Cyriacus Ogidi & Ors V. The State (2005)
LAWGLOBAL HUB Lead Judgment Report
G.A.OGUNTADE, J.S.C.
The four appellants were arraigned before the Owerri High Court of Imo State on an information for the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) offence as set out on the information stated that the appellants on 1st June, 1997 at Amazu Uno Arondizuogu in the Orlu Judicial Division while armed with offensive weapons to wit: locally made pistol and matchets, robbed Mrs. Ndidi Nnakaihe and Innocent Nnakaihe of some properties.
The appellants were tried by Ohakwe, J. after each of the appellants had on 16/08/99 pleaded not guilty to the charge. The prosecution called four witnesses. Each of the appellants testified in his own defence. The 1st appellant alone called a witness who testified as DW5. The trial Judge on 17/12/99 delivered judgment in the case. Each of the appellants was found guilty of the offence and sentenced to death.
Dissatisfied, the appellants brought an appeal against the judgment. The appeal came before the Court of Appeal, Port Harcourt Division (hereinafter called the court below). The court below on 3/2/2003 delivered its judgment. The court by a majority dismissed the appeal. Nsofor and Adeniji, JJCA were for a dismissal of the appeal by the four appellants. Ikongbeh, JCA in his minority judgment dismissed the appeal of the 1st appellant and allowed the appeal of the 2nd to fourth appellants.
The appellants have brought a further appeal before this court. In the 1st appellant’s brief, the issues for determination in the appeal were identified as the following:
“1. Whether the 1st appellant’s fundamental right under section 36(7) of the Constitution of the Federal Republic of Nigeria, 1999 was violated in this case and if so, did such violation not render the entire trial and conviction of the 1st appellant unconstitutional, null and void
- Whether there was cogent, convincing and satisfactory evidence of proper identification of the 1st appellant as one of the armed robbers that committed the offence of armed robbery in the dwelling house of Innocent Nnakaihe as stated in the information.
- Whether the particulars of the offence stated in the charge and the essential ingredients of the offence of armed robbery were proved beyond reasonable doubt to justify the conviction of the 1st appellant for armed robbery
- Whether the conviction of the 1st appellant relying on the provisions of section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria was right”
The issues for determination as formulated by the 2nd, 3rd and 4th appellants converge at a point which is as to whether or not the court below was right in its view that the trial court was right to say that the prosecution established the guilt of the appellants beyond reasonable doubt. The 4th appellant raised an additional issue wherein he queried whether the majority judgment of the court below was right in its conclusion that the circumstantial evidence available against him led irresistibly to his guilt. The respondent formulated two issues for determination but the two issues are well accommodated under the issues formulated by the four appellants.
The first issue raised by the 1st appellant is on sections 6(3),5(e)and 36(7) of the 1999 Constitution of the Federal Republic of Nigeria. I do not intend to set out here sections 6(3),5(e)of the 1999 Constitution. It suffices to say that the provision says no more than that a State High Court is bound to exercise the powers conferred under section 6 of the 1999 Constitution. Section 36(7) however provides:
“7. When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorised by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.”
Before I enter into a discussion of the arguments raised on the issue under consideration, it is important that I expose briefly the alleged omission on the record of proceedings of the trial court, which is the matter that has led to the issue under consideration. When on 16/08/99, the appellants were first arraigned, the record of proceedings at page 45 reads in part thus:
“Accused persons present in court L. C. Azuama (Principal Legal Officer with Mrs. M. C. Enwerem (Senior Legal Officer) appear for the Attorney-General. Amaedu Nwaiwu, Esq. with B. N. Mbala, Esq. appear for all the accused persons.
Plea: The charge is read to the accused persons in Igbo language, which the accused persons understand and they plead as follows:
1st accused, Cyriacus Ogidi not guilty to the charge
2nd accused, Augustine Awuzie not guilty to the charge
3rd accused, Paul Uzoechi pleads not guilty to the charge
4th accused, Chukwudi Ogidi pleads not guilty to the charge.”
