THE STATE v. USEN OKON EKANEM (2016)

THE STATE V. USEN OKON EKANEM

In The Supreme Court of Nigeria

On Friday, the 16th day of December, 2016

SC.712/2013

RATIO

WHETHER THE SUPREME COURT CAN ONLY HEAR APPEALS EMANATING FROM JUDGMENTS OF THE COURT OF APPEAL AND NOT JUDGMENTS FROM THE TRIAL COURT

The formulation of the issue for determination by the respondent is more appropriate and will suffice since the complaints in the grounds of appeal are directed against the judgment of the Court of Appeal, Calabar and not targeted at the judgment of the trial Tribunal. In any event, this Court can only hear appeals emanating from judgments of the Court of Appeal and not judgments from the trial Tribunal. See: Section 233(1) Constitution of the Federal Republic of Nigeria (as amended) which provides that:- 233(1) The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal. PER KUMAI BAYANG AKA’AHS, J.S.C.

PROVISION OF SECTION 167(A) OF THE EVIDENCE ACT, 2011 WITH RESPECT TO DOCTRINE OF RECENT POSSESSION

The position of the law as provided for in Section 167(a) of the Evidence Act, 2011 is as follows: “The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession”. PER MARY UKAEGO PETER-ODILI, J.S.C.

CIRCUMSTANCE UNDER WHICH THE DEFENCE OF ALIBI WILL AUTOMATICALLY FAIL

From the pieces of evidence above one is reminded that the law is now trite that where there is strong and credible evidence which fix an accused person at the scene of crime, the defence of alibi automatically fails. That is where the Court has found as a fact that the evidence of the prosecution positively, unequivocally and irresistibly point to the guilt of an accused, the defence of alibi becomes useless. See Ebenhi v The State (2009) 6 NWLR (pt. 1138) 431 at 448; Ndukwe v. State (2009) 7 NWLR (pt. 1139) 43 at 82. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHAT PROOF BEYOND REASONABLE DOUBT ENTAILS; BURDEN OF PROOF REQUIRED OF THE PROSECUTION IN A CHARGE OF THE OFFENCE OF ARMED ROBBERY

The PW3 was satisfied with the identification made by the PW1 and PW2 and that coupled with the circumstantial evidence of the stolen gold bangle and other exhibits found on the accused persons which they could not account for affords what is needed in proof beyond reasonable doubt required in a criminal trial such as the present. See Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 13 per Ogwuegbu JSC thus: “Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller v. Minister of Pensions (1947) 2 ALL ER 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”. The case is proved beyond reasonable doubt.” See also the case of Michael v. State (2008) 13 NWLR (Pt. 1104) 361. Having stated the above one needs reminding that for the prosecution to succeed in proof of the offence of armed robbery as in this instance there must be proof beyond reasonable doubt of the following: 1. That there was a robbery or series of robberies; and 2. That the robbery or each robbery was an armed robberies; and 3. That the accused was one of those who took part in the armed robbery. See Attah v. State (2000) 10 NWLR (Pt. 1201) 190; Suberu v. State (2010) 8 NWLR (Pt. 1197) 586. 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

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

Between

THE STATE Appellant(s)

AND

USEN OKON EKANEM Respondent(s)

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Division delivered on 9th July, 2012 discharging and acquitting the respondent for the offence of armed robbery and also recommending that his co-accused, Eteyen Okon Effiong who did not appeal against his conviction and sentence to death, be granted pardon by the Governor of Akwa Ibom State by virtue of his executive powers under Section 212(1)(a) Constitution of the Federal Republic of Nigeria, 1999.The State felt aggrieved and appealed against the said judgment.

The facts leading to the appeal are as follows:-
“The respondent herein together with his co-accused, one Eteyen Okon Effiong, were arraigned before the Robbery and Firearms Special Tribunal of Akwa Ibom State of Nigeria sitting at Ikot Ekpene on a two-count charge of armed robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984 and attempted armed robbery contrary to Section 2(1) of the Robbery and Firearms (Special Provisions) Act 1990. They pleaded not guilty to the

charge.”

