Enesi Lukman Abdullahi V The State (2008)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, JSC

This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 16 January 2007. The appellant and five others were the accused persons at the trial court. They were charged before Okene High Court on a two count charge of conspiracy and armed robbery as follows:

“That you Monday Lawal, Abu Osah, 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 Iruvuchaba Okene in Okene Local Government Area within the Kogi State Judicial Division agreed to an illicit 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.”

The first accused person absconded from prison custody and could not be apprehended to stand trial for the two offences. The two accused who stood trial were Abu Isah and Enesi Lukman Abdullahi (2nd and 3rd accused respectively). They were tried and convicted of the two count charge and were each sentenced to seven years imprisonment on the count of robbery and =N=3,000.00 fine or one year in lieu on the conspiracy count. The sentences of imprisonment were to run concurrently. Their appeals to the Court of Appeal were dismissed, hence the present appeal to this court by Enesi Lukman Abdullahi.

The parties filed their respective brief of argument in this court. The appellant formulated the following lone issue in the appellant’s brief:

“1. Whether from the totality of the evidence adduced at the trial court, the Court of Appeal rightly affirmed that the charges of conspiracy and armed robbery against the Appellant were proved beyond reasonable doubt.

The Respondent in its brief of argument, adopted the sole issue raised by the Appellant.

I think the core issue in this appeal is whether there was a proper identification of the appellant. This issue clearly relates to visual identification of the appellant. It was the case of the prosecution that the appellant and one Abu Isah, who was tried along with him committed three armed robberies against PWI Paul Nzewi and PW 2 Benneth Onwugbufor. It was said that PWI was robbed on 9 August 2001 and 11 August 2001. PW2, it was contended, was robbed on 11 August 2001. All the incidents occurred at night. The case of the prosecution is as told by PWI and PW2, the two victims of the robberies. I think it is vital to relate the whole story as given by these witnesses.

PWI gave evidence and stated as follows:

“On 9/8/2001 about 1.50 a.m. I was sleeping in my room when I heard a knock on my door. I asked who was knocking but there was no response. Instead the door of my room was forced open. I quickly rose-up from my bed as three men, armed, came into my room. The three men were the two accused persons and one other man who is at large now. I grabbed the man who is now at large and he hit my head with the gun he was holding as a result of which I fell down.

The 3rd accused was holding a knife and a stick. He broke the bulb in my room. The accused person who is now at large pulled me up and asked me to take them to where I kept my money. I opened my cupboard which was containing the sum of =N=42,000. The 2nd accused person who was holding a gun picked the money from my cupboard. I was told to lie down which I did. I was lying down when the three armed robbers left.

My daughter by name Uchenna and two of my neighbours by name Achuchukwu and Salihu took me to a clinic where I was treated and discharged. I was able to recognize the accused persons and the other person at large because I saw them clearly before they broke the bulb in my room. At the time they struck the light in my room was on.

On 11/8/2001 about 2.10 a.m. I was sleeping in my room when I heard a knock on my door. Before I could do anything, the door of my room was forced open by the same set of armed robbers, i. e. the two accused persons and the one at large. The 2nd accused person was holding a gun while the 3rd accused person was holding a stick. The one at large was holding a gun. My daughter was shouting for help but there was no help.

The person at large demanded for my money and I gave him the sum of =N=15,000 that was in my room.

The 3rd accused person said I was a stubborn man and ordered me to lie down. I lied down and he was beating me with a stick he was holding.

The 2nd accused person and the one at large forced my daughter to take them to my neighbour’s room. My neighbour’s name is Benneth Onwugbufor.

There was a gunshot into my sitting room which scattered some of my property there.

While I was lying down on the floor in my room, I heard somebody asking whether they had got the money to which someone responded, yes, after which they all left. It was at this stage that I got up from where I was lying down. I later went to the clinic for treatment.after each robbery incident I went to report to the Police

By Afeigbe: 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 at large and the 2nd accused person before the incident.

The names I mentioned in my statement to the Police were Monday, Abu and Oje 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 armed robbers. (Underlining for emphasis)

For his part PW2 gave evidence and said:

“On 9/8/2001 about 1.10 a.m. I took my wife to the Total Filling Station, Okene, to board a bus to Aba. On getting back to my house, I discovered that the fluorescent light which was on before I went out was no longer on. When I was wondering what happened, my neighbour’s daughter, Uchenna Nzewi told me that armed robbers had just struck in our compound.

I went into my neighbour’s room where I met him crying. He, that is P.W. 1, told me that armed robbers had just attacked him and made away with his money.

On 11/8/2001 about 2.30a.m. I was sleeping in my room when I heard gunshots. I got up and peeped through my window and saw some men downstairs. I recognized those men. They are Monday, James, Ojo, Hassan and German, an electronic repair and Abu. The 2nd accused is Abu while the 3rd accused is an electronic repairer, popularly known as German.

