EMMANUEL OKPULOR V. THE STATE
In The Supreme Court of Nigeria
On Friday, the 14th day of December, 1990
SC.168/1989
JUSTICES
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
EPHRAIM OMOROSE IBUKUN AKPATA Justice of The Supreme Court of Nigeria
Between
EMMANUEL OKPULOR Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE DUTY OF THE PROSECUTION IN CRIMINAL TRIALS
Underscoring this point in the case of Inusa Saidu v. The State (1982) 4 S.C.41, at pp.68-69 this court per Obaseki, J.S.C., stated:
“This court has repeatedly stated of recent that although the burden on the prosecution is to prove his case against the accused beyond any reasonable doubt, the prosecution has a discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution the duty or function of both the prosecution and defence.
See Effiong Udofia v. The State (1981) 11-12 S.C.49 at 63, Okonofua v. The State (1981) 6-7 S.C.1 at 18
Samuel Adaje v. The State (1979) 6-9 S.C.18 at 28, Seneviratne v. The King (1936) 3 All E.R.36 at 48 P.C.
Reg. v. Nigent (1977) 1 W.L.R.789. PER NNAEMEKA-AGU, J.S.C.
BELGORE, J.S.C. (Delivering the Leading Judgment): On the 4th day of October, 1990, I dismissed this appeal and reserved my reasons for so doing to today. I now give my reasons.
The facts of the case are hardly in dispute. At about 0200 hours on 16th July, 1981, the Trans-Amadi Police Station, Port Harcourt received a report that some armed men had gained entrance into the premises of Universal Fishery Company Ltd. and had locked up some security men there so as to effect a robbery. The police converged immediately on the premises. The armed men and the police exchanged fire with small arms. When firing died down, the armed robbers had escaped except the appellant, who was injured being hit by bullet in the leg and thus incapacitated. The appellant now firmly in the hands of the police pleaded for his life and promised to cooperate with the police. He showed the police where the vehicle that brought him and his friend whose name he gave as Anthony was parked along Aba road at a fuel station. After he was cautioned, he made a voluntary statement, in which he alleged that one Anthony, whose full name he did not know, came to offer fish to him to buy. Consequently he followed Anthony to Port Harcourt. At Port Harcourt, Anthony parked the vehicle at a petrol station and from there they took a taxi to the scene of crime where they were met by four other men he did not know. He was asked to stay outside while Anthony and the rest of the gang entered the premises through the back door. All of a sudden the police arrived and exchange of fire started. He was arrested and it was then he was shot in the leg. Anthony and the others he did not know escaped. He showed the police the car he travelled in from Aba to Port Harcourt. The appellant maintained this story all along.
However, the prosecution led evidence that the appellant was arrested inside the premises of Universal Fishing Company after his friends had escaped and he was incapacitated because he was injured in the leg by a bullet.
The evidence of P.W. 4, Corporal John Ipaa is revealing:
“As I climbed down into the premises, the robbers opened fire at me. I saw about seven of the robbers through a light which reflected from a neighbouring company. When the robbers fired I returned fire and hit the second accused (the appellant) and arrested him. I shouted to my colleagues and they came to my aid. The second accused asked us not to kill him and said he would take us to where they parked their car. He took us down to the Leventis Petrol Filling Station near the Ministry of Information building. The time was then about 2.00 a.m. and he showed us two cars peugeot 504 saloon. I deflated the tyres of the two cars. The 2nd accused also told us that they had a Range Rover vehicle parked at Ogbunabali.”
and also that of Ogundu Briggs, P.W.6:
“On 15th July, 1981 at about 2.00 a.m., I was at Trans-Amadi Police Station on duty when a night watchman came and reported that armed robbers were operating at Universal Fisheries, Trans-Amadi. On the strength of the report, I went to the scene in company with the informant, John Ibe, John Ipaa and Essang Okokon jumped into the premises, whilst Sgt. John Ibe and I remained at the main gate. After a few minutes Corporal John Ipaa and Essang Okokon shouted that they had arrested one of the suspects. The man they arrested was the second accused …
Thereupon Sgt. John Ibe and I jumped into the premises and helped Corporal John Ipaa and Essang Okokon to bring the suspect (2nd accused) out of the premises. I asked the 2nd accused where the other robbers that came with him were. He told me that they had run away, but that the vehicles they came with were parked at Leventis Filling Station along Aba Road and their Land Rover along Ogbunabali Road. All the four of us went with the 2nd accused to the Leventis Filling Station. At the Filling Station he pointed at the two vehicles registration No. 1M 1053 AC and No.IM 5299 AC. The registration number of the land rover at Ogbunabali was RV 632 PA.’