The appellant’s case was that on 16/10/94 at No. 150 Inyang Utono Street, Ibiaku Offot, Uyo, the respondent while armed with an offensive weapon namely a locally made pistol robbed one Ekong Okon Nkanga of the following items:
(i) A video machine and video cassettes valued at N60,000.00
(ii) Car radio and Equalizer valued at N5,000.00
(iii) Clothings valued at N10,000 00
(iv) Shoes valued at N1000.00
(v) Cash of N2,500.00

The total value of items stolen including the cash was put at N78,560 00 (Seventy-Eight Thousand, Five Hundred and sixty Naira). It was also the prosecution’s case that on the same night at Use Offot Uyo, the respondent attempted to rob one Professor Emmanuel Akpan and his wife.

The prosecution called three witnesses and tendered 16 exhibits to prove its case while the respondent and his co-accused testified in their own behalf but called no other evidence. The respondent set up the defence of alibi by stating that on the night of 15/10/94 he was in his house together with his wife and the co-accused until the morning of 16/10/94. At the end of the trial, the accused and

co-accused were found guilty of armed robbery and accordingly convicted and sentenced to death but were acquitted and discharged for attempted robbery. He thereafter appealed to the Court of Appeal, Calabar against his conviction for armed robbery. This led to the appeal succeeding and his acquittal and discharge; hence this appeal by the State to the Supreme Court. The appellant submitted three issues for determination namely:-
“1. Whether the respondents plea of alibi is not dislodged or demolished by the evidence available before the Tribunal. (Distilled from Ground 1)
2. Whether the respondent and his co-accused were not properly identified as the robbers who committed the offence for which they were charged (Distilled from Ground 2)
3. Whether having regard to the entire evidence before the Tribunal, the Prosecution has not proved beyond reasonable doubt the guilt of the respondent and his co-accused person for an offence of armed robbery.” (Distilled from Ground 3).

The respondent submitted only one issue for determination viz:-
“Whether the Court below was right to have reversed the judgment of the

trial tribunal which convicted the respondent on the ground that there was insufficient evidence that proved the respondents guilt beyond reasonable doubt. (Grounds 1, 2 and 3).”

The formulation of the issue for determination by the respondent is more appropriate and will suffice since the complaints in the grounds of appeal are directed against the judgment of the Court of Appeal, Calabar and not targeted at the judgment of the trial Tribunal. In any event, this Court can only hear appeals emanating from judgments of the Court of Appeal and not judgments from the trial Tribunal. See: Section 233(1) Constitution of the Federal Republic of Nigeria (as amended) which provides that:-
233(1) The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.

In his brief of argument, learned counsel for the appellant while acknowledging the alibi raised by the respondent in maintaining that he slept with his wife in one room of the house while the co-accused slept in another room on the night of the incident, there was evidence from PW3 (Owor

Ekpeni) who took part in the investigation that he investigated the alibi and from his findings there was no truth in the alibi.

He submitted that contrary to findings made by the lower Court that there was no evidence to dislodge the respondent’s plea of alibi, the prosecution adduced strong and credible evidence to fix the respondent and his co-accused at the scene of the crime. He went further to submit that the respondent was properly identified and all the ingredients of the offence were established.

After reviewing the evidence of the prosecution and defence the lower Court found that the Prosecution failed to call the villagers who arrested the accused; neither did the house girl to PW1 who was raped testify and there was a discrepancy on whether the robbers wore mask or not. It came to the conclusion that since the accused were not arrested in the house of PW1 or PW2 not at Use Offot village, the evidence of PW1 and PW2 was hearsay and consequently the evidence of the accused who pleaded alibi was never disparaged under cross-examination.

Pw1, Ekon Okon Nkanga, the victim of the robbery testified as

follows:-
I remember the 17/10/94. (This was later corrected to 16/10/94. It was about 1.45a.m. I heard water coming out from the tap. Then I called my house maid, opened the door for her to go and lock the tap. As I opened the door, I saw the 2nd accused person and one other man at my door post. The 1st accused person held gun and demanded to see the owner of the house. I told them I was the owner of the house. Then they marched me inside the house and told me someone sent them. When I entered the house I put on halogen lamp and since it was brighter than the torchlight they were holding, I saw the accused persons since they were not masked.

On being cross-examined he stated:-
“When the robbers marched me inside the house, I put on the halogen lamp….. The robbers took away my car equalizer and the car radio. I told the Police that I saw my wife’s bangle with the 2nd accused. I told the Police that I went to Use when an alarm was raised there to identify the accused persons.

