IKEORAH v. STATE
(2022)LCN/16896(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/AW/30C/2020
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
OBIAJULU IKEORAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
FACTORS TO BE CONSIDERED WHEN ASCRIBING VALUE TO AN EYEWITNESS IDENTIFICATION OF AN ACCUSED PERSON
A careful look at the records showing a common thread connecting the evidence of PW1, PW2 and PW3, the witnesses were consistent that only the Appellant was identified as one of the persons that robbed them on the day in question. This Court has taken a rather calm and careful look at the printed records and has come to the irresistible conclusion that there is nothing on the records to suggest that the learned trial judge did not follow meticulously a number of guidelines, which a trial Court must observe if any value is to be ascribed to the eyewitness identification of an accused person.
The usual factors to be taken into consideration, the first of which is whether the Court took into consideration the circumstances under which the eyewitness identified the accused person. The second is the length of time that was available for the eyewitness in identifying the suspect; was it at a glance or had he a longer period of observation? Was there an opportunity for a close observation? Had there been a prior contact between the duo and lastly, what was the lightening condition at the time of identification? See the case of IKEMSON vs. THE STATE (Supra). See also OCHIBA vs. STATE (2011) 17 NWLR (PT. 1277) 663, EYISI vs. STATE (2000) 15 NWLR (PT. 555), OKOSI vs. STATE (1989) 1 NWLR (PT. 100) 642. See the English case of R. vs. TURNBULL (1976) 3 CAR 549 AT 551 for added measure where the English Court of Appeal per LORD WIDGERY, C.J stated the guidelines for the evaluation of the evidence of visual identification to avoid the risk of mistaken identity of an offender by a victim or witness.
The universality of the application of the rules or guidelines enunciated in the case of R. vs. TURNBULL (Supra) cannot be doubted. The guidelines are indeed applicable to all cases involving identification. It is proper to note that these guidelines have been adopted in a number of cases in Nigeria, some of which learned Counsel have already cited in this matter. See the cases of ALABI vs. THE STATE (1993) NWLR (PT. 307) 511, BASHAYA vs. THE STATE (1998) NWLR (PT. 550) 351, CHUKWU vs. STATE (1997) NWLR (PT. 463) 685 AT 792. In the case of ABUDU vs. THE STATE (1985) [PT. 1]55, the Supreme Court held among other things that whenever the case of the accused depends wholly or substantially on the correctness of the identification of the accused person which the defence alleges to be mistaken, the Judge should warn the jury of the special regard for caution before convicting the accused in reliance to the correctness of the identification. PER OHO, J.C.A.
THE POSITION OF LAW ON THE BEST FORM OF IDENTIFICATION PARADE
The settled position of the law is that a spontaneous and positive identification is better than a formal identification parade by the police. The best identification therefore remains the prompt one by the victim or the people who witnessed the commission of the crime. See the case of ADAMU vs. THE STATE (1991) 4 NWLR (PT. 187) 530. PER OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State of Nigeria (hereinafter referred to as: “the trial Court”) sitting at Onitsha Coram: A. O. OKUMA, J and delivered on the 19th day of October, 2017 wherein the trial Court in its judgment in Charge No. O/62c/2012; THE STATE vs. UCHENNA IBEKWE and OBIAJULU IKEORAH, whilst discharging and acquitting UCHENNA IBEKWE who was jointly charged and tried with the Appellant, ended up convicting and sentencing the Appellant to death by hanging.
The brief fact of this case commenced by information and proof of evidence filed on the 13th day of November, 2012 against the Accused persons, the Court below was informed that UCHENNA IBEKWE and OBIAJULU IKEORAH, who is the Appellant herein on the 6th day of August, 2011 at Awka Road within the Onitsha Judicial Division while armed with knife/machete, shovel and other offensive weapons did rob one Emmanuel Agu of his Nokia Phone and Henkel Wine; one Ikechukwu Nwanosike of his phone and Chinedu Agu of his Nokia Mobile Phone, Vodafine Mobile phone and a pair of suit contrary to Section 1 (2) of the Robbery and Firearms Act Cap R11 Revised LFRN, 2004 as applicable in Anambra State. See pages 4 and 25 of the Records.
In discharging the burden of proof of the said offence, the Respondent called four (4) witnesses, namely: Emmanuel Agu (PW1); Ikechukwu Nwanosike (PW2); Agu Chinedu (PW3) and Andrew James (PW4). At the close of the Prosecution’s case, Counsel to the 1st Defendant announced that he would be resting the 1st Defendant’s case on that of the Prosecution. The Appellant on the other hand opened his defence on the 11th April, 2017 and was cross-examined and closed his case that same day. Each Accused persons made statements to the Police as contained in pages 6 – 20 of the Records.
On the 4th day of July, 2017, learned Counsel to the parties adopted their written final addresses and the Court adjourned for judgment. On the 19th day of October, 2017, the Court below delivered its judgment, discharging and acquitting the 1st Defendant UCHENNA IBEKWE who was jointly tried with the Appellant on what Appellant’s Counsel referred to as “similar and interwoven evidence” and who rested his case on that of the Prosecution at the Court below and that the trial Court, despite this position, ended up convicting and sentencing the Appellant OBIAJULU IKEORAH to death by hanging. See pages 25 – 238 of the Records.
Dissatisfied with the judgment of the trial Court, the Appellant sought and applied for leave of this Court to appeal out of time on 17th day of March, 2020. Leave was granted and the Appellant filed his notice and ground of appeal within the 14 days as ordered by this Court. See pages 239 – 246 of the Records.
ISSUES FOR DETERMINATION:
The Appellant nominated four (4) issues for the determination of this appeal, thus:
1. Whether, having regard to the totality of evidence before the trial Court, the respondent proved beyond reasonable doubt, the alleged offences contained in counts 1, 2 and 3 and whether the trial Court rightly found the appellant guilty of the said offence charged? (ground 1).
2. Whether the identification evidence in this case/charge properly linked the appellant to the counts charge of armed robbery preferred against the appellant? (ground 2).
3. Whether the appellant is in law bound to prove his innocence? (ground 3)
4. Whether on the authorities of F.R.N vs. BARNIMAS (2017) 15 NWLR (PT. 1588) 186, SANI vs. STATE (2015) 15 NWLR (PT. 1483) 527-528, DARIYE vs. F.R.N (2015) 10 NWLR (PT. 1467) 333, the Appellant was not prejudiced and thereby suffered a miscarriage of justice by the discrepancy in date on the counts/information which was material? (ground 4)
5. Whether in the absence of the evidence of Mr. Oraegbuna, the vigilante chairman, a very vital prosecution’s witness who allegedly arrested the appellant to clear the lingering doubts contradictions and inconsistencies, the Respondent/Prosecution could be said to have proved the offences as charged beyond reasonable doubt and as required by law (ground 5).
