Abu Isah The State (2008)

LAWGLOBAL HUB Lead Judgment Report

S.A. AKINTAN, JSC 

The appellant, Abu Isah, was arraigned before a Kogi State High Court as 2nd accused along with five others on a two count charge of criminal conspiracy and armed robbery punishable under sections 97 (1) and 298(c) of the Penal Code respectively. The particulars of the offence are that the said appellant conspired with the other co-accused named in the charge of conspiracy to commit armed robbery and that while armed with guns, matchetes and cutlasses, he along with his co-accused, attacked and robbed one Paul Nzeni of =N=52,000 and Benneth Onwugbufor of =N=68,000. The appellant and his co-accused persons pleaded not guilty to each count of the charge. The trial then took place at Okene High Court before Olusiyi, J. The prosecution led evidence in support of its case and each of the accused persons led evidence in their respective defence. At the conclusion of the trial, the learned trial Judge, in his reserved judgment delivered on 24th June 2004, found each of the accused persons guilty as charged. Each of them was sentenced to seven years imprisonment on the count of robbery and =N=3,000 fine or one year in lieu on the conspiracy count. The appellant was dissatisfied with his conviction and his appeal to the Court of Appeal was dismissed. The present appeal is from the judgment of the Court of Appeal. The parties filed their respective brief of argument in this court. The appellant formulated the following two issues as arising for determination in the appeal: “1. Whether the Honourable Court of Appeal was right when it held that there was adequate identification evidence to arrive to an unequivocal conclusion that the appellant committed the robberies. PAGE| 2 2. Whether considering the circumstances of this case the Honourable Court of Appeal was right to have upheld the conviction and sentencing of the appellant by the trial court on the evidence before it.” Two similar issues were formulated in the respondent’s brief. I therefore do not consider it necessary to reproduce them. The facts of the case are that the appellant and five others who were tried along with him committed three armed robberies in all. One was on 9th August, 2001 and two on 11th August 2001. The two victims of the robberies are Paul Nzewi (who testified as PW1) and Benneth Onwugbufor (who testified as PW2). PW1 told the trial court that on 9th August, 2001 at about 1.50 a.m while sleeping in his room in his house in Okene, he heard a knock on his door. When he did not respond, the gang of robbers forced the door open and about three men gang of robbers came inside. They were armed with gun, matchet and dangerous weapons. They struck him on the head and told him to lie down. They forced him to part with =N42,000 before they left. He told the court that he was able to identify one Monday, Abu Awe, a panel beater who had a workshop directly opposite Riverside Restaurant, Lagos Road, Okene and one Ojo Mudu of Irurucheba, a former driver to River side Restaurant, Lagos Road, Okene as the three robbers. The same set of armed robbers again came to the house of PW 1 on 11th August, 2001. They forced the door open and they were similarly armed with a gun, matchet and cutlass. Upon entry they forced the witness to part with =N=15,000 that was with him that night. But the witness (PW 1) told the court under cross-examination that: “The accused persons were arrested after the second armed robbery incident. When I made the first report to the police, I did not mention the names of the accused persons. The accused persons were not masked when they robbed me. I knew the accused person before the incident. PAGE| 3 The names I mentioned in my statement to the police were Monday, Abu and Ojo Audu in respect of the first robbery incident. In respect of the second robbery incident, I mentioned Monday and Ojo Audu. The person I referred to as Ojo Audu is the 3rd accused person before the court. The person I referred to as Abu in my statement to the police is the 2nd accused person before the court. When my neighbours came to take me to the hospital, I did not tell them about the identity of the robbers. I was invited to the State C.I.D Lokoja where I identified the two accused persons now before the court and the other accused persons who are at large as the persons who robbed me.” There was no re-examination and as such the witness did not give any reason for not disclosing the names of the robbers to the police when he reported the incident. Benneth Onwugbufor (PW 2) was the second victim of the robberies. He was living in the same address as PW 1. He confirmed that the robbers visited PW 1 on their first call on 9th August, 2001. But when they returned on 11th August, 2001 at about 2.30 am while he was sleeping in his room, he was woken up by sounds of gun shots fired by the robbers. He got up and peeped through the window in his room and he saw the robbers. He said he was able to recognize some of them. Among those he could recognize were Monday, James, Ojo, Hassan, German, an electronic repair, and Abu, the 2nd accused person who is the present appellant. The robbers came to his apartment upstairs in the house. They broke the door into his room and robbed him of =N=68,000 he had with him in the room that night before they left. He said further that it was some weeks after the incidents that PW1 and himself were invited to the State C.I.D Lokoja for an identification parade. There he identified the appellant, another co-accused and one Monday as the armed robbers who robbed him. It is submitted in the appellant’s Issue 1 that the purported recognition of the appellant was an after thought and a farce meant to get at the appellant for whatever reason. This is because of the failure of both PW1 and P W 2 to mention the names and identities of the robbers to either the police when they made their reports or to the head of the community immediately after the incidents. PAGE| 4 That omission is said to be vital to the case for the prosecution. It is further argued that the learned trial Judge failed to advert his mind to the fact that both PW1 and PW 2 had to wait until after five days after they were robbed before disclosing the identities of those who robbed them. Had the learned Judge done that, he would have rejected the evidence linking the appellant to the robberies. The court below is said to have made the same mistake. It is finally submitted that the failure or inability of the PW1 and PW2 to mention the names of the accused persons immediately after the incident created a doubt whether they actually recognized the people that robbed them. The point canvassed in the appellant’s Issue 2 is in respect of the evidence relied on in convicting the appellant. It is submitted that basing a conviction on the confused and doubtful evidence of recognition or identification of the appellant was erroneous and the doubt ought to have been resolved in favour of the appellant. It is submitted in reply in the respondent’s brief in Issue 1 that there cannot be a better and more adequate evidence of identity of the appellant in relation to the commission of the offence than those presented at the trial against the appellant. On the delay by PW1 and PW2 in identifying the appellant, it is submitted that there are no laws stipulating the period within which identification parade must be conducted. Also on the delay in promptly reporting and disclosing to the police the identities of the robbers, it is submitted that that cannot defeat the evidence adduced before the trial court and no law stipulating the period within which a crime must be reported to the police.

SC. 111/2007