USMAN SHEU v. THE STATE
(2016)LCN/8379(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/IL/C.105/2014
EVIDENCE: BURDEN OF PROOF AND STANDARD OF PROOF; THE IMPLICATION OF THE FAILURE OF THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT
On failure of the Appellant to cross-examine PW3 and PW4, another ground upon which the trial Court convicted the Appellant; I am of the view that this is also wrong, having regard to the duty of the prosecution to prove his case beyond reasonable doubt at all times. Where he fails to meet the stand of proof required by the law there is no duty on the Appellant to disprove the evidence of the prosecution. The onus on the prosecution is one that never shifts and until it is so discharged there is no obligation on the Appellant to rebut the prosecution’s evidence. See ARUNA v. THE STATE (1990) 6 NWLR (Pt.155) 125 AT 137. It is also not for the Appellant to prove his innocence. Where as in this case the Court shifts the onus of proving innocence to the Appellant, there is miscarriage of justice and this Court therefore is bound to set aside the Judgment. See ADIGUN v. A.G. FOR OYO STATE (1987) 1 NWLR (Pt. 53) 678.
PER. MOHAMMED LADAN TSAMIYA, J.C.A.
EVIDENCE: BURDEN OF PROOF AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF WHEN THE DEFENCE OF ALIBI HAS BEEN RAISED
The law is now settled in this connection. Once an alibi has been raised the burden is on the prosecution to investigate and rebut such evidence in order to prove it beyond reasonable doubt. See BOZIN v. THE STATE (1985) ANLR 199. The defence of alibi is a radical one and simply means that, the accused was somewhere else at the material time an offence was committed and could not possibly be at the scene of the crime to partake in it. Thus once an accused person has pleaded alibi and stated where he was at the time of commission of a crime and the person he was in company of, the burden of disproving same is on the prosecution. For his plea to be destroyed, the prosecution must adduce sufficient evidence to fix the Appellant at the scene of the crime. PER. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
USMAN SHEU Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment): The Appellant, who was the 2nd accused at the High Court (the trial Court) Kwara State, was arraigned on two (2) counts charge which alleged that the Appellant on or about 10th December 2007 together with one Hassan and another person both now late and two other persons at large attacked a 14-Passenger Bus along Jebba/Bode Sa’adu Road within the jurisdiction of the trial Court and at gun point robbed one Bode Samson and other passengers in the Bus of their properties, and did conspire to rob one Bode Samson and other passengers in the Bus of their belongings, contrary to Section 1(2) of the Armed Robbery and Fire Arms (Special Provision) Act No. 5, Cap. 398 Laws of Federation of Nigeria 1990 and 97 of the Penal Code. He pleaded not guilty to the charges and six (6) witnesses (tagged 1 – 6) testified for the prosecution. The Appellant gave evidence in his own defence and called no witness. Learned Counsel for both the prosecution and the defence addressed the trial Court and in a reserved Judgment, the learned trial Judge found the Appellant guilty as charged and sentenced him to
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death.
The Appellant appeals to this Court upon four (4) Grounds of Appeal. In his brief of argument filed pursuant to the Rules of this Court, he set out the following Issue as calling for determination in this Appeal to wit:-
Whether from the materials before this Court, the prosecution proved the identity of the Appellant as one of those who participated in the robbery attack of 10/12/2007 beyond reasonable doubt as to justify the conviction of the Appellant for the offence of conspiracy and armed robbery contrary to Section 97 of the Penal Code and Section 1(2) of the Armed Robbery and Fire Arms (Special Provision) Act No. 5, Cap. 398 of L.F.N. 1990 respectively.
For its part, the Respondent adopted the only Issue formulated by the Appellant.
Briefly, the facts of the case as found by the trial Court are as follows:-
On 10/12/2007, the 2nd accused was among a gang of Armed Robbers who robbed a 14-Seater Passenger Bus along Jebba/Bode Sa’adu Road. That on the aforesaid date, one Bode Samson was robbed, with other passengers in the Bus, of a SAGEM MY X telephone handset after the bus was stopped at Aderan
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Junction. The 2nd accused person with others ordered the passengers to disembark from the bus and further directed that all of them should lie down flat on the ground while the robbery operation lasted.
