SANI LAWALI v. THE STATE
(2019) LCN/4825(SC)
In The Supreme Court of Nigeria
On Friday, the 18th day of January, 2019
SC.272/2017
RATIO
WHETHER THE FINAL ADDRESSES CAN TAKE THE PLACE OF EVIDENCE
Final addresses, no matter how brilliantly they are couched cannot constitute evidence and they are not intended to be so: NWADAIRO v. SPDC (1990) 5 NWLR (pt.150) 322 at 339; ODUBEKO v. FOWLER (1993) 1 NWLR (pt. 308) 637; ISHOLA v. AJIBOYE (1998) 1 NWLR (pt. 532) 71 at 93 ARO v. ARO (2000) 14 WRN 51 at 56. PER EJEMBI EKO, J.S.C.
WHETHER A COUNSEL CAN BE A COUNSEL IN A MATTER THAT HE IS ALSO A WITNESS
Generally, a counsel, on ethical grounds, is not expected to be a counsel in a matter that he is also a witness. Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007 is all about this. PER EJEMBI EKO, J.S.C.
DUTY INCUMBENT ON AN APPELLANT WITH RESPECT TO AN APPEAL; CIRCUMSTANCES WHERE THE SUPREME COURT WILL INTERFERE WITH THE CONCURRENT FINDINGS OF FACT MADE BY THE LOWER COURTS
The concurrent findings, supported by credible evidence, cannot be faulted. The well established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption: BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593. Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loathe to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely disturbed: ENANG v. ADU (1981) 11 – 12 SC 17 at 27 (Reprint). The usual circumstances concurrent findings of fact are disturbed are: when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts: UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224. PER EJEMBI EKO, J.S.C.
FACTORS THE COURT MUST TAKE INTO CONSIDERATION TO WARD OFF A POSSIBILITY OF A MISTAKEN IDENTITY IN AN IDENTIFICATION PARADE
From my standpoint, what I see as the pillars of support the appellant is holding onto are that a proper identification of the appellant as one of the robbers was not made and that there was a failure in investigating the alibi the appellant raised in defence both of which anchors created a doubt, reasonable enough to get an exculpatory position for the appellant. What is evident and not controverted is that the eye witness, PW6 both at the police station and in Court had stated that he could identify their attackers and had mentioned certain physical features of one of them. That notwithstanding the prosecution had set up an identification parade at which PW6 pointed out the appellant, to ward off a possibility of a mistaken identity. This falls in my humble view within the conditions laid out by the courts including the Supreme Court which are thus:- (a) The circumstances in which the eye witness saw the suspect or accused; (b) The length of time the witness saw the suspect or defendant; (c) The lighting condition(s) at the crime scene; and (d) The opportunity of close observation of the defendant by the witness. See: Omotola v State (2009) All FWLR (Pt. 464) 1490. PER MARY UKAEGO PETER-ODILI, J.S.C.
CIRCUMSTANCE WHERE A DEFENCE OF ALIBI RAISED BY THE ACCUSED WILL NOT AVAIL HIM
The appellant in defence had made much of the alibi raised and, in this Court, the claim that it was not investigated. That is not correct as alibi simply put means, accused was elsewhere which is a radical exculpating defence but where as in this case the accused appellant is pinned to the scene of incident then the alibi is demolished. In this instance, the appellant merely stated he was at the CID without any details with which a thorough investigation by the prosecution would have been carried out. The burden of producing those details on the alibi rests squarely on the appellant and it is only after that the duty of the prosecution to investigate would follow and not before. Therefore in this instance where appellant gave no details and the prosecution through evidence was able to situate him at the scene of crime at all times material then the alibi raised suffers a still birth. See Eke v The State (2011) 3 NWLR (Pt. 1235) 589 at 606; Ozaki v The State (1990) 1 NWLR (Pt. 124) 92; Nwabueze v The State (1998) 4 NWLR (Pt.86) 16; Eyisi v The State (2000) 15 NWLR (Pt. 691) 555; Adedeji v The State (1971) 1 All NLR 75; Okosun v A. G. Bendel State (1985) 3 NWLR (Pt.12) 283; Ebri v State (2004) 11 NWLR (Pt.885) 589. PER MARY UKAEGO PETER-ODILI, J.S.C.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
SANI LAWALI (DANCHINA) Appellant(s)
AND
THE STATE Respondent(s)
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The appellant, convicted by the High Court of Sokoto State (Coram: D. B. Sambo, J) for the robbery while armed with dangerous weapon, and for culpable homicide punishable with death, was sentenced to death. His conviction and sentence were upon his appeal, affirmed by the Court of Appeal, Sokoto division on 16th February, 2017. He has further appealed to this Court on four (4) grounds of appeal all which are grounds or complaints of pure facts. Three of the grounds, that is grounds 2, 3, 8, 4, were though prefaced as errors in law. In actuality, they are complaints of fact. The right of appellant to appeal as of right on the 4 grounds complaining on facts is secured by Section 233 (2) (d) of the Constitution, the Court of Appeal having affirmed his death sentence.
