CYRIACUS OGIDI & ORS v. THE STATE
In The Court of Appeal of Nigeria
On Monday, the 3rd day of February, 2003
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
DAVID ADEDOYIN ADENIJI Justice of The Court of Appeal of Nigeria
- CYRIACUS OGIDI
2. AUGUSTINE AWUZIE
3. PAUL UZOECHI
4. CHUKWUDI OGIDI Appellant(s)
THE STATE Respondent(s)
NSOFOR, J.C.A. (Delivering the Leading Judgment): The appellants were arraigned on the information of the Attorney-General, Imo State, before the Owerri High Court, (C.I. Ohakwe, J.) charged with the offence of armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation, 1990. The “particulars of offence” charged as follows:-
“Cyriacus Ogidi (alias Ogbuma), Augustine Awuzie, Paul Uzoechi, Chukwudi Ogidi and others at large, on the 1st day of June, 1997, at Amuzu Uno Arondizuogu, in Orlu Judicial Division, while armed with offensive weapon to wit: locally made pistols and matchets, robbed one Mrs. Ndidi Nnakaihe, of the following items of property, one trident radio cassette, valued at N960.00, two electric sockets valued at N700.00, two brocade wears valued at N3,000.00, one jean trousers valued at N400.00, two trousers valued at five hundred (N500.00) five cassette cartridges, valued at N500.00, children wears valued at N1,500.00, Baby food drink valued at five hundred Naira (N500.00), assorted types of creams and soap valued at about N500.00, N4,000.00 cash, one umbrella valued at N150.00, one wall clock and a bag, containing baby kite. Total value of property robbed, twelve thousand five hundred and sixty Naira (N12,560.00) property of Mr. Innocent Nnakaihe in the dwelling house of the aforesaid Innocent Nnakaihe”.
Each accused person pleaded “No Guilty” to the charge.
At the trial, the prosecution called four witnesses to establish its case. The 1st accused, Cyriacus Ogidi, (alias Ogbuma) testified and brought his case to a close with the testimony of the DW5 (Sunday Ogidi). Each of the other three accused persons also testified. Each closed his case and called no other witness.
At the conclusion of the evidence and after receiving the final oral addresses by the counsel, the learned trial Judge in a reserved and well considered judgment, after a review and an appraisal of the evidence, accepted the case of the prosecution. He rejected the defence of each of the accused, convicted each accused as charged and, sentenced each accused accordingly, that is to say, “to death by hanging by the neck or to suffer death by firing squad as the Governor of Imo State may direct”.
The case of the prosecution as presented, briefly summarised, was as follows:-
Mrs. Ndidi Amaka Nnakaihe (PW1) knew the 1st accused and that he was a native of Owerre Akokwa. On the 1st of June, 1997, while she and her mother-in-law were sleeping in their house, she heard some gun shots in their compound. She heard some voices calling on them to open their doors themselves or else if they (the robbers) opened it, they would kill her. As the witness testified at page 46 lines 15 – 20:-
“When they forced the door open two people carrying guns entered. At that time there was a lantern in my room. One of them carried it to the parlour. It was then I recognised one of the two persons known as Cyriacus Ogidi (1st accused person)”.
These men started ransacking their house and removed various items of their property. Cross-examined, the witness at page 50 of the Record Lines 30 – 31 emphasised, “Yes, I told the court that it was when the lantern was being removed that I recognised the 1st accused”. Answering another question, still under cross-examination, the witness had this to say: at page 51 of the record:-
“It is not how I told the police about recognising the 1st accused that it was when they were going that I was able to recognise the 1st accused”.
The statement, unsworn, by the witness to the Police dated the 29/6/97, was tendered and admitted in evidence as evidence as exhibit A.
Linus Ekenezie (PW2) knew the 1st accused and that he was from Owerre Akokwa. Part of his testimony at page 53 of the record was:
“Around 12.30 midnight on that day (1st of June, 1997). I was sleeping on my bed in my room. I heard a knock on the door where my wife and children were sleeping. I opened the door to my room to know who was knocking. When I flashed my torch to see who was knocking, I saw the 1st accused; he ran into my room and he was carrying matchet. When I flashed the torchlight, he tried to cover his face not knowing that I had already seen him. When he was covering his face with his hand, I ran through the back door of my house”.
The witness said that he ran to his brother, (Augustine Okeke); woke him up and told him of the presence of some robbers in his house. Both of them raised an alarm. The villagers and the men of the vigilante group on night-guard-duty were alerted. The robbers took to their heels. But the PW2 and his brother, and the men of the vigilante group however, pursued them. They ran into the house of the 1st accused. As they were fleeing, some items of their loot fell from them. The witness and those men of the vigilante group decided not to follow the robbers into the house of the 1st accused for fear of being shot. As the PW2 further testified:-
“I told the people pursuing them to wait and hide somewhere to see if the robbers would come back to collect the items of property that fell off from them. While we were waiting around 5 a.m. the robbers came back to collect the properties that fell off from them while they were running away. They saw us and ran back to house of the 1st accused Cyriacus Ogidi. We waited till morning. In the morning, I went and reported to the Police at Ideato Police Station”.
Following a report on the 2nd of June, 1997, to the Police by the PW1 that the 1st accused and his gang of robbers, robbed her on the 1/6/97 of her property, Police Corporal Nnorom Ndubuisi (PW3) and Police Corporal Emmaunel Nwede were detailed to investigate the case. The PW1 accompanied them to Chief Bathram Nwangwu, the Chairman of Ndi-Amazu Vigilante Group. The Chief escorted them to the house of the 1st accused. Therein, he (PW3) met the 1st, the 2nd, the 3rd and the 4th accused persons. The witness executed a search warrant (exhibit H) on the house and premises of the 1st accused person in the presence of all the accused persons. The accused persons endorsed the back of the exhibit H.
The witness recovered from the house and premises of the 1st accused person the items of property listed at the back of exhibit H. (See exhibit R, R1 – R.33, S, T,T1 – T4 U, U1 – U2, W,W1 – W2; Y,Y1- Y2).
The PW3 arrested the accused persons. He, then, took them along with the items of property which he recovered to the house of the PW1. Along the route from the 1st accused house to the house of the PW1, the PW3 recovered other items of property (See exhibit L, L1, O, Q, Q1 – Q2 of PW1 alleged to have been dropped by the robbers while they were fleeing).
In the premises of the PW1, the PW3 recovered the live cartridge and two expended cartridges. (See exhibits K, K1 to K2). He saw the PW1’s broken door and ceiling, and the scattered condition of the PW1’s rooms.
Corporal Nnorom Ndubuisi took all the accused persons along with the items of property which he recovered to the Police Station. At the Police Station, he charged and cautioned each accused person.
Each accused person volunteered a statement to him. The 1st accused person’s statement is “exhibit EE”. The 2nd accused person’s statements are “exhibits BB” and “BB1”. The 3rd accused person’s statement is “exhibit CC”. The 4th accused person’s statement is “exhibit DD”.
At the conclusion of their investigation, PW3 compiled a case file. And on an instruction, he transferred the case and the exhibits to the State C.I.D. Owerri. Cross-examined, PW3 at page 59 of the record of appeal lines 5 to 8, stated, “It is not true that people collected the recovered items and gave them to me. I recovered them myself. The items of property I recovered were not planted”. Answering a question still under cross-examination, the PW3 testified (see page 77 lines 9 to 10) thus:
“The 1st accused is not a native doctor. At the time I investigated this matter, the 1st accused had no occupation”.
Police Sergeant Augustine Peters (PW4) also took part in the investigation of the case. The case was referred to him following a petition dated the 3/6/97 by the PW2 to the A.I.G. zone 6, Calabar.
In the course of the investigation, PW4 retrieved the case file and the items of property previously transferred to the State C.I.D. Owerri. The accused persons each volunteered a statement to the witness under caution. The 1st accused person’s statements are “exhibits ‘C’ and ‘D’. The 2nd accused person’s statement is exhibit F. The 4th accused person’s statement is exhibit G. At the conclusion of his investigation the accused persons were charged to court.
