Abu Isah & Anor V. The State (2007)
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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
The appellants as 2nd and 3rd accused persons were charged before the Kogi State High Court of Justice on a two count charge of conspiracy and armed robbery as follows:-
That you Monday Lawal, Abu Isah, Enesi Lukman Abdullahi, Abdulazeez Hassan, Hassan Suberu, and Mohammed Ismaila on or about the 9th and 11th of August 2001 at Paul Nzeni and Benneth Onwugbufors Residence Iruvucheba Okene in Okene Local Government Area within the Kogi State Judicial Division agreed to an illegal Act, to wit, you agreed to commit armed robbery at the premises of Paul Nzeni and Benneth Onwugbufors residence Iruvucheba Okene and that same act was done in pursuance of the agreement and that you thereby committed the offence of criminal conspiracy punishable under section 97(1) of the Penal Code.
That you, Monday lawal, Abu Isah, Enesi Lukman Abdullahi, Abdulazeez Hassan, Hassan Suberu, and Mohammed Ismaila on or about the 9th and 11th of August 2001 at Paul Nzeni and Benneth Onwugbufors Residence Iruvucheba Okene in Okene Local Government Area within the Kogi State Judicial Division while armed with guns, machetes and cutlasses attacked one Paul Nzeni and Benneth Onwugbufor and robbed Paul Nzeni of the sum of N52,000.00 in cash and Benneth Onwugbufor the sum of N68,000.00 and you thereby committed the offence of armed robbery punishable under section 298(c) of the Penal Code.
While the six accused persons were remanded in prison custody the 1st, 4th, 5th and 6th accused persons absconded during a jail-break, and could not be apprehended to stand trial for the two offences. The 2nd and 3rd accused persons henceforth to be referred to as appellants before this court were tried and convicted of the two count charges and sentenced to seven years imprisonment and a fine of N3, 000 for each of the two counts of charges.
In default of the fine each of the accused person shall serve a further term of one year in prison.
The sentences of imprisonment are to run concurrently.
Aggrieved by the conviction and sentence the two appellants appealed to this court. Each of the two accused persons filed a Notice of Appeal containing four grounds of Appeal. The appellants complied with the processes of appeal as stipulated in Order 4 of the Court of Appeal Rules 2002. At the time of the hearing of this appeal the two appellants relied on their appellants brief deemed filed on 5/7/05 and settled two issues for determination from grounds 1, 3 and 4 of the grounds of appeal while ground 2 was abandoned.
The two issues formulated for the determination of this court are as follows:-
(1) “On the evidence can it be said that the identity of the accused persons have been proved beyond reasonable doubt as to support the conviction for the respective offences alleged.
(2) Was the trial court right to have convicted the accused persons on the state of evidence.”
The Respondent in the brief deemed filed on 16/5/06 distilled one single issue for determination which reads:-
“Whether the prosecution has proved its case against the appellants beyond reasonable doubt to warrant the conviction of the appellants.”
The single issue formulated by the Respondent is wide and has obviously embraced issue one of the appellants’ two issues. However for ease of reference I shall adopt the issues raised by the appellants for the purpose of this appeal.
ISSUE ONE
“Whether on the evidence it can be said that the identity of the accused persons have been proved beyond reasonable doubt as to support the conviction for the respective offences alleged.”
The appellants in their submission on this issue referred to three robbery incidents that PW1 was robbed on 9/8/2001 and 11/8/2001, and PW2 on 11/8/01. The appellants concluded that the evidence adduced by the prosecution in recognition and identification of the accused persons/appellants who were supposed to have committed the armed robberies are not cogent and sufficiently satisfactory. Benefit of the doubts in such circumstance must be resolved in favour of the appellants. The identification parade was not conducted on 22/8/01 in compliance with the standard prescribed with reference to the cases Ikwemson, v. State 1989 6 SCNJ 54 at pg 65 R V Turnbull 1976 3 All ER542 at pg 551 Alabi v. State 1993 9 SCNJ pg 109 at 117
The victims did not disclose the identity of the appellants to the police immediately after the incident though they were supposed to have known that before the incident.
The evidence given by the PW 1, PW 2 or PW 3 as to the identity and identification of the accused persons failed woefully to meet the criteria which a proper identification parade must meet beyond speculation.