PW1 was recalled and the prosecution tendered bangle which he saw the 2nd accused wearing and it was admitted as Exhibit

PW2, Dr.(Mrs.) Affiong Akpan, another victim of the armed robbery carried out by the respondent and 2nd accused also testified to the fact that on 16/10/94 at about 3a.m. they heard a gun shot outside their house and a voice saying, open the door oga. When her husband enquired who the people were and what they wanted at that time of the night one of them retorted that they wanted his head. She then opened the window and screamed for help. Soon after robbers broke open the front door, entered the room and switched off the light. On entering the room after shattering the louvre blades, they entered her husband’s room where they stabbed him on the head, and the shoulder close to the neck. On seeing the injuries being inflicted on her husband, she threw herself at him in an effort to shield him and in the process, she too received a cut on her head. She then screamed and rushed out of her husbands room. The villagers responded to the shouts coming out from her compound. Her village, Use and that of Ibiaku Offot where PW1 hailed shared a common boundary. As a result of the injuries she and her husband received, they were rushed to the

Medical Centre, University of Uyo for treatment.

On their return they learnt that the accused had been caught by the villagers. Later when the Police conducted an identification parade she was able to identify the 1st accused who is the respondent. She had earlier seen him on the night of the robbery through the electric light because he was not masked.

PW3 was the investigator who took over the case. He stated that on 18/10/94, he was on duty at the SIIB office when a case file of armed robbery was transferred from “B” Division, Ewet Housing Police Station. The two accused together with some exhibits were handed over to him. Among the exhibits which were handed over to him was the gold bangle which PW1 had identified as belonging to his wife.

The learned trial Judge in reviewing the evidence called by the prosecution as well as the defence considered the issue of identification vis-a-vis the defence of alibi raised by the defence and stated at pages 64-65 of the records:-
Identification: PW1 said he had no difficulty identifying the accused persons when they were caught by the villagers at Use Offot on the same day of

the incident. PW1 was also able to identify both accused persons at the Police Headquarters when the Police conducted identification parade.
He identified the accused persons out of nine suspects on parade. It is instructive that PW2 also identified the 1st accused person as one of the 3 man gang which attacked her and her husband within a space of one hour after a 3 man gang had operated at the house of PW1 for which PW1 later identified the two accused persons. I believe the Prosecutions witnesses that it was the same three-man gang which attacked and robbed the PW1 while armed with a gun, that also attacked the house of the PW2. One can appreciate the inability of the PW2 to identify the 2nd accused when it is recalled that PW2 was stabbed by the robbers.
On the gold bangle, Exhibit ‘B’ the PW1 said he was able to identify it with the 2nd accused person as the property of one of his wifes property stolen, by the robbers. The 2nd accused person who stated in his statement, Exhibit M made on the 16/10/94, that is on the date the PW1 alleged his wifes bangle was stolen, that he bought the said bangle from an

Hausa man, turned around in his evidence before this Tribunal that he knew nothing about the gold bangle. Since the 2nd accused person cannot satisfactorily state how he came by the gold bangle, I hold that the gold bangle was the one stolen from the PW1’s house.
On the defence of alibi raised by both accused persons, I hold that, where there is a direct and positive evidence of identification or very strong and convincing circumstantial evidence, such as the stolen gold bangle found on the 2nd accused, the onus is clearly in such a circumstance on the accused persons, to call evidence to establish their alibi.

Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See: Ebenechi v. The State

(2009) 6 NWLR (Pt. 1138) 431 at 448; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43.

The learned trial Judge believed the prosecution’s evidence that it was the same three man gang which attacked and robbed the PW1 that also attacked the house of the PW2. He went on to hold that there was a very strong circumstantial evidence such as the stolen gold bangle found on the 2nd accused which required the accused persons to call evidence to establish their alibi and if they failed to do so, then the positive evidence of identification or strong convincing circumstantial evidence will be sufficient unequivocal evidence pointing unmistakably to the fact that the accused persons were the perpetrators of the crime.

The lower Court in its own evaluation held that the evidence of PW1 and PW2 regarding the arrest of the accused persons was hearsay since they were not arrested in either PW1 or PW2s house nor at Use Offot village and the evidence of the accused who pleaded alibi was never disparaged under cross-examination. The lower Court also found that the procedure adopted during the identification parade was less than satisfactory; so also

the evidence used by the lower Court in coming to the conclusion that the gold bangle found with the 2nd accused actually belonged to Pw1’s wife.

Although the respondent and the co-accused were said to have been arrested in the vicinity where the crime was committed; nevertheless PW3 who conducted the investigation stated that the witnesses who arrested the accused refused to make any statements on the arrest.