Each accused person entered on his defence. The 1st accused testified as DW1. He denied the charge. He said he was a herbalist or native doctor. On the 2/6/97, the 2nd accused person (DW2), the 3rd accused person (DW3) with his child came to him to receive medical treatment for their respective illnesses. The Police arrived his house, while he was there with the patients. The Police executed the search warrant (exhibit H) on his house and premise. Part of his evidence at page 78 of the record was:
“They came out to my compound, one man from my place, we call him ‘Ihenafefe’ or, “Agu Na echemba” pointed at the bush at the back of my house, the Agu na echemba entered the bush with his men, and they recovered a bag and gave it to the Police”.
The witness further stated that it was along the road with the Police that he saw a bag under a mango tree close to the house of PW2. The bag contained the exhibits L, L1. It was recovered by the Police. The Police took him with the other accused persons to the premises of the PW1. DW1 adopted the statements he made to the Police as part of his defence.
According to him, he had had previous quarrels with the husband of the PW1, over a woman whom he married and also with the PW2. As a result of these quarrels his relationship with the PW2 had not been cordial.
Cross-examined, the DW1 admitted he volunteered a statement “exhibit GG” to the state C.I.D. Owerri. He denied he knew any person called Cynco. He was not a registered herbalist.
The 2nd accused (Augustine Awuzie) also testified as DW2. He denied the charge. His story was that he slept in his house in the night of the 1st of June, 1997. On the 2/6/97, at about 10 a.m he went to the 1st accused person for medical treatment for malaria and hyenia. While he was in the 1st accused person’s house with the 3rd accused and the 3rd accused’s child, the Police arrived and arrested him. He admitted making the statement “exhibit HH” to the State C.I.D. Owerri.
The 3rd accused person (Paul Uzoechi) testified as DW3. He denied the charge. According to him, he went to the 1st accused on the 2/6/97 taking along with him his child for medical treatment. While in the 1st accused person’s house, he saw people trooping into the compound. The Police interrogated him and he told the Police why he was in the 1st accused’s house; and he showed to the Police the wrapper with which he carried his child to the 1st accused. He admitted making the statement to the State C.I.D. Owerri. (“exhibit JJ”).
The 4th accused (Chukwudi Ogidi) testified as DW4. He denied the charge. His story was that the Police arrested him on his way from his shed to his house for a break-fast. He said he did not know why he was brought to court.
Questioned, he denied that any items of property were recovered in the compound of the DW1. He however, admitted making the statement (“exhibit KK”) to the State C.I.D. Owerri.
Sunday Ogidi (DW5) in his evidence stated that the DW1, his brother, had asked him to keep his Traditional Medicine Practitioners Certificate for him (DW1). He (DW5) had the original of the certificate in their home. He had a photocopy thereof.
Note: The photocopy of the original certificate was not tendered in evidence. The witness admitted that he made no statement to the police officers investigating the case.
Dissatisfied and aggrieved with the decision of the trial court, each accused person had appealed therefrom to this court. However, counsel on an application, later filed additional grounds of appeal for all the accused and one brief of argument on their behalf. The four accused persons are herein the appellants. The State-prosecutor is the respondent herein.
The parties filed and exchanged their briefs of argument in obedience to the Rules of Court. Therein each party formulated the issues for determination.
The appellants, in their brief of argument filed on the 19/12/2000 identified at page 8 thereof three (3) issues for determination to wit:-
“1. Whether sufficient evidence was led to establish the guilt of the appellants?
2. Whether the learned trial Judge was right in invoking the provisions of section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, against the appellants and to their prejudice.
3. Whether the prosecution proved the charge against the appellants beyond reasonable doubt as required by law”
The respondent on its part identified two issues in the respondent’s brief deemed filed on the 24th of September, 2001.
“1. Whether there is any material contradiction between the evidence of the PW2 and PW2 vis-a-vis their various statements to the police regarding their identification of 1st appellant at the scene of crime.
2. Whether the prosecution proved its case beyond reasonable doubt. At (sic) recards (sic) each of the appellants”.
At the hearing of the appeal, the counsel adopted their respective briefs. While on the one hand the counsel for the appellants urged court to allow the appeal, counsel for the respondent urged court otherwise.
I have scrutinised the issues formulated in the appellants’ brief. They could have been condensed and concisely stated. But be it as it may, the issues could be taken together, considered and disposed of together. This I intend to do.
Shorn of some unnecessary verbiage and repetitions, the gist of the counsel’s contentions could conveniently be summarised.
Learned Counsel had argued issue no.1 in sections or, segments. It was contended that there was a contradiction:-
(i) In the evidence by the PW1 and her statement (exhibit A) to the Police. Counsel referred to the evidence by the PW1 at page 46 of the record. It was contended that whereas the PW1 testified that she saw and recognised the DW1 (Cyriacus Ogidi) with the aid of a lighted lantern, in exhibit A, she stated that she identified the 1st accused person, “when the robbers were leaving his house”.
(ii) There was a contradiction in the evidence by the PW2 at page 53 lines 17 – 19 and his statement (exhibit B) in that PW2 testified:-
“I opened the door of my room to know who was knocking. When flashed my torch to see the person who was knocking, I saw the 1st accused person he ran into my room and he was carrying a matchet”.
In exhibit B he stated;
“that when he flashed his torch Oguma chased him with and he escaped”
(iii) The contradiction in the evidence by the PW1 and the PW2 was, according to the counsel at page 11 of the appellant’ brief, “Most importantly while PW1 said the robbers were carrying guns PW2 on the other hand said 1st accused was carrying matchet. Whom do we believe”.
The above alleged contradictions, counsel contended, had the effect of casting some doubt on the evidence by the witnesses and rendering their evidence unreliable. Relying on the decision of Christopher Onubogu v. The State (1974) 1 All NLR 561 at page 570, counsel submitted that the witnesses ought to be disbelieved.
It was further contended in page 12 of the appellants’ brief that the learned trial Judge having at page 118 lines 13 to 16 of his judgment held that there was no direct evidence of seeing or identifying the 2nd, 3rd and 4th accused persons at the scene of crime, he ought to have acquitted and discharged each of them without more. The learned trial Judge came under fire for invoking section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, to the detriment of the accused persons. In the opinion of the counsel, the trial Judge thereby “descended into the area” and speculated on the items of property (the exhibits) alleged robbed of the PW1 and relied thereon as linking the appellants with the offences charged.
It was further contended by counsel in the appellants’ brief at page 14 paragraph 3.9 thereof that the learned trial Judge was wrong in relying on the items of property recovered by the PW3 (the exhibits) as affording circumstantial evidence against the appellants.
Counsel referred to the evidence by the PW3 to the effect the property (the exhibits) was recovered in the DW1’s “premises” but the DW1 in his evidence testified that the exhibits were recovered, “one hundred meters” from his house. This piece of evidence, counsel contended, stood “unchallenged” and ought to have been acted on.
Reliance was placed on the case of Omoregbe v. Lawani (1980) SC 108. Besides, what the PW3 called “premises’ of the DW1 was not explained.
Therefore, there was no nexus or link between all the accused persons and the items of property recovered by the PW3. A long line of decided cases including Ukorah v. The State (1979) 4 SC 167 at 174; Adie v. The State (1980) 1 – 2 SC 116 at 122 (to mention only the two) were cited.
Dealing with the appellants’ issue No. 2, counsel contended that the learned trial Judge was in error in invoking section 149(a) of the evidence Act (supra) and importing the doctrine of recent possession as a safe haven to convict the appellants.
Arguing the appellants’ Issue No.3, counsel contended that the prosecution failed to prove its case against each of the appellants, as required by section 138 of the Evidence Act, beyond all reasonable doubt. With respect to the DW1 (Cyriacus Ogidi) counsel contended at page 19, para. 5.2 of the brief that the evidence by the PW1 and PW2 that they recognised and identified the 1st accused as one of the robbers was “unreliable having regard to suspicious circumstances prevailing which ought to be resolved in favour of the 1st accused”. Re the 2nd, 3rd and 4th appellants, counsel at page 20 of the appellants’ brief, contended that in the absence of direct evidence that any of them was seen or identified at the scene of crime, created doubtful circumstances which ought to be resolved in their favour. Reliance was placed on the cases of Bakare v. The State (1987) 1 NWLR (Pt. 52) 579; Omogodo v. The State (1981) 4 SC 24 and Onah v. The State (1985) 3 NWLR (Pt. 12) 235.