On the part of the respondent, two issues were nominated for the determination of this appeal, thus:
1. Having regard to the evidence led at the trial, whether the lower Court rightly discharged the 1st Defendant (Uchenna Ibekwe) and convicted the Appellant for the offence of robbery? (ground 1).
2. Whether the lower Court was right in holding that the Prosecution proved beyond reasonable doubt that the Appellant committed the offence of Robbery? (grounds 2, 3, 4 & 5).
A careful perusal of the issues nominated by the parties across board clearly shows that although the Appellant has nominated five (5) issues, but that the five issues nominated are clearly subsumed in the two (2) issues nominated by the respondent. That notwithstanding, this appeal shall nevertheless be determined based on the issues nominated by the Appellant for reasons of comprehensiveness. Learned Counsel for the parties addressed this Court extensively in their briefs of argument, citing a plethora of decided cases in support of their views.
The Appellant’s brief of argument dated the 3-11-2020, settled by J. O. ONWUJEKWE, ESQ., was filed on the 5-11-2020 and deemed filed on the 9-2-2022 while the brief of argument of the Respondent dated 18-1-2021, settled by CHIGBO E. ANAENUGWU, ESQ., was filed on the 26-1-2021, but deemed filed on the 9-2-2022. On the 9-2-2022 at the hearing of this appeal, learned Counsel for the parties adopted their respective briefs of arguments and urged the Court to decide in favour of their sides.
SUBMISSIONS OF COUNSEL:
APPELLANT:
Before commencing arguments on the issues nominated by the Appellant for the resolution of this appeal, learned Appellant’s Counsel prefaced his submissions on the issues so nominated by referring this Court to the confessional statements of the Defendants and the statements of the Prosecution’s witnesses at the trial Court, which he said were not signed. See pages 6 – 20 of the Records. According to Counsel, the strict position of the law is that parties are bound by the Records of Appeal and he cited a plethora of decided cases on this point, some of which are GARUBA vs. OMOKHODION (2011) 33 W.R.N. 1, SAPO vs. SUNMONU (2010) 27 WRN 28, LEADERS & COMPANY LTD PUBLISHERS OF THIS DAY NEWSPAPERS vs. BAMAIYI (2010) 8 NWLR (PT. 1225) 329. As far as Counsel is concerned, the settled way for the treatment of unsigned retracted confessional statement, is that it remains a worthless piece of document and that relying on an unsigned retracted confessional statement calls for extreme caution and that very little or no weight should be attached to such a statement. See CHUKWUKA OGUDO vs. THE STATE (2011) 18 NWLR (PT. 1278) 9.
Again, on the treatment of inadmissible evidence, Counsel contended that the Court cannot use it at any stage, even where no objection was raised against it at the trial. See the case of IFARAMOYE vs. STATE (2017) 8 NWLR (PT. 1568) 469. Counsel therefore urged this Court to discountenance, jettison and expunge the unsigned retracted confessional statements of the Appellant as it is void in law as a Court is enjoined to decide cases on legal evidence only. In other words, he enthused, that even if no objection was taken in this case at the trial by the 2nd Defendant’s Counsel, that an appellate Court like this Court has inherent jurisdiction to expunge evidence wrongly received. See HARUNA vs. A. G. FED (2012) 9 NWLR (PT. 1306) 419, IFARAMOYE vs. STATE (2017) 8 NWLR (PT. 1568) 461.
On the question of whether parties can by consent or otherwise admit an inadmissible document, Counsel stated that it is not within the competence of the parties to a case to admit by consent or otherwise a document which by law is inadmissible. Counsel cited the cases of YERO vs. UNION BANK OF NIGERIA (2000) 5 NWLR (PT. 657) 470, LAWSON vs. AFANI CONTINENTAL CO. NIG. LTD (2002) 2 NWLR (PT. 752) 599.
ISSUE ONE:
Whether having regard to the totality of evidence before the trial Court, the Respondent proved beyond reasonable doubt, the alleged offences contained in counts 1, 2 and 3 and whether the trial Court rightly found the Appellant guilty of the said offence charged?
It is the submission of Counsel that the learned trial Judge erred in law on the 19th day of October, 2017 when in delivering judgment in a joint trial of the Defendants based on the same evidence, facts and circumstances of the case, discharged and acquitted UCHENNA IBEKWE, the 1st Defendant and convicted and sentenced OBIAJULU IKEORAH, the 2nd Defendant to death by hanging. He argued that the defendants were jointly tried in Charge number O/62c/2012, even though they were represented at the trial Court by different Counsel. He further argued that PW1, PW2, PW3 and PW4 all testified for the Prosecution against the Defendants.
It was also submitted that where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused(s) person(s) was/were discharged and acquitted. Counsel further stated that where an accused person is charged with other co-accused persons with the commission of a crime and the other co-accused persons are discharged and acquitted on different grounds, that there must be on record additional/or different set of evidence, which incriminates the person convicted. Counsel also argued that in this case, there was not on record, additional/or different sets of evidence, which incriminated the Appellant in this case from the evidence led at the trial and from the trial Judge’s evaluation of evidence in the said judgment of the trial Court. Counsel relied on the Records of Appeal before this Court in this case. See the cases of ALO vs. STATE (2015) 9 NWLR (PT. 1464) 254 – 255, EBRI vs. STATE (2004) 11 NWLR (PT. 885) 589, UMANI vs. STATE (1988) 1 NWLR (PT. 70) 274, AKPAN vs. STATE (2002) 12 NWLR (PT. 780) 189.
As far as Counsel is concerned, the Appellant was jointly tried with the 1st Defendant UCHENNA IBEKWE on the same facts, circumstance and evidence and that UCHENNA IBEKWE was later discharged and acquitted by the Court below whilst the lower Court convicted and sentenced the Appellant to death by hanging. See Pages 2, 3, 4, 25, 114 – 238 of the Records. According to Counsel, here was a situation in which UCHENNA IBEKWE did not lead any evidence in his defence but rested his case on that of the Prosecution; See pages 74, 78, 223, 224, 228, 229, 230, 231, 232 and 233 of the Records.
He added that the same case of the Prosecution, which did not establish any offence against the 1st Defendant whose case was interwoven and similar to the case of the Appellant and the same evidence resulting in the discharge and acquittal of the 1st Defendant UCHENNA IBEKWE was curiously and rather surprising used by the lower Court to convict and sentence the Appellant to death by hanging. Counsel argued that the legal implication of an accused resting his case on that of the Prosecution is to leave the Court of trial free to accept the uncontradicted evidence of the Prosecution in proof of the charge. See SEGUN AJIBADE vs. THE STATE (2012) LPELR – 15531 (S.C).
