Eugene Ibe V. State (1992)
LawGlobal-Hub Lead Judgment Report
L. KUTIGI, J.S.C.
At the Owerri High Court the appellant was charged as follows:-
“STATEMENT OF OFFENCE
Robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970 (Decree No.47 of 1970) as amended by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeal etc) Decree No. 105 of 1979.
PARTICULARS OF OFFENCE
Eugene Ibe on or about the 14th of September, 1981, at Apostolic Faith Church along Owerri/Uratta Road, Owerri in the Owerri Judicial Division in company with another person unknown armed with firearms robbed Stella Oleribe, the sum of N16.00″
At the trial the appellant pleaded not guilty to the charge. The prosecution called a total of six witnesses to prove their case while the appellant testified in his own defence. He called no witnesses.
The learned trial Judge after considering the evidence adduced by the prosecution and the defence of the appellant found the appellant guilty as charged and sentenced him to death. On appeal, the Court of Appeal dismissed the appeal. It is against that judgment that the appellant has now further appealed to this Court.
The facts of the case are briefly that the appellant, in company of another person armed with firearms at night robbed one Stella Oleribe of the sum of N16.00. She testified as P.W.2. She was beaten with the butt of the gun. The incident took place at the premises of the Apostolic Faith Mission Aladinma, Owerri. P.Ws 1, 3 &4 who were in the Church premises with P.W.2 on the fateful day also narrated how they were maltreated and beaten up by the appellant and his comrade. P.W.2 recognised the appellant because he had before then carried out some carpentry jobs for the mission in the premises. She even knew the appellant’s workshop. As the appellant also spoke to his victims on the fateful night P.W.2 recognised his voice as well. It was P.W.2 who led the police to the appellant’s workshop where he was arrested.
The appellant in his defence denied robbing anyone. He said he was in his house on the day of the incident. He however admitted having carried out some carpentry works for the Church and having seen P:W.2 at the time. He also agreed that he had seen P.W.2 pass by his workshop before this incident.
In the Court of Appeal the following four issues were raised for determination:”
i. Whether the learned trial Judge made a correct evaluation of the evidence led by the parties by arriving at a proper conclusion on the prosecution’s evidence before considering that of the defence.
ii. Whether the learned trial Judge properly directed himself as to the standard of proof, having regard to the issues before him especially the evidence led by the prosecution in attempting to rebut the defence of alibi raised by the accused.
iii. Whether it was proved that Eugene Ibe, the accused was actually identified by the prosecution witnesses as that is one of the main reasons why the learned trial Judge convicted him and neglected his defence.
iv. Whether the learned trial Judge considered the material contradictions in the evidence of prosecution witnesses which if he had done he might not still prefer the prosecution’s case.
The Court of Appeal considered all these issues some of which had been raised before and determined by the trial Court. It rejected the submissions that the appellant’s alibi was neither challenged nor refuted by the respondent, holding rather that there was no evidence upon which the trial Court could have construed the defence of alibi in favour of the appellant, and that the prosecution in fact adduced sufficient and credible evidence to fix the appellant at the scene of crime at the material time. It held that the appellant was properly identified by two principal eye-witnesses (P.Ws 2 & 4) called by the prosecution as one of the armed robbers on the night in question. The Court also held that there were no material contradictions in the evidence of the prosecution witnesses to warrant its interference with the judgment of the trial Court. It finally held that the prosecution proved its case beyond reasonable doubt and dismissed appellant’s appeal.
Now in this Court, Chief Akande learned Senior Advocate for the appellant in his brief submitted three issues for determination thus:-
“1. Are the contradictions in the evidence’ of the prosecution not serious enough to justify setting aside the conviction
- Was the case of the prosecution established beyond reasonable doubt
- In (sic) the cross-examination of P.W.3 at page 11 fair to the case of the accused”
It can be seen that these issues with the exception of issue three are issues which had been taken up both at the trial Court and in the Court of Appeal.
Issue three was not covered by any ground of appeal and is therefore incompetent. That much was conceded by Chief Akande himself. An Appeal Court can only hear and decide on issue raised on the grounds of appeal filed before it. (See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt.55) 179. The issue is hereby struck out.
In respect of issues one and two for determination it was the submission of Chief Akande that contradictions in the evidence of prosecution witnesses were serious enough to affect the conviction of the appellant and that the Court of Appeal was in error when it held that there were no material contradictions in the evidence as a whole. The first of such contradictions referred to by counsel was that while P.Ws 1 & 2 gave evidence that they saw only two armed robbers, P.W.4 said she saw three. Secondly, while P.W.2 said all the two robbers were armed, P.W.l said only one of the robbers was armed. Thirdly, P.W.2 said the robbers forced open her mother’s box and removed the N16.00 in it, whereas P.W.4 said the robbers asked P.W.2 to bring out the money and that she did. Fourthly, that P. W.1 said the robbers did not allow them (victims) to see their (robbers) faces, and that P.Ws 1 & 3 said they could not recognise any of the robbers, whereas P.Ws 2 & 4 said they recognised the appellant as one of the robbers. The cases of Aderemi v. The State (1975) 9-11 S.C.115 and Asuquo William v. The State (1975) 9-11 S.C. 139 were cited in support.