The main thrust of the appeal, as argued by M. O. Folorunsho, Esq., of Counsel for the appellant, on a sole issue for the determination of the appeal is bifurcated as follows –
1. The Pw.6’s identification of the appellant at the identification parade and the trial. Appellant’s counsel argues that the identification of
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the appellant was faulty. On the other hand, the Respondent’s case or answer to this charge is fastened firmly on the Pw.6 (the complainant’s) insistence, particularly in his extra-judicial statement to the police Exhibit P9, wherein he stated categorically that he could –
Identify these armed robbers at wherever (he) see them. This is because I saw them with my naked eyes; Even though they wore “turban to cover their faces”. He made Exhibit P9 on 8th July, 2009, a day after the robbery. He testified on 17th March, 2014 and was cross-examined. He maintained his stance in Exhibit PS; and
2. The appellant was said to have raised an alibi that he was in detention at the material time the alleged armed robbery and culpable homicide took place. His extra-judicial statement wherein he made the assertion was not in evidence. The appellant, testifying as Dw.2, at page 77 of Record categorically denied that he made any statement at the State CID. The stance of the appellant on the alleged alibi and his Counsel’s position on it, at page 25 of the Record, are divergent and materially inconsistent. The implication of this is: No alibi, even if pleaded, was established.
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The complaint in the sole issue raised for the determination of the appeal is that the Lower Court was not right in affirming the judgment of the trial Court that the prosecution had proved the commission of the two offences by the appellant beyond reasonable doubt.
The appellant, though charged for the offence of criminal conspiracy, was not convicted for that offence. Accordingly, all submissions on whether the offence of criminal conspiracy was proved beyond reasonable doubt against the appellant therefore go to naught.
It is submitted for the appellant, as if the counsel thought he was still at the trial Court, that the prosecution must show “that the appellant participated in the act or fact that culminated to (sic: “culminated in”) the charge” (I guess the offences he was convicted for). To ramp the submission, counsel asked rhetorically; was the appellant identified by the prosecution to have committed the offences He pointed out that this is the question that this Court is called upon to determine in this appeal.
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The appellant had himself demolished any defence of alibi that may avail him. He testified as Dw.2. The substance of his short testimony at page 77 is;
I don’t know anything about the robbery. It is not true weapons were kept in my house for robbery operation. I was arrested at Achida Market while leading when a police man called me and brought me to CID Sokoto.
Under cross-examination he testified –
When police came to me at Achida, I was with other Union members. The police invited me to make statement. I did not make any statement at CID.
It is not true I was stealing before. I have never seen Pw.6 before. Pw.6 told lies against me.
Earlier the Pw.6 had testified (at pages 70 – 73 of the Record), undiscredited, that the 1st Accused and the appellant (the 2nd Accused) were among the robbers who attacked them on their way from Sokoto on 7th July, 2009. He narrated:
When the driver (of their vehicle) packed, Jaho (1st Accused) asked us to give our money and we gave it to the 2nd accused (the appellant herein).
The 2nd accused collected my two handset; he removed my SIMs and gave them to me. The 2nd accused also collected from me N1,800.00 only. The same 2nd accused collected a recording tape, my
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security gadgets. He tried to remove the cassette but he could not. So he went away with it. While I was lying down, the 2nd accused removed my new sandals. … I was there (at the identification parade), In the identification parade I was able to identify the 1st accused and the 2nd accused (appellant), Sani Lawali.
Cross-examined the Pw.6 affirmed that 5 persons in all were killed in the bloody robbery operation and that “the mobile policemen who died had guns on them”. The Pw.6 was not discredited in his evidence that the appellant actively participated in the robbery operation in which the robbers shot dead 5 persons. The appellant did correctly restate the law well when he submitted that “where an accused person is accosted at the scene of crime there cannot be a problem of identifying such accused person”. The undiscredited evidence of the Pw.6 had categorically fixed the appellant, not only to the locus criminis but also to the violent robbery operation during which 5 persons, including armed mobile policemen were killed. His alibi, if he ever had any, had been outrightly and severely demolished by the evidence of Pw.6 and his own self-destruct evidence.
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The identification of the appellant by the Pw.6 as a participant in the robbery operation cannot be said to be faulty. He had enough time, not a mere fleeting chance, to observe the appellant who, from the Pw.6’s unequivocal narration, had spent enough time with him collecting money from him and other passengers. The appellant took his time, according to the Pw.6, collecting two handsets from the Pw.6 and had removed the SIM cards and “very generously” given them back to the Pw.6. The appellant spent time with the Pw.6 trying unsuccessfully to remove the cassette from the Pw.6’s tape recorder, -which he later went away with. In the peculiar circumstance of this case, the Pw.6 had enough time and opportunity to observe the appellant, his tormentor, and when he testified, he gave good description of the appellant and had graphically fixed the appellant to all he did to him (Pw.6) on 7th July, 2007. In the circumstance, an identification parade was not necessary.IKEMSON v. THE STATE (1989) 3 NWLR (pt. 110) 455 at 472, 479.