?The robbery happened between 5.00p.m. and 5.30p.m. About a month thereafter and specifically on 07/01/2008, the 1st accused took the handset to one Oloye Ajayi (PW5) to assist him to buy SIM card and also recharge the handset, he discovered that the handset has its SIM card. PW5 removed the SIM and puts it in his own handset and dialed some numbers. One of the numbers dialed informed PW5 that he knows the owner of the said handset and that the owner was robbed between Jebba/Bode Sa’adu by Armed Robbers who collected handset and money. While the PW5 told the 1st accused to sit down, he sent one Suraju to call the Police. The Police came and arrested the 1st accused in PW5’s Shop. The 1st accused informed the Police that he purchased the handset from one Hassan. The Police consequently got the owner of the handset (PW3) and the driver of the passengers bus (PW4) to attend the Jebba/Police Station.
?Before PW3 and PW4 got to the Police Station, the
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Police Officers who were directed, to arrest the said Hassan had led the 1st accused in search of Hassan and other accused persons. Immediately Hassan saw the Police, he opened fire and attempted to run away. He was shot together with one other accused and both died instantly. The 2nd accused was arrested and taken to the Police Station with the corpses of the two (2) accused persons.
Following the arrest of Appellant, he denied knowledge of the offence with which he was arrested. He pleaded alibi. In his statement to the Police, and in his testimony at the trial, he said he lives in Lagos at a place called Alabarago. He is a motorcyclist in Lagos and he only came to Kosa Village where he was arrested on a visit to his father some five (5) days before his arrest. He claimed that he was not arrested in the company of the other accused but at a restaurant.
I have already indicated the prosecution called six (6) witnesses. The vital witnesses were however, PW3 and PW4. PW3 is the owner of the handset while PW4 is the driver of the passenger bus.
I think the most important Issue for determination is of identification parade raised by the
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Appellant. The learned counsel for the Appellant has submitted that an identification parade is necessary in the instant case as there is no evidence to show that PW3 and PW4 or any prosecution witness in this case knew the Appellant before the incident. The submission of learned counsel for the Respondent is that the peculiarity of this case does not warrant any identification parade, because the peculiarity and circumstances of this offence links the Appellant beyond reasonable doubt and makes identification parade dispensable. That the testimonies of PW3 and PW4 sufficiently link the Appellant with the commission of the offence and he refers to their testimonies contained on Pages 36-39 of the records with regards to the specific role played by the Appellant. It was further submitted that the identification of Appellant by PW3 and PW4 done in the presence of the two (2) accused persons jointly standing trial is a clear testimony to the correctness of the identification of the Appellant.
Identification parade is only necessary in the following circumstance:-
1. Where the victim (witness) did not know the accused before and the first
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acquaintance with him is during the commission of the offence.
2. Where the victim (witness) was confronted by the defendant for a very short time; and
3. Where the victim (witness) due to time and circumstance might not have had the opportunity of observing the features of the accused. See IKEMSON v. THE STATE (1989) 3 NWLR (Pt. 110) 455 where the Supreme Court adopted the principle enunciated in the English case of R v. TURNBULL (1976) 3 ALL E.R. 549.
I am in agreement with the Counsel for the Appellant that identification parade is necessary in this considering the following facts that not in dispute.
1. That PW3 and PW4 who are the victims of the crime did not know the Appellant before the robbery attack.
2. That the Appellant was not arrested at the scene of crime but was arrested twenty-seven (27) days from the date of the robbery incident.
3. While the robbery operation was going on, the victims including PW3 and PW4 were asked to lay down flat on the ground.
4. PW3 and PW4 were invited to Jebba Police on 07/11/2008.
5. While PW3 and PW4 were in the Police State they were told that the 1st accused had taken
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the Police to where the Armed Robbers were.
6. On the return of the Police Officers who went for the robbers, PW3 and PW4 saw the Police with the 1st accused and the Appellant with two (2) dead bodies.
7. PW3 and PW4 saw the Appellant at the police Station at about 8.00p.m. and 9.00p.m before they left the Station.
8. The Appellant timeously claimed that he lives in a named place in Lagos in his statement made to the Police (Exhibit B) and that he came to where he was arrested only five (5) days before his arrest.
