YAU v. STATE (2020)

YAU v. STATE

(2020)LCN/15818(CA)

In The Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/106C/2018

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

ABUBAKAR YAU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE PRINCIPLE OF BURDEN OF PROOF IN A CRIMINAL TRIAL.

The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See ABDULMUMINI V. FRN (2017) LPELR-43726 (SC), AKWUOBI V. THE STATE (2016) LPELR 41389 (SC). ADAMU JAURO, J.C.A.

WHAT TO PROVE FOR THE OFFENCE OF ARMED ROBBERY PUNISHABLE WITH DEATH

It has been established in a plethora of judicial authorities that to secure a conviction for the offence of armed robbery punishable with death, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a) That there was robbery or series of robberies
b) That the robbery was armed robbery; and
c) That the accused was one of those who took part in the armed robbery.
See AWOSIKA V STATE (2010) 9 NWLR PT 1198, P.49 AT 53-54 RATIO 5; BELLO VS STATE (2007) 10 NWLR PART 1043, P.563 ADAMU JAURO, J.C.A.
HOW A RESPONDENT CAN PROVE ITS CASE AGAINST THE ACCUSED PERSON

The law is settled that the Respondent can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC). ADAMU JAURO, J.C.A.

POSITION OF LAW IN THE EVIDENCE OF AN EYE-WITNESS IDENTIFICATION OF A CRIMINAL

WHEN AN APPELLATE COURT WILL BE GOOD POSITION AS THE TRIAL COURT TO EVALUATE THE EVIDENCE OF A WITNESS

The law is trite to the effect that it is the primary responsibility of the trial Court which saw and heard the witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate Court which neither heard the witnesses nor saw them to observe their demeanour in the witness box. However, the law is equally settled that where the trial judge abdicates his duty of evaluation of evidence and the appropriation of weight thereto, in such a situation an Appellate Court is in good position as the trial Court to evaluate the evidence. See the case of FAGBENRO V. AROBADI & ORS (2006) LPELR – 1227 (SC). ADAMU JAURO, J.C.A.

BURDEN OF PROVING THE GUILT OF AN ACCUSED PERSON IN A CRIMINAL TRIAL

It is so well entrenched in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial rest upon the prosecution and this burden must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. The fundamental reason for this position is that an accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) of the Constitution of the Federal Republic Of Nigeria, 1999, as amended. See: Williams v State (1992) LPELR-3492(SC); Abidoye v. FRN (2013) LPELR-21899(SC); Commissioner of Police v. Amuta (2017) LPELR-41386(SC). see also: Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011. ADAMU JAURO, J.C.A.

WHAT IS PROOF BEYOND REASONABLE DOUBT?

Proof beyond reasonable doubt means that there is credible evidence upon which the court can safely convict, even if it is upon the evidence of a single witness; Abokokuyanro v. State (2016) LPELR- 40107(SC); Bassey v State (2019) LPELR-46910(SC). ONYEKACHI AJA OTISI, J.C.A.

WHAT IS PROOF BEYOND REASONABLE DOUBT?

Proof beyond reasonable doubt demands that no other logical explanation can be derived from the facts, except that the defendant committed the crime; Adekoya v. State (2017) LPELR-41564(SC); Uche v The State (2015) LPELR-24693(SC); Mbachu v. State (2018) LPELR-45163(SC); Bassey v. State (2012) LPELR-7813(SC). ONYEKACHI AJA OTISI, J.C.A.

PRESUMPTION THAT A PERSON IS INNOCENT UNTIL PROVEN GUILTY

When there is proof beyond reasonable doubt, the presumption that a person is innocent until proven guilty is routed or displaced. It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged; Ogundiyan v. State (1991) NSCC 448, (1991) LPELR- 2333(SC) at pages 13-14. ONYEKACHI AJA OTISI, J.C.A.

WHAT TO PROVE ON A CONVICTION ON THE CHARGE OF ARMED ROBBERY

POSITION OF LAW WHEN THE IDENTIFICATIONS OF AN ACCUSED IS ALLEGES TO BE MISTAKEN

Where the case against an accused person is based principally on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn himself of the special need for caution before convicting the accused on the correctness of the identification or identifications. See R v Turnbull (1976) 3 W.L 445. Abudu V State (1985) 1 NWLR (Pt. 1) 55. Mbenu V State (1988) 7 SCNJ (11) 211 and Ndidi V State (2007) 13 NWLR (Pt. 1052) 633. JOSEPH EYO EKANEM, J.C.A.

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Benue State, sitting in Makurdi delivered by Honourable Justice I. Hwande in suit No. MHC/38C/2010 on the 27th day, of June 2012. In the said Judgment, the Appellant and one Ibrahim Yau were convicted for the offences of criminal conspiracy and armed robbery punishable with death under Section 6(b) and 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act CAP. R 11 Laws of the Federation of Nigeria 2004. Upon their conviction, the Appellant and the said Ibrahim Yau were sentenced to death by hanging.