On his part, learned counsel for the respondent contended that there was no contradiction either in the evidence by PW1 and exhibit A; or in the evidence by PW2 and exhibit B. And there was no contradiction in the evidence by the PW1 and PW2 inter se. Counsel drew attention to the evidence by PW1 at page 46 lines 16 to 20; and at page 54 lines 1 to 4 under cross-examination. What was relevant or material, according to counsel, was whether or not either the PW1 and/or the PW2 had the opportunity or, means of seeing and recognising the DW1 as one of the robbers. The witnesses knew the DW1 previously and knew from where he came.
Counsel further contended that, while the PW1 testified to whom she saw and what the DW1 had (i.e. gun) in their house and at the time, the PW2 testified to whom he saw and what the DW1 was carrying in his (PW2’s) house and at a different time. The evidence by the PW1 that when she saw and recognised the 1st accused, he had a gun could not, therefore, be said to contradict the evidence by PW2 that when he saw and recognised the DW1 he was carrying a matchet. What mattered was whom the witness saw and, what the witness saw the person whom he or she saw, carried in the different respective setting.
It was contended by the counsel in the respondent’s brief dealing with his issue No.2 that the prosecution discharged its burden of proving the guilt of each accused person beyond reasonable doubt. Counsel further contended that the PW3 testified that the PW1 in her report to the police on the 2/6/97 reported that the DW1 with his gang of other robbers robbed her of her property on the 1/6/97. Counsel referred to the evidence by the PW1 and PW2 of their identification of the DW1 as one of the robbers. By the evidence of the PW2, the DW1 was one of the robbers whom he (PW2) and the Vigilante Group on night-duty-guard chased until they (the robbers) ran into DW1’s house. The robbers returned at 5 a.m. to recover the property they dropped while fleeing. Again, they were chased and, again they ran into the house of the DW 1. The PW2 and the Vigilante Group kept surveillance over the DW1’s house, until the PW3 arrived the house of the DW1 and arrested all the accused persons. Dealing with the recovery of the exhibits by the PW3 he drew attention to and referred to the statement (exhibit C) by the DW1 and, “exhibit EE” also by the DW1 to the police and, further to DW1’s evidence under cross-examination denying any knowledge of one Cynko, mentioned by the DW1 in exhibit D.
There was a link or nexus (the chase of the robbers, DW1 and his gang, twice, into the house of DW1, the arrest of all the appellants by the PW3 in the DW1’s house) sufficiently connecting the DW1 and the other appellants with the offence charged, counsel submitted. All the appellants endorsed exhibit H, (the search warrant). The evidence by the DW1 that he was a herbalist was contradicted by the DW5. The evidence by the DW2, DW3 that they went to the DW1 for medical treatment was rejected.
It was further contended that the recovery of the property of which the PW1 was robbed and recovered in the compound of the DW1 in the presence of all the appellants who endorsed the search warrant (exhibit H) was evidence enough linking all the appellants and involving them in the robbery.
The counsel contended that DW4 was arrested by the PW3 along with the others in the house of the DW1. The DW4 did not in evidence point to who had identified him to the police outside the house of DW1. Besides, there was no evidence by any witness in proof that DW4 was arrested in any other place than in the house of the DW1. Concluding, counsel submitted that on the evidence, the prosecution did discharge the burden on it of proving the charge against all the appellants beyond reasonable doubt.
Treatment: I have very carefully considered the learned submissions by the counsel in their respective briefs of argument. The appeal, in my view, turns principally on facts. And I do remind myself that the appellate courts do not believe or disbelieve witnesses. No. With regard to issues of credibility of witnesses, the appraisal of evidence and the confidence to be reposed on the testimony of any witness an appellate court would take the view that not having seen or heard the witness, it cannot on printed evidence usurp the essential function of the trial court – the court that saw, heard and watched the witness testify-: See Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372, 54 at 98 -99. It is, however, otherwise if the sole question is the inference to be made from admitted or uncontested facts. See Benmax v. Austin Motors Ltd. (1995) AC 370 at 375.
Now, it ought to be pointed out to be borne in mind that, the learned trial Judge rejected the evidence that the DW3 went to the DW1 with his child for medical treatment, and did reject the evidence by DW1 that he was a herbalist or native doctor. The trial Judge also rejected the evidence by DW4 that he was at any other place, than in the house of DW1. He accepted and believe the PW3 that he arrested all the appellants in the house of DW1 and that the DW1 was not a native doctor or herbalist.
On the one hand, counsel for the appellants contended that there was a contradiction; (i) in the evidence by PW1 and exhibit A; (ii) in the evidence by PW2 and exhibit B and (iii) in the evidence by PW1 and PW2 inter se. On the other hand, the respondent’s counsel submitted that there was no such contradiction at all. So, who is right? I had above reproduced the evidence by PW1 and parts of exhibit A alleged to be contradictory. I also reproduced above the evidence by PW2 and the portion of exhibit B alleged to be contradictory and, the evidence of PW1 alleged contradictory with evidence by PW2.
I shall pause here to remind myself of the principle to guide me in reaching my conclusion. As the Supreme Court observed in Nathaniel Nasumu v. The State (1979) 6 -9 SC 153 at 159:
“The pertinent question in this case, is whether the alleged contradictions in the evidence of the prosecution are so fundamental or in other words, they are such contradictions” on material points as to leave a reasonable tribunal in doubt.
The appellant has relied on the decision of this court in Christopher Onubogu & Anor. v. The State (1974) 9 SC 1. In that case, this court observed…
The emphasis in the passage is on “material point” and we would like to state here that not every contradiction, however, minute, would be sufficient to damnify a witness. The contradiction that would make a court disbelieve a witness has to be on a material point in the case. And what is material, however, depends on the facts of each case. It must be such a contradiction that one of the witnesses contradicting the other on a material point is discredited and could as a result not be believed as witness of truth either generally or on the material point in issue.
But the question requiring firstly, to be asked to be answered is this: what is a “Contradiction”? The word “contradiction” is a simple English word. It derives from two Latin words: “contra”, and, “dico- ere – dixi – dictum” meaning, “to say the opposite’, hence “contradictum”. A piece of evidence contradicts other when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And 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 or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.
Guided by and armed with the principle above discussed and applying it to the alleged contradictions the question becomes this:
(i) Did exhibit A as reproduced above, say the opposite of what PW1 stated at page 46 lines 15 to 20 of the record (supra)? The same question applies to exhibit B and the evidence by PW2 reproduced above; and also to the evidence by PW1 and PW2 inter se. Put in other words: was the evidence by PW1 that she saw and recognized Cyriacus Ogidi (DW1) with the aid of a lighted lantern in their house or room the opposite assertion of, per exhibit A, that she recognized DW1 (Cyriacus Ogidi) alias Ogbunma of Owerre Akokwa “as they were leaving our house”.
The material point in the evidence and in exhibit A was the fact that PW1 did recognise DW1 on the night of the robbery in her house. Was there, therefore, a contradiction on this “material point” of the recognition of the DW1?
Before I record my opinion guided by the Nathaniel Nasumu case (supra), how did the learned trial Judge treat the alleged contradiction? Writing at page 117 of the record, the learned trial Judge expressed himself, inter alia:-
“For a contradiction to be fatal to a case, it must not only relate to material fact”.
Continuing in lines 24 to 25 of page 117, he said,
“I see no material contradiction in the evidence of PW1 that undermined her credibility. I believe her story that she saw the 1st accused at the scene of crime”.
I am in complete agreement with the learned trial Judge that there is no contradiction in the evidence by PW1 and exhibit A.
Passing over to the evidence by PW2 and exhibit B, and applying the principle discussed above, did exhibit B, say the opposite of what the PW2 testified to on the “material point”, whether he saw and recognised the DW1? I did above reproduce the evidence by PW2 and also the portion of exhibit B. Whether in exhibit B or in his evidence, PW2 was saying that he saw and recognised DW1 on the night of the 1st of June, 1997, by flashing his torch light as he (PW2) opened the door to his room.
The learned trial Judge in his treatment of the alleged contradiction did write at page 118 lines 10 to 12 of the record:”
“There is no contradiction in his oral testimony and his extrajudicial statement exhibit B”.
He is right and I agree with him.