The point worth noting from the above extract of proceedings for 16/08/99 is that the appellants were Igbo speaking and this fact necessitated the reading of the charge to them in Igbo language.Subsequent to the above, PW1 and PW2 testified. The record of proceedings shows that both testified in Igbo language. Both PW3 and PW4 later testified in English language. There was nothing on the record of proceedings to show that when PW1 and PW2 testified in Igbo language, their evidence was interpreted into English language. There was also nothing on the record of the court indicating that when PW2 and PW3 testified, their evidence was interpreted to the appellants in
Igbo language. Indeed there was nothing on the record of the court to show that any interpreter was present in court. At the close of the prosecution’s case, each of the appellants testified in Igbo language in his defence. The 1st appellant called as his witness DW5, who also testified in Igbo language. Again there was nothing on the record of the court to show that there was present in court an interpreter; nor was there any indication that the evidence of the appellants and DW5 was interpreted to the court in English language. It was against this background that the 1st appellant’s counsel made his submissions as per the appellant’s brief filed.
In his 1st appellant’s brief, counsel submitted that the trial court being a superior court of record under the 1999 Constitution was bound to observe the provisions of section 36(7) of the Constitution. The cases relied upon by counsel include Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553)171; Godwin Josiah v. The State (1985) 1 NWLR (Pt. 1) 125; Godwin Anyanwu v. The State (2002) 13 NWLR (Pt. 783) 107; Achineku v. Ishagba (1988) 4 NWLR Pt.89) 411 and Abimbola v. Aderoju & 3 ors (1999) 5 NWLR (Pt. 601) 100.
Our attention was drawn to pages of the record of proceedings on the dates when PW1, PW2, DW1, DW2, DW3, DW4 and DW5 testified. Counsel observed that although there was an indication from the record that the appellants only understood Igbo language, there was nothing on the record of proceedings to show that the evidence given by Igbo speaking witnesses was interpreted from Igbo language into English language for the record of the court.
Counsel further submitted that since the record of proceedings did not ex facie show that an interpreter was made available to the appellants, it was not open to the court to speculate on the point- Palnapina v Wariboko (1975) 2 SC 29 at 35; State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548 at 577; Alhaji A. R. Animashaun v. University College Hospital (1996) 10 NWLR (Pt. 476) 65 at 76.
Discussing the consequences of the failure to observe these provisions of the 1999 Constitution, counsel submitted that this court must nullify the entire proceedings – Olumesan v. Ogundepo ( 1996) 2 NWLR (Pt. 433) 628; Alhaji Musiliu Tewogbade v. Saliu Agbabiaka & 2 Ors. (2001) 5 NWLR (Pt. 705) 38 at 152/153 Adigun v. Attorney-General of Oyo State (1987) 1NWLR (Pt. 53) 678; Jonpal Ltd. v. Afribank Ltd. (2003) 8 NWLR (Pt. 822) 290 at 304; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652; Aiyetan v. Nifor (1987) 3 NWLR (Pt. 59) 48. Finally, counsel submitted that it was immaterial that failure to comply with the mandatory constitutional provisions did not lead to a miscarriage of justice: Faustina Oviasu v. Dr. Victor Oviasu (1973) 11 SC 315 and Ifezue v. Mbadugha (1984) 1 SCNLR 429.