9. The robbery took place between 5.00p.m. and 5.30p.m.
Having regards to the above undisputed facts, the only way to link the Appellant to the crime is by conducting of a proper identification parade in which the Appellant will be placed with the other persons in a row/parade and PW3 and PW4 will be invited to fish out the person they saw at the scene of the robbery attack to guard against a case of mistaken identity. In BASHAYA v. THE STATE (1998) 5 NWLR (Pt. 550) 351 per Wali, J.S.C. (as he then was) quoted with approval of the statement of the law postulated by Lord Widgerry C.J. in R. v. TURNBULL (1976) 3 ALL E.R. 549
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as follows: –
“Firstly, whenever the case against an accused wholly or substantially on the correctness of one or more identification of the accused which the defence alleges to be mistaken – the Judge should direct the jury to examine closely the circumstance by which the identification by each witness came to be made. How long did the witness have the accused under observation? How long did the witness have the accused under observation? At what distance, in what light? Was the observation impeded in anyway as for example, by passing traffic or a press of people? How often? If only occasionally had he any special reason for remembering the accused? How much time elapsed between the original observation and the subsequent identification to the Police?”
In the instant case, no evidence to show that identification parade was conducted to determine the identity of the Appellant as one of those who took part in the robbery. The failure to conduct an identification parade in the circumstances of this case, in my view, is fatal to the prosecution’s case.
What was the action of the trial Court?
?The learned trial Judge in convicting the
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Appellant as one of those who took part in the commission of the robbery relied heavily on the evidence of PW3 and PW4. That, while PW3, PW4 and other victims of the crime stated in their evidence that they were asked to lay down on the ground, they saw the Appellant at the scene of the crime among the robbers and observed the Appellant as the person who was left behind to guard them while other passengers were being robbed. At Page 68-69 of the Record, the learned trial Judge observed as follows:-
“I have calmly perused the evidence in this case. PW3 and PW4 are the victims of the armed robbery that took place on 10/12/2007. PW3 said in his examination in chief that:
On 10/12/2007 I had an accident with my vehicle on my way to Jos from Ilorin…. We could not proceed with the journey and therefore decided to turn back to Ilorin. On our way back to Ilorin between Jebba and Aderan Junction six people came out from the bush with guns. They stopped us and asked us to come out of our vehicle. They collected our handset and money, about N800.00. They asked us to lie down flat on the ground…. I know one of the accused persons standing trial. I
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know the second accused person. On the day of the incident the second accused was among the armed robbers. He was the one who stood beside us when we lied down.”
The evidence of PW3 was corroborated by PW4 whose testimony says:-
“On 10/12/2007 we were coming from Mokwa to Ilorin in our vehicle which was earlier involved in an accident. When we reached Aderan Junction at Jebba around 16:45 hours, I saw the 2nd accused with some other persons numbering fifteen. They were holding guns and cutlasses…; I was the one driving the vehicle. They stopped the vehicle. They collected our money and handsets they asked us to lie down facing the ground. The 2nd accused was holding a gun and cutlass. He was left behind to guard us when we lied down and the other armed robbers left us to rob other vehicles.’ The evidence of PW3 and PW4 together with exhibit f strongly point to the fact that PW3, PW4 and other remaining passengers in the vehicle were attacked by robbers who were armed with guns and cutlasses between Jebba and Bode Sa’adu on 10/12/2007. The two witnesses said they saw the 2nd accused at the scene of the crime among the people that robbed them.
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They were not cross examined on the material evidence that fixed the 2nd accused person at the scene of crime. Also in his evidence the 2nd accused did not address the damaging testimonies of PW3 and PW4.
The testimonies of PW3 and PW4 are deemed admitted in laws and can be used against the 2nd accused who is required by law, if he does not accept the testimonies to cross-examine the two witnesses on the facts or at least show that he does not accept the evidence as true.”
With respect to the learned trial Judge, the reasoning of the trial Court is deeply flawed. In the first place, none of these witnesses say they know the Appellant before the robbery but they saw him at the scene of crime. None of them also gave evidence of how or what features of the Appellant they remember or identified. Secondly, the evidence of PW3 and PW 4 that observed the Appellant as the person who was left behind to guard them while the operation lasted will not be sufficient or credible to fix the Appellant at the scene of the attack for the following reasons:-
?1. The evidence of PW4 indicated that they were asked to lie down facing the ground while the
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operation was going on. Therefore, the witnesses were not in a conceivable position to observe the Appellant while facing ground.
