Ani V The State (2009)

LAWGLOBAL HUB Lead Judgment Report

J.O.OGEBE JSC.

The appellants were tried and convicted on a charge of armed robbery contrary to section 1 (2) (a) of Robbery and Firearms (Special Provisions) Act cap. 398 LFN 1990 in the High Court of Enugu State presided over by Nosike J.

The appellants appealed to the Court of Appeal, Enugu Division and the appeal was dismissed on the 10th of March 2003. This is a further appeal to this Court.

The respondents case is that the appellants and 3 others robbed PW1 Chime Ugwu (hereinafter also called ‘the complainant’) of the sum of N300,000 with a gun and iron rod in the early hours of 29th of June 1997. PW1 had known the appellants very well before as the 15t appellant was an apprentice under him and the second appellant frequently visited him. He said that he recognized the appellants with the aid of bush lantern.

The prosecution called 3 witnesses and tendered the statements of the appellants denying any involvement with the crime. The appellants in their statements to the Police raised a defence of alibi which was never investigated by the Police. The appellants case was a total denial of the offence in their evidence in court. DW1 Inspector James Eze gave evidence on their behalf.

The learned counsel for the appellants in their brief formulated 3 issues for determination as follows:

‘1. Whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the Appellants by the Court of Appeal.

Whether the learned Justices of the Court of Appeal misdirected themselves in their evaluation of the evidence with which they found that PW1 did not report to the police that ‘unknown thief or thieves’ robbed him, which misdirection, in turn, led to a miscarriage of justice to the Appellants.

Whether the learned Justices of the Court of Appeal were right, in law, to affirm the convictions and sentences of the Appellants by the trial court even though their defence of alibi, raised at the earliest opportunity, was never investigated and there was no conclusive evidence fixing them at the scene of the crime.’

The learned counsel for the respondent also filed a brief and formulated 3 issues for determination as follows:

‘(i) Whether the trial court and the court below were right holding that the charge of armed robbery preferred against the two appellants was proved beyond reasonable doubt.

(ii) Whether the defence of alibi availed the appellants having regards to the peculiar facts of this case.

(iii) Whether the evidential value ascribed to the evidence of the P.W. 1 (complainant) by the court below was a misdirection in law.’

The learned counsel for the appellants submitted that the two lower courts were wrong in convicting the appellants of the offence of robbery when the prosecution failed to prove its case beyond reasonable doubt. He said that the only evidence implicating the appellants was the evidence of P.W. 1 who claimed to have recognized the appellants with the use of bush lamp but in his first report to the Police he told the Police that unknown thieves broke into his house and stole his money. The Police report is exhibit “F” and the Police Officer who recorded exhibit “F” testified as D.W.1. He stated clearly that the report made to him was that unknown thief or thieves broke into the house of the complainant and robbed him of his money.

The learned counsel submitted that the evidence of D.W.1 raised reasonable doubt as to the veracity of the complainants identification of the appellants. The lower court was therefore wrong in convicting the appellants of the offence of robbery. He relied on the case of Bozin V. The State (1985)2 NWLR (pt.8)p.465; Abudu V The State (1985)1 NWLR (pt.1) 55; and Ebre V. The State (2001) 12 NWLR (pt.728) 617 and submitted that where a complainant failed to mention to the Police the names of suspects at the earliest opportunity, his subsequent naming of suspect should be treated with caution.

On the second issue the learned counsel for the appellants submitted that the lower court made a wrong evaluation of the evidence and came to the wrong conclusion in affirming the judgment of the High Court. He said that the Police report in exhibit “F” showed that the complainant reported that unknown thief robbed him and the maker D.W.1 gave evidence that the complainant came back 3 days later and gave the names of the appellants as his suspects. Based on that information the Police arrested the suspects with the complainant as their guide.

The learned counsel for respondents argued issues 1 and 3 together and submitted that the prosecution proved the case against the appellants beyond reasonable doubt and the Court of Appeal was right in affirming the judgment of the trial court. The learned counsel submitted that the fact of the robbery was not disputed and the P.W. 1 clearly identified the appellants as participants in the robbery, and that resolved the only issue in controversy in the appeal. He further submitted that there is no legal requirement for the sole piece of evidence of an adult like P.W.1 to be corroborated and conviction can be founded on the evidence of a single witness once it is credible and accepted by the court. He referred to the case of Stephen Oteki V. The State (1986)4 SC.222.

The appellants were charged with the capital offence of armed robbery and were infact convicted and sentenced to death by the 2 lower courts. It is not disputed that the only eye witness to the event was P.W.1 and the robbery took place at about 4.am when it was still dark and P.W.1 testified that he recognized the appellants with the aid of a bush lantern.

He also testified that he did not mention the names of the appellants to the villagers when day broke, so that the appellants would not run away from the village. That appears to be a plausible explanation. However, on that very day of the robbery he went to Ozalla Police Station and reported that a thief or thieves broke the fence of his gate with iron rod, matchet and torch-light and ordered him to open his door which he opened and they rushed in and attacked him and stole his money worth of N300,000.00 D.W.1 inspector James Eze who made entry in the Police Dairy was summoned to testify on behalf of the appellants; he insisted that the complainant did not mention any names of suspects when he made the first report. He returned 3 days later to mention the names of the appellants and led them to their village to arrest them.