So much fuss was made of Exhibit P9 wherein on 8th July, 2009 the Pw.6 gave descriptions of the
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leader of the robbery gang, the 1st Accused. The trial Court found that so much of that description fitted the 1st Accused, and not the appellant. The learned counsel made an issue of that and suggested that the Pw.6 had contradicted his statement in Exhibit P9. This, to me, turns out merely to making too much ado about nothing. Nothing in Exhibit P9 can be stretched so far as to constitute a material contradiction of the Pw.6’s viva voce testimony in open Court. I hold the firm view, therefore, that between Pw.6’s Exhibit P9 and his oral testimony there was no materia contradiction on the issue of the identification of the appellant as a participe criminis.
I think I should prefatorily make the point: a bare statement from the Bar by a counsel has no force of legal evidence: ONU OBEKPA v. COMMISSIONER OF POLICE (1980) 1 NCR 113. I should also add that the proof of evidence in criminal proceedings serves the same purpose that pleadings serve in civil proceedings. The facts therein are not evidence unless they are proved or established as legal evidence in the proceedings
The appellant’s counsel had pointed at pages 240-241 of the Record, a portion of
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the judgment of the Lower Court, where an allusion was made to a statement made from the Bar that the appellant had set up a defence of alibi in his extra-judicial statement made on 25th January, 2010. The statement is at pages 25 and 25 of the Record. It was not admitted into the body of evidence in the proceedings. This is the statement the appellant, under cross-examination, at page 77 of the Record emphatically denied he made. The statement, admittedly, raised a defence of alibi if infact it was made and proved. It suffers three fundamental setbacks. The appellant, the supposed maker, denied his authorship of the statement, including the defence of alibi therein. Secondly, it was being smuggled into the proceedings from the Bar by the appellant’s counsel for the first time at the Court of Appeal vide Appellant’s Brief settled by one Musibau Adetunbi, Esq. This is found in paragraph 4.1 of the said Brief, particularly at page 171 of the Record. The third setback is that counsel in the guise of final address or brief of argument cannot lead evidence to fill any lacuna in his client’s case. He is not permitted to do so.
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Final addresses, no matter how brilliantly they are couched cannot constitute evidence and they are not intended to be so: NWADAIRO v. SPDC (1990) 5 NWLR (pt.150) 322 at 339; ODUBEKO v. FOWLER (1993) 1 NWLR (pt. 308) 637; ISHOLA v. AJIBOYE (1998) 1 NWLR (pt. 532) 71 at 93 ARO v. ARO (2000) 14 WRN 51 at 56. Generally, a counsel, on ethical grounds, is not expected to be a counsel in a matter that he is also a witness. Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007 is all about this.
The totality of all I have been trying to say is that the appellant never raised alibi as a defence and he established none. Alibi, as a defence, therefore does not avail him. The evidence of Pw.6 not only demolished whatever alibi the appellant may have, he having been fixed to the scene and to the offences alleged; it was also an emphatic or unequivocal evidence that identified the appellant as an active participant in the armed robbery operation in which 5 persons were killed. At the identification parade, the Pw.6 made no mistake in his identification of the appellant as one of the armed robbers who, on 7th July 2009, robbed him and others, and killed 5 persons.
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The evidence of the Pw.2, undiscredited, on how at the identification parade the Pw.6 identified the appellant as one of the robbers amply corroborates and reinforces the Pw.6 evidence.
On both the alleged alibi and the identification of the appellant, as one of the armed robbers, I agree with the respondent that “both the trial Court and the Lower Court, without any iota of doubt, reached concurrent findings of fact”. The concurrent findings, supported by credible evidence, cannot be faulted. The well established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption: BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593. Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loathe to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely disturbed: ENANG v. ADU (1981) 11 – 12 SC 17 at 27 (Reprint).
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The usual circumstances concurrent findings of fact are disturbed are: when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts: UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224. From the available legal evidence, the concurrent findings of fact, on which the appellant was convicted for armed robbery and culpable homicide punishable with death, do not in any way result in any miscarriage of justice to the appellant.
My Lords, I find no merit in this appeal. It behoves me therefore, to affirm the judgment of the Lower Court delivered on 16th February, 2017 in the appeal No. CA/S/61c/2015. Accordingly, I affirm the decision, as I dismiss the appeal in its entirety.
IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Sokoto Division delivered on the 16th day of February, 2017.
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The only issue for determination in this appeal is:
“Whether the Court of Appeal was right in affirming the judgment of the trial Court that the prosecution proved the offences against the appellant beyond reasonable doubt.”