These men climbed upstairs to my room where they demanded that I should open the door or they would kill me. I refused to open the door but they forced it open. When they came in my light was on. The 3rd accused person and the one at large by name Monday pointed torch light on my face and demanded for N1 million. I told them that I did not have that type of money. Monday shouted that I should bring the money and I responded by shouting “Jesus”. I was ordered to lie down on my face by Monday who put a gun to my head and demanded that I should bring N1 million. I told him I had none and that they should ransack my room take whatever amount of money they saw. They were searching my room for money. After sometime, I heard someone shouting outside saying “Mapo, Sergeant, Alright” as a result of which all of them left. When I gathered myself I stood up and went round my room where I discovered that the armed robbers including the accused persons had made away with the sum of =N=68, 000.

I came out of my room and I saw my neighbour, P.W.I, who told me that he was also robbed by the accused persons.

About 9.00a.m. both the P.W. 1 and myself went to report to the Police. We also reported to the head of the Iruvuchaba Community.

(Underliningfor emphasis)

It will be seen clearly from the evidence of PW1 and PW2 – the two victims of the robberies that they knew the appellant and the accused persons by name at the time of the incidents. Both witnesses recognized the appellant. It is also clear that they reported these incidents to the police and their community leader in the morning of the days in question. Lastly the witnesses testified that they did not disclose the identity of the appellant to the police nor the head of their community nor indeed to PW1’s neighbours who took him to hospital

In his issue 1 the appellant contended that his purported recognition by PW1 and PW2 was an after thought and a farce meant to implicate the appellant for whatever reason. This, it was pointed out, was borne out by the failure of the victims of the robberies (PW1 and PW2) to disclose the identity of the appellant to either the police when they made their reports or to the head of the community immediately after the incidents. The witness (PWI) also did not mention the name of the appellant to his neighbours who took him to hospital as one of the persons who robbed him. It was also said that this omission, which was not explained, was fatal to the case of the prosecution.

It was further pointed out that PW1 and PW2 waited until five days after they were robbed before disclosing the identity of the appellant and the other accused persons who they alleged robbed them. If, it was submitted, the learned trial judge had averted his mind to this fact, he would have rejected the evidence linking the appellant to the robberies.

The Respondent in reply pointed out that the evidence called by the prosecution shows that the appellant in company of his colleagues in crime robbed the PW2 immediately after robbing the PW1. It was said that in these circumstances it was immaterial whether these witnesses mentioned the name of the appellant to the police at the time they made reports to the police. The respondent further submitted that the evidence of these witnesses is sufficient to support the conviction of the appellant for the offences with which he was charged.

As I have pointed out earlier on in this judgment, the appellant was the 3rd accused at the trial. The main evidence against him came from PW1 and PW2. They were the victims of the robberies. The two witnesses claimed that they knew the appellant long before the incidents and that he lived in the area. They knew him by name. It was also their evidence that he participated in the three armed robbery attacks on them on 9th and 11th August, 2001. They also disclosed that when they first reported the matter at the police station shortly after each robbery incident none of them told the police that they knew any of the robbers that attacked them. They also did not disclose the identity of the appellant to the head of the community to whom they reported. PW1 in addition did not tell his neighbours who took him to hospital after the attack that he knew any of the robbers.

The record shows that it was after about five days later that the witnesses mentioned the names of some of the robbers, including that of the appellant.

It is significant to point out at this stage that PW1 and PW2 did not explain throughout the trial why they failed to mention the name of the appellant.

The position of the law is this. Where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the police at the earliest opportunity, that would detract from whatever credibility the trial court may wish to ascribe to his evidence. In addition he should describe the clothes the accused wore at the scene of the crime. Surely this is common sense and failure to adopt this common sense approach would inevitably result in the acquittal and discharge of the accused. See Udeh v. The State (1999)7 NWLR (Part 609) 1; Wakala v. The State (1991) 8 NWLR (Part 211) 552; R. v. Turnbull (1976) Cr. App. R. 132. Recognition is undoubtedly more reliable than identification of a stranger. But even when the witness is purporting to recognize someone whom he knows, the trial Judge must warn himself that mistakes in recognition of close relatives and friends are sometimes made. See R. v. Turnbull (1976) Cr. App. R. 132; Abudu v. The State (1985)1 NWLR (Part 1) 55. In criminal trials, the burden is always on the prosecution to prove its case beyond reasonable doubt. It is incumbent upon the court to arrive at its decision through a process of reasoning which is analytical and commands confidence.

So having regard to these facts and circumstances, was the appellant at the scene of the crime? He said he was not. He told the police at the earliest opportunity that he was in his house sleeping at the material time. His wife Sikirat Lukman testified as DW 4 and confirmed her husband’s alibi. The police conducted a search of the Appellant’s house shortly after his arrest and found nothing incriminating the appellant. The prosecution did not present any other evidence that linked the appellant with the commission of the crime with which he was charged.

Having regard therefore to the circumstances of this case, I think the verdict was unsafe and unsatisfactory. I would therefore allow this appeal and set aside the conviction and sentence. The appellant is accordingly acquitted and discharged.

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SC. 207/2007