PW1 testified that the robbers were not masked and at the time they entered his house, he switched on the halogen lamp in the house and this made him to identify the respondent and later further identified him when a formal identification parade was conducted at the Police Station. He also saw the 2nd accused with his wife’s gold bangle. PW2 also identified the respondent during the parade. The respondent in Exhibit P stated that Dr. Affiong Akpan and another person identified him because he is living in Use Offot village and sells meat at a bar and the two people who identified him always bought meat from him and PW2 hated him on account of his prosperity.

The learned trial Judge who watched the demeanor of the witnesses

including the accused was in a vantage position to say whose evidence was credible and therefore more reliable.There was therefore no perverse finding to warrant a reversal by the lower Court. The positive identification of the respondent by PW1 and PW2 automatically led to the demolition of the defence of alibi. The lower Court’s conclusion that the defence of alibi set up by the accused was not disparaged under cross-examination does not represent the position of the law. This no doubt greatly affected the lower Court’s conclusion in allowing the appeal.

In view of the conclusion I have reached that the respondent was positively identified as one of the robbers, the ingredients of the offence of robbery involving the respondent were established beyond reasonable doubt. The gang of robbers were said to be armed with a gun, a matchet and a sword. Even though the robbers did not inflict any physical injuries on PW1, they nevertheless instilled fear into him before they ransacked the house and made away with some items including cash. In the same way, the fact that nothing was taken from PW2s residence, the injuries inflicted on PW2 and

her husband clearly qualified the operation as a robbery operation.

The appeal is meritorious and it is hereby allowed. The judgment of the lower Court which acquitted the respondent of the charge and discharged him of the offence of armed robbery is hereby set aside.

The conviction and sentence of the respondent to death is hereby restored.

IBRAHIM TANKO MUHAMMAD, J.S.C.: My learned brother, Akaahs, JSC, permitted me to read the Judgment just delivered. I am in agreement with my learned brother that the appeal is meritorious and ought to be allowed. I too allow the appeal. I abide by consequential orders made in the lead judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Bayang Aka’ahs JSC and in support of the reasoning, I shall make some comments.

This is an appeal against the judgment of the Court of Appeal, Calabar Division delivered on the 9th day of July, 2012 discharging and acquitting the respondent for the offence of armed robbery and also recommending that his co-accused Eteyen

Okon Effiong who did not appeal against his conviction and sentence to death, be granted free pardon by the Governor of Akwa Ibom State pursuant to his powers under Section 212 (1)(a) of the Constitution of the Federal Republic of Nigeria 1999.

The appellant being dissatisfied with the said judgment appealed to this Court.

The background of the facts are well detailed in the lead Judgment and I shall not repeat them here, save for any reference thereto that may be necessary.

Mr. Essien Udom, learned counsel for the appellant adopted the appellant’s Brief of Argument filed on the 19/2/2014 and he distilled three issues for determination which are as follows:
”1. Whether the respondents plea of alibi is not dislodged or demolished by the evidence available before the Tribunal. (Distilled from Ground 1).
2. Whether the respondent and his co-accused were not properly identified as the robbers who committed the offence for which they were charged. (Distilled from Ground 2)
3. Whether having regard to the entire evidence before the Tribunal, the prosecution has not proved beyond reasonable doubt the guilt of the

respondent and his co-accused person for an offence of armed robbery. (Distilled from Ground 3).”

Learned counsel for the respondent, Mr. Lawrence Fubara Anga adopted the respondents Brief of Argument, filed on the 8/5/15 and deemed filed on the 9/12/15. He formulated a single issue which is thus:
”Whether the Court below was right to have reversed the judgment of the trial Tribunal which convicted the respondent, on the ground that there was insufficient evidence that proved the respondent’s guilt beyond reasonable doubt. (Grounds 1, 2 and 3).”

The sole issue as crafted by the respondent seems to me best suited to answer the questions arising for determination of this appeal as the issue as identified encapsulates every nagging question.

SINGLE ISSUE
Whether the Court below was right to have reversed the judgment of the trial Tribunal which convicted the respondent, on the ground that there was insufficient evidence that proved the respondents guilt beyond reasonable doubt.

Learned counsel for the appellant submitted that from the evidence available, the PW1’s evidence regarding the arrest of the

accused persons is direct and not hearsay, which arrest took place soon after the robbery incident. The stolen gold bangle found in possession of the 2nd accused who could not account for how it came into his possession thus bringing into operation Section 167(a) of the Evidence Act.