The critical question is why the complainant failed to name the appellants at the first opportunity he had to report to the Police. He claimed that he mentioned the names of the appellants in his first report. Both the trial court and the Court of Appeal failed to consider the question of why Inspector Eze would choose to tell lies against the complainant in the Police report and in his testimony in Court. There was evidence under cross-examination that as at the time of his testimony Inspector Eze had done 29 years in the Police. This showed clearly that he was a very experienced Police Officer.

If the lower courts had adverted their minds to this serious evidence of Inspector Eze in contrast to the complainants evidence it would have shown them that the prosecution did not establish its case beyond reasonable doubt. It should be noted that there was no evidence by the Police that any expired cartridges were found to the compound of the complainant to show that there were gun shots in the night of the incident.

In other words, there was a question mark as to whether the offence committed was actually armed robbery with a gun. In the case of Abudu V. The State (1985) 1 NWLR (pt.1) 55, there was a robbery involving several people and two of the accused persons were identified by a lady but she omitted to mention the names of the accused persons at the earliest opportunity. The High Court convicted the appellants. On appeal to the Court of Appeal two of the Justices dismissed the appeal while Justice Omo-Eboh JCA dissented. On appeal to the Supreme Court it unanimously allowed the appeal and held that where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence a court must be careful in accepting his evidence implicating the person or persons charged unless a satisfactory explanation is given. See also the cases of Bozin V. The State 2 NWLR (Pt.8) 465 and Ebre V. The State (2001) 12 NWLR (pt.728) 617.

The lower court in affirming the convictions of the appellants reasoned at pages 192 – 193 of the record of appeal as follows:

‘Further still, I would now dwell on the allegation of appellants relating to the disclosure by P.W.1 at the earliest opportunity. From the record of the trial court, at pages 45-48 Inspector James Eze attached to the four corner Ozalla Police Station was the Police officer to whom P.W.1 first made report of the robbery. The said officer was not the investigating Police officer but gave evidence for the appellants as DW. 1 and said.

‘Two persons were arrested, I cannot remember the date of arrest. The arrest were made based on the report made to me. The two persons I arrested based on the report are the accused persons. The name of those arrested are not contained in exhibit ‘F’. Chime Ugwu PW. 1 came back about three days later and mentioned that he suspected two persons who should be arrested.

Deducing from DW. 1 testimony he was unable to remember the date of the arrest of the accused persons but could however remember the accused. Moreover, that the names of the those arrested are not contained in exhibit “F”. Query, if exhibit ‘F’ recorded by DW.1 stated ‘unknown thieves’, one wonders how he was able to make the arrests of the accused as rightly argued by the respondents counsel, and that which the witness wanted the trial court to believe.

From all indications and in my humble deductions, PW.1 must have disclosed the identity of the accused at the time he made the report to the Police Station and which was received by DW.1. There could not therefore have been a report of ‘unknown thief or thieves’ as claimed by him at exhibit ‘F’.

With the greatest respect to the lower court its reasoning was entirely speculative. Inspector Eze made it very clear in his evidence that the complainant returned 3 days after the first report to give the names of the appellants and that led to their arrest. For the Court of Appeal to reason that the complainant must have given the names of the appellants at the first report is not borne out from the record. When it is noted that the prosecution chose not to call Inspector Eze to testify on its behalf as the first person to receive the complaint, it showed that it had something to hide.

The lower court also misdirected itself when it held at page 191 of the records that the PW.1 did recognize the appellants voices when they spoke at the operation. The evidence before the High Court was that the complainant recognized the appellants with a light from a bush lantern. It was in the complainants statement to the Police which was marked I.D. but was not formally admitted in evidence that he mentioned recognizing the appellants by their voices. The Court of Appeal had no business treating that piece of evidence as proved when the statement was never admitted as evidence in the trial court. In any event that statement contradicts P.W.1s evidence before the trial court.

For all I have said I am clearly of the view that the two lower courts were wrong in holding that the prosecution proved its case beyond reasonable doubt. As I have demonstrated, there were serious doubts in the case of the prosecution for any reasonable court to convict the appellants of an offence that carries the capital punishment.

‘On the 3rd issue on the plea of alibi it is quite clear that the Police made no attempt to investigate the alibi of the appellants given in their statements to the Police. The law is that once an alibi has been raised, the burden is on the prosecution to investigate and rebut such evidence. See the cases of Opayemi V. The State (1965) 2 NWLR (pt.5) 101, Bozin V The State (1985) 2 NWLR (pt.1) 465 and Obakpolor V. The State (1991) 1 NWLR (pt. 165) 113.

Without investigating the alibi of the appellants but relying on the questionable identification of the appellants by P.W.1, the Police or the prosecution cannot claim that the case for the prosecution was proved beyond reasonable doubt.

Since I have resolved all the issues in favour of the appellants, it follows that I find the appeals meritorious. Accordingly, I allow the appeals and set aside the convictions and sentences imposed by the lower courts. In their place, I substitute a verdict of Not Guilty. The appellants are discharged and acquitted of the charge against them.

S.C. 239 /2009