Finally, on the question of contradiction; did PW1 in her evidence, contradict the PW2 in his evidence? In her evidence, PW1 said that the DW1, when she saw and recognised him, was carrying a gun. In his evidence PW2 said that when he saw and recognised DW1, flashing his torchlight, the DW1 was carrying a matchet. It must be noted that the time and where the PW1 saw the DW1 were quite different from the time and where PW2 saw DW1 (what the counsel for the respondent in respondent’s brief styled, “different scenarios”.)
I am in agreement with the submission by the counsel for the respondent that there was no contradiction between the PW1 and the PW2.
The learned Counsel for the appellants had contended that the learned trial Judge having said that there was no direct evidence by the prosecution witnesses of having seen or recognised the 2nd, 3rd and 4th appellants at the scene of crime on the 1/6/97, he ought to have acquitted and discharged each of them forthwith and that the trial Judge was in error to have resorted to circumstantial evidence.
With respect to the learned Counsel, I do not share his opinion. The submission seems to me novel. Why? Because it is well settled law that in a criminal trial, an issue may be proved either by direct evidence or evidence aliened. And it is not derogatory to say that evidence is circumstantial.
Circumstantial evidence is as good as and sometimes better than any other evidence. What is meant is that, there is a number of circumstances which are accepted to make a complete unbroken chain of evidence. See Idigbe, JSC in Valentine Adie v. The State (1980) 1 – 2 SC 27 and its line of other cases. Witnesses may lie and sometimes do lie. But circumstances do not lie.
I shall pause here to enable me dispose of the contention by the counsel for the appellants that there was no explanation of what “Premises” meant by the PW3 and the submission that the DW1’s evidence that the items of property allegedly robbed, were recovered 100 metres away from the DW1’s house, remained “unchallenged”, to put the points aside.
I shall carry parts of exhibits C and EE (the statements by the DW1) to the Police. In “exhibit C”, the 1st accused stated, inter alia:
“I know why Police arrested me. I was arrested because the Police saw some exhibits in my compound, that is in the small bush in my back yard. I don’t know how the exhibits got to that place”.
In “exhibit EE”, the 1st accused person also stated:-
“Actually the following items were recovered in my house (compound) by Police thus:- One Telephone… I do not know how the above items entered inside my compound” .
Now, the question arises: Was there evidence aliunde linking the 2nd, 3rd and 4th appellants with the robbery on the 1/6/97, which the learned trial Judge accepted writing at page 124 of the record of appeal, the learned trial Judge expressed himself, inter alias, as follows:-
“The robbery of the PW1 in her dwelling house, the fact of seeing and recognition of the 1st accused in the heat of the robbery incidence and at the scene of crime, the chasing of the robbery gang, twice into the compound of the 1st accused person, the recovery of the robbed items of property along the escape route of the robbers and from the compound of the 1st accused, the presence of 2nd, 3rd and 4th accused persons in the house of the 1st accused soon after the robbery and who could not give credible account of their presence at the time coupled with the fact that no other person or persons such as other inmates of that compound were seen lead to the irresistible conclusion that the 2nd, 3rd and 4th accused persons were members of the robbery gang who in company of the 1st accused person, robbed the PW1 of her valuable household property in the late hours of 1st June, 1997, in her dwelling house at Amuzu Uno Arondizuogu”.
But it was, however, urged that the prosecution failed to prove the case against the appellants beyond reasonable doubt as required by section 138(1) of the Evidence Act. The prosecution has the statutory duty or burden under section 138(1) of the Evidence Act of establishing guilt of an accused beyond reasonable doubt. Needless, quoting decided cases or authority for the proposition. No.
Now, the pertinent question to ask, firstly, becomes this. What are the ingredients of the offence charged requiring to be proved by the prosecution? Section 1(2)(a) of the Armed Robbery and Firearms (Special Provisions) Act, Cap. 389, Laws of the Federation, 1990, provides:-
“1(2) If –
(a) any offender mentioned in subsection (1) of this section above is armed with any firearms or any offensive weapon or is in company with any person so armed; or …
(b) x x x x x x x x x x x x x
the offender shall be liable upon conviction under this Act to be sentenced to death…”
Section 1(1) of the Act, however, reads, in part, as follows:-
“Any person who commits the offence of robbery shall …”
Therefore, all the prosecution is required to prove by credible evidence is that the person(s) who robbed PW1 was either armed with a firearm or any offensive weapon or, was in company of any other person(s) so armed.
But what, then, is “proof beyond reasonable doubt’? The observation per Denning, J. in Milner v. Minister of Pension (1847) 2 All ER 372 at 373 replies my respectful question.
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community, if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”.
On the evidence before him, the learned trial Judge had concluded at page 125 of the record of appeal that the prosecution had discharged the burden on it of proving charge against each of the appellants beyond reasonable doubt. He was right.
I shall now proceed to record my resolution of the issues as formulated in the appellants’ brief formally. Each of the three (3) issues is answered in the affirmative. The appeal, in my respectful view, lacked any merit.
In conclusion, I affirm the judgment of the learned trial Judge on the 17th of December, 1999 and I do hereby, dismiss the appeal accordingly.
ADENIJI, J.C.A.: I have read in advance, the lead judgment of my learned brother, Nsofor, JCA, in this case and I agree with his reasoning and conclusion. I also, affirm the judgment of the learned trial Judge and hereby, dismiss the appeal.
IKONGBEH, J.C.A. (Dissenting): I have had the privilege of reading in the draft, the judgment prepared by my learned brother, Nsofor, JCA, and read by my brother, Akpiroroh, JCA. I agree that the appeal of the 1st appellant lacks merit and ought to be dismissed.
I do not agree, however, that the evidence before the trial court against the 2nd – 4th appellants was sufficient to justify their conviction.
I have decided to write a full judgment of my own, because my reasons for the view that the 1st appellant’s appeal should fail are not quite the same as my learned brother’s. And, of course, I disagree with his reasoning and conclusion as they relate to the 2nd – 4th appellants.
This is an appeal from the judgment of the Imo State High Court, sitting at Owerri, convicting the four appellants of the offence of armed robbery. They were charged with robbing PW1 at about midnight on 01/06/97. PW1 and PW2 were the only eyewitnesses to the robbery. The account of it, as given in court by PW1, a nursing mother of a month-old baby, was that she and her mother-in-law, who slept in different rooms in their house, were awakened by gunshots fired in their compound. At one point, her mother-in-law joined her in her room. They heard banging on their door and people ordering them to open the door or they (the intruders) would force it open and kill them (the occupants). The door was eventually forced opened by the intruders and two men armed with guns entered the room. The men beat her mother-in-law and robbed them of valuable property. She recognised the 1st appellant by the aid of a lantern in the room.
The account by PW2 was that he was sleeping in his own house, near PW1’s, when at about 12.30 a.m. he was awakened by knocking on the door to the room where his wife and children slept. He opened the door of his own room to investigate. He saw the 1st appellant by the light from his (PW2’s) torch lamp. He then ran to the house of his brother whom he woke up and told of what was going on.
Together, they raised the alarm to alert their neighbours and the vigilante group, which was on guard duty close by. The racket they raised scared off the intruders, who, though, had succeeded in breaking down the door to PW2’s wife’s room, did not wait to remove anything. The witness, his brother and those who had been attracted by the racket, gave chase to the fleeing intruders. The latter ran into the house of the 1st accused/appellant. Not knowing what might happen to them if they followed the intruders into the house, the pursuers decided to turn back. In their flight from their pursuers the intruders dropped some of the loot they had brought from their earlier operation in PW1’s house. The pursuers, on the suggestion of the witness, hid themselves to watch if the intruders would return for their loot. They returned at about 5.00 a.m., but on sighting those in hiding they ran back into the 1st appellant’s house. At daybreak PW2 lodged a report of the incident with the Police at the Ideato Police Station.
PW3 and PW4 were Police Officers, who testified as to the part they played in the investigation into the incident. PW3 conducted a search in the house of the 1st appellant and recovered some of the stolen items. He also recovered those that dropped along the road as the robbers fled.
Each accused person testified in his own defence. Only one other witness testified for the defence, i.e., DW5, the brother of the 1st and 4th accused/appellants, who testified for his brother, the 1st appellant.
Each accused denied any involvement in the robbery. In his evidence the 1st accused (DW1), who claimed to be a herbalist, testified that the first he knew of the matter was when the police came to search his house. He was in company of the 2nd and 3rd accused when the police came. The former came for treatment himself while the latter had brought his child for treatment. The police arrested them together and search his house but found nothing.