It is the contention of Counsel that on the effect of Defendant not calling evidence and resting his case on Prosecution’s case, the Defendant is taken for all purposes to have abandoned his defence and to have admitted the facts as stated by the Prosecution. This is because the defendant’s defence, like all defences are not self-propelling in the absence of evidence in proof thereof. Counsel cited the cases of OGUEBIE vs. F.B.N. PLC (2020) 5 NWLR (PT. 1715) 539, NWABUOKO vs. ONWORDI (2002) 3 NWLR (PT. 108) 118.
Again, Counsel argued that it is trite law that where two or more persons are charged with the commission of an offence and there is similarity in the evidence given against, which all the accused persons were charged with in the commission of an offence, the discharge of one as a matter of law would affect the discharge of the others. According to Counsel, this is because if one of the accused persons is discharged for lack of evidence, others would be affected, thus it follows that since their evidences are tied together, the other accused persons would also be discharged. See the case of NKEMIRIKA vs. I.G.P. (2019) 48 W.R.N P. 153.
According to Counsel, the case of the 1st Defendant and the Appellant at the trial Court was similar, interwoven and inseparable. At pages 191 and 194 lines 1 – 20 and 1 – 17 respectively during cross-examination of PW4, Counsel stated that the Police investigation officer stated that he conducted a search and did not recover anything incriminating in the premises of the accused persons. Counsel picked holes in the trial Court’s judgment at lines 20 – 31, at page 232 of the Records, contending that the whole findings of facts made by the lower Court are perverse and have occasioned a miscarriage of justice on the Appellant. Again, Counsel argued that Evidence elicited from a party or his witness under cross-examination which goes to support the case of the party cross-examining constitutes evidence in support of the case or defence of the party. See the case of ANDREW vs. I.N.E.C. (2018) 9 NWLR (PT. 1625) 521.
Also, Counsel contended that, evidence obtained in cross-examination, in respect of matters on which issues are joined is admissible. Counsel cited the cases of OMISORE vs. AREGBESOLA (2015) ALL FWLR (PT. 813) 1692, ADEOSUN vs. GOVERNOR EKITI STATE (2012) ALL FWLR (PT. 619) 1044. Counsel finally on this issue urged this Court to resolve same in favour of the Appellant and against the Respondent.
ISSUE TWO:
Whether the identification evidence in this case/charge properly linked the Appellant to the counts charge of armed robbery preferred against the Appellant?
In arguing this issue, learned Counsel to the Appellant contended that the trial Judge erred in law when in delivering his judgment; held that the Prosecution witnesses PW1, PW2 and PW3 properly identified the Appellant at the scene of the crime whereupon he convicted and sentenced the Appellant to death by hanging, which said conviction and sentence ran afoul of the law on identification process and the Prosecution did not prove that the Appellant stole something capable of being stolen by the Appellant or the 1st Defendant who was discharged and acquitted by the trial Court. See AWOSIKA vs. STATE (2018) 15 NWLR (PT. 1643) 452. According to Counsel, it is salient to state that the Police vide PW4’s evidence did not recover any of the items allegedly stolen by the 1st Defendant and Appellant and that the PW4 said so at the trial. Rather, the alleged stolen items were handed over to the police by the vigilante/security men who did not come to testify at the trial.
Counsel further stated that, the prosecution witnesses, PW1 testified that he was lying down flat as ordered by those who broke into their apartment on the 6th day of August, 2011 by 12.30 am and that there was no light in their room. Again, Counsel submitted that in the identification of offenders, whether through witnesses or identification parade, because of its importance to criminal law justice or jurisprudence, trial Courts are enjoined to be satisfied that the evidence of identification proves beyond reasonable doubt that the accused was the person who actually committed the alleged offence. Counsel argued that, it is the duty of the defence Counsel, through purposeful cross-examination, to cast reasonable doubt on the witness identification of the accused person by exposing errors of observation, recognition or resemblance. See the cases of IKEMSON vs. STATE (1989) 3 NWLR (PT. 110) 455, KEKONG vs. STATE (2017) 18 NWLR (PT. 1596) 123.
It is the contention of Counsel that, for the victim of crime to identify the offender, he must have made statement to the police stating by what means he will identify the accused. Failure to give particulars with which he will identify the accused before the conduct of the identification parade is fatal to the prosecution’s case. See EBENEZER vs. THE STATE (2020) 8 NWLR (PT. 1727) 581. Counsel further submitted that none of the Prosecution’s witnesses stated in their statement to the police stated by what means they identified the Appellant and did not also give particulars to this effect. He added that this failure was fatal to the prosecution’s case. See pages 10, 11, 12, 13 and 14 of the Records. PW2 testified at lines 24 – 25 thus:
“The next day being 6th day of August, the security caught Obiajulu and started torturing him and he mentioned the 1st Defendant.”
See pages 125 and 126 of the Records. Again, at page 150 Lines 1 – 25 of the Records, the PW3 agreed that because he was lying down, he could not recognize/see the alleged robbers and what they were holding and that they did not report any robbery activities against the 1st Defendant and the Appellant to the Police in Anambra State, but only to the Vigilante and none of the vigilante men came to testify as to these facts in Court.
See Sections 125 and 126 of the Evidence Act 2011. Counsel posited that, the essence of identification parade is to show that the person charged with the offence is the same person who committed the offence. See the case of EBENEZER vs. STATE (2020) 8 NWLR (PT. 1727) 581.
Learned Counsel further argued that where a trial Court is confronted with the question of identification of an accused person, it should be satisfied that the evidence of identification produced by the prosecution establishes his guilt beyond reasonable doubt. Counsel cited the cases of AYINDE vs. STATE (2018) 17 NWLR (PT. 1647) 145, UKPABI vs. STATE (2004) 11 NWLR (PT. 884) 439.
Counsel further submitted that, where there is doubt as to the identity of the Defendant, such doubt must be resolved in his favour. See the cases of ZEBULON vs. STATE (2019) II NWLR (PT. 1684) 389, OCHIBA vs. STATE (2011) 17 NWLR (PT. 1277). Again, it was contended that where the identification of an accused person is poor, the trial Court should return a verdict of not guilty unless there is other evidence which goes to show the correctness of such identification. See EBENEZER vs. STATE (Supra), OSUAGWU vs. STATE (2016) LPELR – 40836, NDUKWE vs. STATE (2009) 7 NWLR (PT. 1139) 43, IKEMSON vs. STATE (1989) 3 NWLR (PT. 110). Counsel urged this Court to resolve issue two in the favour of the Appellant and against the Respondent.
ISSUE THREE:
Whether the appellant is in law bound to prove his innocence?