In his own defence the appellant (2nd accused) maintained his innocence.
He admitted being found around the company where the robbery took place that night but said he went with one Anthony who left him outside the gate and went into the premises. In his testimony the appellant said:
“On 15th July, 1981, while in my store one Anthony came in the evening and asked whether I would buy fish. I told him that I would if I saw any. We left my store at 6.00 p.m. for Port Harcourt in his peugeot 504 saloon car. Only the two of us were in the car. On our arrival at Port Harcourt, we stopped at a petrol filling station along Aba Road. We parked the car at the said filling station. The time was about 7.10 p. m. Anthony then called for a taxi for us to go to where he would show me the fish to buy. I entered the taxi with him and the taxi drove us to the company where I would buy the fish. When we reached the gate of the company the taxi stopped and we both came down. One man at the gate opened the gate and Anthony went in asking me to wait outside the gate. It was not up to 10 minutes when I saw two policemen at the gate; they came on foot. They asked who I was and I told them I was Emmanuel Okpulor. They further asked me where I came from and I told them that I came from Aba and that one person by name Anthony called me to come and buy fish. They asked me where the Anthony was and I told them he was in the company’s premises. One of the two policemen went into the premises to look for Anthony, while the other remained with me at the gate. The policeman who entered the premises returned to the gate and said that he did not see the man and that I told him a lie. I said I did not tell him a lie; he then asked me to move, and fired a shot at my right leg when I refused to move.”
At the end of the trial, the learned trial Judge believed the prosecution story and held the appellant was a member of the armed robbery gang and convicted him. The Court of Appeal had no reasons to interfere with the trial court’s decision. It is against this decision this appeal comes before us.
Learned counsel for the appellant, Chief Akinrinsola formulated the following issues for determination:
(i) Whether the judgment of the Port Harcourt High Court upheld by the Court of Appeal, Enugu Division on 31st March, 1989 in so far as the appellant is concerned, is not perverse such that the verdict of guilt, conviction and sentence ought to be regarded as unsafe and unsatisfactory having regard to the following factors (amongst others) thus:
(a) A key participant on record and the later ego of the case for the prosecution, one Anthony Onwutebe was never found out, investigated or charged along with the accused.
(b) Exhibit A which formed part of the prosecution’s case was rejected by the High Court as not being a confessional statement of the appellant.
(ii) Whether the mere presence, without more, of the appellant at the scene of the crime was sufficient to have, passed on him, a verdict of guilt.
(iii) Whether on the totality of the evidence before the trial High Court and on record, the respondent discharged the onus of proof beyond reasonable doubt as required by section 137 of the Evidence Act, Laws of the Federation.
(iv) Whether the verdict passed on the appellant is well grounded in law on the one count charge of armed robbery with or without either persons still at large when there was/is no separate charge of conspiracy to commit.
On the first and second issues, counsel contended that the appellant’s presence at the scene of crime, without more, should not make him guilty.
