguments and submissions is relevant and helpful in the circumstance. It is not correct for learned counsel to the Respondent to say that all the decided cases referred to in the arguments of learned counsel to the Appellant on this issue are totally irrelevant and inapplicable. I say so, because the case of THEOPHILLUS ONUOHA v. THE STATE (Supra) is very relevant and direct on the point as it pertained to a decision of the Supreme Court on the relevance interpretation and application of S.269 (1) of the Criminal Procedure Code Law of Kwara State.
This Section is pari materia with S.245 of the Criminal Procedure Law of Ondo State, which counsel has relied on to challenge the judgment of the lower court in this appeal.
As a background, I wish to state that it is no longer in doubt that writing a judgment is an art and as such each judge is entitled to and free to follow his own style in achieving the end result of a good judgment. It is however important to emphasize that there is a whole world of difference between a valid judgment and a good judgment. A valid judgment may not necessarily be a good judgment while a good judgment may not necessarily be a valid one. For example, the test of validity of a judgment may be determined by the prescriptive provisions of the constitution under S.294 (1) where it ought to be delivered, within 90 days after conclusion of final addresses on behalf of the parties. If a judgment were to be delivered outside this benchmark period it may or may not be invalid and a nullity based upon the view of an appellate court if it did or did not occasion a miscarriage of justice to a complainant against it. It may be invalid on that account while still being a good judgment upon a consideration of its full contents. A judgment may ex-facie be good but all the same be invalid for example if it was a judgment of an appellate court that was delivered by a number of justices that fell short of the minimum number stipulated by the Constitution and the laws establishing such appellate courts.
Though learned counsel to the Appellant had copiously been referring to the judgment of the lower court in this appeal as invalid, he could not sufficiently show how invalid it is based on any of the very well known and settled grounds upon which a judgment can be set aside or declared a nullity for being invalid. From all the submissions of learned counsel to the Appellant there is no doubt that his complaint against the judgment of the lower court is as to its quality and not validity. This confused state of mind of learned counsel becomes even more apparent by his referring to the decision of this court in MICHIKA LOCAL GOVT. v. N.P.C. (Supra) where the contents of a good judgment were re-stated.
As an adjunct to the above observation, let me proceed further to consider the judgment of the lower court in this appeal in all material respects. As it affects the trial court, S.245 (Supra) provides:-
“The judge or magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the judge or magistrate at the of pronouncing it.”
S.294 (1) of the 1999 Constitution provides:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”
Also S.294 (5) provides:-
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
Over the years it has become a settled guiding legal principle that a trial judge at the stage of writing a judgment and making findings and decisions, he appraises the evidence on each side of the divide, and gives the evidence on each side the probative value it deserves before arriving at a just conclusion of the case. In the course of this exercise he also determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses. In all these, what is really important is that at the end of it the judgment contains what a proper judgment ought to contain and more important the learned trial judge in writing the judgment must have discharged that responsibility as to enable what he produced to be properly called a judgment. A judgment in this con and circumstance being a fair and just verdict on the case litigated by two or more contending parties. In other words, the discharging of this responsibility must involve the full appraisal, evaluation and weighing the evidence adduced by all the parties on the imaginary scale of justice to enable him make definite findings of fact upon which all applicable and relevant legal principles and stipulations would be considered to come to some conclusion on the case before him. See DURU v. NWOSU (1989) 4 NWLR (pt. 113) 24, AGALA v. OKUSIN (2010) 10 NWLR (Pt. 1202) 412, MOGAJI v. ODOFIN (1978) 4 SC 9 and OGOLO v. OGOLO (2003) 18 NWLR (Pt. 852) 494.
All the above decisions of the Supreme Court emphasize that irrespective of the style of writing adopted by a judge, a judgment must embody certain features or essential elements. These include:-
(1) the nature of the action before the court;
(2) issues in controversy;
(3) a review of the case made out by each of the parties;
(4) specific findings of fact;
(5) a consideration of the relevant laws raised and applicable to the case; and
(6) conclusions and the reasons therefore etc.
