Martin Egbufor V The State (2018)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
The appellant and one other were charged before the High Court of Imo State, sitting at Owerri on a single count of armed robbery contrary to Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol. 14, Laws of the Federation of Nigeria, 2004. It was alleged that on the 23rd of December, 2005 at No.11 Etiti Street, Aladinma, Owerri in the Owerri Judicial Division, the appellant and one Onuwa Kalu, while armed with an iron rod and a gun, robbed one Mrs Keke Una Chinwe of the sum of N200,000.00, one Motorola Razor handset valued at N7,000.00 and two gold and silver rings valued at N5,000.00.
Both accused persons pleaded not guilty to the charge. The prosecution called three witnesses and
tendered six exhibits. The accused persons testified in their own defence and called four other witnesses. At the conclusion of the trial, the accused persons were found guilty as charged and sentenced to death by hanging.
The appellant, who was the 2nd accused at the trial court, appealed against his conviction and sentence to the court below. In a considered judgment delivered on 21st March, 2013, the appeal was dismissed. His conviction and sentence were affirmed. Still dissatisfied, the appellant has further appealed to this court.
With the leave of this court, he filed an Amended Notice of Appeal containing 19 grounds of appeal. It was deemed filed on 4/10/18. In his Amended Appellant’s brief, also deemed filed on 4/10/18, four issues were distilled for the determination of the appeal as follows:
“ISSUE 1
Whether the Appellant was duly and properly identified from the evidence on record adduced by the prosecution as one of the robbers that invaded No. 11 Etiti Street Aladinma Housing Estate Owerri on the 23/12/2005 (Grounds 1, 10, 11, 12, 13, 14, 17,18, and 19)
Issue 2
Whether from the evidence on record adduced by the prosecution, did (sic) the P.W. 1 name the Appellant at the earliest opportunity as one of the robbers that invaded No. 11 Etiti Street Aladinma Housing Estate Owerri on the 23/12/2005 (Grounds 2, 4, 7, 8)
Issue 3
Whether considering the material contradictions in the case of the prosecution, was (sic) the lower court right in holding that the prosecution has proved the case against the Appellant beyond reasonable doubt (Grounds 5, 6, 9,16)
Issue 4
Whether the lower court was right in rejecting the Appellant’s Alibi (Ground 15).”
In the Amended Respondent’s Brief of Argument deemed filed on 4/10/18, 3 issues were formulated thus:
1.Whether the Appellant was duly and properly identified in the course of the armed robbery by the PW1 and mentioned at the earliest opportunity (Grounds 1, 2, 3, 4, 7, 8, 10,11,12,13,14, and 17)
2.Whether the lower court was right in rejecting the Appellant’s plea of alibi (Ground 15)
3.Whether the prosecution proved the charge of Armed Robbery beyond reasonable doubt and whether from the totality of evidence on record, the conviction of the Appellant was justified. (Grounds 5, 6, 9, 16)
At the hearing of the appeal on 4/10/18, J.O. ASOLUKA Esq. adopted and relied on the Amended
Appellant’s brief in urging the court to allow the appeal. F.A. ONUZULIKE Esq., adopted and relied on the Amended Respondent’s brief in urging the court to dismiss the appeal.
The issues formulated by both parties are more or less the same though differently worded. The appellant’s issues 1 and 2 both relate to the identification of the appellant as one of the robbers who attacked PW1, the victim of the offence. The respondent’s issue 2 and the Appellant’s issue 4 are concerned with the plea of alibi raised by the appellant.
Issue 3 in both briefs address the burden of proving the charge beyond reasonable doubt and whether it was discharged by the respondent.
Essentially, what all the issues boil down to is whether the two lower courts were right in holding that the prosecution proved its case beyond reasonable doubt. I shall consider the appeal under this sole issue.
Relying on the authorities of Okoh Vs The State (2014) 8 NWLR (Pt.1410) 502 (5) 523 A-B, Bozin Vs The State (1985) 2 NWLR 465, Emeka Vs The State (2014) 13 NWLR (Pt.1425) 614 @ 631 E-F and F.R.N Vs Usman (2010) 8 NWLR (Pt.1301) 141, learned counsel for the appellant submitted that in order to prove the offence of armed robbery, the prosecution must prove beyond reasonable doubt
(a)That there was a robbery or series of robberies;
(b)That each robbery was an armed robbery, and
(c)That the accused person was one of those who took part in the armed robbery.