It was also submitted that the highlighted contradictions above made the identity of the appellant negative. He said in the light of glaring contradictions the prosecution had failed to prove its case beyond reasonable doubt.
It was further submitted that the omission by the prosecution to call one MBARI IDIR mentioned by the appellant in Exhibit ‘F’, was unfair and unjust to the defence who were denied the opportunity of cross-examining him. He said we should invoke section 148(d) of the Evidence Act and hold that the defence of alibi raised by the appellant was not discredited.
In reply learned counsel for the respondent Mr. Okoro, submitted that the conflict as to the number of robbers was not a material contradiction. On the number of guns used, counsel said it did not make any difference because the offence of armed robbery was grounded once there was evidence that at least one gun was used during the robbery as in this case. Equally it was immaterial which of the robbers was actually armed because the appellant and his comrade or comrades were acting in concert with a common intention and common purpose. On the manner of taking the N16.00 it was submitted that whether the money was taken by the robbers or given to them by P.W.2, the offence of robbery was properly grounded in the condition in which P.W.2 found herself amidst robbers who were armed, and therefore there was no contradiction. The following cases were cited Musa Sokoto v. The State (1976) 2 S.C. 133; Alagba & Ors. v. R. (1950)19 NLR 129.
It was further submitted that the alibi put up by the appellant was properly investigated and proved to be baseless and false. He referred to the evidence of P.W.5 who investigated the alibi. That when P.W.5 interrogated MBARI IDIR he denied seeing the appellant on the night in question and that this was in the presence of the appellant himself who said nothing further. The appellant therefore had a duty to testify to the accuracy and authenticity of his alibi which he failed to do. He referred to Yanor & Anor v. The State (1965) NMLR 337, Ntam & Anor. v. The State (1968) NMLR 86, and Gachi & Ors. v. The State (1965) NMLR 333.
It was also submitted that credibility of prosecution witnesses was not destroyed by inconsistencies or contradictions on minor or immaterial points and that having regard to the evidence led at the trial, the charge against the appellant was proved with the certainty required by law. The cases of Nasamu v. The State (1976) 6-9 S.C.153 and Miller v. Minister of Pensions (1947) 2 All ER 373 were cited in support.
Now, it is settled beyond question that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the case, the conflict or contradiction must be substantial and fundamental to the main issues in question before the Court (see for example Onubogu & Anor v. The State (1974) 1 All NLR (Pt.11) 5, Nasamu v. The State (supra), Enahoro v. Queen (1965) 1 All NLR 125). I completely agree with Court of Appeal and the able submissions of learned counsel for the respondent that the contradictions highlighted by appellant are not material contradictions. The exact number of robbers and the exact number of guns used were clearly in my view not material to the charge against the appellant. Both P.Ws 2 & 4 stated unequivocally in their evidence before the Court that they identified the appellant as one of the robbers on the night in question. P.W.2 in particular said she had known the appellant before the robbery as he had done some woodwork previously in their premises. She took the police to the appellant’s workshop later where he was arrested. She also said she recognised the appellant from his voice as he talked that night. It is settled too that there may be sufficient identification of a person by his voice (See R. v. John Keating (1909) 2 CAR 61. I think also that the facts and circumstances of the entire case show that it was E immaterial whether the appellant was actually armed because his comrade or comrades were. It was also immaterial whether the Nl6.00 were handed over to the appellant by P.W.2 or whether he collected them direct from the box in which they were kept. The fact was that the money was obtained under threat or menace of a gun.
As regards the appellant’s defence of alibi, I also agree with the Court of Appeal that there was no evidence upon which the trial Court could construe that defence in favour of the appellant. The policeman P.W.5 had told the Court that the Hausa man, Mbari Idir, mentioned by the appellant had denied in the presence of the appellant that he saw the appellant on the night in question. The evidence of both P.Ws 2 & 4 also shows that the appellant was one of the armed robbers. I think the prosecution had clearly adduced sufficient evidence to fix the appellant at the scene of crime at the material time. While the prosecution had the onus to prove its case beyond reasonable doubt the appellant had the duty of proving his alibi, albeit on a balance of probability. (See Yanor & Anor v. The State (supra); Dankwa v. R. (1951) 13 WACA 134; Abgyuluwa & Ors. v. C.O.P. (1961) All NLR 850; Gachi & Ors. v. The State (supra).
The prosecution in this case had no duty to call Mbari Idir again to come and testify. He had denied seeing the appellant that night and in the presence of the appellant. If the appellant wanted him he should have called him to come and testify on his behalf. He failed to do so. The prosecution cannot be blamed.
Having carefully examined the totality of evidence adduced at the trial, I am firmly of the view that there is no merit whatsoever in this appeal. I am satisfied that the prosecution proved its case against the appellant. Consequently the appeal fails and it is hereby dismissed. The judgment of the Court of Appeal affirming that of the trial High Court is hereby confirmed.M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Kutigi. J.S.C. I entirely agree, for the reasons contained therein, that the appeal lacks merit.
Accordingly, it is hereby dismissed and the decision of the Court of Appeal is affirmed.
SC.37/1991