The appellants also maintained that it is trite that once there is evidence that the witnesses knew the accused persons before the incident and recognized the accused persons as the culprits; identification parade becomes superfluous and unnecessary. The appellants resting on the cases of R VTurnbull 1976 3 All ER 542 at pg 551 concluded that there was no qualitative identification of the accused person by the trial court.
By way of reply to the appellants, the Respondent mentioned that there was sufficient evidence before the court to support the conviction of the appellants for the robbery of PW1 and PW 2. Besides there is evidence before the court that the 1st appellant admitted knowing PW 1 and PW 2 before the robberies of 9/8/2001 and 11/8/2001. (Vide page 150 line 15 of the Record of Proceedings). The Respondent contended that a formal identification parade becomes necessary only when the identity of the accused person in relation to the offence charged is in dispute. In this case the identification exercise was not necessary since the identity of the appellants in relation to the offences charged was not disputed. PW 1 and PW 2 claimed knowing the appellants while the appellants admitted knowing them. The police held an identification parade out of abundance of caution. The appellants were properly identified during the parade. There was no doubt raised as to the identity of the appellants in relation to the robberies of 9/8/01 and 11/8/01.The Respondent distinguished the facts of this case from the case of Bozin v. The State 1998 1 ACLR pg 1 at pages 12-14.
ISSUE NO TWO
Was the trial court right to have convicted the accused persons on the state of evidence.
The appellants submitted that their conviction for two separates incidents without a proper appreciation of the complicity of each accused person in each of the separate incidents is unreasonable. The duty of the prosecution was to prove all incidents and not some incidents of the robberies alleged. The appellant amplified on this by holding that the finding that accused persons were liable for the armed robberies on two occasions cannot support the conviction entered on the prosecution’s case which alleged three incidents of armed robberies.
The trial courts error in lumping of the alleged incidents of robberies together is fatal and has occasioned a miscarriage of justice as there was no proper identification of the appellants with any of the incidents of robbery.
The respondent replied that the submission of the appellants that the learned trial judge misapprehended the facts of the case by holding that there were two occasions of robberies rather than three robberies is misconceived as there were three incidents of robberies which took place on 9/8/2001 and 11/8/01 (Vide pg 72 of the Record of Appeal). The appellants cannot complain of a mistrial on account of their withdrawal of ground 2 of the grounds of appeal which they have already abandoned. Arguments in paragraphs 5.3 to 5.5 of the appellants brief are outside the issues for determination. The court should hold that the Respondent had proved its case beyond reasonable doubt and in the circumstance this court is to dismiss the appeal.
I have painstakingly considered the submission of both parties in this appeal.
The root of the grievance of the appellants in issue number one is whether there was a qualitative identification of the two appellants with the incidents of robberies which took place in the premises of the victims PW 1 and PW 2 on the 9/8/01 and 11/8/01 in the trial court. The PW 1 was robbed on 9/8/01 and 11/8/01. The PW 2 was robbed on 11/8/01. The armed robbers left the house of PW 1 to repeat the on slaught in the house of PW 2 that night. The appellants had raised the defence of alibi by which they stated that they spent the night in their respective houses and each called his wife as a witness. The learned trial judge in considering all the evidence in support of the alibi of the appellants held on page 73 of lines 27-29 of the record that – The defence of alibi raised by the accused persons in their evidence was a mere afterthought. It is tenuous and porous.”
This therefore makes identification of the appellants and the perpetrators of the robberies on the night of 9/8/01 and 11/8/01 a very crucial issue to the case of the prosecution who by virtue of Section 138 of the Evidence Act has that initial of burden of establishing the guilty of an accused person for any offences charged in any criminal trial beyond reasonable doubt. For the purpose of emphasis I shall restate Section 138 as of the Evidence Act Caps 112 Laws of the Federation 1990 which reads that:
“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
Dibie v. State 2004 14 NWLR Pt. 893 Pg. 257 Woolmington v. D P P 1935 AC Pg 462 at Pg. 481. Haruna v. C. O. P. 1985 7 NWLR pt. 557 Pg. 215. Onugbogu v. The State 1998 1 ACLR 435. Morka v. State 1988 1 ACLR 141. Nwankwo v. The State 1990 2 NWLR Pt. 134 Pg. 627. Onagoruwa v. State 1998 1 ACLR 435 Pg. 498.
Section 138 of the Evidence Act Cap 112 Laws of the Federation 1990.