These are merely basic elements and some essential features. The list is not fully conclusive. Also, in all these decisions, the Supreme Court has absolutely maintained that it is most significant and of paramount importance that a judge must in the course of the entire adjudicatory process show a very clear understanding of the facts, issues raised in the case and the law applicable. See also ADAMU v. THE STATE (1991) 6 SCNJ 33 at 40, AWOBAJO & ORS. v. THE STATE (2001) 12 SCNJ 293 and DAVID OMOTOLA & ORS. v. THE STATE (2009) 7 NWLR (Pt. 1139) 148.
Against my understanding of these settled and well defined principles of law and practice, and in the con of the judgment on appeal, there appears to me to be a real and proper understanding of the facts in this matter by the learned trial judge. He also fully underscored and appraised the facts as they arose from the oral testimonies of each of the witnesses and the extra judicial statements made to the police and duly admitted in evidence. There was also, in the judgment, an abundant and generous reference to some of the key and relevant statutory provisions on the matter.
It is not the duty of an appellate court to interfere with a judgment merely on the ground of style, which is personal. On the failure or omission of the learned trial judge to make a full or considered finding and pronouncement on the 1st count charge of conspiracy to commit armed robbery, learned counsel to the Respondent referred to pages 66 and 75 of the record of appeal to show that in making this allegation and submission learned counsel to the appellant was acting under a total misconception, I wish to disagree, with all due aspect, that these pages of the record fully addressed the complaint of the Appellant. Though learned counsel to the Respondent may have seen the weakness of his defence of this complaint of the Appellant, when he later assumed, without conceding, that it was so, he sought refuge in the submission that the Appellant had not suffered any miscarriage of justice as a result of the failure of the lower court to make full and proper findings and pronouncement as to the guilt or otherwise of the Appellant on the charge of conspiracy.
It is clear as demonstrated in this judgment that the learned trial judge, notwithstanding whatever his style may be, had identified the issues, evaluated the evidence adduced and made very clear and lucid findings of fact and arrived at definite conclusion on the 2nd count of charge of armed robbery. While affirming the decisions of both the trial court and the Court of Appeal, the Supreme Court in the case of ONUOHA v. STATE (Supra) OPUTA, JSC held that writing a judgment is an art in itself and there are more than one way of going about it. The Learned Justice remarked that there are many possible variants of judgments as there are judges and added that a judge should always show a clear understanding of the facts in a case, of the issues involved; of the law applicable; and from all these he should be able to draw the right conclusions and make a correct finding on the evidence before him.
Upon the foregoing and with respect to the instant appeal, I am of the firm view that the application of the law to the facts in the judgment of the lower court was most impeccable and cannot be faulted in the entire circumstance. I am however fully satisfied that the learned trial judge failed and omitted to make a proper and considered finding and/or pronouncement on the charge of conspiracy to commit armed robbery. I think he took it for granted in view of his mindset that the principal offence has fully been established against the appellant by credible evidence.
However, inspite of this shortcoming, I still believe that the submission of learned counsel to the Respondent that there is no where it was sufficiently shown to this court that the Appellant suffered any prejudice or miscarriage of justice as a result of this discovered failure or omission. I fully agree and uphold this submission. Therefore, this issue is hereby resolved against the Appellant.
ISSUE 2
In opening his arguments on issue 2 learned counsel to the Appellant referred to pages 22 and 71 of the record of appeal and went on to set out what he considered as the highlight of the oral evidence of PW1, PW2 and PW4. Upon this summary of the evidence of these witnesses, learned counsel then, went on to refer to part of the judgment of the lower court at page 71 of the record of appeal where the learned trial judge chose to rely and believe the evidence of PW4 that it was PW1 who identified the Appellant at the Police Station against the version of events in the oral evidence of the Accused/Appellant that it was PW4 who identified him to PW1. Learned counsel pointed out that there was no basis why the learned trial judge should believe one version of the events at the police station and not the other. He also maintained that there was no basis or foundation for the belief anywhere in the judgment.