In arguing this issue, Counsel picked holes with the trial Court’s judgment when the Court held that the 2nd Defendant/Appellant did not call the Appellant’s alleged sister to testify that she had problem with the said vigilante man called ORAEGBUNA and that the 2nd Defendant (the brother) as a result, fought with the vigilante man. The Court was further faulted when it stated that there was no evidence to support this line of the Appellant’s defence and consequently, no cogent explanation given by the Appellant to justify his failure to call his alleged sister, who at least for their relationship and need to save his brother will sacrifice her time to be in Court to testify to give credence to the Appellant’s evidence.
According to Counsel, By virtue of Section 36 (5) of the 1999 Constitution FRN (as amended) every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. He submitted that by this above provision, there is no legal burden on the Appellant to prove his innocence. See ADISA vs. STATE (2015) 4 NWLR (PT. 1450) 481.
ISSUE FOUR:
Whether on the authorities of F.R.N vs. BARNIMAS (2017) 15 NWLR (PT. 1588) 186, SANI vs. STATE (2015) 15 NWLR (PT.1483) 527-528, DARIYE vs. F.R.N (2015) 10 NWLR (PT.1467) 333, the Appellant was not prejudiced and thereby suffered a miscarriage of justice by the discrepancy in date on the counts/information which was material?
Learned Counsel under this issue argued that the trial Judge erred in law when the Court held that what is to be considered important in a trial of this nature is whether the question of discrepancy in date is material and did prejudice the Appellant. As far as Counsel is concerned, it is settled fact that any mistake in the particulars of a charge will render the whole proceedings liable to be quashed at the end of the trial. See OKEKE vs. I.G.P. (1965) 2 ALL NLR 81, DARIYE vs. FRN (2015) 10 NWLR (PT. 1467) 333. Counsel therefore argued that the variance in the dates stated in the statements of PW1, PW2 and PW3 in their statement to the Police and the statement in Court with that on the investigation report tendered by PW4 caused the Appellant to be misled and that the Appellant suffered a miscarriage of justice. See the case of FRN vs. BARMINAS (2017) 15 NWLR (PT. 1588) 186.
According to Counsel, a miscarriage of justice is a failure of justice that can lead to a decision of a Court being set aside for gross injustice to the party complaining. Counsel cited the cases of SLOK (NIG) LTD vs. CHIEF JUDGE, FHC (2020) 11 NWLR (PT. 1735) 350, USMAN vs. C.O.P. (2020) 10 NWLR (PT. 1732) 270. Counsel drew attention to pages 159 – 160 and 161, lines 22 – 23, 20 – 22 and 1 – 5 of the Records, where PW2 who was recalled for cross-examination testified and answered that there was no robbery in his house on the 8th day of August, 2011, that it would be wrong for anybody to say that he was robbed on 8th day of August, 2011 and that it was the Police that recovered his phone and that he did not know whether the vigilante recovered any of his phones or stolen property from the Defendants.
Also, Counsel contended that the Prosecution’s case must fail where there is the slightest possibility of a doubt cropping up on the case set up by the Prosecution as it is necessarily to establish that the accused and no one else committed the crime. See STATE vs. ODOMO (2019) 4 NWLR (PT. 1662) 198. See pages 235, 236 and 237 of the Records.
Finally, Counsel contended that speculation is a mere imaginative guess, which even when it appears plausible should not be allowed to fill any gaps in the evidence before it. He said that the law forbids a Court of law from indulging in speculation. Speculation, Counsel submitted is injurious to law. Counsel cited the cases of MBATA vs. AMANZE (2018) 15 NWLR (PT. 1643) 577, LADOJA vs. AJIMOBI (2016) 10 NWLR (PT. 1519) 87. Counsel urged this Court to resolve this issue in the favour of the Appellant and against the Respondent.
ISSUE FIVE:
Whether in the absence of the evidence of Mr. Oraegbuna the vigilante chairman, a very vital prosecution’s witness who allegedly arrested the appellant to clear the lingering doubts contradictions and inconsistencies, the respondent/prosecution could be said to have proved the offences as charged beyond reasonable doubt and as required by law?
In arguing this issue, Counsel submitted that the learned trial Judge erred in law when he relied on the evidence of PW1, PW2 and PW3 who are tainted witnesses and acted on their said testimonies riddled with inconsistencies and acted on suspicion by convicting and sentencing the Appellant to death by hanging even whilst the chairman of the vigilante MR. ORAEGBUNA who was a vital witness was not called to testify as to the parts he played by the Prosecution viz-a-viz the weapons and phones allegedly recovered from the Appellant. Counsel added that Mr. ORAEGBUNA was the vigilante group chairman, which supposedly arrested the Appellant upon PW1’s complaints and recovered phones and weapons from the Appellant. But Counsel contended that despite this position, it is a fact that it is the Police and not PW1, PW2 and PW3 that arrested the Appellant as was borne out by evidence on record.
For this reason, Counsel argued that Mr. ORAEGBUNA is a vital witness for the Prosecution and that a vital witness is a witness whose evidence may determine the case one way or the other and that failure to call him is fatal to the Prosecution’s case. Counsel cited the cases IDAGU vs. STATE (2018) 15 NWLR (PT. 1641) 135, ONAH vs. STATE (1985) 3 NWLR (PT. 12) 236. Counsel argued that PW1, PW2 and PW3 are tainted witnesses whose evidences/testimonies were not corroborated by independent/detached witnesses. He defined a tainted witness as a person who is either an accomplice or who by the evidence he gives may and could be regarded as having some personal purpose to serve. Counsel stated that, evidence of such a witness should be treated with considerable caution and examined with a tooth comb. See the case of IDAGU vs. STATE (2018) 15 NWLR (PT. 1641) 134.
Counsel further contended that, the testimonies of PW1, PW2 and PW3 were riddled with contradictions. He added that where evidence of witnesses are contradictory to each other, it is the duty of the Court to discountenance the same and treat the entire case as unreliable. See HAMZA ALMUSTAPHA vs. STATE (2013) 17 NWLR (PT. 1383) 366. Counsel also contended that contradictions in the case of the Prosecution regarding the date and the issue of who collected/recovered the weapons of crime and phones were not explained by the Prosecution’s case.
He argued that a Court cannot speculate or imagine explanations for the contradictions neither can it choose and pick which of the Prosecution’s witnesses to believe in a matter relating to contradictions. He further argued that the law forbids a Court of law from indulging in speculation. See AHMED vs. STATE (1999) 7 NWLR (PT. 612) 641, MBATA vs. AMANZE (2018) 15 NWLR (PT. 1643) 577.
Also, Counsel drew attention to the case of OPAYEMI vs. STATE (1985) 2 NWLR (PT. 5) 102 wherein the Court held; that if there is a vital point in issue and there is one vital witness whose evidence would settle it one way or the other that witness ought to be called. See ONAH vs. STATE (1985) 3 NWLR (PT. 12) 243.