BRIEF STATEMENT OF FACTS
The Appellant and one Ibrahim Yau were arraigned on two counts of criminal conspiracy and armed robbery punishable with death under Section 6(b) and 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act for which the Appellant pleaded not guilty. The said charge at page 2 of the record of appeal read as follows:
“1ST HEAD OF CHARGE
That you (1) Ibrahim Musa Yau (2) Abubakar Yau on or about 28/03/2010 at about 22.00 hours in Ajiir Village in Makurdi Local Government Area within the jurisdiction of this honourable Court agreed to do an illegal act; to wit; commit armed robbery on one KenaKpenvihin and one Simon Tartyough both of University of Agriculture road, Makurdi which act was done pursuant to the said agreement and you thereby committed an offence punishable under Section 6(b) of the Robbery and Fire Arms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.
2ND HEAD OF CHARGE
That you (1) Ibrahim Musa Yau (2) Abubakar Yau on or about 28/03/2010 at about 22.00 hours in Ajiir Village in Makurdi Local Government Area, Benue State within the jurisdiction of this honourable Court did commit armed robbery to wit; you robbed one KenaKpenvihin of the sum of N2,015 (Two Thousand and Fifteen Naira) only and one Simon Tartyough of the sum of N37,030 (Thirty Seven Thousand and Thirty Naira) only and two handsets valued at N14,000 (Fourteen Thousand Naira) only while armed with a gun, knife and sticks and you thereby committed the offence punishable under Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Laws of the Federation of Nigeria 2004.”

The case of the Respondent was that the Appellant and his co-accused (now convict) blocked Makurdi – Gbajimba road, a public high way on 28/3/2010 and robbed one KenaKpenvihin Isaiah and Simon Tatyough (PW1 and PW3 respectively). It is the case of the Respondent that PW1 reported to the Local Vigilante that night and that the victims of the armed robbery led the vigilante people to the camp of the Fulanis’ where they identified the Appellant and his co-accused as the armed robbers. The Respondent stated further that the Appellant and his co-accused were taken to ‘A’ Division of Nigerian Police and later to the CID headquarters Makurdi for discreet investigation. That after investigation, the Appellant and his co-accused were arraigned and charged to Court with the offences of criminal conspiracy and armed robbery.

The case of the Appellant was that on 28/3/2010, he was in his house till 1 a.m. of 29/3/2010 with his younger brother one Likita Jonga. That he went to see his brother who was not feeling fine at about 7 a.m. on 29/3/2010 and was back to the house at 9 a.m. The Appellant stated further that he went to the stream to fetch water and on coming back, he saw the 1st Accused at the trial with a group of TIV people. That he was invited to go to the bridge side and his thoughts were that he was being called to repair the damaged bridge. The Appellant stated that he asked what was going on from the people who were gathered and instead of getting a reply; he was beaten and subsequently handed over to the police.

At the close of trial and filing of the final addresses, the learned trial judge at page 85 of the record of appeal found the Appellant guilty as charged and sentenced him to death by hanging.

Dissatisfied with the decision of the trial Court and in exercising his right of appeal, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of appeal dated 13th April, 2018 and filed on 18th April, 2018. The said Notice of Appeal containing ten grounds of appeal can be found at pages 86 – 95 of the record of appeal.

In compliance with the Rules of this Court, parties filed and exchanged their briefs. The Appellant’s brief of argument is dated 14th May, 2018 and filed on 15th May, 2018. The said Brief was settled by EDWIN O. OKORO ESQ. who at paragraph 3.0 of the Appellant brief formulated four issues for the determination of the appeal as follows:
“1. Was the trial Court right when he relied on the identification parade conducted by the vigilante people without involving the Police and if yes was the purported identification exercise conducted by the vigilante people proper and reliable in the circumstances of the case (Grounds 2 and 8).
2. Was the trial Court right when he found that the Appellant did not raise the defence of alibi in their statements to the Police merely because the alleged offence took place close to the camp where the Appellants reside (Grounds 3 and 6).
3. Whether the learned trial Judge was right when he found that the prosecution had proved the case against the Appellant beyond reasonable doubt. (Grounds 1, 4, 5, 7 and 10).
4. Whether the trial Judge was right in convicting the Appellant when the prosecution failed and refused to tender the Statements of PW1, PW2, PW3 and call one Issac Kumaku and tender statements he made to the police on 29/03/2010 (Ground 9)”

The Respondent’s Brief on the other hand is dated 24th May, 2018 and filed on 14th June, 2018. The said Brief was settled by E. ENYIKWOLA, ESQ., ASSISTANT DIRECTOR, CITIZENS’ RIGHTS, MINISTRY OF JUSTICE, MAKURDI, BENUE STATE. Counsel to the Respondent at paragraph 3.0 of the Respondent’s brief formulated a sole issue for the determination of the appeal to wit:
“Whether the prosecution proved the case beyond reasonable doubt having regard to the evidence before the Honourable Court.”