That the direct and positive evidence of identification of the respondent and his co-accused upon their arrest and also the very strong and convincing circumstantial evidence of the stolen gold bangle fixed the respondent and his co-accused at the scene of the crime and thereby demolished their plea of alibi. That the law is well settled that where there is strong and credible evidence which fix a person at the scene of crime, his defence of alibi must fail as is the case in hand. He cited Ebenehi v. The State (2009) 6 NWLR (Pt. 1138) 231 at 448; Ndukwe v. State (2009) 7 NWLR (Pt. 1139) 43 at 82 etc.

Mr. Essien Udom for the appellant said from the totality of the entire evidence adduced by the prosecution before the Tribunal, the prosecution had proved beyond reasonable doubt the guilt of the respondent and his co-accused. He relied on Akalezi v. The State (1993) 2

NWLR (pt. 273) 1 at 13; Michael v. State (2008) 13 NWLR (Pt. 1104) 361.

For the respondent Mr. L. F. Anga of counsel stated that the defence of alibi of the respondent was never investigated by the police who were duty bound to do so. He cited Shehu v. State (2010) 8 NWLR 121 at 134, Onuchukwu v. State (1998) 4 NWLR (pt. 547) 576; Hausa v. State (1994) 6 NWLR (Pt. 350) 281.

That Mfon Johnson, the housemaid of PW3 who witnessed the robbery incident ought to have been called and the failure to do so brought in the presumption of withholding evidence into operation. He cited Section 149(d) of the Evidence Act, 2011.

That the identification parade was tainted and marred by irregularities and so the Tribunal ought not to have utilized the evidence therefrom. He cited Ikemson v. State (1989) 3 NWLR (Pt. 110) 455.

For the respondent, it was contended that the circumstantial evidence in this case has left ample room for doubt as to the guilt of the respondent and could not be relied upon to convict the respondent. Learned counsel cited the cases of Adesina & Anor v. State (2012) 6 SC (Pt. 111) 733; Ismail v. The State (2008) 15

NWLR (Pt. 1111) 5932.

In short the appellant’s position is that there was direct and positive evidence of identification and also a very strong and convincing circumstantial evidence which fixed the respondent and his co-accused at the scene of the crime and thereby demolished the plea of alibi.

The stance of the respondent is that the defence of alibi availed the respondent as it was backed by sufficient materials and that the appellant failed to prove its case beyond reasonable doubt against respondent and so the Court below was right to overturn the conviction of the respondent.

In respect of the alibi of the respondent, the Investigating Police Officer who testified as PW3 stated that he investigated the alibi raised by the appellant which was that he slept in the house of his co-accused and his wife. This story PW3 stated was not plausible considering that 2nd accused or co-accused took PW3 and others to three places he claimed to be residing at, which every residence the occupants denied him at the end of which he admitted not having a permanent place of abode.

Also to be noted is the evidence of PW1 which shows that the

respondent and co-accused person were arrested soon after the robbery incident and PW1 recognised the gold bangle, Exhibit B as belonging to the wife of PW1 and the 2nd accused could not explain satisfactorily how he came about it as he gave different versions of being in possession of the gold bangle which brought into operation Section 167(a) of the Evidence Act. The evaluation of the evidence of the trial Court would be stated hereunder thus pages 64 – 65 of the Record:
“On the gold bangle, Exhibit “B”, The PW1 said he was able to identify it with the 2nd accused person as the property or one of his wifes properties stolen by the robbers. The 2nd accused person who stated in his statement, Exhibit “M” made on the 16/10/94, that is, on the date the PW1 alleged his wife’s bangle was stolen, that he bought the said bangle from an Hausa man turned around in his evidence before this Tribunal that he knew nothing about the gold bangle. Since the 2nd accused person cannot satisfactorily state how he came by the gold bangle, I hold that the gold bangle was the one stolen from the PW’1 house. Section 149(a) of the Evidence Act provides that in such a

situation, the 2nd accused is either the thief or has received the item knowing it to be stolen. Since the 2nd accused person was identified as one of the robbers who robbed him on 16/10/04, I hold that he was in the 3-man gang that robbed the PW1 that night”.
The position of the law as provided for in Section 167(a) of the Evidence Act, 2011 is as follows:
“The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession”.