As far as Counsel is concerned, the failure of the prosecution to call the chairman of the vigilante who was alleged to have recovered the phones and handed the same over to the Police is fatal to the case of the Prosecution as no person could say with certainty from which of the Defendants at the trial Court from whom the said phones were actually recovered. See pages 74, 78, 223, 224, 228, 229, 230, 231, 232 and 233 of the Records.
It is the contention of Counsel that in a criminal trial, the Court has a duty to consider every defence available to an accused person as disclosed by the facts of the case, whether the accused person himself raises it or not and no matter how improbable that defence might be. See JIBRIN vs. FRN (2020) 4 NWLR (PT. 1714) 324, DADA vs. STATE (2019) 3 NWLR (PT. 1657) 305, EMEKA vs. STATE (2014) 13 NWLR (PT. 1425) 614. On the whole, Counsel urged this Court to resolve issue five in the favour of the Appellant and against the Respondent.
RESPONDENT:
ISSUE ONE:
Having regard to the evidence led at the trial; whether the lower Court rightly discharged the 1st Defendant (Uchenna Ibekwe) and convicted the Appellant for the offence of robbery?
Learned Respondent’s Counsel in arguing this issue began by submitting that the decision of the learned trial Judge in page 237 of the Records cannot in anyway be faulted considering the evidence led at the trial. He drew attention to the proofs of the offence of robbery levied against the 1st Defendant (Uchenna Ibekwe) and the Appellant, wherein the Respondent called four (4) witnesses. Counsel stated that the first witness (PW1), Emmanuel Agu stated in evidence-in-chief that on the 6th day of August, 2011 about 12.30 am, the Appellant and his co-accused person broke into his apartment where he was sleeping with two other persons. He said that he knew one of the men that broke into the apartment, but pretended that he did not know him. According to Counsel, PW1 further stated that at dawn, (early morning) after the incident he called the chairman of the vigilante group in Onitsha and told him what happened and gave the name of the person that he identified at the scene of the crime as Obiajulu (the Appellant) and that the vigilante group arrested him thereafter; that PW1 was later invited by the chairman of the vigilante to his home, where he was able to identify the Appellant as the person he saw in his apartment on the fateful day.
Counsel further submitted that under cross-examination, the witness maintained that he knew only the Appellant prior to the crime and did not know his co-accused person; that PW1 stated that the Appellant was a popular figure in the area and that he knew him as Obiajulu. Counsel submitted that PW1 was consistent that he gave the name of the Appellant to the chairman of the vigilante group as “Obiajulu”. According to Counsel the second witness called by the Prosecution is one Ikechukwu Anosike (PW2) who testified that he visited PW1 to do some work for him but could not because there was no Public (Electric) Power supply and had to pass the night in PW1’s house. According to him, the door of the apartment was suddenly broken into by the Defendants and that he challenged them and was given a beating by the gang who held a Machete after ordering him to lie face-down.
The witness stated that in the course of interrogating the Appellant, the Appellant mentioned the 1st Defendant (Uchenna Ibekwe) as the person that broke into the apartment of PW1 with him and that under cross-examination, PW2 identified the Appellant as the person that broke into the apartment where they were on the fateful night, but did not know the 1st Defendant and could not recognize any of the Defendants as the person that robbed them, whereas PW1 recognized one of them. PW2 added that he never met the Appellant prior to the crime.
Learned Respondent’s Counsel also posited that PW3, one Chinedu Agu stated that on 6th day of August, 2011 armed robbers visited their house at No. 52A Awka Road, Onitsha and attacked him, Emmanuel Ebuka Agu and Ikechukwu Nwanosike and robbed them of various items. He stated that when their door was broken into, he saw two robbers rushed in and ordered them to lie face-down. PW3 further stated that while he was lying down, his immediate younger brother, PW1 was not lying face-down properly and in the course of the robbers searching the room, using their torch light on the wardrobe and all over the room, there was light, reflection/illumination all over the room and in the process, PW1 was able to see one of them and kept quiet about it.
He maintained that the name of the person seen by his younger brother is Obiajulu Ikeorah (Appellant). Thereafter, he further stated that they used their sister’s telephone to call the chairman of the vigilante group and PW1 informed the chairman that he knew one of the robbers as “Obiajulu”. See pages 133 – 135 of the Records. Under cross-examination, Counsel submitted that the witness (PW3) maintained that two (2) persons broke into the apartment and the PW1 was able to identify the Appellant because he was not lying completely face-down. Counsel contended that from the evidence of PW1, PW2 and PW3, the witnesses were consistent that only the Appellant was identified as one of the persons that robbed them on the day in question. Counsel therefore argued that the evidence of PW2 is clear and unequivocal that the 1st Defendant was arrested and charged with the Appellant because the Appellant mentioned his name as one of the persons that robbed the witnesses.
It is the further submission of Respondent’s Counsel that the Appellant’s argument on page 8 of his brief of argument, relying on the cases of KALU vs. STATE (1988) 4 NWLR (PT. 90) 503, ADELE vs. STATE (1995) 2 NWLR (PT. 377) 269, EBRI vs. STATE (2004) 11 NWLR (PT. 885) 589, OKORO vs. STATE (2012) 4 NWLR (PT. 1290) 351, ONONUJU vs. STATE (2014) 08 NWLR (PT. 1409) 353, that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar, the discharge of one should also lead to the discharge of the others, is totally misconceived. Counsel submitted that the evidence against the two Defendants in the instant case is not in all material aspect, same or similar to the case of KALU vs. STATE (supra). In the instant case, Counsel said that the Respondent led consistent and cogent evidence that PW1 was able to identify the Appellant as someone he had seen several times in that location and was popular and that when he saw him in his apartment he was able to identify him as the popular man called “Obiajulu”. Counsel disclosed that, that piece of evidence was neither impeached nor discredited.
Counsel further submitted that on the other hand, PW1 stated that he did not know the 1st Defendant prior to the robbery incident; that the evidence of PW2 is clear and unequivocal that it was the Appellant that mentioned the name of the 1st Defendant as an accomplice and in his evidence before the lower Court, while the Appellant denied knowing the 1st Defendant and said that he met the 1st Defendant for the first time at the Magistrate’s Court.
It is further contended that the learned Appellant Counsel, misapplied the principles of law in the above evidence cited in the instant case, in that the evidence against the two Defendants cannot be said to be inextricably interwoven around both of them. Counsel submitted that the learned trial Judge was right in discharging the 1st Defendant for want of convincing evidence against him that he was placed at the scene of the crime. See page 229 of the Records. It was further submitted that the evidence upon which the learned trial Judge hinged his conclusion in discharging the 1st Defendant is the contradiction in the evidence of PW3 and PW4 as to how the phones stolen from PW1, PW2 and PW3 were recovered. See page 230 of the Records.