He submitted that the burden of proof remains on the prosecution throughout the trial and there is no obligation on the accused person to prove his innocence.
Referring to the evidence of PW1, learned counsel submitted that having regard to the scenario described by her, particularly the fact that she was naked when the robbers invaded her room and that the offence occurred around 4a.m, her testimony that she was able to identify the robbers by the torch light held by one of them and also by the moonlight when one of them pulled the window louvers, was not credible. He argued that she could not have been able to identify the robbers in her state of shock particularly as she stated that they were wearing face caps.
He submitted that where the case against an accused person depends wholly or substantially on the correctness of his identification, which the defence alleges to be mistaken, the court must closely examine
and receive with caution the evidence alleged before basing a conviction thereon. He referred to Mohammed Vs The State (2014) 2 NWLR (Pt.1390) 44; Ikemson Vs The State (1989) 3 NWLR (Pt.llO) 455: Evisi Vs The State (2000) 15 NWLR (Pt.691) 555: Ndidi Vs The State (2007) 13 NWLR (Pt.1052) 633. Relying on Ndidi Vs The State (Supra), he submitted that the court must consider the following issues before ascribing any value to the evidence of an eye witness regarding the identification of the accused to avoid a case of mistaken identity:
(a)Circumstances in which the eye-witness saw the suspect or defendant;
(b)The length of time the witness saw the suspect or defendant;
(c)The lighting conditions;
(d)The opportunity of close observation;
(e)The previous contact between the two parties.
He contended that the lower court failed to consider these conditions in affirming the judgment of the trial court. He submitted further that there was no other evidence pointing to the appellant’s guilt apart from the evidence of PW1. He noted that PW2, the other eye-witness said he could not identify the robbers, while PW3’s testimony was riddled with inconsistencies and contradictions.
Learned counsel also observed that although PW1 claimed that she knew the accused persons before the incident, she did not identify either of them by name but used the phrases “one of them” throughout her testimony. She also failed to state the role played by each accused during the incident. He submitted that both PW1 and PW2 knew the appellant as their neighbour before the incident and that it was on record that PW1 had an encounter with the appellant before the date of the incident.
He submitted that the appellant failed to mention the names of the persons who robbed her at the earliest opportunity i.e. to the neighbours who came to her rescue or to the mobile policeman who was guarding No. 10 Etiti Street. On the failure to mention the name of the person(s) who committed the offence at the earliest opportunity, he referred to Ibrahim Vs The State (2015) 11 NWLR (Pt.1469) 164 @ 189 – 190 F-C: Onuoha Vs The State (1989) 2 NWLR (Pt. 101) 23 @ 43-44 H-A, and submitted that it rendered the evidence of PW1 doubtful.
He noted that even though PW1 claimed that she mentioned the names of the accused persons in her statement to the Police, which was made after she returned from the hospital, the said statement was not tendered in evidence.
He submitted further that it was not for the lower court to look for reasons to explain why PW1 failed to identify the accused persons at the earliest opportunity since PW1 herself failed to give any reason.
He argued that the evidence of PW1 that she was able to recognize the appellant by the moonlight that entered her room is incompatible with her evidence that the incident took place at 4a.m, that it was very dark and there was no electricity.
With regard to the defence of alibi, he submitted that the appellant raised it timeously and gave particulars. He submitted that PW3, the I.P.O. admitted that the appellant mentioned his sister to him but stated under cross examination that he did not see anyone in the appellant’s house because they had all travelled home for Christmas. He noted that PW3 did not testify that he visited the house again after they might have returned. He submitted that the evidence of DW5 and DW6 corroborated the appellant’s alibi and that their evidence was not contradicted under cross examination.