2. The evidence of PW3 did not say whether they were facing ground while lying down or they were facing the sky. This missing link in the evidence of PW3 creates a doubt in the prosecution’s case which is not the business of the trial Court or this Court to fill. In such circumstance, the doubt must be resolved in favour of the Appellant as it is the law that the onus always, in criminal offence, is for the prosecution to prove beyond reasonable doubt the guilt of the accused, and failure to do so, will automatically lead to the discharge of the accused person. See ONUBOGU v. THE STATE (1974) 9 S.C. 1.
3. The trial Court did not make any specific finding whether it was relying on the evidence of PW3 or PW4 with regard to the posture or position of the victims during the operation which made it possible for the witnesses to identify the Appellant.
It appears that the trial Court relied more on the evidence of PW3 without resolving the apparent contradictions in the evidence of these two (2) witnesses (as regards
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their posture) before holding that the Appellant participated in the robbery attack of 10/12/2007. In the absence of such specific finding on the evidence of these two witnesses, the only reasonable finding that can be made is that favourable to the Appellant i.e. that the victims were asked to lie down flat facing the ground and therefore, would not have the opportunity to observe the Appellant as one of the robbers. The scenario here is substantially same and similar to the one in OKEKE v. THE STATE (1995) 4 NWLR (Pt. 392) AT P. 676. The case was a case of armed robbery in which the issue bothered on the identification of the accused person. The two victims were the driver and the owner of the car. While the owner maintained that he was sitting in the vehicle while the robbers were beating the driver to snatch the car, the evidence of the driver was that the owner had run into the bush while he was struggling with the robbers. The learned trial Judge convicted the accused only on the evidence of the car owner without giving reason for relying on one of the version of the evidence. In setting aside the trial Court’s decision, this Court per Katsina Alu, J.C.A.
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(as he then was) held:
“With due respect, I am unable to accept the views of the learned trial Judge. I find it particularly clear that there was material contradiction in the evidence of PW2 and PW3. If PW2 ran into the bush as soon as the robbers struck, what opportunity did she have to observe the accused persons? ‘She however maintained first that she did not leave the car throughout the duration of the encounter. But was that the situation? Unfortunately however the learned trial judge did not make any finding on this crucial fact. And it is not the business of this court to choose between the two conflicting versions of what happened on the fateful day. In the absence of any specific finding by the learned trial judge on this essential fact, the only conclusion open to the Court of Appeal to draw from the conflicting versions of the evidence of PW2 and PW3 is that favourable to the appellant, that is to say that PW2 ran into the bush?
The effect of this is that PW2 ran into the bush and did not see and observe the appellant. She at best had a fleeting glance at the robbers. This therefore rendered the identification evidence poor and
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unreliable.”
Likewise in this case, the only conclusion that one expected to be drawn is that, PW3 and PW4 were lying down facing the ground during the operation and therefore would not have the opportunity to observe the Appellant to be able to say he participated in the robbery.
The sum total of what the prosecution did in this is no more than, it effected the arrest of the Appellant in company of people suspected to have perpetrated the offence some twenty-seven (27) days ago after the offence was committed and delivered them to the waiting hands of PW3 and PW4 who were already aware and informed that the Police have gone to arrest some people suspected to have committed the offence. It is doubtful whether, in the circumstances in which the Appellant and the dead bodies were brought to the Police Station if PW3 and PW4 could have said that they did not know the Appellant who the Police said was arrested in the company of the dead suspect. This kind of situation was condemned by this Court in ADISA v. THE STATE (1991) 1 NWLR (Pt. 168) p. 490. It is the case where the learned trial Judge had convicted the Appellant upon his finding
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that:-
“as I have pointed out earlier the 2nd PW immediately he saw the three men arrested by the 1st PW and brought to Elere Police Station, Agege, identified the accused and another man as two of the robbers. He did not identify the third. It is my considered view that there was no opportunity for any concoction in this instant case.”
In reversing the above finding of the trial Court, per Niki-Tobi, J.C.A. (as he then was) at P. 507 said:-
“There is yet another aspect and this is this. The law will certainly frown upon a situation where a suspect is paraded before or strolls into the hands of the already suspecting mind and brains of the identifying witness who makes quick use of the opportunity and grab the victim, saying. “This is the Person who robbed me…. That is not right. That should not be the situation.”