I have had the advantage of reading the judgment just delivered by my learned brother, Eko, JSC, that the appeal lacks merit and it should be dismissed. I too hereby, dismiss the appeal for lacking in merit.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to register my support in the reasonings from which the decision came about, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal or Lower Court or Court below, Sokoto Division, Coram: H. Muktar, M. Shuaibu and F. Oho JJCA delivered on the 16th February, 2017 wherein the Court below dismissed the appellant’s appeal and affirmed the decision of the High Court of Sokoto State per D. B. Sambo delivered on the 30th day of May, 2014 convicting the appellant of the defence of culpable homicide punishable with death and sentenced the appellant to death by hanging.
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The background facts leading to this appeal are well set out in the leading judgment and no point would be made repeating them except for when it becomes necessary to refer to any part of those facts.
At the hearing on the 25th day of October, 2018, learned counsel for the appellant, M.O. Folorunsho Esq., adopted the brief of argument of the appellant filed on the 31st August 2018 and deemed filed on the 25th October 2018. The appellant formulated a single issue for determination which is thus: –
Could it be said, from the entire circumstances of this case, that the noble justices of court of Appeal were right in affirming the judgment of the noble trial Court that the prosecution has prosecution has proved the offences against the appellant beyond reasonable doubt. (Grounds 1,2,3, and 4).
Learned counsel for the respondent, Adedapo Tunde-Olowu adopted the brief of respondent filed on 23/10/18 and deemed filed on 25/10/18 and in it distilled a sole issue for determination, viz-
Whether the Lower Court was justified in law and on the facts when it affirmed the conviction of the appellant for the offences of conspiracy, armed robbery and culpable homicide and the sentence of the appellant to death for culpable homicide. (Grounds 1, 2, 3 and 4).
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Learned counsel for the appellant submitted that the prosecution failed to fix the appellant at the scene of crime when the evidence of PW6 relied upon did not meet up with the standard set by the law. That the defence of alibi was never investigated by the prosecution and not equally controverted by any reliable evidence’ hence the case of the prosecution against the appellant is not proved beyond reasonable doubt
He cited Ndidi v State (2007) 13 NWLR (Pt. 1052) 633 at 651-652; Almu v State (2009) 10 NWLR (Pt.1148) 31 at 46; Osuagwu v State (2016) 16 NWLR (Pt.1537) 31 at 61; Alabi v State (1993) 7 NWLR (Pt.307) 511 at 525 etc.
Learned counsel for the respondent contended that the evidence of identification by PW6 was cogent, unassailable, overwhelming, unimpeachable and sufficiently fixed the appellant at the scene of the crime. He cited Ojo v Gharoro (1999) 1 NWLR (Pt. 615) 374.
That the prosecution led positive evidence fixing the accused at the scene of the crime and the Court of trial was right to have found the accused/appellant guilty.
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He cited Okosun v. Attorney General of Bendel State (1985) 3 NWLR (Pt. 12) 283; Ebri v State (2004) 11 NWLR (Pt. 885) 589; Nwabueze & Anor. v The State (1988) 7 SC (Pt. 11)157 etc; Patrick Njovens & Ors v State (1973) 5 SC 12 at 47.
The angle from which the appellant has based his case is that the prosecution failed to fix the appellant at the scene of crime since the evidence of PW6 relied upon did not meet up with the standard set by the law and the alibi set up by the defence was never investigated by the prosecution and so the case of the prosecution cannot be taken as proved beyond reasonable doubt.
That stance of the appellant, the respondent rejects on the ground that there was overwhelming evidence that the appellant was at the scene of crime and took part in the robbery. Also that the identification of the appellant was properly made by the PW6 and fixed the appellant at the scene of crime at the material time.
Excerpts of the evidence of the PW6 in relation to the identity of the culprits in the robbery subject matter of this appeal would be helpful and I shall state them hereunder, thus: –
“As at 7/7/2009, my duty post was Sokoto State Command as COPS.
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I have seen the accused in the dock, of the 3, I can recognize 2, Jaho Mohammed – 1st accused and Sani Lawan (Danchina).
On 7/7/2009, I was on my way from Isha to Sokoto. We left Isah around between 9 and 10 a.m. At a bend near Sarwa Village in Goronyo LOA, we ran into a gang of armed robbers. The 1st accused Jaho was standing in the centre of the Road with a gun. He asked us to pack off the road our driver obeyed and packed. We were seven including the driver. When the driver packed, Jaho asked us to give our money and we gave it to the 2nd accused (the appellant).
The 2nd accused collected my two handsets, he removed my sims and gave them to me. The 2nd accused also collected from me N1,000. The same 2nd accused collected a recording tape, my security gadget. He tried to remove the cassette but he could not, so he went away with it.
We were asked to lie down that we must cooperate. We all lied down while I was lying down, the 2nd accused removed my new sandals. (Underlining mine)
On the 5/2/2010, I received a phone call from CID for an identification parade, I was able to identify 1st and the 2nd accused – Sani Lawali.”