The explanation as to how an accused acquired a stolen good so soon after the theft cannot stand in this case where the 2nd accused firstly stated getting the stolen good bangle from an Hausa man he bought it from and later to say he knew nothing about it falls off the mark of an explanation that could be utilized.

On the matter of whether or not proper identification of the robbers was made, a reference to the evidence of PW1, Ekon Okon Nkanga at pages 19 – 20 would be of assistance and it is thus;
“I remember the 17/10/94. It was 1.45a.m, I heard water coming

out from the tap. Then I called my housemaid, opened the door for her to go and lock the tap. As I opened the door, I saw the two accused persons and one other man at my post. The 1st accused person held gun and demanded to see the owner of the house. I told them that I was the owner of the house. Then they marched me inside the house and told me someone sent them. When I entered the house I put on halogen lamp and since it was brighter than the torchlight they were holding, I saw the accused persons since they were not masked…When the robbers left I raised an alarm and the villagers came out. They started searching for the robbers that night, while searching for them we heard another alarm from the neighboring village, Use Offot in Uyo. The robbers were caught at Use. The villagers sent for me. When I went, I was asked to identify the robbers, I was able to identify the accused persons as those who robbed me because they were not masked. I saw my wifes gold bangle in the hand of the 2nd accused person. Thereafter, the villagers sent for the police. The police came and took them to the station at Ewet Housing Estate, Uyo. At the station, I made a

formal report of the robbery at my house” See pages 19 – 20 of the Record of Appeal.

The evidence of PW2 would be quoted hereunder as follows:
“By the time we returned the accused persons were caught by the villagers…The police later visited our house and invited us to the Police Headquarters, Ikot Akpan Abia. An identification parade was conducted and I was able to identify the 1st accused person. I was able to identify the 1st accused person from the many suspects on parade because on the night of the incident, I saw him through the electric light that was on. They were not masked” See pages 27 – 28 of the Record of Appeal.

During cross examination, PW2 stated that;
“I don’t know the 1st accused person. I could only recognize him as one of those who came to my house that night. I did not know PW1 before the date of the incident. I don’t know the 1st accused person as a meat seller. I have never bought meat from the 1st accused person…I never knew that the 1st accused person and PW1 were living in the same village. I know the name of the 1st accused person on the day of identification. After identifying the 1st accused

person, his name was written down. That was how I got to know his name. It was at the point of entering and pointing a gun at me that I was able to see them that night”. See pages 28 and 29 of the Record of Appeal.

The stance of the Court of Appeal or Court below will be stated hereunder for a clear picture of the difficulty one is going through to strike a balance on what the facts available to the trial High Court were, the evaluation thereof, and the findings and conclusions reached by it. Then coming along being the findings of the Court below with the disadvantage of not seeing and hearing the witnesses and assessing their

demeanour and credibility. At pages 138 to 147 of the Record, the Court below per Tine Tur JCA stated thus:
ASP Christian Udensi who conducted the identification parade where PW1 and PW2 identified the accused was not called to testify as to how the identification parade was conducted. Throughout the evidence of PW1 and PW2 they did not show by what evidence they were able to identify the accused persons as those that robbed them that night, example through tribal marks, the shirt or clothes they wore that night etc. Corporal Alexander Elekwa who was the first to investigate the alleged crime did not testify though PW3 told the Tribunal he was on transfer to Imo State. PW1 did not show how he was able to identify the gold bangle as belonging to his wife. The wife was not called to testify that truly the gold bangle (Exhibit B) belonging to her. PW3 admitted that apart from the gold bangle, nobody identified the exhibits as belonging to them. Indeed, PW1 admitted that he never wrote in his statement to the police (Exhibit A) that he was able to recognize the gold bangle as belonging to his wife, nor that the robbers were not masked. PW’s evidence

in Court was bundle of contradiction with his extrajudicial statement (Exhibit A)
There is no evidence that PW1 went to Use Offot that night to identity the accused persons. Neither did PW2 do so. How was the identification parade conducted to enable PW1 and PW2 identify the accused persons How were they able to identify them. There was no evidence
PW’s evidence is that the armed robbery occurred in his house on 16th October 1994 at about 2 a.m. (Exhibit A). In his oral testimony it was about 1.45a.m. PW2 testified that the robbery occurred in her house on 16th October 1994 at about 3 a.m. Definitely, this was in the night. Whether the armed robbers were not masked according to PW1 and PW2 is contracted by what Mfon Johnson told PW3 namely, that they were masked. PW1 and PW2 admitted that Prior to this incident they had not known the accused persons. All these called for a proper identification parade to determine whether the two accused persons actually robbed PW1 and PW2 on the night of 16th October 1994….
In my view the conviction of the accused persons based on a sham identification parade meant that the

prosecution did not prove beyond reasonable doubt the guilt of the appellant.”