In his own evidence the 2nd accused (DW2) testified that he left his house at about 10.00 a.m. on 02/06/97, for the 1st accused’s house for treatment. The 3rd accused was already there when he (2nd accused) arrived. The 3rd accused had his child, whom he had brought for treatment, with him. The police then arrived and arrested them.
The evidence of the 3rd accused (DW3) was more or less the same. The 4th accused (DW4), 1st accused’s brother, who claimed to be a shoe mender, testified that he slept at home, i.e., the 1st accused’s house, on the fateful night but knew nothing of the robbery. In the morning he went to his shed where he mended shoes. He was arrested as he was returning home for breakfast.
The evidence of DW5 was aimed at showing that the 1st accused was indeed a herbalist.
After hearing addresses by counsel for both sides the learned trial Judge, C. I. Ohakwe, J., delivered his judgment on 17/12/99. He accepted the eyewitness evidence of PW1 and PW2, disbelieved the story by each accused and rejected his defence. He also took into account the fact that each accused was caught out in some lies.
Furthermore, he took into account the fact that the accused persons were found in the 1st accused’s house, where the robbers had, according to PW2, been chased from the scene of the robbery. From this and the lies told by the accused, he concluded that the accused persons were the robbers. He also considered the fact that some of the items of property stolen from PW1’s house were, according to PW3, recovered from the 1st accused’s house at the time he arrested the accused persons there. He then invoked the presumption under S. 149(a) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, against them, concluding that either they were the robbers who took those items of property or they had received them from the robbers. He accordingly, convicted each as charged and sentenced him to death by hanging or by firing squad as the Governor of Imo State may direct.
Aggrieved, each has appealed to this court against his conviction and sentence. A brief of argument was filed on their behalf by Mr. A. Nwaiwu, now S.A.N., who formulated the following three issues for determination by use:
“1. Whether sufficient evidence was led to establish the guilt of the appellants?
2. Whether the learned trial Judge was right in invoking the provisions of section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, against the appellants and to their prejudice?
3. Whether the prosecution proved the charge against the appellants beyond reasonable doubt as required by law?
Mr. L. C. Azuama, the learned Principal State Counsel, who prepared the respondent’s brief, formulated the following two:
“Whether there is any material contradiction between the evidence of the PW1 and PW2 vis-a-vis their statements to the police, regarding their identification of 1st appellant at the scene of crime.
Whether the prosecution, proved its case beyond reasonable doubt as regards each of the appellants”.
I think there is really only one issue, namely, whether or not the prosecution proved the charge of armed robbery against the appellants. What counsel on both sides regard as different and independent issues are just aspects of the same central question. If the evidence of identification of the 1st accused person, which the learned Senior Advocate says was flawed by internal discrepancies, is unsatisfactory then the prosecution cannot be said to have proved its case against him. The question of the identification of the robbers cannot, therefore, be treated as an independent issue as Mr. Azuama has treated it. There is no difference between issues 1 and 3 as formulated by Mr. Nwaiwu.
The learned Senior Advocate argued the appeal in three main aspects. First he dealt with the eyewitness identification of the 1st appellant by PW1 and PW2. In his view, the identification was most unsatisfactory because of the discrepancies between the evidence of PW1 and her statement to the police, exhibit B. He said the discrepancies were material and affected the reliability of each witness as they are related to the crucial point about the circumstances in which each claimed to have seen and recognised the 1st appellant.
He drew attention to the evidence of PW1, where she stated that she recognised the 1st appellant in the room with the aid of a lantern that was there, and exh. A, where she stated that she recognised the 1st appellant as the intruders were leaving the house. He drew attention also to what PW2 said in his evidence in court and what he said in exhibit B regarding how he was able to recognise the 1st appellant. According to learned Senior Counsel, the Judge “did not advert to the suspicious circumstances prevailing and the doubt created by the inconsistence” (sic). Had the Judge adverted to this factor, senior counsel maintained, he would have dismissed the charge against the 1st appellant.
Mr. Azuama, for the respondent, disputed that there was any inconsistency between the evidence of PW1 and PW2 and their respective statements to the police. In the learned Principal State Counsel’s view, the statement by PW1 in her evidence in court that she saw the 1st appellant when the lantern was taken from the inner room to the parlour is synonymous with the statement by her in exhibit A that she recognised the 1st appellant” as they were leaving our house”. This, according to him, “is so because both imply leaving the presence of PW1″. In counsel’s view, the inconsistency here, if at all there is, is immaterial because –
” … the material facts, as given by PW1, are:
(i) That there was a lantern in their house or room at the time of the armed robbery attack.
(ii) That she saw 1st appellant (and this was both in her statement to the police and her evidence in court) with the aid of lantern”
As regards the alleged discrepancy between the evidence of PW2 and his statement, the learned Principal State Counsel submitted that the two versions are consistent, both on the fact that torchlight was used in the identification of the 1st appellant and the fact that he had a matchet, coupled with the fact that he chased the 1st appellant thereafter.
I shall first deal with the identification of the 1st appellant by PW1. On how she was able to identify the 1st appellant the witness testified:
“At the time, there was a lantern in my room, one of them carried it to the parlour. It was then I recognised one of the two persons known as Cyriacus Ogidi, (1st accused person). They asked me of my husband and I told them that my husband was not at home. They said that I was telling lies that they saw my husband the previous day. They slapped my face and demanded six thousand Naira from my mother-in-law. My mother-in-law pleaded with them that she was recently discharged from the hospital. They started beating her up and followed her to her room and asked her to get the money she kept inside the house. She gave them some money … They started to ransack the house and started to remove our property … We were in my mother-in-law’s apartment; I did not know when they left. When day break, people gathered, and the police came carrying properties and also came with the accused persons.”
Two vital points stand out clearly here that must be noted. They are that-
1. PW1 recognised the 1st appellant before –
(a) the intruders demanded the whereabout of her husband and the reaction of the intruders to her answer,
(b) the demand for money from her mother-in-law,
(c) the beating of her mother-in-law, and
(d) the ransacking of the house.
2. PW1 did not know when the intruders left her house.
I shall reproduce her statement in exhibit A from the point where she stated that the armed robbers entered her house:
“Then the armed robbers break the door and enter, as they enter with their guns, they ordered me and my husband mother, Justina Nnakaihe (F) to lie down because of the gun they carried, they further ask me of my husband, Innocent Nnakaihe (M). I told them that my husband is not around they said that I am telling lies that they saw my husband the previous day, being 31/05/97. The armed robbers started beating me and later asked my mother, Justina Nnakaihe (F) to give them N6,000.00 (six thousand Naira) or else, they kill her. Justina (F) told them that she has no money to give to them that she just come back from hospital, it was by then they started beating her, dragged her to her room and they insisted that she must give them money, Justina (F) later gave the armed robbers N1,700.00 for her not to be killed. The armed robbers started parking some of our house properties like six – battery radio – cassette, one wall clock, three carton of cream, beverage provisions, my baby kits, my husband, Innocent Nnakaihe’s cloths and some food stuff. The total estimate of the properties the armed robbers carried from our house is (N12,560) Twelve Thousand Five Hundred and Sixty Naira only. As they were living our house, I identified one Cyriacus Ogidi, alias Ogunma of Owerre Akokwa Ideato North L.G.A. of Imo State. They also break my husband mother’s Lamp as they are going. That all my statement.” (italics mine).
From the sequence of events as narrated by the maker of this statement, the recognition of the 1st appellant by PW1 took place after the robbery and as the robbers were leaving the house. She said nothing about there being light.
Dealing with this issue of the discrepancy between the evidence of PW1 and exhibit A the learned Judge observed and held on p.117 of the record:
“In determining the credibility of this witness and the issue of contradiction in her evidence, the overriding consideration here is, whether the witness had the means and opportunity of seeing the 1st accused at the scene of crime during the incident. In her oral testimony and in exhibit ‘A’ PW1 said she knows the 1st accused in person as being a native of Owerre Akokwa. In her evidence and in her statement to the Police, she said there was lantern in the room. She also said she saw the 1st accused at the time of the incident in their house.