The appeal was taken on 1st June 2020 wherein counsel adopted their respective briefs and made oral adumbrations in respect of their contentions in the appeal.

APPELLANT’S ARGUMENTS
On issue No. 1 distilled by the Appellant, counsel submitted that the robbery incident took place on 28/03/2010 between 10:30 p.m. and 11 p.m. along Makurdi – Gbajimba Village Road and that from the evidence led, the robbery was carried out for a period of 30 minutes. Counsel referred this Court to the evidence of PW1 at page 57 of the record of appeal and submitted that the robbers were not arrested by the vigilante members at the scene of crime. He submitted further that the vigilante members took PW1 and PW3 to the Chief House to stay till morning and that instead of reporting the crime to the police for investigation, one of the members of the vigilante group went to PW2 to carry out investigation and apprehend the offenders. It is the submission of counsel that the trial Judge was wrong when he convicted the Appellant on the investigation carried out by PW2 and members of his team. He submitted that the members of the vigilante group assumed powers they never had and that the position would have been different if the Appellant was arrested at the scene of crime and handed over to the Police for investigation. Counsel further submitted that from the evidence before the Court below, there is C Division of the Nigeria Police Force covering the area and that no report of the robbery incident was sent to the Division or the Headquarters.

Counsel submitted that the vigilante group had usurped the powers of the Nigerian police force by conducting investigation on the alleged robbery before reporting to the police. He relied on NWANGWU V. QUEEN (1986) SCNLR 69 at 72 and ATIKU V. STATE (2010) 9 NWLR pt. (1199) 241 at 280. He submitted that considering the circumstances of the case wherein the alleged robbery occurred at night, the victims said they were terrified and it was not possible for them to have seen the faces of the robbers.

It is his contention that in the circumstance, it was necessary that an identification parade be conducted to ascertain the identity of the alleged robbers. He relied on Section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 4 of the Police Act and argued that the only body legally empowered to conduct an identification parade is the Nigerian Police Force.

He submitted that the position of the trial court at page 80 of the record of appeal to the effect that there was no need for an identification parade to ascertain the identity of the robbers amounted to a miscarriage of justice and does not align with the position of the law. He referred this Court to the cases of MUSTAPHA V. THE STATE (2007) 12 NWLR pt. 1049 637; OSUAGWU V. STATE (2013) 5 NWLR pt. 1347 360.

Counsel for the Appellant submitted that the purported identification of the Appellant by PW1 and PW3 was suspicious and unreliable, and ought to have been discountenanced by the trial Court. He submitted further that the improper and unreliable identification parade done by the vigilante resulted in a mistaken identity of the appellant.

On issue two, Counsel submitted that the Appellant immediately after his arrest by the vigilante and upon being informed of his alleged offence raised the defence of alibi in his statement to the vigilante people. Counsel stated further that evidence reveal that Appellant also raised the defence of alibi immediately he was handed over to the police. He referred this Court to pages 18 to 19 of the record of appeal.

It is the contention of counsel that the said alibi was never investigated by the police to fix the Appellant to the scene of crime. He submitted that the Appellant was not arrested at the scene of the crime; hence his statement both to the vigilante group and the police amounts to a defence of alibi and ought to have been investigated by the police.

He referred this Court to the evidence of DW3 at page 75 of the record of appeal. He submitted that the evidence of DW3 corroborated that of the appellant on his defence of alibi. Relying on VICTOR V. STATE (2013) 12 NWLR pt. 1369 465 and 466, MUSTAPHA V. THE STATE (2007) 12 NWLR pt. 1049, he argued that since the Appellant’s defence of alibi was raised at the earliest possible time and was not investigated by the police, the trial Court ought to have considered the defence to discharge and acquit the appellant.

On issue three, Counsel for the appellant argued that the evidence of the prosecution did not prove beyond reasonable doubt the offences of criminal conspiracy and armed robbery punishable with death under Sections 6(b) and 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act.

Counsel argued that to prove conspiracy the prosecution must show through credible circumstantial evidence which must be of such a quality that irresistibly compels the Court to make inference of the guilt of the accused persons.

He submitted that from the totality of the evidence at the trial Court the Respondent failed to prove the offence of conspiracy to commit armed robbery to secure the conviction of the Appellant.

Counsel submitted that from the totality of the evidence adduced at the trial Court the Respondent failed woefully to prove the mandatory ingredients beyond reasonable doubt to secure a conviction of the Appellant for the offence of armed robbery. He referred this Court to NJOKU V. STATE (2013) 2 NWLR pt. 1339 548. Counsel submitted that the trial Court did not evaluate the evidence of the Appellant, and only relied on the evidence of the respondent in reaching its finding of guilt.