Further because the appellant took the police to where the car he alleged he rode to Port Harcourt from Aba in company of his friend, the elusive Anthony, the prosecution ought to call the said Anthony either as a witness or as a co-accused. This submission is surprising in view of the clear provisions of Evidence Act. Whoever wishes the existence of certain or particular fact to be believed, unless the law shifts the burden of proof of such fact must prove (see S.138 Evidence Act). The existence of Anthony is known only to the appellant, he has not supplied his address and in fact asserts he does not know his other names. He who asserts must prove and it is clear the appellant has not done anything to indicate who this his Anthony is. To ask the police to descend on Aba and look for Anthony is placing too much burden on the already onerous duty of the police. The contention that the appellant was not a party to the robbery is a matter of fact, already resolved in the trial court and affirmed by Court of Appeal. Against these concurrent findings of fact by the lower court, there is no legal justification for interference by this court. Nwachukwu v. The State (1986) 1 N.W.L.R. (Pt.2S) 765, Ogbodu v. The State (1987) 2 N.W.L.R. (Pt. 54) 20. The elusive Anthony was introduced into the case by the appellant, it is incumbent upon him to call him as a witness; the burden is not on the prosecution to call a witness for the defence where such evidence as may be available through that witness is superficial and his whereabout is unknown. The duty of the prosecution is certainly to give to court all that can help to arrive at a just conclusion; but where as in this case only the accused person mentions the name of the potential witness, albeit single name, Anthony, with no address or possible place of finding him, it will not be the duty of the prosecution to go on wild goose chase. Saidu v. The State (1982) 4 S.C. 41, 69; Okonofua v. The State (1981) 6-7 S.C. 1, 18. Once the prosecution has called the witnesses it needs to prove it case, it is immaterial that more witness could be called who were not called except where it specifically indicated that those witnesses if called would be adverse to prosecution case as held in Onah v. The State (1985) 3 N.W.L.R. (Pt. 12) 236. This case now at hand has not fallen within the ambit of S.148(d) Evidence Act to affect the case for the prosecution, rather it was the appellant that failed to indicate the whereabouts of his alleged friend.
As to the other two issues raised, the appellant has not advanced enough reason for us to interfere with the decision of the Court of Appeal. The appellant was convicted of the charge of armed robbery and nothing more. I can however not understand the proposition by the appellant that he ought to have also been charged with conspiracy because others unknown and at large were involved. It is not for the court to make case for the parties, the court acts and finds only on the case the parties present before it. The only case made by the prosecution is that the appellant was among a gang of robbers that attacked, violently armed with offensive weapons, the premises of Universal Fishing Company. The appellant admitted being there at the very odd hours, but only denied being a part of the crime. The court disbelieved his story and prefered the case of the prosecution. If the appellant had wished for conspiracy to be considered, he would have offered the evidence. But would it be in his favour
On the whole, the case for the prosecution was clear and the defence of the appellant never held weight with the trial court. There was no reason for me to interfere with the decision of the Court of Appeal which upheld the decision of the trial court. The contention that if there was robbery, the court should hold the appellant was not armed will take the appellant’s case nowhere. Once it was established by the prosecution that the appellant was among the robbers and they were armed with offensive weapons, e.g. firearms, by common design the appellants guilty of armed robbery. The trial court, on the evidence, found the appellant participated in the robbery. In law, it matters not that the appellant does not carry weapon, even though in this case he was found to have carried a gun. Once it is established that the appellant was among the robbers not as a casual onlooker, but a full participant and his accomplices now at large not only carried firearms but actually engaged the police, who challenged them in cross-fire, the appellant was guilty of the offence of armed robbery. [Ikemson v. The State (1989) 3 N.W.L.R. (Pt. 110) 455]. The most important aspect of the appellant’s part in the crime is the principle of common object, the intention to violently rob and that intention being executed. The presence of the appellant at the locus criminis was supported by overwhelming evidence that he was in concert with others now at large to violently commit robbery. The mere presence of the appellant with others armed even if only one was armed with offensive weapon was enough to find him guilty of the offence under the act. [Okosun & Ors. v. Attorney-General, Bendel State (1985) 3 N.W.L.R. (Pt.12) 283].
This appeal has taken a curious turn. The appellant’s case in the Court of Appeal was that there was nothing to urge in his favour. This court, in view of the gravity of the punishment for the offence, gave leave to argue grounds and issues not raised in the court below. Further, it seems on one hand the appellant pleads innocence and on the other that he be convicted only for robbery not with offensive weapon and thus not punishable with death. The evidence of the prosecution at the court of trial bear no relation to issues now raised before this court. I dismissed this appeal for the reasons I have advanced above and I found no urge to interfere with the decision of the Court of Appeal.