The 2nd to 4th appellants did not in their brief discuss the 1st appellant’s first issue for determination. The respondent’s counsel in his brief observed that the 1st appellant’s grouse was not that the 1st appellant did not understand the language in which prosecution witnesses testified but rather as a matter of constitutional imperative, whether the evidence given by prosecution witnesses ought to have been interpreted into English language. Counsel directed the attention of the court to page 45 of the record of proceedings where it was stated that the charge was read to the appellants in Igbo language. Counsel then submitted that the Constitution did not impose a duty to interpret the evidence given in a case to the accused and there was therefore, no right created in favour of the appellants – Ex Parte Olakunrin (1985) 2 NWLR (Pt. 4) 652. He submitted also that the provision in section 36(6)(e) that an interpreter be provided for an accused was only in cases where the accused did not understand the language in which evidence was given. The same section, counsel said, did not imply that an interpreter be provided for the court – Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647 at 657. Counsel said that the views expressed by Uwais, JSC (as he then was) in Rabbo Damina v. The State (1995) 8 NWLR (Pt. 415) 513 fell far short of elevating the necessity to have an interpreter in court to a constitutional requirement. Respondent’s counsel submitted that if the 1st appellant was contending that the evidence of witnesses for the prosecution was not correctly interpreted, the 1st appellant would need to formally impeach the record of proceedings – Usman Yarzabaina & Anor. v. Kano N.A. (1961) 1 SCNLR 244. Counsel submitted that the law required no more than that the trial be fair – Russel v. Duke of Norfolk & Ors. (1949) 1 All ER 109 at 118.
Counsel further argued that to the extent to which the necessity to use interpreters in court has no constitutional backing, any party that had consented to the use of a particular procedure in court, could not turn round to contend that that same procedure was wrong – Akhiwu v. The Principal Lotteries Officer, Mid-Western (Nig.) & D Anor. (1972) 1 All NLR 229; Tambaya Filani v. Bornu N.A. (1961) 2 SCNLR 176, (1961) All NLR 473. Counsel observed that the omission being complained of by the 1st appellant was not the same, as it was in Fawehinmi Construction Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) 171 and Godwin Josiah v. The Estate (1985) 1 NWLR (Pt.1) 125. On the case of Godwin Anyanwu v. The State (2002) 13 NWLR (Pt. 783) 107, it was submitted that when the reasoning of the Supreme Court in the case was examined, it would be seen that it was not in all cases that an interpreter was not used that the proceedings would be vitiated. Finally, counsel submitted that minor irregularities and technicalities should not be permitted to defeat the end of justice – Okoroh v. The State (1990) 1 NWLR (Pt. 125) 128 and Obakpolor v. The State (1991) 1 NWLR (Pt. 165) 113 at 116.
The important observation I like to make by way of a preface to the consideration of 1st appellant’s first issue is that the issue he formulated relates only to the interpretation and application of section 36(7) of the 1999 Constitution. I make this observation because the 1st appellant’s counsel in the guise of arguing the 1st appellant’s first issue went into lengthy discussion of matters which could only be relevant if 1st appellant had raised an issue relating to section 36(6)( e) of the 1999 Constitution. For instance, at pages 12 and 13 of 1st appellant’s brief, counsel highlighted –
“Key prosecution witnesses namely PW1 and PW2 testified at the trial in Igbo language against the 1st appellant but their evidence was recorded in English language (see pages 45 lines 31-33, 46, 47, 48, 50 lines 23-32,51,53 lines 5-32, 54, 55, 56.
(a) Whether or not any interpreter knowledgeable in both Igbo and English languages was present in court.
(b) Whether or not such interpreter was duly sworn to interpret the proceedings.
(c) Whether or not such interpreter actually interpreted the evidence of PW1 and PW2 from Igbo language into English language for the court to record.
(d) The name of such interpreter if any.
- Also the 1st appellant (as DW1) and indeed other accused persons (namely DW2, DW3 and DW4) and the 1st appellant’s witness DW5 all testified at the trial in Igbo language but their evidence were recorded in English language. (See pages 77 lines 16-30, 78, 79,80,82,83,84,85,86,87,88,89,90 of the record-
” (a) Whether or not any interpreter knowledgeable in Igbo and English language was present in court.
(b) Whether or not such interpreter was sworn to interpret the proceedings.
(c) Whether or not such interpreter actually interpreted the evidence of DW1, DW2, DW3, DW4 and DW5 from Igbo language into English language for the court to record.
(d) The name of such interpreter, if any.”