While referring to the decision of the Supreme Court in AKIBU v. OPALEYE (1974) 11 SC 141 at 152, learned counsel urged on this court to re-evaluate the evidence of these witnesses with a view to seeing whether there was any basis or justification for the use of the expression “I believe” by the learned trial judge. He also referred to the case of STATE v. AZEEZ (2008) 14 NWLR (Pt. 1108) as an authority to re-enforce and justify his invitation to this court to re-evaluate the evidence on record because the lower court had failed to do so appropriately as it was obliged to so do. In what appeared to be a recapitulation, learned counsel pointed out and maintained that the learned trial judge wrongly evaluated the evidence before him and came to a wrong finding that the Appellant was involved in the commission of armed robbery. He further pointed out that this crucial finding was solely on the basis of the testimonies of PW1, PW2, PW3 and Exh. A, (the statement of PW3 to the police) without any consideration of the evidence adduced by the Appellant.
In arguing another leg of this issue, learned counsel referred to the decisions in BOZIN v. STATE (1985) 2 NWLR (Pt.8) 465 and ALABI v. STATE (1993) 7 NWLR (Pt. 307) 511 where the Supreme Court stated that to prove the offence of armed robbery, the prosecution must prove that:-
(1) there was a robbery or a series of robberies;
(2) each robbery was an armed robbery, and
(3) the appellant was one of those who took part in the robberies.
Added to these, learned counsel explained further that the establishment of the commission of the crime must be on the basis of proof beyond reasonable doubt and the failure of the prosecution to accordingly prove these ingredients was fatal.
According to learned counsel the most critical ingredient of the offence as it affects the Appellant herein was whether the prosecution proved beyond reasonable doubt that the Appellant was one of those who participated in the alleged robbery reported to the police by the complainant (PW1). As a preamble, learned counsel suggested that in its attempt to prove this vital ingredient of the offence, the prosecution relied heavily on the evidence of PW1, PW2 and PW3 that the Appellant along with others robbed them. In a similar effort, learned counsel referred to and summarized what he considered was the oral evidence of PW1, PW2 and PW3 on the one hand and that of PW4 on the other and pointed out that there were material contradictions in the version of events that led to the appearance of the Appellant at the Police Station and the eventual identification that linked him to the commission of the alleged crime.
Learned counsel found it strange for the lower court to accept and believe the version of events it chose to when it had earlier found that PW3 and the Appellant were well known to each before the alleged robbery but yet she failed to identify or give the name of the Appellant as one of the robbers that robbed her and her parents at the earliest opportunity when she made her statement to the police. Learned counsel also saw it as improbable that the appellant who was well known to PW3 will go to rob her and others without any disguise and as to be positively identifiable and yet remained within the same community. It is because of all these that learned counsel maintained that PW1, PW2, PW3 and PW4 ought not to have been relied on as credible witnesses by the learned trial judge.
With respect to the defence of alibi put forward by the Appellant, learned counsel referred to the oral evidence of PW5 and his statement to the police, (Exh. C) and wondered why the learned trial judge would accept the evidence of PW5 and not that of the Appellant that the Appellant usually closes at 6.00 p.m. from the barbing salon or latest 6.30 p.m. and not any time afterwards. Learned counsel argued that there was no specific evidence as to what time the Appellant closed on the exact day in question. He submitted that it was not enough to say that the Appellant closes at 6.30 p.m. without saying whether he unfailingly closes at 6.30 p.m. every day and if indeed he actually closed at 6.30 p.m. on the day of the alleged robbery. Against this background, learned counsel maintained that the lower court erred in law in finding the Appellant guilty of armed robbery because the Supreme Court had decided in UDOSEN v. STATE (2007) (Pt. 1023) 125 at 150 while approving its earlier decision in ALONGE v. IGP (1959) 4 FSC 203 at 204 that the commission of a crime by a party must be proved beyond reasonable doubt and the burden of proof is on the prosecution and it does not shift at all. He urged this court to hold that the prosecution has failed to prove the guilt of the Appellant beyond reasonable and to hold further that he was entitled to have this issue resolved in his favour. He also urged that this appeal be allowed with a verdict that the Appellant was entitled to have the judgment in this appeal set aside with an order for discharge and acquittal in his favour.