OBASEKI, J.S.C.: I had the advantages of reading in advance the draft of the reasons for judgment just delivered by my learned brother, Belgore, J.S.C. and I agree with them.
The facts of the case against the appellant having been set out admirably by my learned brother, Belgore, J.S.C. in these reasons for judgment and I shall not repeat them here except where necessary for the purpose of my reasons for judgment.
On the 4th day of October, 1990, after hearing the submissions of counsel for the parties in oral argument and considering the submissions in the briefs filed by the parties together with the record of proceedings and judgment of the court below. I dismissed this appeal and reserved my reasons for so doing till today. I now proceed to give them.
The appellant was a businessman resident in Aba. In the company of a friend by name Anthony, he traveled in a car to Port Harcourt. They dropped the car at a petrol station and entered another car which took them to the premises of Universal Fishing Company Ltd. at Trans-Amadi. According to him, he wanted to buy fish and it was this desire that made him follow Anthony to Port Harcourt. They were met by four other persons he never knew before. His friend, Anthony Onwutebe and the others entered the premises through the back door while he was told to stay outside. Their entry was followed by exchange of gun fire between the police and the gang. He was shot in the leg and later arrested with the gun shot wounds. Charged with the offence of armed robbery, the appellant protested his innocence. However, the evidence of Corporal John Ipaa, p.w.4, belied this protestation of innocence for part of his testimony reads:
‘As I climbed down into the premises, the robbers opened fire at me. I saw seven of the robbers through the light which reflected from a neighbouring company. When the robbers fired, I returned fire and hit the 2nd accused (the appellant).”
The conviction of the appellant by the trial court and the dismissal of his appeal by the Court of Appeal were justified. The answer to the first question posed by counsel to the appellant to wit:
“whether the judgment of the Port Harcourt High Court upheld by the Court of Appeal, Enugu Division, on 31st March, 1989 in so far as the appellant is concerned, is not perverse….” must therefore be in the negative. The appellant was caught red handed and I found his appeal totally devoid of merit.
It was for the above reasons and the reasons set out lucidly in the reasons for judgment delivered by my learned brother, Belgore, J.S.C. a while ago that I dismissed the appeal.
UWAIS, J.S.C.: This appeal was dismissed on the 4th day of October, 1990, when I indicated that I will give my reasons today for doing so. I now give the reasons.
I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Belgore, J.S.C. As it was for the same reasons that I dismissed the appeal I adopt the reasons as mine and have nothing to add.
NNAEMEKA-AGU, J.S.C.: On the 4th of October, 1990, I dismissed this appeal summarily after reading the record and briefs of counsel on both sides and listening to the argument of counsel. I reserved the reasons for my judgment till today. I now give my reasons.
I have had the privilege of a preview of the reasons for judgment just delivered by my learned brother, Belogre, J.S.C. He has stated the facts lucidly and applied the law to the facts. I agree with him, and only wish to add a few comments of my own.
Quite apart from the fact that the appellant was gunned down at the scene of the attempted robbery of the fishing company, far too many adverse facts stared him in the face at the trial and belied his claim to innocence.
First: He was living at Aba and decided to travel to Port Harcourt, a distance of some sixty five kilometres to buy fish in the night.
Secondly: On his own showing, they left Aba at about 6 p.m., arrived Port Harcourt at 7.10 p.m. But the incident did not take place till about 2a.m. Why did they have to wait for nearly seven hours before going to buy the fish on arrival
Thirdly: He decided to go in company of a so called friend of his whose surname he did not even know or want to give to the court or the police.
Fourthly: When they arrived at Port Harcourt, they decided to park the 504 in which they had travelled from Aba at the Leventis Filling Station and travel to the fishing company in a taxi. If they were on a genuine mission, what was the need for this strange behaviour
The above facts and more are deadly against the appellant.