He argued that a failure to consider and examine a defence is a failure to perform a vital duty and is likely to lead to a miscarriage of justice. He cited the case ofOPAYEMI V. THE STATE 1985 2 NWLR pt. 5.

On issue four, he submitted that the Respondent refused to call one Isaac Kumaku whose statement to the police is contained at pages 8 to 10 of the record of appeal. He stated that the Respondent also refused to tender the statement of PW1, PW2 and PW3 at the trial despite attaching the said statements earlier in their application to the trial Court seeking leave to prefer a charge against the Appellant. He referred this Court to pages 3 to 19 of the record of appeal. He submitted that the said statements were attached in proof of evidence.

He argued that the failure of the Respondent to tender the said statements in Court amounted to withholding evidence and that the trial Court should have presumed that those statements were unfavorable to the Respondent. He relied on Section 167 (d) of the Evidence Act 2011.
On the whole, he urged this Court to allow the appeal and to discharge and acquit the Appellant of all counts.

RESPONDENT’S ARGUMENTS
On the lone issue distilled by the Respondent, counsel submitted that the prosecution at the trial Court proved the guilt of Appellant beyond reasonable doubt.

Counsel submitted that the evidence of PW1 and PW3 vividly described how the robbery took place and the role the Appellant and the said Ibrahim Yau played while armed with a gun and a stick. He referred this Court to pages 56, 57, and 58 of the record of appeal.

Counsel submitted that from the statements of PW1 and PW3, it was established that they saw the faces of the Appellant and Ibrahim Yau (co-convict) while the robbery was in progress and that the Appellant was properly identified by PW1 and PW3 at the Fulani camp the next day.

It is the contention of counsel that from the evidence of the PW1 and PW3, it was established that notwithstanding that the robbery happened at night, there was bright moonlight and that the robbery lasted for 30 minutes. He submitted that the witnesses and victims were also consistent in their claim that they saw the Appellant robbing them. He referred this Court to pages 56-65 of the record of appeal.

He submitted that in the light of the evidence against the Appellant particularly as to his identification by PW1 who was a victim and an eye witness of the alleged robbery the prosecution proved the guilt of the appellant for the offences charged beyond reasonable doubt. He referred this Court to USMOND ONUOHA V. THE STATE 1998 5 NWLR PT 548.

It is the submission of counsel that the vigilante group did not conduct an identification parade and that they merely followed the report made to them by PW1 and PW3. He further submitted that it was the victims (PW1 and PW3) that identified the Appellant after which the vigilante arrested them and handed them over to the police. It is the contention of counsel that from the circumstances of the case there was no need for an identification parade by the police.

On whether there were contradictions in the case of the Respondent to warrant the acquittal of the Appellant, counsel to the Respondent submitted that there were no material contradictions to cast doubt on the guilt of the Appellant and that if there were, it could only be regarded as minor contradictions with no consequences. He referred this Court to ABOGEDE V. STATE (1996) 5 NWLR (PT 448).

Counsel submitted that PW1 and PW3 in their evidence were certain as to which of the accused persons had a gun and a stick. He referred this Court to pages 56 and 65 of the record of appeal. He further submitted that it was confirmed that the wound in the arm of PW1 was a gunshot wound.

It is the contention of counsel that it is immaterial that Exhibit C, the bullet shells recovered from the scene of robbery can only be used in an Ak 47 rifle.

On the issue of withholding evidence as submitted by the Appellant, Counsel to the Respondent submitted that the Respondent’s failure to tender the statements of PW1, PW2 and PW3 or their failure to call the said Issac Kumaku as a witness does not run contrary to the provisions of Section 167(d) of the Evidence Act 2011. He submitted further that Isaac Kumaku was not a material witness for the Respondent and that the Appellant was at liberty to tender the statements of PW1, PW2 and PW3 if he deemed them important to his case.

On whether the defence of alibi would avail the Appellant, counsel to the Respondent submitted that the defence of alibi was not raised by the Appellant at the earliest opportunity, and as such, the defence cannot avail him. He cited the case of OGOALA V. THE STATE (1991) 1 NSCC 366 and he referred this Court to pages 18-19 of the record of appeal.

Counsel submitted that the extra judicial statement of the Appellant and his testimony in Court are contradictory and that the trial Court rightly refused to accord any credibility to the defence of alibi raised by the Appellant. He relied on the case on MBENU V THE STATE 1988 7SC PT 111.

He submitted that the evidence of PW1 and PW3 sufficiently fixed the Appellant to the crime scene and by so doing; the possibility that someone else committed the crime was excluded.

In his final analysis of the sole issue so distilled, he urged the Court to dismiss the appeal for lacking in merit.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the briefs of arguments filed by both parties as well as the issues distilled for determination across the divide. Having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the understated issue would suffice in determination of this appeal.
“Whether from the totality of the evidence adduced by the Respondent at trial, the guilt of the Appellant was proved beyond reasonable doubt to justify his conviction by the trial Court?”