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He stated on: –
“I could identify only two because Jaho and 2nd accused stood on the road and the 2nd accused collected my properties and also at the identification parade at the CID office.”
The learned trial judge in his evaluation of the above evidence of PW6 and other pieces of evidence before him had this to say: –
“There is unimpeached evidence to the fact that the 1st accused person took the centre stage on the highway armed and was directing and commanding the operation of that date…
The evidence of the identity of the presence of the 1st and 2nd accused as being among the robbers remained solid and never challenged even under cross examination. (Underlining mine).
“In Suberu v State (2010) 1 NWLR (Pt. 1176) 494 at 513 held:
Where the evidence of a witness has not been challenged, contradicted or shaken under cross-examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts put forward, the evidence must be accepted as the correct version of what the witness said.”
It must be noted here therefore that both 1st and 2nd accused persons gave evidence as DW1 and 2 respectively.
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In their respective evidence on oath, they all denied knowledge of the Robbery as alleged by the State alleging alibi. But their assertions cannot avail them having regards to the unimpeachable testimonies of PW5 and 7. I therefore believe the evidence given by PW6 and PW7 and disbelieve the evidence of DW1 and DW2. Therefore, all the ingredients of the offence of armed robbery against the 1st and 2nd accused person Jaho Mohammed and Sani Lawali (Danchina) (Appellant) have been established by the prosecution.”
With respect to the charge of culpable homicide, the trial Court held at P.125 of the Record as follows:-
“With regards to the 1st ingredient, through the evidence of ASP Moh Sambo PW4, the Exhibits P5, P6, and P7 being medical reports are in respect of the two policemen shot to death on the spot by the 1st accused and his group of men. The other person who was killed is the senior brother of the PW7 Hassan Garba Isah.
Confirming the death of 3 persons is the evidence adduced by PW1 Sheidu Iliyas CPL. It was his evidence that on the 7/7/2009 while in office, a case of criminal conspiracy, armed robbery and culpable Homicide was transferred
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to the CID office without the suspects with 3 corpses of two policemen and a civilian.
In his evidence in chief and an eye witness to what happened PW6 Abdullahi. Uwaisu Goronyo testified not just the 3 people killed but that a corper was hit by a bullet consequent exchange (sic) of fire between the deceased policemen and the armed robbers. That a corper died at the scene while another was taken to UDUTH.
In effect there is overwhelming evidence proving the death of 4 (four people). The 1st ingredient offence of Culpable Homicide punishable with death has been made out by the prosecution and it is so held.
That the 1st and 2nd accused persons (the appellant) caused the death of the deceased is not in doubt. The evidence adduced by PW7 has not been contradicted or challenged. Same applies to the evidence tendered by PW7 has not been contradicted or challenged. Same applies to the evidence tendered by PW6.
See the case of SUBERU v THE STATE (supra). This 2nd ingredient of the offence under consideration has also been proved by the prosecution,
That the accused person herein 1st and 2nd intended the death of the deceased or knew that
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death would be the probable consequence. The 3 medical reports in Exhibits P5, P6 and P7 speak for themselves and the legal duty of this Court is to infer on the nature of injuries sustained by each deceased. CLP Sunday Yaro according to the revealed cause of death was due to Head injury as a result of gunshot.
See Exhibit P5. While Adamu Lawali cause of death was due to penetrating chest injury due to gunshot. The PW5 Sgt. Ahmed Abubakar the exhibit keeper tendered before the Court in evidence Exhibit P8 (1-12) 13 empty shells of AK47 Riffle; exhibit recovered from the scene where the deceased were murdered. Therefore, the nature of injuries has correlation with the weapon or weapons used and the aftermath is in the least surprising. The logical conclusion to be drawn by any reasonable person and as legally permissible is that the 1st and 2nd accused persons intended and did carry out their intention to wit, killing the deceased persons in this case. The overwhelming evidence by prosecution has established this charge too.
As I have before observed pertaining to the testimonies of 1st and 2nds accused persons as DW1 and DW2,
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the defence proffered hold no water. Their outright denials tantamout to mere afterthought having clearly run in operation in the commission of the offences on the 7/7/2009 by the combined and unimpeachable evidence of PW6 and PW7 respectively which I believe. I therefore disbelieve their defences. With due respect to learned counsel for the 1st and 2nd accused persons the submissions made thereof cannot alter the position. I have taken based on relevant admissible evidence tendered by the prosecution and having so found, I stand by that.”
On the charge of conspiracy, the learned trial judge stated: –
“In the charge of Criminal Conspiracy herein demonstrated by the prosecutions, 5 persons are alleged to have conspired. In relation thereto are the evidence in proof of these charges. The learned prosecuting counsel, the Honourable Attorney General and Commissioner for Justice, Sokoto State at paragraph 2.5 of his written address, submitted that there was the meeting of the minds of the accused person to commit armed robbery and culpable homicide in this case and made reference to the evidence of PW6 and PW7 and also Exhibits P4, P4A.