Counsel further submitted that the case is different as regards the evidence of the Prosecution against the 2nd Defendant who could not make or establish a case of alibi of where he was at the time the crime was alleged to have been committed, having been placed at the scene of the crime by the evidence of PW1. See page 234 of the Records. Furthermore, Counsel contended that it is the law that once a Defendant is placed at the scene of the crime by the evidence of the Prosecution’s witness, he has the duty to let the Police know at the earliest opportunity where and with whom he was at all the material time. Counsel cited the case of UDO AKPAN vs. THE STATE (1986) 3 NWLR (PT. 27) 258 AT 262 PARA. D. According to Counsel, in the instant case, the evidence before the Court, which it relied upon to convict and sentence the Appellant is different from the evidence which it relied upon to discharge the 1st Defendant (Uchenna Ibekwe). Learned Respondent Counsel argued that it is not the law as suggested by the Appellant’s Counsel that once accused persons are tried jointly, they must either fall or stand together. Counsel further argued that the law requires that for them to fall or stand together the evidence connecting them must be so much knitted together like Siamese twins; clearly interwoven and inseparable that the conviction of one cannot stand where the other accused persons were discharged and acquitted.
Counsel cited the case of ADEKUNLE OLUWAFEMI ALO vs. THE STATE (2015) 9 NWLR (PT. 1464) 238, a case not so much dissimilar with the instant case, where the only evidence against the 2nd accused person was that the Appellant named him as a party to the crime, in his extra-judicial statement but he consistently denied it and where the 3rd accused person’s alibi was investigated and found to be true.
ISSUE TWO:
Whether the lower Court was right in holding that the prosecution proved beyond reasonable doubt that the appellant committed the offence of robbery?
Counsel submitted that the Prosecution in the instant case proved the three essential ingredients of the offence of robbery against the Appellant. Counsel cited the case of LUKMON OSETOLA & ANOR vs. THE STATE (2012) 17 NWLR (1329) 251 AT 285 PARAS. G-H, wherein the Supreme Court held that once credible and compelling evidence is led which shows that the ingredients of the offence were established against the accused person, the charge is said to have been proved beyond reasonable doubt.
Counsel further submitted that from the evidence led at the trial, the Respondents proved the three (3) essential ingredients of robbery. The four prosecution witnesses presented positive and cogent evidence of robbery at No. 52A Awka Road, Onitsha, Anambra State on the 6th day of August, 2011. Again, Counsel argued that the evidence of the said witnesses also show that the robbery was carried out with the use of offensive weapons and that the Appellant was one of those that perpetrated the act.
Learned Counsel drew attention to the fact that from the evidence of the Appellant at the Court below, he did not state where he was at the time of the alleged crime. He argued that it is the duty of the accused upon being fixed at the scene of crime at the material time to establish a defence of alibi, failing which the Prosecution will be said to have proved its case against him, beyond reasonable doubt. Counsel cited the cases of NJOVENS vs. THE STATE (1973) 5 SC 17, JOHN PETER vs. THE STATE (1997) 3 NWLR (PT. 496) 625.
It is the contention of Counsel that the argument of Appellant that there was no proper identification of the Appellant at the trial Court is totally misconceived. Counsel further contended that the evidence of PW1 is unequivocal that the Appellant was one of those that robbed them that night when PW1 specifically stated that he knew the Appellant in their area as a popular person that frequented the vicinity and popularly known by the neighbours as “Obiajulu”. According to Counsel, it is not in every criminal case that an identification parade is necessary to identify an accused person. See the case of TAJUDEEN ALABI vs. THE STATE (1993) 7 NWLR (PT. 307) 511 AT PP. 524-525, PARAS. G-A.
Again, Counsel submitted that from the circumstances of the instant case where PW1 clearly stated that he knew the Appellant prior to the alleged crime; holding of an identification parade would be superfluous. Counsel further submitted that PW1 clearly stated in his evidence-in-chief that immediately after the robbery incident he called the chairman of the Vigilante and informed him that one of the robbers that attacked them was one Obiajulu and upon the arrest of the Appellant he also identified him as the Obiajulu that participated in the robbery.
Learned Counsel to the Respondent equally submitted that the Appellant’s Counsel’s argument that the absence of the evidence of the security men who allegedly recovered the stolen items was fatal since the Prosecution could not be said to have proved that the Appellant was the person who stole something capable of being stolen, is not tenable. Counsel posited that the direct evidence of PW1 who testified positively that on 6th day of August, 2011 at about 12.30, he was sleeping with two other persons in the room when the Defendants broke into the room is more than sufficient. PW1 further testified that the men asked them to bring their money and telephones and he pretended that he did not know any of them. Also, PW1 stated that the robbers collected their three telephones and one of his brother’s suits. The evidence of PW2 and PW3 also corroborated that fact.
According to Counsel, the direct evidence of PW1, PW2 and PW3 stating that the Appellant and his co-accused person stole their telephone, money and suit is sufficient proof of robbery as alleged. See Section 15(1) of the Robbery and Firearms (Special Provisions) Act, Cap. 898. The witnesses further testified that the men that attacked them that night were armed with shovel; cutlass and machete, which fact is also sufficient proof of robbery. The evidence of the three (3) witnesses was not discredited at the trial and the trial Court was bound to act on them. See the case of GOLDEN DIBIE & ORS vs. THE STATE (2007) 19 NWLR (PT. 1038) 30 AT PP. 56 & 57 PARAS. H-A.
Counsel also disclose that in the instant case, it is obvious from the record that the evidence presented at the trial against the Appellant that is, the direct evidence of PW1, PW2 and PW3 who were eye witnesses to the commission of the crime clearly and unequivocally drowned the presumption of innocence of the Appellant and that the trial Court was right in convicting him on the strength of the said evidence. Counsel argued that it is the law that in criminal trials the guilt of an accused person for the commission of the offence charged can be established by any or all of the following:
(i) The direct evidence of an eye witness;
(ii) Circumstantial evidence;
(iii) The confessional statement of the accused.
Again, Counsel argued that the position of the learned Counsel to the Appellant that failure to call the vigilante chairman, Ora Egbunam who arrested the Appellant and recovered telephones and weapons from the Appellant upon the complaints of the PW1 is fatal is completely misconceived. Counsel cited the case of UKPE vs. THE STATE (2002) FWLR (PT. 103) 416, wherein the Court held that proof beyond reasonable doubt is not attainable by the quantity but quality of evidence and that it does not mean proof beyond every shadow of doubt. See also the case of BASIL AKALEZI vs. THE STATE (1993) 2 NWLR (PT. 273) 1 AT P.13, PARA. C-D.
Finally, Respondent Counsel submitted that the evidence presented at the trial Court against the Appellant is sufficiently strong to affirm the judgment of the lower Court. Counsel urged upon this Court to so hold and dismiss the Appellant’s appeal as lacking in merit.