The Appellant and one other were arraigned on two count charges of criminal conspiracy and armed robbery punishable with death under Sections 6(b) and 1 (2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act CAP R 11 Laws of the Federation of Nigeria 2004 for which the Appellant pleaded not guilty to the offences charged.

To ascertain whether the Respondent proved the offence of armed robbery against the Appellant beyond reasonable doubt is an issue to be determined after revisiting the evidence on record.

On the first and second ingredients which borders on whether there was a robbery or series of robberies and that the robbery was armed robbery, the evidence of PW1 and PW3 the victims of the crime are instructive. PW1 testified at page 56 – 59 of the record of appeal as follows:
“On the 28/3/2010 at 10 pm I was at Lafia garage North garage bank. My brother Simon Tatyough came and mate (sic) me at motor park. He asked me to take him to Ijir in Guma LG on my motor bike. He wanted to give his in-law money for burial arrangement on our way we passed a village called Ajia. We passed Ajia and were about 1KM when we saw flash light in front of us. Was I asked to stay (sic). When we were stopped we thought it was some policemen. When we stopped we were asked to lie down. One spoke in Hausa language the other one ordered us to lie down in English language. When we obeyed we were asked to bring out the money on us. I had N2, 015. It was together with my I.D card. I do not know how much the person I conveyed had on him. When I discovered I gave the money with my I.D card I turned and asked them to give me my I.D card back to me. The other one said he was going to tear it. The 1st accused who said he was going to tear it. 1st accused held a stick, 2nd accused had a gun on him.”

To fortify the testimony of PW1 above, PW3, one Simon Tatyough at pages 63 -66 of the record of appeal in a similar vein testified that they were robbed on 28/3/2010 and that the robbers were carrying a stick and a gun.

The evidence of PW5, one Inspector Abba Abubakar (IPO) duly corroborates the evidence of PW1 and PW3 in establishing the first two ingredients of the offence of armed robbery. The said witness’s testimony in this regard can be gleaned at page 68 – 70 of the record of appeal wherein he stated as follows:
“On 29/3/2010 at about 11:00 hrs I was on duty with two other police men. Inspector Joseph Chemyila and CPL Aliyu when a case of criminal conspiracy and armed robbery was reported. It was one Isaac Kumaku a vigilante member from TseAdu village in Guma LGA that brought the report. He arrested and brought the two accused persons.
He also brought 3 expended ammunition in Ak 47 rifle. He complained that on 28/3/2010 there was a case of robbery by Fulani men. That they recovered the motorcycle of the informants at the scene of robbery. That the empty shells of Ak 47 were recovered from the scene of the robbery. On the receipts of the complaints PW1 Terna (sic) who had gun wound on his hand was taken to police clinic. Thereafter the statements of the vigilante members and the witnesses were recorded……”

Having gone through the record of appeal and the briefs of counsel before me, I am of the opinion that parties have not joined issues as to whether there was a robbery and whether the robbery was an armed robbery. However, to secure the conviction of an accused person for the offence of armed robbery, the prosecution is duty bound to prove that the accused person participated in the armed robbery. It is on this point that the learned counsel to the Appellant vehemently contended that the Appellant was not sufficiently linked to the robbery incident of 28/3/2010 carried out in Ajiir Village of Makurdi Local Government Area.
From the testimonies of the Respondent’s witnesses on record, it is not in dispute that the Appellant was not arrested at the crime scene and by virtue of this, the Respondent was duty bound to prove through credible evidence that the Appellant was one of the robbers that robbed PW1 and PW3 on that fateful day.
The Respondent in a bid to prove that it was the Appellant that committed the armed robbery relied on the eye witness testimonies of the PW1 and PW3 contained in pages 53-59 and 63-66 of the record of appeal respectively. PW1 in his testimony at pages 53 – 59 of the record of appeal testified that:
“……The vigilante members accompanied me back to the scene we did not see the accused persons my motor cycle was there. The accused lighted the motorcycle tank but the fire did not burn properly we used sand to put off the fire in my motorcycle tank. The motorcycle was toyed (sic) back to Ayia village where they handed me over to the chief of the village. I explained that the robbers were Fulani people. Their dress code depicted them as Fulani and they were speaking hausa with me.
The following day the vigilante member came and asked me if I will be able to identify the people. I said will be able to identify them. I was taken to 3 fulani settlements in the area. It was the 3rd settlement that I identified the two accused person. I am a Christian I cannot just pick anybody I was not sure of… the 1st and 2nd accused persons were arrested and taken to C Division. They were later taken to police headquarters. My brother who went into hiding came to the village when he heard the noise of the vigilante members and the villagers. The accused person had flash light which they flashed. I saw their faces and there was bright moon light that night also. The accused were also smoking. They lighted their cigarette with matches. When I looked at their faces 1st accused came and hit me at the back of my head why I was looking at them. I am a security man. I wanted to find out the weapons they were carrying so I was looking. (Underlining mine for emphasis).
I have gone through the testimony of PW3 at pages 63-66 of the record of appeal and I am of the firm view that PW1 was the only one who identified the Appellant and his co-convict as the robbers. PW3 testified under evidence-in-chief that while he had his face on the ground, he noticed that the armed robbers were struggling with his brother. He also testified to the effect that PW1 called him to stand up from where he was lying faced down and that upon standing up, he heard the 2nd accused person at trial asking for his gun which prompted him to run away into a nearby bush. For the avoidance of doubt, I take this latitude to reproduce the relevant excerpts of PW3’s testimony under evidence-in-chief establishing that it was only PW1 that identified the robbers. The said witness testified at page 64 of the record of appeal as follows:
“Very early in the morning the chairman of the vigilante group asked if we could recognize the people who robbed us if we saw them. We agreed and told him that the robbers were Fulani men who were speaking to us in Hausa language. The vigilante people took us to the nearest Fulani settlement village. We went to the settlement of 1st and 2nd accused persons but there (sic) were not there at that time. We went to the 2nd settlement we saw people there but they were not the ones that committed the robbery. We were informed that some Fulani people were back to the 1st settlement we went there. PW1 Kena was in my front.
We saw 1st and 2nd accused persons. Kena identified the accused person to the vigilante group. The accused persons were arrested and taken to C division of NPF Mkd……” (Underlining mine for emphasis).
From the evidence on record, I am of the considered opinion that the fulcrum of the Respondent’s case in establishing the third ingredient of the offence of armed robbery rests squarely on the credibility of the PW1’s testimony in identifying the Appellant as one of the armed robbers.
When an accused person is alleged to have participated in the armed robbery within Section 1 (2) (a) of the Robbery and Fire Arms (Special Provision) Act, there must be clear, positive unequivocal identification of the accused person, all cogent and credible evidence which fixes him at the scene of the crime must be adduced. Where he is not arrested at the scene of the crime, there must be compelling evidence linking him to the commission of the offence.