In responding to the above arguments, learned counsel to the Respondent opened by referring to 2 decided cases where the 3 essential elements of the offence of armed robbery were similarly stated. Upon this learned counsel then went on to highlight the main features in the testimonies of PW1, PW2 and PW3 according to pages 17 to 19 and 21 to 29 of the record of appeal and pointed out that the evidence of PW1 remained uncontroverted and therefore deemed to have been admitted by the Appellant Learned Counsel added further that no salient feature of the oral evidence of PW1 on how the robbery took place as well as the events before and after it were controverted and/or contradicted by the Appellant and same was not discredited by the rigorous cross examination by counsel.
According to learned counsel not only that the evidence of PW1 remained fully unchallenged and uncontradicted in its most relevant aspects to the charge of robbery it was further fully supported and corroborated by the evidence of both PW2 and PW3. And while highlighting, in a step by step manner, the various aspects of the evidence adduced by the prosecution, learned counsel to the Respondent maintained that there was no much ado or any hesitation for the learned trial judge to find and hold that the first 2 essential elements of the offence were established by the prosecution.
Now coming to the crux of this matter, i.e. whether the Appellant was among the persons who went armed to the Petrol Station and robbed PW1, PW2 and PW3. While referring to the cross-examination of PW1 at page 20 lines 20 – 21 and page 21 line 3 of the record of appeal learned counsel pointed out that the witness positively identified the Appellant as one of the robbers who robbed him and members of his family because the office where they were forced to lay face down was fully illuminated. Added to this, learned counsel referred to various parts of the oral evidence of PW3 and her statement to the Police. Exh. A and explained that the totality of the evidence unequivocally tended to link the Appellant with the robbery incident of 24/10/2005. Because of this, learned counsel referred to ATTAH v. THE STATE (2010) LPELR, SC 44 where there was a visual and positive identification at the scene of a crime which is believed by a trial court, an appellate court should not disturb such a finding. According to learned counsel, if the appellant were to be believed in his evidence that he had an amorous relationship with the PW3, then it was quite possible for her to positively identify him as she did and urged on the court to so find and hold that the Appellant was well identified by PW3 as one of the persons who robbed on 24/10/05.
On the question of evaluation of evidence, learned counsel referred to the various steps the lower court took to determine whether the Appellant was one of the persons who participated in a robbery incident at a petrol station on 24/10/05 as set out at pages 67, 68, 69 and 75 of the record of appeal. Learned counsel quoted copiously from the judgment of the lower court and submitted that it properly evaluated the evidence adduced by the witnesses and the statements they made to the police – Exhibits A, B, C, E and F, before arriving at the conclusion that the Appellant participated in the robbery. According to learned counsel the Supreme Court in IGAGO v. THE STATE (1999) 14 NWLR (Pt. 637) and ONUOHA v. THE STATE (Supra) respectively held that it is an elementary principle of law that the function of the evaluation of evidence is essentially that of the trial court and where it unquestionably did so it is not the business of an appellate court to interfere and substitute its own view for that of the trial court. Learned Counsel urged on this court to respect these decisions and apply them to resolve this issue against the Appellant and to also dismiss this appeal for being devoid of any merit.
Respective learned counsel though referring to different decisions are however ad idem as to what are the constituent legal elements of the offence of armed robbery. They are both agreeable to the same 3 elements set out and considered by the learned trial judge. There was no difficulty in deciding the presence of the 2 initial elements of the offence in the circumstance of the complaint of PW1 against the incident of 24/10/05. It was easy for the prosecution to establish that there was a robbery incident on 24/10/05 and also that the robbers were armed with guns when they committed the robbery. It does not appear that the Appellant has any complaints on the findings of the lower court on these 2 initial constituent elements.
It is the determination of the 3rd constituent element that is most crucial and at the heart of this appeal. It is a determination of the question: whether the Appellant was one of the persons who robbed the complainant and some members of his family at his Petrol Station on 24/10/05. In its attempt to place the Appellant to the scene of crime the prosecution relied on the evidence of PW1, PW2, PW3 and PW5. While PW1 and PW2 were positive as to the identity of the Appellant and his presence at the scene of crime, the evidence of PW5 was more or less circumstantial which effect was to merely raise a very strong presumption that the Appellant had the opportunity of being at the scene of crime. The evidence of PW5 also seem to have punctured a hole in the Appellant’s defence of alibi.