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The evidence of PW6 Abdullahi Uwaisu Goronya a Deputy Commandant NSCDC amply demonstrates unequivocally that the accused persons on the 7/7/2009 who are said to be 5 in number were acting in concert and in dear agreement to prosecute the robbery that day. It is in evidence by PW6 and PW7 that in arriving at the scene of the robbery, the 1st accused Jaho Muhammad was the one who ordered all the motor vehicles pack under threat while the rest 4 went about taking from victims, monies and what have you. The 2nd accused person herein collected the sum of N1,800, a security tape recorder from PW6 among other things and after the operation, the 5 people walked away leaving their victims. The question to ask was, is it a coincidence that the 5 accused person were there on that date and in active traumatisation of their victims The answer must be in the negative. The presence of 5 accused person on that date and in the illegal criminal operation was as product of an agreement earlier on concluded to prosecute and to commit the offence of criminal conspiracy. The direct evidence by the two prosecution witnesses above mentioned, remained unchallenged and the circumstances surrounding the
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entire operation as it lasted, demonstrated Criminal Conspiracy.
The learned counsel to the 5th accused person has submitted that in the light of the evidence adduced by PW5, 6 and 7, the 5th accused was not identified by either of the prosecution witnesses at the scene of crime nor DW1 and DW2 testimonies linked the 5th accused person in the Criminal Conspiracy. I totally agree with this submission except in the Exhibits P2, P24 where the 5th accused person was mentioned at the scene of operation on the 7/7/2009 PW5, 6 and 7 did not identify him as one of the conspirators. Neither in the Exhibits P10, P10A and P11, P11A though the 5th accused was among the suspects paraded for identification, he was not pointed out as one of the culprits seen at the scene of crime on the 7/7/2009. All these put together, the 5th accused person herein might have been among the accused and mentioned in the Exhibit p4, P44 by the 1st accused person in his confessional statement, the 5th accused having not adopted such statement, the law does not permit, he be held accountable. I agree learned 5th accused counsel the provision of Section 24 (d) of the Evidence Act 2011 as
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amended and the case of Mbang v State (2009) 18 NWLR (Pt. 1172) 140 at 159 all apply and in favour of the 5th accused person.”
On appeal, the learned Justices of the Court below opined as follows: –
“In this case, there is no doubt about the fact that there was a stronger piece of evidence at the trial to support the prosecutions contention that the appellant was not only at the scene of the robbery, but indeed one of the robbers. The PW5, PW6 and PW7 as witnesses saw the appellant in action as one of the robbers on the fateful day in question. In the face of the overwhelming evidence against the appellant as one of the Participes Crimines and his failure to call evidence in support of his alibi, I am unable to disagree with the learned trial judge on the issue who rightly rejected the alibi.”
At pages 241 to 242 of the Record, the Lower Court also concluded as follows:-
“The learned trial judge having rightly found in my view that all the ingredients of the offence of armed robbery and culpable homicide punishable with death been proved beyond devoid of any extenuating circumstances, the appellant rightly was rightly found
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guilty of all the charges and therefore properly convicted and sentenced by the trial judge.”
From my standpoint, what I see as the pillars of support the appellant is holding on to are that a proper identification of the appellant as one of the robbers was not made and that there was a failure in investigating the alibi the appellant raised in defence both of which anchors created a doubt, reasonable enough to get an exculpatory position for the appellant.
What is evident and not controverted is that the eye witness, PW6 both at the police station and in Court had stated that he could identify their attackers and had mentioned certain physical features of one of them. That notwithstanding the prosecution had set up an identification parade at which PW6 pointed out the appellant, to ward off a possibility of a mistaken identity. This falls in my humble view within the conditions laid out by the courts including the Supreme Court which are thus:-
(a) The circumstances in which the eye witness saw the suspect or accused;
(b) The length of time the witness saw the suspect or defendant;
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(c) The lighting condition(s) at the crime scene; and
(d) The opportunity of close observation of the defendant by the witness.
See: Omotola v State (2009) All FWLR (Pt. 464) 1490.
What this Court faced with is an appeal against concurrent findings of two lower Courts and while the appellant seeks an interference into those findings and upset them the respondent urges differently on the ground that the foundation upon which such an intervention by this Court would be justified does not exist. To answer either way I need to restate that the attitude of this court generally is not to interfere with concurrent findings of facts by lower Court and the Supreme Court or indeed any other appellate Court would only carry out such an intervention within certain guidelines like the existence of perversity from which such findings arose or where the findings stemmed from a wrong interpretation of a principle of law or procedure. See Ogunbayo v State (2007) 8 NWLR (Pt. 1035) 157; Nwagbomu v State (1994) 2 NWLR (Pt. 327) 380 at 402; Enang v Adu (1981) 11-12 SC 17 at 27 (Reprint); Moses v State (2006) 11 NWLR (Pt. 992) 458 at 502.