The trial Court after reviewing evidence before it found that the Appellant was properly identified as one of the armed robbers that robbed PW1 and PW3 on the said date hence; his conviction and sentence.

It therefore follows that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence.

To ascribe any value to the evidence of an eye-witness identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues:
1) Circumstances in which the eye-witness saw the suspect or defendant.
2) The length of time the witness saw the subject or defendant.
3) The lighting conditions.
4) The opportunity of close observation.
5) The previous contacts between the two parties.
See NDIDI V. THE STATE (2007) 13 NWLR (PT. 1052) 633 PAGE 651, paras. G-H; IKEMSON V. The STATE (1989) 3 NWLR (pt.110) 455; OGOALA V. The STATE (1991) 2 NWLR (pt. 175) 509; BASHAYA V. STATE (1998) 5 NWLR (Pt.550) @ 351.
In all of the above cases, It was stressed that whenever the case of an accused person depends wholly or substantially on the correctness of his identification which the defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification.

The law has crystalized in our jurisdiction that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. On the contrary, an identification parade would be absolutely unnecessary when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.

From the record transmitted to this Court, it is abundantly clear that the act of armed robbery was carried out within the hours of 10:30 p.m. to 11p.m. of 28/3/2010 and that the incident lasted for about 30 minutes. It is also on record that PW1 and PW3 never had previous contacts with any of the robbers before the robbery incident and as such they did not know the robbers.

PW1 and PW3 in their testimonies made efforts to state that there was moonlight which aided their view in seeing the faces of the robbers. The above testimony is to the effect that the lightning condition was sufficient for PW1 to see the faces of the armed robbers. In as much as I may be persuaded to believe the moonlight story painted by the Respondent’s witnesses, PW1 under evidence-in-chief at page 57 of the record of appeal stated that:
“1st accused asked 2nd accused where was the gun. He asked in Hausa, 2nd accused replied that it fell down on the road. 1st accused used the flash light to had (sic) and picked the gun from where it had fallen.”

The above piece of evidence of PW1 whose testimony was employed in linking the Appellant to the commission of the offence subtracts from the moonlight story painted by them. I am of the firm view that if the moonlight was so bright to enable PW1 and PW3 see the robbers’ faces and to closely watch their features such as their tribal marks and the dress they wore, then the 2nd accused person at the point of finding the gun would not require a flashlight to look for a gun in the heat of when PW1 was struggling with the armed robbers. (See PW1’s testimony at pages 56 – 59 of the record of appeal). A logical analysis of the above facts as stated by the eye witnesses/victims of the armed robbery would reveal that the scene of the robbery was dark enough to require flashlights.

I am of the firm view that it would have been very difficult for PW1 and PW3 to easily note the features of the robbers for easy identification under the above stated conditions and I find it hard to believe the testimony of PW1 and PW3 as regards the identification of the Appellant as one of the armed robbers that robbed them on 28/3/2010.