The rationale being that in criminal cases there is a presumption of innocence which must prevail unless the evidence proves beyond reasonable doubt that the accused is guilty of the offence charged. Odo v. C. O. P. 2004 8 NWLR Pt. 874 Pg. 46. Aroyewun v. C. O. P. 2004 16 NWLR Pt. 899 Pg. 414.
The appellants in this appeal complained that armed robbers who robbed PW1 have not been established beyond any reasonable doubt, while PW2 did not inform the police that he knew the 2nd accused person before the third robbery incident. Hence there was no proper identification parade to connect the 3rd accused person with the first and second robbery incidents and to establish the complicity of the 2nd accused person to the third robbery incident. The evidence of the PW1, pw2 and PW3 in support of the identity and identification of the appellants failed to meet the criteria required for a proper identification parade. It was the impression of the Respondent and the stand was maintained that identification was properly conducted- and during which the appellants were properly identified.
The Respondent also draw attention of Court to page 56 lines 26-28 of the Record where it was the case of the appellants that there was no need for an identification parade because PW1 and PW2 claimed they knew the appellants before the incident. Likewise the appellants in their evidence admitted knowing the prosecution’s witnesses. See page 50 line 15 of the record.
An identification in a criminal trial means a whole series of facts and circumstances by which a witness or witnesses associate a person with the commission of the offence charged. It may consist or include any of the under mentioned:-
(a) Finger prints
(b) Hand writings
(c) Palm prints
(d) Voice
(e) Identification parade
(f) Photographs
(g) Recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or (h) A combination of two or more of the above Ibeh v. State 1997 1 NWLR Pt. 484 Pg. 637.State v. Aibangbee 1988 3 NWLR Pt. 84 Pg. 548. Eyisi v. State 2000 15 NWLR Pt. 691 Pg. 555.
The question whether an accused person was properly identified as a party to the commission of the criminal act is a question of fact to be considered by the trial Court on the evidence adduced for the purpose.
Whenever the case against an accused person depends wholly and substantially on the correctness of his identification and he alleges that the identification was mistaken the court must closely examine the evidence. The court must tread the path of caution in the review of evidence of the identity.
In this case the identity of appellants was based on the recollection of their features by PW1 and PW2 who were victims of the robbery incidents, who saw them in the act of commission of the crime in question. Where identification depends on the recognition of the person, it is not completely immune from mistake even in recognition of close friends and relations. The quality of the identification evidence becomes the focus of the learned trial judge.
Ukpabi v. The State 2004 11 NWLR Pt. 884 Pg. 439 Agbi v. Ogbeh 2005 8 NWLR Pt. 926 Pg. 40 R V Turnbull 1976 63 (AR Pg. 132 at 137-138
In the case of Alabi v. The State (1993) 9 SCNJ 109 the Supreme Court settled what the prosecution must establish for the purpose of identity of an accused as follows:
(a) Description of an accused given to the police shortly after the commission of the offence.
(b) The opportunity the victim had for observing the accused and
(c) What features as noted by the victim and communicated to the police which mark him out from other persons Okosi v. The State 1989 1 NWLR Pt. 100 Pg. 645
Following from the foregoing in evaluating the evidence of identification the following circumstances must be examined inter-alia:-
(a) How long did the witness have the accused under observation?
(b) At what distance
(c) In what light
(d) Was the observation impeded in any way or manner?
Aisha v. State 1998 2 NWLR pt. 537 pg. 246
I agree with the submission of the learned counsel for the respondent that whether or not an identification parade is necessary in any particular case to connect an accused person with the commission of an offence must depend on the circumstances of each case. There was overwhelming evidence before the trial Court that both sides – the appellants and the victims knew each other before the robbery incidents. They committed the crime unmasked. On that first visit to PW1 there was light in his room when they came in hence they attacked him and destroyed the bulb. They paid their second visit equally unmasked they aided their victims to recognize them by pointing a torch light their faces.
The evidence of the police to Court shows that the appellants were mixed up with seven other suspects and paraded before they were identified by PW1 and PW2.
It is my conclusion that based on the evidence before him the learned trial judge had rightly decided relying on the evidence adduced by the prosecution that the appellants committed the robberies for which they were charged and convicted.
Issue one is therefore resolved in favour of the respondent.
ISSUE NO. TWO
The question to be resolved by this Court in this issue is whether on the evidence before the trial Court the learned trial Judge had rightly convicted the appellants.