The witness did not identify the 1st accused by description but by seeing and recognition of the 1st accused, who she knows the house and compound. PW1 was at the scene of crime. For a contradiction to be fatal to a case, it must not only relate to material fact but must result in a miscarriage of justice, … I see no material contradiction in the evidence of PW1 that undermines her credibility. I believe her story that she saw the 1st accused at the scene of crime.”
It can be seen that the learned Judge was heavily influenced in his decision on this point by his observation, which I italicised, that both in her evidence in court and in her earlier statement, exhibit A, she said that there was a lighted lantern in her room, during the robbery. Mr. Azuama, as we have seen, also said that PW1 stated both in her evidence and in exhibit A that there was a lantern in the room and that she recognised the 1st appellant by aid of the lantern.
I have reproduced the relevant portions of exhibit A. I cannot be as categorical, as the learned Judge and Mr. Azuama have been, that PW1 said in exhibit A that she was able to see the robbers by the aid of the lantern. The only time she made reference in exhibit A to lamp was when she said that on their way out the robbers broke her mother-in-law’s lamp. She did not say whether or not the lamp they broke was lighted, or whether or not it was the same lantern she said in her evidence in court was moved by one of the robbers from her (PW1’s) room to the parlour before they commenced the real robbery.
Taking the two versions of PW1’s story together, I cannot help agreeing with Mr. Nwaiwu that a reasonable doubt was created. How could she in one breath say that, that she did not know when the robbers left her house after the robbery, and in another that, it was as they were leaving the house after the robbery, that she recognised the 1st appellant and still be relied on to conclude that she actually saw that appellant? If she did not know when the robbers left the house after the robbery, then she could not have seen them leave. And if she did not see them leave, then she could not have seen one of them, let alone, recognise him as the 1st appellant. The point on the identity of the 1st appellant at the scene of the crime was a very material and crucial point, barring minor differences in presentation.
Therefore, the evidence of a witness on it on different occasions must be consistent. The version of PW1’s story in court cannot be reconciled, with the version in exhibit A. In court she said that she recognised the 1st appellant soon after they entered her room and before they started making demands and ransacking the house and that she did not know when they left because she had moved to her mother-in-law’s apartment. In exhibit A, which she made within a month of the incident, when the matter was still fresh in her mind, she had said, however, that it was as the robbers were leaving, after they had robbed. The two versions are clearly incompatible and cannot co-exist. It was either she recognised the 1st appellant for the first time during the early part of the robbery operation or at the end of it as the robbers were leaving the house. She could not have recognised to her for the first time at both times, especially as she did not according to her, know when the robbers left the house after the robbery.
I cannot accept Mr. Azuama’s contention that the evidence of PW1 in court and her statement in exhibit A amounted to the same thing. Even PW1 herself recognised that they were not, hence, her denial under cross-examination that she said what the Police recorded in exhibit A. She said she told the Police what she said in court but the Police on their own recorded her as saying that it was while the robbers were leaving the house that she recognised 1st appellant.
In all the circumstances, I must agree with the learned Senior Advocate, for the appellants, that the learned trial Judge should have given the benefit of the doubt created by the inconsistent and irreconcilable nature of PW1’s evidence on the identity of the 1st appellant at the scene of the robbery. The Judge should, therefore, have given the benefit of the doubt to the 1st appellant and discounted the evidence of PW1 on this point, while considering the case against him.
What about the identification by PW2?
In his evidence before the court he testified on the point of the identity of the 1st appellant, inter alia, that-
“Around 12.30 mid night on that day, I was sleeping on my bed in my room, I heard a knock on my door where my wife and children were sleeping. When I flashed my torch to see the person who was knocking, I saw the 1st accused, he ran into my room and he was carrying matchet. When I flashed the torchlight, he tried to cover his face not knowing that I had already seen him. When he was covering his face with his hand, I ran away through the back door of my house. I ran to my brother’s house, who lives close to my house. His name is Augustine Okeke. I knocked him up and told him that there were robbers in my house. He came out of his house, we both started to raise alarm. At that time, the robbers had already broken the door of the house, where my wife and children were sleeping. I was raising the alarm to alert the natives and the “vigilant group” of the village, who were on duty at the time as night guards.
They did not remove any thing when they damaged the door. They took to their heels. I and my brother, Augustine and other people started to pursue them behind, until the 1st accused and his gang ran into the house of the accused.”
In his statement, exhibit B, he had stated on this point:
” …I have to add that my house and that of Innocent is close by and I heard some gun shots from Innocent house/ compound shot by the robbers when they were operating. There when the robbers came, they went straight to the door leading to my wife’s sleeping room and knocked. When I heard the knock, I came out through another door to see who was knocking and when I flashed my torchlight, Oguma chased me with matchet and I escaped to call my brother Augustine, before I came back with my brother, they had broken into the house but owing to the alarm we raised, they could not collect any thing from my house, but ran away.”
I must observe that, unlike in the case of PW1, Mr. Nwaiwu did not see much to point to in the evidence of PW2 by way of locating a material inconsistency or discrepancy. All that senior counsel said on this point was –
“The PW2 in his evidence in chief at page 53 lines 17 – 19 of the record stated: ‘I opened the door of my room to know who was knocking. When I flashed my torch to see the person who was knocking, I saw the 1st accused, he ran into my room and he was carrying matchet’ But in his written statement to the police exhibit ‘B’ he stated that when he flashed his torchlight ‘Oguma’ chased him with matchet and he escaped. Indeed, there was no evidence as to the length of the observation, the distance between the PW2 and the 1st appellant at the dark of 12.30 midnight, the duration between the observation and the subsequent identification. In any event, PW2 testified at page 54 lines 1 to 2 that the robbers went away without removing anything.”
With respect, I do not see any material discrepancy between the witness’s evidence in court and his statement in exhibit B. I am more inclined to the observation by Mr. Azuama that, the two versions are consistent on all the material points. In both exhibit B and his evidence in court, the witness conveyed the clear message that he flashed his torch lamp on the 1st appellant, that the 1st appellant advanced on him menacingly with his matchet, and that he (the witness) escaped through another door. True, in his evidence, he said that when he flashed his torch on the 1st appellant the latter “ran into my room and he was carrying a matchet”, whereas in exhibit B he said, when he flashed his torch “Oguma chased me with matchet and I escaped.” These are just the two bits that the learned Senior Advocate fastened on to. Had he considered all the relevant parts of the evidence in court together, he would have seen that the witness said essentially, the same thing as he had said in exhibit B. The situation here is not the same as in the case of PW1, whose statement in her end evidence in court and in exhibit A could not be reconciled.
What we had in the case of PW2, was a slight variation in stating the same fact. PW1, on the other hand, said two things that were incapable of happening at the same time. She said she did not know when the robbers left the house because she was hiding in her mother-in-law’s room. It would not, therefore, be possible for her to see and recognise the 1st appellant as the robbers were leaving the house. In the circumstances, I cannot fault the following observations by the learned Judge on pp. 117 – 118 of the record, as it relates to the 1st appellant:
“Also on the issue of contradiction in the evidence of PW2 and his credibility, I have read exhibit B and considered it side with the evidence of PW2, the witness was consistent in his evidence that on hearing a knock at the door of his house, he opened another door of his house, flashed his torchlight and saw the 1st accused carrying a matchet. The witness said the 1st accused chased him with the matchet and he ran away through a back door to his brother and both of them raised alarm, following which the robbers were given a chase and they ran into the compound of the 1st accused. The witness stated also that the house of PW1 and his house are close by and that he heard the gun shot fired by the robbers in the compound of PW1 before the same gang of robbers invaded his house. There is no contradiction in his oral testimony and in his extra judicial statement exhibit ‘B’. He is a witness of truth and I believe him”.
The crucial question now is whether or not, taking everything together there was sufficient evidence before the trial court to justify the conviction of the 1st appellant. The learned Judge thought that there was. He thought that the evidence of PW2, identifying the 1st appellant as one of the robbers, plus the available circumstantial evidence, such as the chasing of the robbers into the 1st appellant’s house and recovery from the 1st appellant’s house of some of the items stolen from PW1’s house, was sufficient to ground the 1st appellant’s conviction. The point, on the recovery from the 1st appellant of recently stolen property, made the Judge to read the provisions of section 149(a) of the Evidence Act against him. He summarised the reasons that led him to his final conclusion against the 1st appellant as being-
“The robbery of PW1 in her dwelling house, the fact of seeing and recognition of the first accused in the heat of the robbery incidence (sic) …, the chasing of the robbery gang, twice into the compound of the 1st accused person, the recovery of the robbed items of property along the escape route of the robbers and from the compound of the 1st accused…”
As against the 1st appellant, I cannot fault the findings of the learned Judge and the reasoning leading thereto. The identification of him by PW2 was positive. The only attempt at challenging him in cross-examination on the point was to tender his extra-judicial statement to contradict him. I have already held that there were no material discrepancies between his statement and evidence. The fact that the robbers were chased into the 1st appellant’s house and the discovery of the recently stolen items strengthened his culpability.