The above passage from 1st appellant’s brief would only fall for consideration in the appeal if 1st appellant raised an issue under section 36(6)(e) of 1999 Constitution which provides:
“(6) Every person who is charged with a criminal offence shall be entitled to –
(e) have without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
The above provision however is not what I am concerned with in this judgment; and I shall not be drawn into a discussion or consideration of the provision and the question if the provision was breached in the 1st appellant’s trial. The simple question to be considered is: Was section 36(7) of the 1999 Constitution violated in relation to the 1st appellant at the trial as to vitiate, or nullify the proceedings leading to his conviction
Let me make the point here that the 1st appellant has not impeached the record of proceedings before me. In other words, it has not been shown that the record of proceedings before me is not a full and complete minutes of all that happened in court at the trial of the appellants. Any person who is contending that the record of proceedings before an appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings – Usman Yarzabina & Anor. v. Kano N.A. (1961) 1 SCNLR 244. The record of proceedings not having been formally impeached, it is not open to this court to speculate that other things happened in the court of trial which were not recorded in the record of proceedings: See Panalpina v. Wariboko (1975) 2 SC 29 at 35; State v. Aibangbee (1988) 3 NWLR (Pt.84) 548 at 577; Alhaji A. R. Animashaun v. University College Hospital (1996) 10 NWLR (Pt. 476) 65 at 76. In Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) 171 at 183, this court per Belgore, J.S.C. observed that:
“Record of proceedings is the only indication of what took place in a court; it is not like minutes of a meeting; it is always the final reference of events, step by step, that took place in court.”
It has not been shown to me that certain matters which ought to have been recorded were not recorded during the trial of the appellants. I must therefore, in this court accept the record of proceedings as error free. It is difficult for me to reach the conclusion at the 1st appellant’s prompting that section 36(7) of the 1999 Constitution was violated in relation to the 1st appellant at the trial. The 1st appellant’s first issue must therefore be decided against him.
The 1st appellant has raised two other issues. The two issues taken together are a challenge to the quality of evidence called at the trial and upon which the conviction of 1st appellant was based. Was the guilt of 1st appellant established beyond reasonable doubt as required by law I intend to consider together the case made against all the appellants at the trial and then to draw later the appropriate conclusions to be arrived at in respect of each of them.
Now at the trial, there was the evidence of PW1 and PW2 which positively identified the 1st appellant as one of the persons who committed the offence of robbery on 1/6/97. PW1 and PW2 had known the 1st appellant before 1/6/97 as they lived with him in the same neighbourhood.
PW1 testified concerning the 1st appellant thus:
“On that day we were sleeping in the house, we heard gun shots in our compound, we became afraid. I carried my new born baby. I heard when our door was deep broken. They said if we failed to open the door by ourselves and they open the door by themselves, they would kill us. By this time my mother-in-law ran into the room where I was with my new born baby. When they forced the door open, two people carrying guns entered. At the time, there was a lantern in my room, one of them carried it to the parlour. It was then I recognised one of the two persons known as Cyriacus Ogidi, (1st accused person).”
PW2 also testified against 1st appellant thus:
“On that day the 1st accused and his gang robbed in my place. Around 12.30 midnight. On that day, I was sleeping on my bed in my room. I heard a knock on my door where my wife and children were sleeping. I opened the door of my room to know who was knocking. When I flashed my touch to see the person who was knocking, I saw the 1st accused, he ran into my room and he was carrying matchet. When I flashed the torchlight he tried to cover his face not knowing that I had already seen him. When he was covering his face with his hand, I ran away through the back door of my house.”
At the trial, a statement previously made by PW1 to the police was tendered in evidence as exhibit A. This was to impeach the credibility of PW1. In exhibit A, PW1 had said that he recognized the 1st appellant as he and his group were leaving her house. 1st appellant’s counsel has submitted that the quality of evidence identifying the 1st appellant as one of the robbers was very poor. He pointed to the contradiction in the evidence given under oath by PW1 and in her statement to the police exhibit ‘A’. Counsel relied on the observation of Oputa, JSC in Patrick lkemson & 2 Ors. v. The State (1989) 3 NWLR (Pt. 110) 455 at 478 where he said:
“The criminal law is full of cases of mistaken identity- see The trial of Adolph Beck ed. E.R. Watson (Edinburgh CR App R.29. In Roland’s case (supra), there was an identification parade and Rowland was identified by three independent witnesses. Yet later on, Ware confessed that he and not Rowland was the actual murderer. The courts have therefore got to guard against cases of mistaken identity.”