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Having stated the above principle on the way forward for an appellate Court faced on an appeal over concurrent findings of facts and relating that attitude to the facts before the Court in this matter, it is without debate that there is no basis on which an upset of those concurrent findings can be staged as the findings of the trial Court stemmed from rock solid evidence and that Court go the extra mile in ensuring that what was done, findings and conclusion were borne out from the record. The Court below reviewing what had been done at the first instance had no option but to tow along the same lines for a deviation would have clearly been out of place and not supported by the evidence and the law within the standard of proof in a criminal trial which is beyond reasonable doubt. This proof required is not to push a Court of trial into looking for proof beyond the shadow of doubt but rather proof beyond reasonable doubt. In this case, the two lower Courts did not reach their findings of the positive identification of the appellant only on the evidence of PW6 rather the surrounding circumstances were supportive including the identification parade.
The appellant in defence had made much of the alibi raised and, in this Court, the
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claim that it was not investigated. That is not correct as alibi simply put means, accused was elsewhere which is a radical exculpating defence but where as in this case the accused appellant is pinned to the scene of incident then the alibi is demolished. In this instance, the appellant merely stated he was at the CID without any details with which a thorough investigation by the prosecution would have been carried out. The burden of producing those details on the alibi rests squarely on the appellant and it is only after that the duty of the prosecution to investigate would follow and not before. Therefore in this instance where appellant gave no details and the prosecution through evidence was able to situate him at the scene of crime at all times material then the alibi raised suffers a still birth. See Eke v The State (2011) 3 NWLR (Pt. 1235) 589 at 606; Ozaki v The State (1990) 1 NWLR (Pt. 124) 92; Nwabueze v The State (1988) 4 NWLR (Pt.86) 16; Eyisi v The State (2000) 15 NWLR (Pt. 691) 555; Adedeji v The State (1971) 1 All NLR 75; Okosun v A. G. Bendel State (1985) 3 NWLR (Pt.12) 283; Ebri v State (2004) 11 NWLR (Pt.885) 589.
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The conclusion in all I am grappling to put across is that the Court below was correct in holding that the appellant tacitly put up the defence of alibi without providing any particulars of his whereabout which could facilitate investigation by the prosecution apart from the disparity on date when the robbery took place that no investigation was necessary as it is not in all cases of a defence of alibi that the prosecution should investigate and such failure would not have a fatal effect on the prosecution’s case. The Court below further accepted the trial Court’s position that the evidence of PW6 and PW7 fixed the appellant and the other accused at the scene of crime which meant that the alibi could not be sustained.
Indeed these findings of the two Lower Courts are unassailable, representing the principle of law in respect of alibi, identification and the expected proof required in a criminal trial which is proof beyond reasonable doubt. See Adio v State (1986) 6 SC 119 at 142; Ochemaje v State (2008) 15 NWLR (Pt. 1109) 57; Sadiku v State (2013) 11 NWLR (Pt. 1364) 191 at 217; Patrick Njovens & Ors v State (1973) 5 SC 12 at 47.
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In the end and from the foregoing including the well articulated lead judgment, this appeal lacks merit and I dismiss it as I abide by the consequential orders made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, EJEMBI EKO, JSC. I agree entirely with the reasoning and conclusion that the appeal lacks merit. I wish to add just a few words in support and for emphasis.
The appellant and four others were charged with criminal conspiracy, armed robbery and culpable homicide punishable with death contrary to Sections 97, 298 (c) and 221 (b) of the Penal Code. However, only the 1st, 2nd and 5th accused stood trial as the 3rd and 4th accused jumped bail. The 5th accused was acquitted and discharged. The appellant was the 2nd accused.
Seven witnesses testified for the prosecution 13 exhibits were tendered. The appellant testified in his own defence and called no other witness. At the conclusion of the trial, the appellant and the 1st accused, Jaho Muhammad, were found guilty on each of the three counts. They were sentenced to death in respect of count 3 for culpable homicide punishable with death.
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No sentence was passed on them in respect of the convictions for criminal conspiracy and armed robbery.
It was alleged that on or about 7th July 2009, the appellant and his co-accused waylaid a commercial bus carrying passengers along Sarwa village Gundumi Isah Road in Sokoto State. All the occupants were asked to lie face down by the 1st accused and dispossessed of their money and valuables. PW6 testified that it was the 1st accused who stood in the middle of the road with a gun and asked the driver to park and it was the appellant who collected his two handsets, money, a recording tape and his new sandals.
PW7 testified that he was driving a different car and ran into the robbery operation. He had his brother and two mobile policemen in his car. As they approached the ongoing armed robbery, the 1st accused, upon sighting the policemen shot at the vehicle. His brother and the two policemen lost their lives in the encounter. PW6 identified both accused in an identification parade. PW7 was only able to identify the 1st accused.