Section 149(a) of the Evidence Act was properly read against him in the circumstances.
But then, Mr. Nwaiwu, for the appellants, has made quite an issue out of the invocation of s. 149(a). He wrote in paragraph 4.2 of the appellants’ brief:
” … one of the most bizarre things the learned trial Judge did in this case under appeal was, his rather whimsical recourse to the provision of section 149(a) of the Evidence Act. At no time were the appellants informed that they were being tried as receivers of stolen property or for receiving stolen property under section 427 of the Criminal Code Laws of Eastern Nigeria, 1963, applicable to Imo State of Nigeria. The appellants were neither charged for receiving stolen property under section 427 of the criminal code nor were they informed of an allegation under section 427 of the Criminal Code. Worst still, at no time was appellants’ counsel invited to address the court on the applicability or otherwise of the provisions of these section. The wrong invocation and approach of the learned trial Judge denied the appellants of their constitutional right of fair trial, to their prejudice and which occasioned serious miscarriage of justice.”
And in paragraph 4.3:
“The Supreme Court has held that in the case of murder, where evidence is circumstantial the fact of recent possession under section 149(a) of the Evidence Act is not sufficient to prove that the possessor killed the deceased. The doctrine to recent possession without anything more as a sufficient link of the appellant with the death of the deceased in a case depending on circumstantial evidence was rejected.
In the instant case on appeal before your Lordship, the learned trial Judge found the doctrine of recent possession as a safe haven and relied on it in convicting and sentencing the appellants.”
One point that must be made at once is that, as has been seen, the learned Judge did not rely on the fact of possession of recently stolen proper “without anything more” to convict the 1st appellant. As has been seen, the main evidence he found against the 1st appellant was the identification of him at the scene by PW2. He also used the fact that PW2 and the others chased the robbers, including the 1st appellant, into the latter’s house. The Judge brought up the fact of recent possession merely as contributory evidence, strengthening the other ones. A piece of circumstantial evidence, which, standing on its own, may not suffice for conviction could, in conjunction with other pieces of evidence, acquire such potent relevance against the possessor as would lead to his conviction. Nnamani, J.S.C., made this point clear in Omogodo v. The State (1981) 5 SC 5 at 17 where he stated that-
“Mere possession of the vehicle shortly after the suspected crime cannot be enough to link the accused person with the murder of the deceased. There should be other circumstances strong enough not only to invoke the presumption implicit in section 148(a) of the Evidence Act against the accused, but to justify holding with some degree of certainty, that he killed the deceased at the time the vehicle was stolen.”
In the instant case there clearly were, as we have seen, other circumstances strong enough not only to invoke section 149(a) (formerly 148(a)) but also, to justify with a high degree of certainty the learned Judge’s holding that the 1st appellant took part in the robbery that night.
The complaint by Mr. Nwaiwu that the invocation of section 149(a) by the Judge denied the 1st appellant his right to fair hearing is not justified in point of fact. The prosecution led evidence suggesting a link between him and property that had recently been stolen in an armed robbery operation. In his address to the lower court, Mr. Nwaiwu submitted that such link did not exist. On the point, the Judge recorded him as follows at pp. 92 – 93 of the record:
“Urge the court to hold that apart from exhibits AA which belongs to the 1st accused there is no link between the other exhibits and the accused persons. The prosecution witnesses especially PW3 and PW4 conceded that there are no existing inspiring mark of identity to show that they were the ones stolen or that they were recovered from the accused persons. Failure to identify the exhibits resulted to a break on doubt on proving that they are the actual objects recovered and that the accused persons were in possession of them. PW1 however said that, she made a mark on exhibit ‘S’ umbrella. The mark she said she made on the umbrella is not her name. The mark on it does not show her name. PW3 when recalled, told the court that exhibit S was recovered, somewhere along the road leading to the house of the 1st accused. There has been no link between these exhibits and the accused persons.”
Mr. Azuama, for the respondent, on the other hand, urged the learned trial Judge to hold that such link existed. The record of his address on the point is at pp. 97 – 98 of the record and reads:
“Urge the court to hold that the prosecution has established a case of armed robbery against the accused persons. The evidence of PW1 and PW2 and that PW3 and PW4 have settled beyond doubt the involvement of the 1st accused in the crime on both direct and circumstantial grounds.
The arrest of the other accused persons in the house of the 1st accused by the Police, who were promptly invited by the victims of the crime as well as the discovery of exhibit J to Z within the premises of the 1st accused house is enough circumstantial evidence that offers no co-existing circumstance than that they are those who invaded the house of PW1.”
The Judge found as a fact that there was such a link. He then made the presumption, provided for in section 149(a), that the link established by evidence between the appellant and the goods recently stolen in a robbery operation was suggestive of the fact that either he stole them or received them from the robber who stole them. The application of the paragraph was, in the circumstances, automatic.
Although, counsel for the parties, while addressing the court on this point, did not refer to the paragraph by citation, they were clearly, however, in effect arguing for and against its applicability. Once the Judge found as a fact, as he did in this case, that the appellant was found in possession of the recently stolen goods he was at liberty to resort to the paragraph without again asking counsel whether he should. There was no breach of the appellant’s right to fair hearing.
For these reasons, I see no merit in the argument that the Judge was not justified in using the identification of the 1st appellant by PW2 and the fact that the items of property recently stolen were found in his house a sufficient evidence fixing him with the robbery that took place in the house of PW1 at around mid night on 01/06/97.
On the whole, I cannot, in the circumstances, fault the decision of the learned trial Judge to convict the 1st appellant. I fully agree with his reasoning and conclusion. Even without the evidence of PW 1, which I discounted, the combined effect of the other facts and circumstances highlighted and considered by the learned Judge, indeed, led to the irresistible conclusion that the 1st appellant participated in the robbery in the house of PW1 and the attack on the house of PW2.
I now come to the appeals of the 2nd – 4th appellants, which Mr. Nwaiwu dealt with as the second aspect of issue 1. The learned trial Judge himself found as page 118 of the record that there was no direct evidence against them. He however, convicted them on what, in his view, was sufficient circumstantial evidence.
Now, what were the circumstances that impelled the Judge against these appellants?
At page 119 of the record the learned Judge observed:
“It is the evidence of PW2 that following the alarm he and his brother raise the robbers took to their heels and were given a chase by members of the vigilante group, who were on duty that night. It was his evidence that the robbers ran into the compound of the 1st accused and that the … robbers were in the house of the 1st accused, till the arrival of the Police, who arrested the 1st, 2nd, 3rd and 4th accused persons.”
The first question that has agitated my mind is the factual one whether or not this witness did in fact say, or can be taken to have said, that the robbers remained in the 1st appellant’s house from the time they entered it till the Police arrived and arrested the appellants?
It becomes necessary here to look more closely at this aspect of his evidence. At page 54 of the record he testified that as the robbers, whom he and the others were chasing –
“were running, some of the items of property they were carrying dropped from them. I told the people pursuing them to wait and hide somewhere to see if the robbers would come back to collect the items of property that dropped from them. While we were waiting, at 5 a.m., they (sic) robbers came back to collect the properties that fell off from them when they were running away, they saw us and ran back to the house of the 1st accused Cyriacus Ogidi. We waited around till morning. In the morning, I went and reported to the police at Ideato Police Station. Before I reported the matter to the police, I first of all reported the matter to the head of the vigilant group. Apart from my house, the robbers went to the house of Innocent Nnakaihe that same night.
When the robbers struck, it was raining lightly. The search made us trace their footprint as they ran to their destination… Following my complaint or report to the police the police came, the Head of the vigilant group took them to where the robbers ran into. The Police also came to my house in company of the 1st accused person and group who the Police arrested. The people the Police arrested are the accused persons now in court.”