The trial Judge at pages 117 and 118 of the record in accepting the evidence of PW1 and PW2 on how they saw and recognised the 1st appellant said:
“In her oral testimony and in exhibit ‘A’, PW1 said she knows the 1st accused in person as being a native of Owerre Akokwa. In her evidence and in her statement to the Police she said there was a lantern in the room. She also said she saw the 1st accused at the time of the incident in their house. The witness did not identify the 1st accused by description but by seeing and recognition of the 1st accused who she knows the house and compound. PW.q was at the scene of crime. For a contradiction to be fatal to a case, it must not only relate to material fact but must result in a miscarriage of justice see – Sule Oladejo Asariyu v. The State (1987) 4 NWLR (Pt. 67) 709; Adebayo & Ors. v. The State (1992) 4 NWLR (Pt. 235) 267 at 275. I see no material contradiction in the evidence of PW1 that undermines her credibility. I believe her story that she saw the 1st accused at the scene of crime. Also on the issue of contradiction in the evidence of PW2 and his credibility, I have read exhibit B and considered it side by side with the evidence of PW2, the witness was consistent in his evidence that on hearing a knock at the door of his house, he opened another door of his house, flashed his touch-light and saw the 1st accused carrying a matchet. The witness said the 1st accused chased him with the matchet and he ran away through a back door to his brother and both of them raised alarm following which the robbers were given a chase and they ran into the compound of the 1st accused.”
Both the majority and minority judgments of the court below agreed with the finding above of the trial court. It is a correct and immutable principle of law that the prosecution must establish the guilt of an accused beyond reasonable doubt in a criminal case. See David Obue v. The State (1976) ANLR 165.
The trial court must in fulfillment of this duty consider the totality of the evidence before the court i.e. aspects which are favourable and those not favourable. It is after such duty that the court then comes to a conclusion as to whether or not the case was established beyond reasonable doubt.
It seems to me that the 1st appellant’s counsel in his submissions to us had not adverted his mind to the totality of the evidence called by the prosecution. Leaving for a while the issue as to whether or not the appellant was properly identified, I must consider the evidence to the effect that when the robbers were chased away from the scene of crime, they ran into the house of 1st appellant. It must be borne in mind that PW1 and PW2 had known 1st appellant before the day the crime was committed. The natives and members of the local vigilante group lay in wait and when the day broke alerted the police. The police came to the house of the 1st appellant and several of the properties stolen from PW1 were found in the house or compound of the 1st appellant. This was at a period of barely twelve hours after the robbery took place. The trial Judge commented on this aspect of the case against the 1st appellant at pages 119 to 120 of the record thus:
“PW3 stated that he executed a search in the house and premises of the 1st accused person and recovered the following items of property; telephone set exhibit M, two international passport exhibits N, N1, video cassette exhibit 0, Baby Napkins exhibit P-P4, baby dresses exhibits Q-Q2, clothes exhibits T-T3, travelling bags exhibits U-U2, beverages exhibits W-W2, soap and tooth paste exhibits Y-Y2. All the accused persons signed exhibit H – search warrant, witnessing the recovery of these exhibits. Exhibits J, L, L1 were recovered along the escape route of the robbers. The PW1 identified most of the exhibits as the ones robbed her of by the robbery gang. The 1st accused denied that the exhibits were recovered in his compound but were found in a bush behind his compound. In exhibit ‘C’ he stated ‘I know why the police arrested me. I was arrested because the police saw some exhibits in my compound, that is in the small bush in my backyard.’ In exhibit EE, the 1st accused stated ‘actually the following items were recovered in my compound by the police. I do not know how these exhibits entered my compound.’ In exhibit GG, he also admitted that the police recovered the exhibits in his compound but does not know who kept them. From the evidence of PW3 and DW1 – (the 1st accused), I find as a fact that exhibits M.N., N1, “O” P-P4, Q-Q2, J-J3, U-U2, W-W2, Y-Y2 were recovered from the compound of the 1st accused person, while exhibits J, S, L, Ll were recovered along the escape route of the robbers. From exhibit ‘D’, the 1st accused stated he saw people run through his compound and on 2/6/97 he could recognise one of them as ‘Synco’ who told him ‘they went some-where and there was some problem’ ‘Sinko was in my house by the time policemen came to arrest us’ . The witness said he saw Sinko between 3-4 a.m. on 2nd June, 1997. Under cross-examination the 1st accused stated he does not know anybody called Sinko.”