The sole issue in contention in this appeal is whether the lower Court was right in affirming the appellant’s conviction and sentence by the trial Court.
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My comments are in respect of the identification of the appellant as one of the armed robbers. To succeed in proving its case beyond reasonable doubt in a charge for armed robbery or culpable homicide punishable with death, one of the essential ingredients of both offences is proof that the accused person was one of those who participated in the armed robbery or series of robberies and in the case of culpable homicide, that it was his act that caused the death of the deceased. For armed robbery, see: Bozin Vs The State (1985) 2 NWLR (Pt. 8) 465; Afolabi Vs The State (2010) 16 NWLR (Pt. 1220) 584; Smart Vs The State (2016) LPELR 40728 (SC) @ 29 D-E. For culpable homicide punishable with death, see: Musa Vs The State (2009) 15 NWLR (Pt. 1165) 467; Aliyu Vs The State (2013) 12 NWLR (Pt.1368) 403; Afolabi Vs The State (2016) LPELR 40300 (SC) at 31-32 E-A.
The correct identification of the perpetrator of a crime is therefore crucial, particularly where the accused person was not arrested at the scene of crime, and the victim did not know him prior to the incident. In order to avoid a situation of mistaken identity, the
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Court will consider certain factors before placing reliance on the identification evidence, such as:
(a) The circumstances in which the eye witness saw the accused;
(b) The length of time the witness saw the accused;
(c) The lighting conditions at the crime scene; and
(d) The opportunity of close observation of the defendant by the witness.
(e) The description of the accused given to the Police soon after the incident.
See: Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455 @ 478 and 479; Ochiba Vs The State (2012) ALL FWLR (Pt. 608) 849 @ 871; Thomas Vs The State (2017) LPELR – 41735 (SC) 24-25 D-A.
PW6 gave a vivid account of all that transpired on the fateful day and the roles played by the appellant and the 1st accused. From his evidence at pages 31-33 of the record, he had direct and prolonged contact with the appellant. He testified thus:
“On 7/7/2009, I was on my way from Isah to Sokoto. We left Isah around between 9 and 1.0 a.m. At a bend near Sarwa Village in Goronyo LGA we ran into a gang of armed robbers. The 1st accused, Jaho was standing in the centre of the road with his gun.
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He asked us to pack (park) off the road. Our driver obeyed and packed (sic). We were seven including the driver. When the driver packed (sic), Jaho asked us to give our money and we gave it to the 2nd accused. The 2nd accused collected my two handsets, he removed my sims and gave them to me. The 2nd accused also collected from me N1,800.00 only. The same 2nd accused collected a recording tape my security gadgets. He tried to remove the cassette but could not so he went away with it.
We were asked to lie down, that we must cooperate. We all lied (sic) down. While I was lying down, the 2nd accused removed my new sandals….”
This evidence shows that PW6 had more than a fleeting encounter with the appellant. It was also clear that he saw the appellant at very close quarters.
In his statement, Exhibit P9, PW6 stated inter alias:
“At this juncture, I would like to say that I can identify the armed robbers wherever I see them. This is simply because I saw them with my naked eyes. I can also identify them with (the) colour of their skins, body structure and the language spoke (sic) to Alhaji Usman Kebbe by their leader. Their leader is slim and light in complexion with long nose. He is Fulani by tribe”
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PW6 identified the appellant in an identification parade. Photographs of the identification were tendered in evidence without objection. No question was put to PW6 under cross-examination challenging the evidence of identification.
The evidence of PW6 positively and unequivocally fixed the appellant at the scene of the crime.
For these and the more comprehensive reasons well set out in the lead judgment, I hold that this appeal lacks merit. It is hereby dismissed. The Judgment of the lower Court delivered on 10/2/2017 affirming the conviction and sentence of the appellant for culpable homicide punishable with death, is affirmed.
AMIRU SANUSI, J.S.C.: Having perused before now, the Judgment just rendered by my noble Lord Ejembi Eko JSC, I find myself in accord with his reasoning that this appeal lacks merit and should be dismissed.
While agreeing with the reason and conclusion in the lead Judgment, I too hereby dismiss this appeal for being lacking in substance and merit. I affirm the decision of the Court below which had earlier affirmed the decision of the trial Court. Appeal dismissed,
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Appearances:
M.O. Folorunsho, Esq. with him, Ajibola Abioye, Esq. and M.A. Abass, Esq. For Appellant(s)
Adedapo Tunde-Olowu, Esq., with him, Tracy Ekpe, Esq., Odinaka Okoye, Esq. and Adah Usman, Esq. For Respondent(s)
Appearances
M.O. Folorunsho, Esq. with him, Ajibola Abioye, Esq. and M.A. Abass, Esq. For Appellant
AND
Adedapo Tunde-Olowu, Esq., with him, Tracy Ekpe, Esq., Odinaka Okoye, Esq. and Adah Usman, Esq. For Respondent