It is worthy of note that there is nothing in the record of appeal before this Court to show the conduct of a proper investigation by the police to verify the credibility of PW1’s testimony with regard to the identification of the Appellant as one the armed robbers that robbed PW1 and PW3 on the night of 28/3/2010. The evidence of the PW5, the IPO was to the effect that he visited the houses of the Appellant and his co-accused at trial to execute a search warrant but the Appellant and the 1st accused were living on plain land and there was no house where they could search. This testimony is in sharp contrast with the testimonies of PW1, PW2 and PW3 who testified in their various testimonies that they visited the camps of the Appellant and that it was at the camp that PW1 identified the Appellant and the 1st Accused person.

I have stated earlier that evidence abound that the Appellant was not arrested at the crime scene and as a matter of fact, nothing incriminating was found on him and the 1st accused to circumstantially depict that they were the robbers that robbed PW1 and PW3. Although PW2 in his testimony stated at page 60 of the record of appeal that: “I took the victims to the Fulani camp. Before I went to the camp, I went to the scene of the robbery with other members of the vigilante group. I took three empty shells of bullets on the ground.”

PW5 in respect of the recovered bullets testified at page 68 of the record that one Isaac Kumaku, a vigilante member from TseAdu Village in Guma LGA, brought 3 expended ammunition in AK 47 and that the empty shells of AK47 were recovered from the scene of crime. It is of paramount importance to state that it was this same Isaac Kumaku that PW1 ran to when he was robbed and shot by the armed robbers. The role Isaac Kumaku played in the investigation and arrest of the Appellant is germane to the resolution of the major issues in controversy. PW1 at page 57 of the record of appeal stated during his evidence-in-chief as follows:
“When I reached Ayia village, the vigilante members were outside because they heard a gunshot and I was shouting as I was running. When they asked me what happened I explained to them. The vigilante members accompanied me back to the scene. We did not see the accused person……..
The motor cycle was toyed (sic) back to Ayia village where they handed me over to the chief of the village.”

In a similar pattern to the testimony of PW1 reproduced above, PW2 testified in his evidence-in-chief at page 60 of the record of appeal that:
“There was a day Issac Kumaku came to my house at 7 am. It was on 29/3/2010. He told me that there was a robbery operation in the past night along Makurdi Gbajimba Road. He told me the victims were in his house…..”

I am constrained to believe that since there was more than one armed robbery on the same road where PW1 and PW3 were robbed; there is a doubt that the three shells of empty ammunition recovered from the crime scene belong to the Appellant and his co-accused at trial.

I am not oblivious of the trite principle of law that the prosecution in establishing the guilt of an accused person is not duty bound to call a host of witnesses or a particular witness, however, the law has equally crystallized in our criminal jurisprudence that the failure of the prosecution to call a vital witness such as the said Isaac Kumaku in the instant case is fatal and same is tantamount to withholding evidence as provided for under Section 167(d) of the Evidence Act. If the said witness had been so called, a doubt would have been casted on the guilt of the Appellant.

The Appellant volunteered an extra judicial statement which was admitted in evidence as Exhibit ‘B’. In his statement at page 18 to 19 of the record of appeal, he denied the allegations of armed robbery proffered against him. The Appellant’s statement in his extra-judicial statement is consistent with his testimony in Court and some issues would have been unraveled upon proper police investigation which was not done in the case. The narration of events in his extra judicial statement is not only complimentary to his evidence at trial but indicates semblance of their truthfulness.
The law is trite to the effect that it is the primary responsibility of the trial Court which saw and heard the witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate Court which neither heard the witnesses nor saw them to observe their demeanour in the witness box. However, the law is equally settled that where the trial judge abdicates his duty of evaluation of evidence and the appropriation of weight thereto, in such a situation an Appellate Court is in good position as the trial Court to evaluate the evidence. See the case of FAGBENRO V. AROBADI & ORS (2006) LPELR – 1227 (SC).

From the totality of the evidence adduced at trial, it is my firm view that the Respondent failed to establish the third ingredient of the offence of armed robbery against the Appellant beyond reasonable doubt.
In the face of the failure to lead credible evidence to the effect that the Appellant was one of the armed robbers that robbed PW1 and PW3 by conducting a proper identification parade as required by law, I find it unsafe to uphold the conviction and sentence of the Appellant by the trial Court for the offences charged. It is my opinion that a doubt in respect of the Appellant’s identity had been created and this doubt should be resolved in favour of the Appellant especially where a conviction of this nature will deprive him of his life beyond redemption. The case of ONAFOWOKAN V. THE STATE (1987) LPELR – 2666 (SC) is relevant to this point wherein the Apex Court held that: “The laws of civilized nations maintain that it is better that ten guilty persons go scot free than that one innocent person should be found guilty.”