In dealing with the defence of alibi, the learned trial judge appeared to have captured the law on the subject very well when he observed that:-
“The law is clear that if an accused puts forward the defence of alibi, it simply means he was some where else and not at the scene of crime when the Offence with which he is charged was committed. The onus is not on the accused to prove the defence but on the Prosecution to disprove it as part of the duty to prove the charge against the accused person. When of course, the Prosecution is able to lead cogent and unassailable evidence which shows that the accused was at the scene of crime at the material time, his alibi when placed alongside the evidence against him in the normal evaluation of evidence; collapse. See Njoven v. State (1973) 5 SC. 17 at 65; Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576 at 592.
In addition, when the Prosecution adduced sufficient and accepted evidence to fix the accused at the scene of Crime at the material time, his alibi is thereby also logically demolished. See Patrick Njovens & Ors. v. State (Supra).”
(See lines 15 to 26 at page 73 of record of appeal).
In rejecting the defence of alibi, the learned judge observed and held as follows:-
“The PW5 testified that the accused was in his Barbing Shops on the day of the incident but closed before 7 p.m. That the barbing Salon was closing at 6.00 p.m. One thing is clear from the statement or evidence of the PW5 and that is the Barbing Salon closes before 7 p.m. This deb… the evidence of the accused both oral and written that he was in the Salon at 7.00 p.m. on 24/10/2005 which time is germane and maternal to the alleged crime. I believe the evidence of the PW1, PW2 and PW3 that the crime was perpetrated at 7 p.m. and I also believe the PW5 that the accused was no longer in the barbing salon at 7.00 p.m. when the crime of armed robbery was committed. In all I prefer the evidence of the prosecution witness and finds as of fact that the accused was not in the barbing salon when the offence was committed at Akin Jealousy Filling Station. The denial by the PW5. (sic) The accused claim that he was in the PW5’s Shop at 7.00 p.m. Clearly rabutes (sic) and vitiates the defence of alibi raised by the accused.” (See lines 1 to 14 at page 73 of record)
The burden of proving guilt includes leading evidence to disprove any defence set up by an accused person or likely to arise in the case. Even though it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove it or attempt to do so, there is no inflexible way of doing this. If the prosecution adduced sufficient credible evidence to fix a person to 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.
The evaluation of oral evidence is the main responsibility of a trial court which saw and heard them as witnesses give evidence in court, and after, where necessary, assessing their demeanour. The learned trial judge was within his powers and competence to believe or disbelieve the witnesses that appeared before him as he did in this matter. The issue then is not about his right to believe or disbelieve any one of them. The most crucial question would then be to assess and determine the appropriateness or reasonableness and justification of his belief or disbelief of those witnesses. In the instant appeal learned counsel to the appellant had challenged the foundation or basis the learned trial judge relied on to believe the prosecution witnesses and disbelieve the Appellant in assessing and evaluating some of the most crucial evidence linking the Appellant with the commission of the offence of armed robbery.
In a criminal trial where it was suggested that a piece of evidence or series of facts cast some, doubt on the Prosecution’s case it is necessary to show what aspect of the case becomes doubtful by reason of that evidence. Learned Counsel to the Appellant had argued and submitted that there were material contradictions in the evidence of the prosecution witnesses.
In arriving at its decisions and findings, the lower court in the instant appeal, was not totally unmindful that there were contradictions and discrepancies in the evidence of the prosecution witnesses. In dealing with this issue the learned trial judge observed and held that:
“The defence counsel submitted that the Prosecution’s evidence was inundated with a number of contradictions. One as regards the number of people that came to rob at the Station. Two, the time within which the robbery operation lasted. Thirdly, whether money was collected and how much was collected. The prosecution witnesses that is the PW1, PW2, PW3 gave evidence that about two to four people carried at the robbery act which contend between 4 – 30 minutes. Although the witness gave different time within which the operation lasted, they all testified that they were robbed and certain amount of money was carted. Whatever any contradiction exist in the evidence of the Prosecution witness, this court is of the view and so hold that they are not material contradiction and not capable of vitiating the evidence of the Prosecution or cast doubt on the case of the Prosecution.