On failure of the Appellant to cross-examine PW3 and PW4, another ground upon which the trial Court convicted the Appellant; I am of the view that this is also wrong, having regard to the duty of the prosecution to prove his case beyond reasonable doubt at all times. Where he fails to meet the stand of proof required by
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the law there is no duty on the Appellant to disprove the evidence of the prosecution. The onus on the prosecution is one that never shifts and until it is so discharged there is no obligation on the Appellant to rebut the prosecution’s evidence. See ARUNA v. THE STATE (1990) 6 NWLR (Pt.155) 125 AT 137. It is also not for the Appellant to prove his innocence. Where as in this case the Court shifts the onus of proving innocence to the Appellant, there is miscarriage of justice and this Court therefore is bound to set aside the Judgment. See ADIGUN v. A.G. FOR OYO STATE (1987) 1 NWLR (Pt. 53) 678.
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It is also important to note that the Appellant raised the defence of alibi at the earliest opportunity in his statement to the Police. The law is now settled in this connection. Once an alibi has been raised the burden is on the prosecution to investigate and rebut such evidence in order to prove it beyond reasonable doubt. See BOZIN v. THE STATE (1985) ANLR 199.
The defence of alibi is a radical one and simply means that, the accused was somewhere else at the material time an offence was committed and could not possibly be at the scene of the crime
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to partake in it. Thus once an accused person has pleaded alibi and stated where he was at the time of commission of a crime and the person he was in company of, the burden of disproving same is on the prosecution. For his plea to be destroyed, the prosecution must adduce sufficient evidence to fix the Appellant at the scene of the crime.
The Appellant’s plea of alibi was given in his statement to the Police. Not only that, the Appellant in his evidence maintained the same position. At Page 44 of the Record said:-
“I was living in Lagos. I came from Lagos five days before my arrest… I cannot remember where was on 10/12/2007.” This is a plea of alibi in law.
The undoubted effect of this piece of evidence is that the Appellant could not have participated in the robbery that took place along Jebba Road when he was at all material times in Lagos. In ALABI v. THE STATE (supra) AT P. 527, it was held that:-
“Such that where as in this instant case, an accused in addition on to his not being arrested at the scene of crime he pleads, alibi, a proper identification parade ought to be conducted.”
?The evidence of the Appellant
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that he did not know where he was on the 10/12/2007, should not in view, diminish the claim that he was not at the scene of crime. This is because the evidence of the Appellant that he was not at the scene of the crime by virtue of his living in Lagos and is a motorcyclist there and that he only came to Kosa Village some five days before his arrest is clear and unambiguous. This piece of evidence have no doubt buttressed the defence of alibi raised by the Appellant, for it has corroborated and reinforced the fact that at the time of the crime, the Appellant was not in the scene of the crime he was somewhere else. In this view, I disagree with the trial Judge when in his Judgment he found as follows:-
“I am convinced that the 2nd accused (Appellant) participated in the execution of the two offences levied against him…. It is enough that the prosecution’s witnesses sighted the 2nd accused (Appellant) among the culprit holding a gun.”
Finally, one does not need a soothsayer to see that from the evidence I have highlighted that the Appellant was not at the scene of the crime. The evidence called by the prosecution did not in any way link him with
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the commission of the offence with which he was charged, tried and convicted. The prosecution clearly failed to prove its case beyond reasonable doubt as required by law.
In my Judgment, this Appeal has merit, it must be allowed, I therefore, allow the Appeal, set aside the Appellant’s conviction and sentence. He is consequentially acquitted and discharged.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment of my learned brother Mohammed Ladan Tsamiya, JCA.
I agree with the reasoning and conclusion arrived at allowing the appeal, setting aside the conviction and sentence of the Appellant. I abide by the consequential order made acquitting and discharging the appellant.
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UCHECHUKWU ONYEMENAM, J.C.A.: I was privileged to read before now the draft copy of the judgment delivered by my learned brother M.HAMMED LADAN TSAMIYA, JCA. I agree with my Lord that the appeal has merit and is therefore allowed. I also set aside the Appellant’s conviction and sentence.
Appellant is hereby acquitted and discharged.
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Appearances
M. I. Hanafi, Esq. with him, Ibrahim Alabidun, Esq.For Appellant
AND
Issa Zakari, Esq. State Counsel 1, Ministry of Justice, Kwara StateFor Respondent