On this issue the submission of the appellants by way of summary is that the conviction of the appellants for three separate incidents without a proper appreciation of the complicity of each accused person in each of the separate incidents is unreasonable. The duty of the prosecution was to prove all incidents and not some incidents of the robberies alleged. On a perusal of the issues for determination and the grounds of appeal – the ground of appeal on which the argument is based is ground two. In the formulation of the issues in the appellants joint brief ground 2 was abandoned as no issue was raised from it. It is therefore no longer a live issue on which any argument in this appeal can be predicated. A ground of Appeal from which no issue is formulated is deemed abandoned and same is consequently stuck out.
However I shall proceed in the interest of justice to consider the two offences charged which are Conspiracy and Robbery contrary to sections 97 (1) and 293 (c) of the Penal Code respectively.
The ingredients of the offence criminal conspiracy section 97 (1) of the Penal Code are:-
(a) An agreement between two or more persons to do an illegal act or an act or an act which is not illegal by illegal means.
(b) The illegal act must be done in furtherance of the agreement and participation by each of the accused person in the conspiracy.
The ingredients of the offence of Armed Robbery under the penal code section 298 are:-
(1) Theft by the accused
(2) That the accused person caused some persons hurt or wrongful restraint
(3) That the accused did the acts mentioned in paragraphs (b) above in committing the theft, or in order to commit the theft also to carry away the property obtained by the theft.
(4) That the accused did the acts listed above voluntarily and
(5) That the accused persons were armed with dangerous weapons.
The learned trial judge in the decision considered the ingredients of the two offences in the light of the evidence led by both sides giving due consideration to the evidence of prosecutions witnesses and the appellants and their witnesses.
Particularly that during the robbery incidents of the 9th and 11th of August 2001 the appellants went, to the premises of the 1st and 2nd armed with guns, sticks and cutlasses and they attacked and threaten PW 1 and PW 2 before depriving them of the possession of their money. An offence of robbery is committed when a person charged is armed with a dangerous or offensive weapon or instrument at the time of commission of the offence of stealing by using threat or violence and the threat must be immediately before or after the stealing while the purpose must be to obtain or retain the stolen property.
Martins v. The State 1997 1 NWLR pt 481 pg 355
Okpalor v. State 1990 1 NWLR pt 164 pg 581
Okosun & ors v. A-G Bendel State 1985 3 NWLR pt 12 pg 283
Ikwemson v. State (1989) 3 NWLR pt 140 pg 455
The learned trial judge considered the offence of conspiracy. Based on the case of Oduneye v. The State 200113 NWLR pg 88 concluded that-
“That the offence of conspiracy is not defined in the Criminal Code or Penal Code. Therefore direct positive evidence of the plot between the co-conspirators is hardly capable of proof. Criminal Conspiracy is complete when two or more persons agree to do unlawful act by unlawful means. This can be inferred by the acts which show that they acted in agreement.” Onochie & ors v. The Republic 1966 1 ANLR pg 86 Ligali v. Laja 19594 FSC pg 7
The learned trial judge considered the case of the defence particularly the issue of material contradictions in the evidence raised, the issue of identification of the appellants, and the defence of alibi before arriving at the conclusion that:-
“The evidence adduced by the prosecution against accused persons is overwhelming.”
No portion of the evidence of the prosecution can be said by any stretch of imagination to cast doubt on the prosecution’s case. I have no doubt in my mind as to the guilt of each of the accused persons: “Going by the evidence on printed record the above findings of the learned trial judge cannot in my view be faulted.
The trial courts primary duty has always been to discharge the burden of evaluation of evidence and ascribing probative value to such evidence. The appellate court would only interfere where the trial court has been shown to have relied on wrong criteria or irrelevant factors in its preference of the case of one side to that of the other. The appellate court has no business interfering with the trial courts, conclusion if same is based on a thorough and lawful evaluation.
Akeredolu v. Akinremi 1989 3 NWLR pt 108 pg 164 Ahmed v. State 1998 9 NWLR pt 566 pg 389
Furthermore a trial court is the master of the facts of the evidence given before it, and inference, evaluation or assessment of this evidence should not ordinarily be faulted by an appellate court.
Udedibia v. State 1976 11 SC 133
Omogbodo v. State 1981 5 SC 5
Issue two is resolved in favour of the respondent.
In sum this appeal lacks merit it is hereby dismissed. The sentence and conviction of the lower court is affirmed.
Other Citations: (2007)LCN/2175(CA)