The court below also affirmed these findings. It is my firm view that these findings were justified by the evidence against the 1st appellant. I ought not to disturb these concurrent findings of fact. On the whole, I am satisfied that the court below was right to have affirmed the conviction and sentence imposed on the 1st appellant.
I now consider the case against the 2nd to 4th appellants.
Now at the trial, there was the evidence of PW1 and PW2 which positively identified the 1st appellant as one of the persons who committed the robbery offence on 1/6/97. PW1 and PW2 had known 1st appellant before 1/6/97 as they lived in the same neighbourhood with him. Those who came to commit the offence were seen running with 1st appellant into 1st appellant’s compound. The case against 2nd to 4th appellants on the other hand was based only on circumstantial evidence.
The issue common to the 2nd to 4th appellants is whether or not the prosecution established the guilt of the three appellants on the standard required by law i.e. beyond reasonable doubt. At the trial the prosecution called four witnesses. The PW1 testified that on 1/6/97, while sleeping in her house at Amazulo, Arondizuogu, she heard the sound of gun shots. The door to her house was broken and two persons who each had a gun came in. With the aid of a lantern she recognised the 1st appellant. The two men beat PW1 and her mother-in-law. They later carted away some valuable properties which included a radio cassette, umbrella, pomade, milk and soap.
PW2 testified that on the same 1/6/97, the 1st appellant and his gang aroused him from sleep at about 12.30 a.m. by banging the door to his room forcefully. With the aid of a touch light, PW2 saw the 1st appellant who was carrying a matchet. PW2 raised an alarm to alert the natives and the village vigilante group. The thieves took to their heels. PW2 and his neighbours chased them and they were seen entering the house of the 1st appellant. As the thieves ran away, they dropped some of the articles they had stolen. PW2 and his neighbours lay in wait hoping that the thieves would come back to recover the items they dropped as they ran away. The thieves, true to the expectation of PW2 came back at about 5a.m. to collect the articles that they had dropped earlier. The thieves saw PW2 and his neighbours. They ran back into the house of the 1st appellant. PW2 and others waited till the day broke. They then reported to the police. The police came and were led to the house of the 1st appellant into which the thieves had escaped. All the appellants were then arrested there.
PW3 was a police officer. He testified that following a complaint lodged at the Police Station where he worked, he and another officer went to the scene of the crime. They were led to the house of the 1st appellant. There, they executed a search warrant and recovered some items of property. They saw the 2nd and 4th appellants in the house of the 1st appellant. They took all of them to the Police Station.
PW4 was the Investigating Police Officer. Under caution, he obtained statements which were voluntarily made from all the appellants. The statements of the appellants were tendered in evidence by PW4 as were the stolen articles recovered.
The 2nd appellant testified in his own defence. He denied that he was one of those who committed the offence of robbery on 1/6/97. He said that on 31/5/97 he slept in his house at Umuezeaga, Akokwa. At about 10 a.m. on 2/6/97, he went to the house of the 1st appellant to collect some medicine for his sickness, as 1st appellant was a herbalist. In the house of 1st appellant, the 2nd appellant met the 3rd appellant with his child. The 3rd appellant had also come to the 1st appellant for treatment. After a while, the police came into the house of 1st appellant and arrested him as well as the 3rd appellant. The 2nd appellant identified the statements which he made to the police as exhibits BB and BB 1.