Most of them were either supplied, or undisputed, by him. Yet he continued, and still continues, to plead his innocence. By his continued plea of his innocence he appears to have forgotten that in forensic disputes, hard facts speak more accurate and unassailable language than mere words. Once a trial court accepts those facts and draws the proper inference on them, an appellate court will not interfere on the facts. In the instant case, the above facts and others proved in evidence proved the appellant’s complicity in the crime and his guilt to the precision of mathematics. I see no reason why I should interfere, moreso as these have been confirmed by the Court of Appeal. Also, I find it ridicuous that the appellant should have tried to make an issue of the failure of the prosecution to call his so called friend and collaborator in crime whom he simply referred to as Anthony. He did not as much as supply his surname, address or other particulars. He alone knows him. It appears to me that the duty of the prosecution to call witnesses in order to discharge the onus of proof incumbent on them in a criminal charge cannot extend to their calling a witness known only to an accused person who fails to supply all the necessary particulars to enable them know the witness whereabouts. Indeed their duty is limited to calling enough witnesses to prove their case, not to call those witnesses who should testify for the defence. Underscoring this point in the case of Inusa Saidu v. The State (1982) 4 S.C.41, at pp.68-69 this court per Obaseki, J.S.C., stated:
“This court has repeatedly stated of recent that although the burden on the prosecution is to prove his case against the accused beyond any reasonable doubt, the prosecution has a discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution the duty or function of both the prosecution and defence.
See Effiong Udofia v. The State (1981) 11-12 S.C.49 at 63, Okonofua v. The State (1981) 6-7 S.C.1 at 18
Samuel Adaje v. The State (1979) 6-9 S.C.18 at 28, Seneviratne v. The King (1936) 3 All E.R.36 at 48 P.C.
Reg. v. Nigent (1977) 1 W.L.R.789.
Applying the principle in the present case, it appears clear to me that Anthony who appears, from appellant’s testimony, to be an accomplice was his own witness, if he chose to call him. He was certainly not that of the prosecution. There was, therefore, no duty on the prosecution to call him.
For the above reasons and the fuller reasons contained in the judgment of Belgore, J.S.C., I dismissed the appeal summarily on the 4th of October, 1990.
AKPATA, J.S.C.: On 4th day of October, 1990 when this appeal came on for hearing, I dismissed it and indicated then that I would give my reasons for so doing today, 14th December, 1990. I now proceed to do so.
Before now I have had the advantage of a preview of the reasons advanced by my learned brother, Belgore, J.S.C., for his dismissing the appeal. I share the same reasons with him and adopt them as mine.
The facts of the case have been succinctly outlined by my learned brother, Belgore, J.S.C. It is a case of robbery by daring criminals armed with guns which they used with abandon. The learned trial Judge before whom the appellant was arraigned rejected his defence that he was an innocent bystander whom circumstances and fate conspired to bring to the scene of crime.
My learned brother has already exposed the hollowness of his defence. It is pertinent for me to point out that the second issue whether the mere presence, without more, of the appellant at the scene of the crime was sufficient to have passed on him a verdict of guilty formulated on behalf of the appellant is misleading. The issue as framed presupposes that it was accepted by the trial Judge that the appellant was in fact merely present at the scene of crime without more. It is evident from the account of the incident given by P.W.4, Corporal John Ipaa, that the appellant was in the group of about seven robbers who fired at him the witness. When P.W.4 responded by firing back at them he hit the appellant. This piece of evidence was believed by the trial Judge as against the testimony of the appellant who claimed he was standing by harmless, completely outside the scene of activity, and that he was shot at because he refused to move when ordered to do so by one of the policemen who entered the premises through the gate. I find the findings of fact arrived at by the learned trial Judge which were accepted by the Court of Appeal unimpeachable. It is for this reason and the reasons proffered by my learned brother which I have already adopted as mine that I dismissed the appeal. The appeal has no merit. Appeal dismissed.
Appearances
Chief Fola Akinrinsola, (with him, Funmi Obadina (Miss) ) For Appellant
AND
Adokie Amiesimaka, Assistant Director of Public Prosecutions, (with him, P. E. Nwankwo, Principal State Counsel) Rivers State Ministry of Justice For Respondent