RESOLUTION OF APPEAL
The question of the veracity of an unsigned extra-judicial Statement of the Appellant admitted into evidence as an Exhibit was made an issue by learned Appellant’s Counsel alongside the question of the accuracy and/or reliability of the identification of the Appellant vis-à-vis the eye-witness accounts of what transpired on the fateful day of the incident. These issues were no doubt subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law. Learned Appellant’s Counsel who had rooted for a verdict of an acquittal had contended that the trial Court’s decision had occasioned a miscarriage of justice when following the discharge and acquittal of his co-accused person.
In resolving this appeal, there may be the need to state the facts of this case, which are largely uncontested between the parties as the foundation of the analysis about to be made by this Court to foster a better appreciation of the issues raised between them. The Appellant as accused person was charged with the offences of conspiracy and armed robbery punishable under Sections 5(b) and 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990.
Four witnesses testified for the Prosecution in this case. Going by their testimonies, beginning from PW1, one Emmanuel Agu, while testifying in-chief, stated that on the 6th day of August, 2011 about 12.30 am, the Appellant and his co-accused person broke into his apartment where he was sleeping with two other persons. He recognized one of the men, but pretended that he did not know him. At dawn, he promptly called the Chairman of the vigilance group in Onitsha and told him what happened in the early hours of the day and gave the name of the person that he identified at the scene of the crime as Obiajulu (the Appellant). The vigilance group swung into action and got the Appellant arrested. Thereafter PW1 was invited by the Chairman of the vigilante to his home, where he was able to identify the Appellant as the person he saw in his apartment on the fateful day.
Learned Appellant’s Counsel made heavy weather of the issue of Appellant’s identification. According to Counsel, under the given situation where PW1 testified that he was lying down flat as ordered by those who broke into their apartment on the 6th day of August, 2011 by 12.30 am and that there was no light in their room, it was a near impossibility for any one under that kind of situation to have accurately identified the Appellant. Here however, is a situation in which PW1 had maintained that he knew the Appellant prior to the crime and that the Appellant was a popular figure in the area and that he knew him as Obiajulu.
Of remarkable importance is the fact that PW1 was consistent that he gave the name of the Appellant to the Chairman of the vigilante group as “Obiajulu”. It is important to note that even PW2, one Ikechukwu Anosike who testified that he visited PW1 to do some work for him, but could not because there was no Public (Electric) Power supply and had to pass the night in PW1’s house, gave evidence, testifying that the door of the apartment was suddenly broken into by the Defendants and that he challenged them and was given a beating by the gang who held a Machete after ordering him to lie face-down, but later identified the Appellant as one of those who rubbed them.
Still on the issue of identification, PW3 one Chinedu Agu stated that on 6th day of August, 2011 armed robbers visited their house at No. 52A Awka Road, Onitsha and attacked him, Emmanuel Ebuka Agu and Ikechukwu Nwanosike and robbed them of various items; that when their door was broken into, he saw two robbers rushed in and ordered them to lie face-down; that while he was lying down, his immediate younger brother, PW1 was not lying face-down properly and in the course of the robbers searching the room, using their torchlight on the wardrobe and all over the room, there was light reflection/illumination all over the room and in the process, PW1 was able to see one of them and kept quiet about it.
A careful look at the records showing a common thread connecting the evidence of PW1, PW2 and PW3, the witnesses were consistent that only the Appellant was identified as one of the persons that robbed them on the day in question. This Court has taken a rather calm and careful look at the printed records and has come to the irresistible conclusion that there is nothing on the records to suggest that the learned trial judge did not follow meticulously a number of guidelines, which a trial Court must observe if any value is to be ascribed to the eyewitness identification of an accused person.
The usual factors to be taken into consideration, the first of which is whether the Court took into consideration the circumstances under which the eyewitness identified the accused person. The second is the length of time that was available for the eyewitness in identifying the suspect; was it at a glance or had he a longer period of observation? Was there an opportunity for a close observation? Had there been a prior contact between the duo and lastly, what was the lightening condition at the time of identification? See the case of IKEMSON vs. THE STATE (Supra). See also OCHIBA vs. STATE (2011) 17 NWLR (PT. 1277) 663, EYISI vs. STATE (2000) 15 NWLR (PT. 555), OKOSI vs. STATE (1989) 1 NWLR (PT. 100) 642. See the English case of R. vs. TURNBULL (1976) 3 CAR 549 AT 551 for added measure where the English Court of Appeal per LORD WIDGERY, C.J stated the guidelines for the evaluation of the evidence of visual identification to avoid the risk of mistaken identity of an offender by a victim or witness.
The universality of the application of the rules or guidelines enunciated in the case of R. vs. TURNBULL (Supra) cannot be doubted. The guidelines are indeed applicable to all cases involving identification. It is proper to note that these guidelines have been adopted in a number of cases in Nigeria, some of which learned Counsel have already cited in this matter. See the cases of ALABI vs. THE STATE (1993) NWLR (PT. 307) 511, BASHAYA vs. THE STATE (1998) NWLR (PT. 550) 351, CHUKWU vs. STATE (1997) NWLR (PT. 463) 685 AT 792. In the case of ABUDU vs. THE STATE (1985) [PT. 1]55, the Supreme Court held among other things that whenever the case of the accused depends wholly or substantially on the correctness of the identification of the accused person which the defence alleges to be mistaken, the Judge should warn the jury of the special regard for caution before convicting the accused in reliance to the correctness of the identification. In that case, the star witness who was the victim of the robbery testified that she identified the Appellant, but did not at the earliest opportunity mention the names of the Appellant and his co-accused as two of a gang of four armed robbers who committed the robbery. Before that time she knew the Appellant and his co-accused. At the trial, the Appellant put up a defence of alibi, which was not contradicted by the prosecution. The trial judge convicted the Appellant and discharged the co-accused on the same evidence. Appellant’s appeal was dismissed by the Court of Appeal. But the Supreme Court saw things differently. It was observed that the evidence identifying the Appellant as a robber was too suspicious to be acceptable and the Appeal was allowed.
However, in the case of LAWRENCE ODIDIKA vs. THE STATE (1977) 2 SC 21, the Supreme Court dismissed the appeal of the Appellant on the grounds that the tribunal which convicted the Appellant was satisfied that the Appellants were recognized by Sylvanus Mba, the victim of the robbery on the night in question and further identified both Appellants during the identification parade made up of 15 persons. No evidence was called by the Appellants in support of their defence of alibi. The Supreme Court was therefore, satisfied that the findings of the tribunal are supported by the evidence adduced at the trial.