The 3rd appellant testified that on 2/6/97, he took his child to the house of the 1st appellant, a herbalist, for treatment. 1st appellant treated his child and while there, the 2nd appellant came in to receive treatment from 1st appellant. Suddenly, many persons trooped in. The 4th appellant in handcuffs, was led in by the police. The 3rd appellant was arrested notwithstanding the fact that he denied knowing of any robbery. The statement of the 3rd appellant was tendered in evidence through him as exhibit JJ.
The 4th appellant testified that he was arrested by police while he was returning from his shed to his house to have his breakfast. He denied committing the offence of robbery. He adopted his statements to the police exhibits G and DD.
The trial Judge in his judgment at page 118 of the record acknowledged that there was no direct evidence linking the 2nd, 3rd and 4th appellants with the offence. He said,
“From the evidence of the prosecution witnesses, I find no direct evidence of seeing or identifying the 2nd, 3rd and 4th accused persons at the scene of crime. Matters can be proved by direct or circumstantial evidence. In a criminal charge before an inference of guilt of an accused person can be drawn from set of facts, it must pass the standard required of circumstantial evidence, which is that it must lead irresistibly to the guilt of the accused person; see the case of Ganiyu Gbadamosi & Anor. v. The State (1992) 9 NWLR (Pt. 266) 465 at 500. Furthermore, it is necessary before drawing the inference of the accused’s guilt to be sure that there are no other co-existing circumstance which would weaken such inference. See Obalum Anekwe v. The State (1976) 9-10 SC 255, 264; Joseph Lori & Anor. v. The State (1980) 8-11 SC 81.
It is the evidence of PW2 that following the alarm he and his brother raised, the robbers took to their heels and were given a chase by members of the vigilante group who were on duty that night. It was his evidence that the robbers ran into the compound of the 1st accused and that as the robbers were running some of the stolen items of property fell off from them and later around 5.a.m., the robbers came back to collect them and were chased again and they ran into the compound of the accused, and that the robbers were in the house of the 1st accused till the arrival of the police who arrested the 1st, 2nd, 3rd and 4th accused person.”
In successive order, the trial Judge rejected the evidence given by the 2nd to 4th appellants denying their involvement in the robbery offence. The reasoning of the trial Judge found support from the majority judgment of the court below when Nsofor, J.C.A. who wrote the lead judgment said:
“The learned counsel for the appellants had contended that the learned trial Judge having said that there was no direct evidence by the prosecution witnesses of having seen or recognised the 2nd, 3rd and 4th appellants at the scene of crime on 1/6/97, he ought to have acquitted and discharged each of them forthwith and that the trial Judge was in error to have resorted to circumstantial evidence. With respect to the learned counsel, I do not share his opinion. The submission seems to me novel. Why Because it is well settled law that in a criminal trial, an issue may be proved either by direct evidence or evidence aliunde. And it is not derogatory to say that evidence is circumstantial. Circumstantial evidence is as good and sometimes better than any other evidence. What is meant is that there are a number of circumstances which are accepted to make a complete unbroken chain of evidence. See Idigbe, J.S.C. in Valentine Adie v. The State (1980) 1-2 SC 27 and its line of other cases. Witnesses may lie and sometimes do lie. But circumstances do not lie.”
In the dissenting judgment of lkongbeh, J.C.A. at page 273, he reasoned thus:
“From the portion of the judgment I just set out, it is clear that the Judge based his decision to convict the 2nd-4th appellants on three main grounds namely,
(a) their presence at the 1st appellant’s house soon after the robbery.
(b) the fact that they could not give credible account of their presence there to the arresting police officer; and
(c) the fact that no other occupant of the 1st appellant’s compound was seen at the time the police came to arrest the appellants.