One point to note here is that nowhere in his evidence did the witness state expressly that the persons they chased into the 1st appellant’s house that night “were in the house of the 1st accused till the arrival of the police, who arrested the 1st, 2nd – 4th accused persons.”
Could such a statement be inferred from anything that the witness said in his evidence?
I see nothing in the part of his testimony just set out from which such an inference could be made. And that is the part of his evidence that dealt with the flight of the robbers into the house and what transpired thereafter. It was, with respect, a clear misdirection on the part of the Judge to have taken the view that the witness said what he attributed to him, which the witness did not say.
The significance of this observation, lies in the fact that this view the Judge took of the evidence of the witness influenced him in no small measure in arriving at his decision to convict the 2nd 4th appellants. At pages 124 – 125 of the record he reasoned and concluded his judgment thus:
” … the presence of the 2nd, 3rd and 4th accused persons in the house of the 1st accused soon after the robbery and who could not give credible account of their presence at the time coupled with the fact that no other persons or persons such as other inmates of that compound were seen lead to the irresistible conclusion that the 2nd, 3rd and 4th accused persons were members of the robbery gang, who in company of the 1st accused person robbed the PW1 of her valuable property in the late hours of 1st June, 1997, in her dwelling house… I hold that the prosecution has established the charge of armed robbery against each accused person beyond reasonable doubt.”
When he observed in the passage just seen that none of the three appellants could give a credible account of his presence in the house of the 1st appellant at the time they were arrested, he no doubt had in mind, his earlier finding that they had lied about their reason for being there. The 2nd appellant testified that he had gone there that morning to take treatment for his ailment from the 1st appellant.
The 3rd appellant said he had brought his child there for treatment. The Judge disbelieve their stories because he did not believe that the 1st appellant was a herbalist as everybody concerned claimed.
The 4th appellant is a brother of the 1st and, according to him, lived in the house with his brother. His story was that he was arrested as he returned home that morning for breakfast from his shed where he mended shoes. The Judge disbelieved that, so also his claim to being a shoe mender or to owning a shed.
From the passage from the judgment that I just set out it is clear that the Judge based his decision to convict the 2nd – 4th appellants on three main grounds, namely:-
(a) their presence at the 1st appellant’s house soon after the robbery;
(b) the fact that they could not give credible account of their presence there; and
(c) the fact that no other occupant of the 1st appellant’s compound was seen at the time the police came to arrest the appellants.
As to (a), it is not clear whether the Judge was referring to their presence in the night soon after the robbers entered the 1st appellant’s house or to their presence at the time of their arrest. His use of the expression “soon after the robbery” seems to suggest the former.
The evidence before the court was that the arrests of the appellants were made around 11.00 a.m. and the search of the 1st appellant’s house shortly thereafter. (See the evidence of the 1st appellant at page 83, which is corroborated by the endorsement on exhibit H, the search warrant, at page 140.)
Whichever one it is, I do not think that in the circumstances of this case, it supports the Judge’s decision to convict the appellants. If it is the former, we have already seen that the Judge was mistaken in his view that the 2nd – 4th appellants were in that house that night. The evidence of PW2 that he relied on to form that view contained nothing to support it.
If it is the latter, it affords even less support. The presence of a person in a compound in the morning does not necessary lead to the conclusion that that person had been there from the previous night. People come and go all the time. Some support could have been gotten, had there been evidence that the 1st appellant’s house was cordoned off, soon after the robbers had entered in order to prevent their leaving. Had such siege been maintained till the morning and the three appellants were seen in the house, then the conclusion would have been easy to make, indeed, it would have been inevitable.
In the instant case, there is no evidence that the house was sealed off with a view to keeping those who ran inside in till the arrival of the police. The evidence of PW2, earlier seen, showed that the pursuers were more interested in watching the things dropped by the fleeing robbers in case they returned for them. He did not say that they watched the house or did anything to prevent those inside from leaving.
The same answer as above goes for (c). There is no evidence from any witness that apart from the 1st appellant and his brother, the 4th appellant, any other person lived in the house. Even if there was such evidence, the fact of their absence at the time the police came to arrest the appellants ought not to lead to the detrimental conclusion reached against the appellants. Indeed, at that time of day, it was more normal to find people at their work or business places than at home.
As for (b), the fact that the appellants may have lied about their reasons for being in the 1st appellant’s house that morning could never, in the circumstances of this case, be evidence or proof that they were among those chased into the 1st appellant’s house the night before. The law is well settled that the mere fact that a person has lied is not proof that he is guilty. As Hurley, C. J. (Northern Nigeria) pointed out in Haruna & Anor. v. Police (1967) NMLR 145 at 153.
” …though a man may lie, because he is guilty, he may just as well lie, because he is stupid or afraid or both, and whether he is guilty or not.”
Nnamani, J.S.C., stated the law clearly and fully in Omogodo v. The State, (supra) at 21 – 22, where he observed and held:
“It (the Robbery and Firearms Tribunal) was also of the view that the ‘catalogue of lies presented by the accused, coupled with his betrayed demeanour point to only one conclusion – guilt’. But having regard to the circumstances of this case, these conflicts and discrepancies in the appellant’s evidence by themselves are not enough, in my view, to establish his guilt with the requisite degree of certainty. As was conceded by the Tribunal, a person may lie though innocent. Such lies may be as a result of fear or stupidity or indeed anxiety on the part of the accused to save himself. The fact that an accused person has told lies has never been accepted as proof of his guilt. See Haruna & Anor. v. Police (1967) NMLR 145; see also Okpere v. The State (1971) 1 All NLR 1. As Coker, J.S.C. stated in the Okpere case at p. 5.
‘It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence, unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubts. (See Woolmington v. Director of Public Prosecutions (1935) AC 462’.
(Italics by Nnamani, J.S.C.).
The burden of proving the guilt of the accused, remains also on the prosecution, even where as in the instant case, the accused person cuts a bad image in the witness box. (See State v. Abel Olaka Ozunu (1973) 3 ECSLR 186 at p. 195). The Tribunal ought, in spite of the numerous lies told by the appellant, to have weighed the case of the prosecution very carefully to determine whether on the totality of that evidence the guilt of the appellant was proved beyond all reasonable doubt. I do not think that it did so. The fact that the appellant was in possession of the stolen car coupled with these lies appear to have weighed very heavily on their minds.
In any case, since the evidence of the appellant before the Tribunal (which consisted of so many lies) was
different from the contents of his statements to the Police exhibits ‘E’ and ‘L’, the Tribunal was entitled to have treated it as unreliable and ignored it. It would then have examined the rest of the evidence in determining whether the prosecution has discharged the burden of proof which is cast on it.” (Brackets and content in the first line inserted by me.)
Clearly, the circumstantial evidence led by the prosecution in the instant case, fell far short of the standard required to establish the fact that the persons, who ran into the house of the 1st appellant with the latter, were the 2nd – 4th appellants, who were arrested there almost 12 hours later. Again, with respect to the Judge, there was no sufficient circumstantial evidence that the lies told by these appellants, could conjoin with to establish the fact that they took part in the robbery some 12 hours previously. Their lies, if any, related not to the events of the previous night, but to matters that had nothing to do with the offence they were being accused of.
On the whole, I do not see any justification for the learned trial Judge to convict the 2nd – 4th appellants of the robbery charged.
The circumstantial evidence he relied on, has not met the required standard. In the circumstances, I allow their appeals. I do so, bearing in mind, the sobering reminder by Aniagolu, J.S.C, in Nwosu v. The State (1986) 4 NWLR (Pt. 35) 348 at 359 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 leaning to his conviction are clearly found, and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in the criminal cases, and particularly more so in capital offences.”
In summary, my judgment is as follows: The appeal of the 1st appellant lacks merit and is accordingly, dismissed. I affirm the judgment of the trial Judge convicting and sentencing him. The appeals of the 2nd – 4th appellants, however, succeed and are accordingly, allowed. I set aside the judgment of the trial Judge convicting and sentencing them. In its place, I enter an order of acquittal for each of them and, accordingly discharge them.
- Nwaiwu, S.A.N. (with him, N. N. Ojiabo [Miss])For Appellant
- C. Azuama (Principal State Counsel, Imo State Ministry of Justice)For Respondent