In a similar matter, the Supreme Court also held the view in the case of MATHEW ORIMOLOYE vs. THE STATE (1984) 10 SC. 138, which was also a case of robbery in which the PW1 and PW2 recognized the Appellant at the time of the commission of the offence and gave evidence to that effect. The PW1 who had received treatment after the robbery for his gunshot wounds was taken by the police to the police station and as soon as he caught sight of the Appellant he pointed at him as the robber who has fired at him in the early hours of the day. A spent cartridge was recovered by the police at the scene of robbery. The Supreme Court was satisfied that the Appellant was rightly convicted.
It will be recalled that in the instant appeal, the PW1 and victim of the robbery right there at the scene of crime saw and identified the 2nd Accused person who is the Appellant in this appeal as one of the robbers who laid siege to their apartment on the fateful day and reported this to the Chairman of the vigilance group, who got him promptly arrested. It will be recalled that PW1 even mentioned the correct name of the Appellant to the vigilance Chairman. It is important to note that the spontaneity with which the PW1 had recognized the Appellant cannot be easily wished away as one of those who robbed them on the fateful day. The settled position of the law is that a spontaneous and positive identification is better than a formal identification parade by the police. The best identification therefore remains the prompt one by the victim or the people who witnessed the commission of the crime. See the case of ADAMU vs. THE STATE (1991) 4 NWLR (PT. 187) 530.
At page 233 of the printed record, the learned trial judge demonstrated quite convincingly, that the Court took into consideration the guidelines which a trial Court must observe if any value is to be ascribed to the eyewitness identification of an accused person, when the Court observed, thus;
“PW1, Emmanuel Agu testified that he identified the 2nd defendant on the day of the incident while they flashing their torch lights on them. Under cross-examination, PW1 testified that the torch was not being pointed constantly at him but round the room. This tends to suggest that the PW1 had opportunity in that circumstance to see the 2nd defendant whom he said everybody knows as he is a popular figure who comes around their village. This evidence seems confirmed by PW3 under cross-examination when he testified that there was illumination and reflections of light all over the room so PW1 was able to see one of them and kept quiet.”
Perhaps, what needs to be said next at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of Armed robbery rests squarely on the shoulders of the Prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps be stated here as a corollary to the above, is the fact and from which the prosecution gets a modicum of succour that in all criminal trials, the Prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.
As it has to do with Appellant’s contention at page 8 of his brief of argument, relying on the cases of KALU vs. STATE (1988) 4 NWLR (PT. 90) 503, ADELE vs. STATE (1995) 2 NWLR (PT. 377) 269, EBRI vs. STATE (2004) 11 NWLR (PT. 885) 589, OKORO vs. STATE (2012) 4 NWLR (PT. 1290) 351, ONONUJU vs. STATE (2014) 08 NWLR (PT. 1409) 353, that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar, the discharge of one should also lead to the discharge of the others, this Court is in agreement with learned Respondent’s Counsel that the Appellant is clearly misconceived by this contention. Here is a situation in which the evidence against the two Accused persons is not in all material aspects, same or similar to the case of KALU vs. STATE (supra).
In the instant case, Respondent led consistent and cogent evidence that PW1 was able to identify the Appellant as someone he had seen several times in that location in the past and was popular and that when he saw him in his apartment he was able to identify him as the popular man called “Obiajulu”. This piece of evidence was neither impeached nor discredited.
On the other hand, here is a case in which PW1 had from the onset stated that he did not know the 1st defendant prior to the robbery incident. The evidence of PW2 on the issue is also clear and unequivocal when he said that it was the Appellant that mentioned the name of the 1st defendant as an accomplice. In his evidence before the lower Court, where the Appellant made a summersault, he denied knowing the 1st defendant and said that he met him for the first time at the Magistrate’s Court. The question to therefore address here, is whether this is a proper case in which the Appellant should have been discharged along with the 1st defendant? The answer can only be rendered in the negative.
The learned Appellant’s Counsel no doubt misapplied the principles of law in the above evidence cited in the instant case, in that the evidence against the two defendants cannot be said to be inextricably interwoven around both of them. This Court is therefore of the firm view that the learned trial Judge was right in discharging the 1st defendant for want of convincing evidence against him. See page 229 of the Records. It is clear that the evidence upon which the learned trial Judge hinged his conclusion in discharging the 1st defendant is the contradiction in the evidence of PW3 and PW4 as to how the phones stolen from PW1, PW2 and PW3 were recovered. See page 230 of the Records.
Apart from all of these, having been placed at the scene of the crime by the evidence of the Prosecution’s witness, the Appellant had the duty to let the Police know at the earliest opportunity where and with whom he was at all the material time. See the case of UDO AKPAN vs. THE STATE (1986) 3 NWLR (PT. 27) 258 AT 262 PARA. D. It is not the law as suggested by the Appellant’s Counsel that once accused persons are tried jointly, they must either fall or stand together. The law requires that for them to fall or stand together the evidence connecting them must be so much knitted together like Siamese twins; clearly interwoven and inseparable that the conviction of one cannot stand where the other accused persons were discharged and acquitted. See the case of ADEKUNLE OLUWAFEMI ALO vs. THE STATE (2015) 9 NWLR (PT. 1464) 238; a case not so much dissimilar with the instant case, where the only evidence against the 2nd accused person was that the Appellant named him as a party to the crime, in his extra-judicial statement but he consistently denied it and where the 3rd accused person’s alibi was investigated and found to be true.
Against the backdrop of the foregoing, the direct evidence of PW1, PW2 and PW3 stating that the Appellant and his co-accused person stole their telephone, money and suit is sufficient proof of robbery as alleged. See Section 15(1) of the Robbery and Firearms (Special Provisions) Act, Cap. 898. The witnesses further testified that the men that attacked them that night were armed with shovel, cutlass and machete, which fact is also sufficient proof of robbery. The evidence of the three (3) witnesses was not discredited at the trial and the trial Court was therefore bound to act on them.
This appeal therefore fails and it is accordingly dismissed. Consequently, the judgment of the Court below delivered on the 19th day of October, 2017 in Charge No: O/62c/2012; THE STATE vs. UCHENNA IBEKWE and OBIAJULU IKEORAH, is hereby affirmed.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading in draft a copy of the leading judgment prepared by my learned brother, F. O. OHO, JCA. I agree that the appeal should be dismissed and that the judgment of the lower Court in Charge No: 0/6292021 is affirmed.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the judgment of my learned brother, FREDERICK OHO, JCA, and the reasons he has given for dismissing the appeal. The reasons so completely coincide with mine that I consider it unnecessary to add to them. I therefore accordingly adopt the reasons of my learned brother in dismissing this appeal and affirming the decision of the trial Court. Appeal is dismissed.
Appearances:
J. O. ONWUJEKWE, ESQ. For Appellant(s)
CHIGBO E. ANAENUGWU, ESQ. For Respondent(s)