I agree with the submission of learned counsel for the respondent that identification means a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offences charged. In this case PW1 and PW2 were united in their testimony that they both saw the accused persons who were not masked and so were able to identify them.

reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”. The case is proved beyond reasonable doubt.” See also the case of Michael v. State (2008) 13 NWLR (Pt. 1104) 361.

Having stated the above one needs reminding that for the prosecution to succeed in proof of the offence of armed robbery as in this instance there must be proof beyond reasonable doubt of the following:
1. That there was a robbery or series of robberies; and
2. That the robbery or each robbery was an armed robberies; and
3. That the accused was one of those who took part in the armed robbery. See Attah v. State (2000) 10 NWLR (Pt. 1201) 190; Suberu v. State (2010) 8 NWLR (Pt. 1197) 586.

Clearly it was a veering off the route that brought about the Court below reversing what the trial Court did which Court of first instance properly evaluated and made the correct findings and conclusions. I see no reason why I should not allow this appeal.

I allow the

appeal for the reasons earlier stated and the fuller and better reasoning in the lead judgment. I abide by 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, KUMAI BAYANG AKAAHS, JSC just delivered. I agree entirely with the reasoning and conclusion that this appeal is meritorious and should be allowed.

My learned brother has admirably considered and ably resolved the issues in contention in this appeal. In support of the lead judgment I make a few brief comments.

It was contended on behalf of the respondent that the lower Court was right when it held that the appellant’s defence of alibi was not investigated by the Police. In his testimony before the trial Court, PW3, the Investigating Police Officer (I.P.O.) who took over the investigation, stated that the respondent, his co-accused and the wife of the respondent all told him that they slept in the same house on the night of the armed robbery. In my view this piece of evidence suggests that all three of them were interrogated. Having stated that they

all slept together in the same house, I am unable to see what further investigation could have been carried out to verify their assertions. Indeed his co-accused took the police on a wild goose chase and was unable to show that he had any permanent place of residence. In the circumstances the I.P.O. was entitled to reach a conclusion based on all the evidence at his disposal as to whether he was convinced of the truth of the alibi put up by the respondent.

In the instant case, the respondent was positively identified by PW1 out of a line-up of nine persons. PW1 stated that he was able to identify him because at the time of the incident he switched on a halogen lamp and could see the respondent, who pointed a gun at him, clearly, as he was not masked. PW2 also identified him from a lineup of several other persons. They both fixed him at the scene of the robberies which, though they took place in separate villages, were a short distance from one another, as they shared a common boundary. Moreover, PW1 identified his wife’s gold bangle (Exhibit B) which he saw the 2nd accused person wearing when he was arrested shortly after the commission of the

crime.

The law is settled that once an accused person is fixed at the scene of a crime by credible evidence, his defence of alibi crumbles. See: Ebenehi v. The State (2009) 6 NWLR (pt. 1138) 431 @ 448A: Ndukwe V. The State (2009) 7 NWLR (Pt.1139) 43 @ 82 E F; 92 – 93 H – A.

I agree with my learned brother, AKAAHS, JSC that the learned trial Judge who had the singular opportunity of seeing, hearing and observing the demeanour of all the witnesses properly utilised the opportunity in determining their credibility. I agree that the findings have not been shown to be perverse and ought not to have been interfered with by the lower Court.

For these and the more detailed reasons advanced in the lead judgment, I hold that this appeal has merit and I hereby allow it. The judgment of the lower Court acquitting and discharging the respondent of the offence of armed robbery is hereby set aside.

The conviction and sentence of death imposed on him by the trial Court is hereby restored.

JOHN INYANG OKORO, J.S.C.: I read in draft the lead judgment of my learned brother Kumai Bayang Akaahs, JSC, just

delivered.

I am in agreement with the reasons advanced and the conclusion reached therein that this appeal has merit and deserves to be allowed. I adopt the said lead judgment as mine. I also allow the appeal. I abide by the consequential order made therein.

Appearances

Essien E. Udom with him, Charles Donglong For Appellant

AND

Lawrence Fubara Anga with him, Raymond Ofagbor For Respondent