This Court therefore holds the view that the appeal is meritorious. Thus, the sole issue formulated by this Court as derived from the issues submitted before it by the parties is resolved wholly in favour of the Appellant. The judgment of the Appellant delivered by Honourable Justice I. Hwande in suit No. MHC/38C/2010 on the 27th day, of June 2012 is hereby set aside. The conviction and sentence of the Appellant are quashed. The Appellant is hereby discharged and acquitted accordingly.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment by my Learned Brother, Adamu Jauro, JCA, in which this appeal has been allowed. The issues arising for determination have been comprehensively resolved. and, I adopt these resolutions as mine. I will only make few comments in support.

It is so well entrenched in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial rests upon the prosecution and this burden must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. The fundamental reason for this position is that an accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) of the Constitution of the Federal Republic Of Nigeria, 1999, as amended. See: Williams v State (1992) LPELR-3492(SC); Abidoye v. FRN (2013) LPELR-21899(SC); Commissioner of Police v. Amuta (2017) LPELR-41386(SC). see also: Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011.
Proof beyond reasonable doubt means that there is credible evidence upon which the court can safely convict, even if it is upon the evidence of a single witness; Abokokuyanro v. State (2016) LPELR- 40107(SC); Bassey v State (2019) LPELR-46910(SC). Proof beyond reasonable doubt demands that no other logical explanation can be derived from the facts, except that the defendant committed the crime; Adekoya v. State (2017) LPELR-41564(SC); Uche v The State (2015) LPELR-24693(SC); Mbachu v. State (2018) LPELR-45163(SC); Bassey v. State (2012) LPELR-7813(SC). When there is proof beyond reasonable doubt, the presumption that a person is innocent until proven guilty is routed or displaced. It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged; Ogundiyan v. State (1991) NSCC 448, (1991) LPELR- 2333(SC) at pages 13-14.

In order to secure a conviction on the charge of armed robbery, the prosecution has the onus of proving beyond reasonable doubt that:
i. robbery has taken place
ii the robbery was an armed robbery
iii the accused person participated in the robbery.
See: Dawai v. State (2017) LPELR-43835(SC); Orisa v State (supra); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction: Ugboji v. State (2017) LPELR-43427(SC).
The evidence adduced in the instant case showed that an armed robbery took place. PW1 and PW3 were the victims. But the evidence failed to, convincingly, establish that the Appellant was one of the armed robbers. In this circumstance, standing on the firm constitutional ground that a man is presumed innocent until proven guilty, it would be unsafe to convict the Appellant; Alabi v. State (1993) LPELR-397(SC). The Appellant is therefore entitled to benefit from the material doubt created as to his identity as one of the armed robbers; Posu & Anor v. The State (2011) LPELR-1969(SC).

For this reason and for the more comprehensive reasons given by my Learned Brother. I also allow this appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read before now the draft of the lead judgment of my learned brother. Adamu Jauro. JCA which has just been delivered. I agree that the appeal has merit.

In determining the weight to be attached to the evidence of an eye-witness in respect of identification of a suspect, the Court must meticulously consider the circumstances in which the eye-witness saw the suspect, the length of time the eye-witness saw the suspect, the lighting conditions, the opportunity of close observation and the previous contact between the two persons. See Mbenu V State supra and Ndidi V State supra. The Court is to examine identification evidence closely. If the quality thereof remains strong or good at the end of the case, the Court can convict on it but if the quality is not good enough, the Court ought not to convict on it.

As has been ably demonstrated in the lead judgment, the quality of the identification evidence was not strong enough to warrant conviction on it. The armed robbery incident took place at night. The question is by what means did the PWI identify the appellant? One was by means of flash light which according to PW1 the assailants flashed. The second was that there was “bright moon light”. If there was “bright moon light”, the 1st accused would not have had the need of flash light to find and pick his gun as testified to by the PW1. As regards the flash light, it is difficult to see how sporadic flashes of flashlight can enable a witness satisfactorily identify an assailant in the dark under the tensed condition of an armed robbery attack. See Mbenu V State supra. This is the more so as it is not in evidence that the robbers pointed the flashlight on themselves or that the light reflected on them.

It is on account of the above reasons that I find merit in the appeal. I accordingly allow the same, set aside the decision of the trial Court and discharge and acquit the appellant.

Appearances:

Edwin O. Okoro, Esq., with him, B.O. Anajeke, Esq. For Appellant(s)

E. Enyikwola, Esq. Asst. Director Citizens Right, Ministry of Justice, Benue State. For Respondent(s)

LawCare Nigeria

laweditor

YOU MAY HAVE MISSED

DEFENCE INDUSTRIES CORPORATION OF NIGERIA ACT, 2023

CYBERCRIMES (PROHIBITION, PREVENTION, ETC) AMENDMENT ACT, 2024

HOW TO REGISTER A TECH COMPANY IN NIGERIA

COUNSELLING PRACTITIONERS COUNCIL OF NIGERIA ACT, 2022

laweditor

Related Story

YOU MAY HAVE MISSED