It is well settled principle of law that only contradictions in the respect of material fact which would make a Court doubt the evidence. Where the alleged contradictions in evidence are not material to the fact in issue, no explanation is required for them. The need for explanation arises only where there are material contradiction and what is material will depend on the facts of the particular cases. See Nasamu v. State (1979) 6 SC 153 at 158 – 159. Ikemson v. State (Supra) at 20.
(See lines 9 to 27 at page 74 of record of appeal).
I have also considered all the areas of inconsistencies, contradictions and discrepancies pointed out by learned counsel to the Appellant. According to the decision in SELE v. THE STATE (1993) 1 SCNJ 15 at 22 to 23, and so many others on this point, the Supreme Court has consistently and without any hesitations maintained that human faculty may miss some minor details mostly due to lapse of time and even error in narration in order of sequence, as to events, time or locations etc. In all these decisions, it appears fully settled that if a contradiction does not touch a material point or substance of the case it will not vitiate a conviction once the evidence is clear and it is believed or preferred by the trial court.
The burden of proving guilt of an accused person remains on the prosecution throughout the course of a Criminal trial and it does not shift. The standard of proof required by the law is one beyond reasonable doubt. This means that there must be no doubt in the mind of any person reading the facts of the case that the accused is indeed guilty of the offence charged. In satisfying himself of the guilt of the Appellant, the learned trial judge held that:
“Upon a total evaluation of the evidence placed before this court and the consideration of the accused defence, this court hold that the Prosecution has succeeded in establishing the third leg of the element of the offence of armed robbery and that is that the accused took part in the robbery of 24/10/2005 which took place at the filling station of the PW1.
The Prosecution, has in the light of the foregoing, established the burden of proof placed upon it by Section 138(1) of the Evidence Act – which is proof beyond reasonable doubt. The evidence placed before this court by the prosecution is overwhelming and leaves no room for any doubt as to his involvement in the Criminal act of armed robbery perpetrated by him alongside three others on 24/10/2005.” (See lines 17 to 27 page75 of record of appeal).
Having considered the entire judgment of the lower court and the various arguments and submissions of respective learned counsel on this issue, I fully agree with and endorse the findings of the learned trial judge that there were no material contradictions or inconsistencies in the evidence of the prosecution witnesses. I also do not see any good reasons to warrant this court to interfere with any of these findings. The learned trial judge severely discredited so much of the evidence of the Appellant when he described part of it as:-
“…an afterthought… not a fact but a conjecture and a figment of imagination…. unbelievable. A cock and bull story. Incredible ….” (See page 75 lines 12 to 14 record of appeal).
The learned judge later concluded that the Appellant was a pathological liar and a questionable character. This court is not eminently qualified and I do not feel so obliged to review these findings of the learned trial judge. It is exclusively within his competence to do so.
After a very calm and considered review of the judgment of the lower court in the instant appeal, I am unable to agree with learned counsel to the Appellant that the learned trial judge failed in his duty to properly evaluate the totality of all the relevant evidence before him. It is equally my view that the judgment cannot be faulted in any material respect. This issue is therefore hereby resolved against the Appellant.
Having resolved all the 2 issues against the Appellant, this appeal is hereby dismissed for being devoid of any merit, Consequent upon the dismissal of this appeal the judgment of the Ondo State High Court delivered by S. A. Bola, J. on 28th January, 2010 in case number AK/15C/06 is hereby affirmed. Both the conviction for armed robbery and death sentence are also affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I agree
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now the lead judgment just delivered by my learned brother, GUMEL, JCA. I adopt every reasoning and conclusion he came up with therein as mine.
I too hold the appeal to lack merit. It is dismissed.
Appearances
Mr. L. O. AlabiFor Appellant
AND
Respondent not represented by CounselFor Respondent