As to (a), it is not clear whether the Judge was referring to their presence in the night soon after the robbers entered the 1st appellant’s house or to their presence at the time of their arrest. His use of the expression “soon after the robbery” seems to suggest the former. The evidence before the court was that the arrests of the appellants were made around 11.00 a.m. and the search of the appellant’s house shortly thereafter. (See the evidence of the 1st appellant at page 83, which is corroborated by the endorsement on exhibit H, the search warrant at page 140) whichever one it is, I do not think that in the circumstance of this case, it supports the Judge’s decision to convict the appellants. If it is the former, we have already seen that the Judge was mistaken in his view that the 2nd to 4th appellants were in that house that night. The evidence of PW2 that he relied on to form that view contained nothing to support it.”
And in his final conclusion Ikongbeh, J.C.A. said:
“Clearly, the circumstantial evidence led by the prosecution fell far short of the standard required to establish the fact that the persons who ran into the house of the 1st appellant with the latter were the 2nd – 4th appellants, who were arrested there almost 12 hours later. Again, with respect to the Judge, there was no sufficient circumstantial evidence that the lies told by these appellants could conjoin with to establish the fact that they took part in the robbery some 12 hours previously. Their lies, if any, related to the events of the previous night but to matters that had nothing to do with the offence they were being accused of.
On the whole, I do not see any justification for the learned trial Judge to convict the 2nd to 4th appellants of the robbery charged. The circumstantial evidence he relied on has not met the standard required. In the circumstances, I allow the appeal.”
I must say, with respect to their lordships of the court below who wrote and concurred in the majority judgment, that the minority judgment was quite objective and truly reflective of the approach to be followed when relying on circumstantial evidence as a basis for conviction in a criminal trial. The first observation to be made here is that PW2 who testified that he saw some robbers running into the compound of the 1st appellant did not state the number of the robbers he saw. Secondly, there was not a shred of evidence from any of the members of the vigilante group and PW2, as to the position they were in relation to the compound of 1st appellant such as to know and see if any persons went out of or went into the compound of the 1st appellant. Further, there had not been any description of the robbers seen running into the compound of the 1st appellant which matched or linked them with the 2nd to 4th appellants. There was no evidence that the compound of the 1st appellant was encircled by the members of the vigilante group such as to eliminate the possibility of anybody going in and out of the compound.
These vital omissions or gaps in the evidence of prosecution witnesses left open the possibility that the evidence of the 2nd to 4th appellants that they came into the house of 1st appellant in the morning of 2/6/96 might be true. It is to be said here that the trial Judge held that because the 2nd to 4th appellants had lied in parts of their evidence, they were to be convicted as robbers but as was held in Haruna & Anor. v. The Police (1967) NMLR 145 at 153:
“… although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he is guilty or not.”
And also in Okpere v. The State (1971) 1 All NLR 1 at 5 this court per Coker, JSC observed:
“It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubts. See Woolmington v. Director of Public Prosecutions (1935) AC 462.”
Now, there is no doubt that the evidence against the 2nd to 4th appellants was mainly circumstantial. The circumstances were that the 2nd to 4th appellants were found in the house into which the robbers were seen running in the company of the 1st appellant who was positively identified as one of the robbers. In The State v. Muhtari Kura (1975) 2 SC 83 and 89, this court decided that when circumstantial evidence is capable of two possible interpretations, one against and the other in favour of the accused, then in that circumstance, there has been no proof beyond reasonable doubt.
“Circumstantial evidence to support a conviction in a criminal trial, especially murder must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Per Humphrey, J. in R v. Taylor & 2 Ors. 21 Cr. APP P. 20.”
The evidence against the 2nd to 4th appellants falls far short of that needed to warrant the conclusion that they participated in the robbery. If I had to determine the appeal of the 2nd to 4th appellants on the merit, I would discharge and acquit them. I am unable to say the same with respect to the 1st appellant. There was certainly substantial evidence against him and the offence alleged is grave and punishable with death. In the final conclusion I dismiss the appeal by the 1st appellant. I affirm the conviction and sentence imposed upon him. I allow the appeals of the 2nd to 4th appellants. I set aside the conviction and sentences imposed on them. I return a verdict of not guilty. I accordingly, discharge and acquit them of the offence brought against them.
SC.203/2003