He contended further that PW3 contradicted the evidence of PW1 and PW2 in material particulars to wit:
a.While PW1 said the accused persons had been arrested by the time she returned from the hospital, PW3 said it was after PW1 made her statement that the appellant (2nd accused) was arrested.
b.That PW3 said PW1 and PW2 gave vivid descriptions of the accused persons while PW2 said he couldn’t recognize those who robbed them.
c.That PW1 admitted that she did not mention the names of the accused persons to her neighbours immediately after the incident.
d.That PW3 testified that it was not dark that night while PW1 testified that it was very dark and there was no electricity.
He submitted that the contradictions were never explained and it was not open to the lower court to pick and choose which evidence to believe.
He referred to Onubogu Vs The State (1974) NSCC 358 @ 365-366: Asuquo William Vs The State (1975) NSCC 389 @ 402: Ukwunneyi vs The State (1989) 4 NWLR (Pt.114) 131 and urged this court to hold that the contradictions are material and raised serious doubts in the prosecution case which ought to have been resolved in the appellant’s favour.
In response, learned counsel for the respondent, relying on the case of Bozin Vs The State (supra) submitted that the evidence of PW1, the victim of the crime, was direct and precise and made at the earliest
opportunity. He referred to the evidence of PW1 already highlighted by learned counsel for the appellant and submitted that the evidence was so clear that there was no possibility of mistaken identity. He submitted that the witness was able to identify the appellant, who was her neighbour and whom she knew very well both by torchlight and by moonlight. He submitted, citing EYISI Vs The State (supra), that recognition is more reliable that identification.
He submitted further that the resolution of the identity of an accused person is a question of fact to be determined on the basis of the evidence before the court. He referred to: OSUAGWU Vs The State (2009) 1 NWLR (Pt.1123) 523 @ 538 F-G. He reiterated the actors to be considered by the court in determining the probative value of eye witness identification of an accused person as stated by learned counsel for the appellant and cited the same authorities. He submitted that the two lower courts properly evaluated the evidence of PW1 and rightly concluded that the appellant was properly identified.
He submitted further that there is no evidence to suggest that PW1 was a tainted witness or that she had a score to settle with the appellant or was motivated by malice. Referring to Section 7 of the Criminal Code, he submitted that it is immaterial which of the accused persons did what and therefore the failure of PW1 to so specify was of no moment. He also referred to: IRENE NGUMA (alias IRENE OKOLI) Vs A.G. Imo State (2014) 233 LRCN 41 @ 66.
He submitted that PW1 sufficiently identified the appellant and mentioned his name to the Police at the earliest opportunity, which was after she returned from the hospital where she went to receive treatment for the wound inflicted on her by her assailants. He submitted that the authorities cited by learned counsel for the appellant are not applicable in the circumstances of this case because in those cases there were significant delays in mentioning the names of the accused persons.
On the alibi raised by the appellant, he submitted that it was properly investigated by PW3. He referred to his testimony to the effect that when he went to the home of the appellant to execute a search warrant, it was deserted, as it was the Christmas period and everyone had travelled and that no sister emerged thereafter. He noted that PW3 testified that he was unable to trace the appellant’s sister because he was not given her name. He submitted that the appellant failed to raise his defence of alibi at the earliest opportunity i.e. at the time he made his statement to the Police during the investigation and not during his testimony in court. He contended further that the appellant failed to give the necessary particulars to enable the Police investigate his alibi. He referred to: Esanabedo Vs The State (1989) 4 NWLR (Pt 113) 57 @ 70; Sowemimo Vs The State (1998) 3 NWLR (Pt. 885) 515; Ikemson Vs The State (supra). He submitted that the plea of alibi raised in the appellant’s statement, Exhibit P6 was vague and void of particulars. He maintained that the appellant was fixed at the scene of the crime.
On whether the prosecution proved its case beyond reasonable doubt, he reiterated the decision of this court in Bozin Vs The State (supra) wherein the facts required to be established beyond reasonable doubt in a charge of armed robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provision) Act Cap. R11 Vol.14 LFN 2004 were set out. They have been set out earlier in this judgment.
He submitted that in order to discharge the burden, the prosecution may rely on any or a combination of the following:
(i)The confessional statement of the accused person;
(ii)Circumstantial evidence;
(iii) Eye witness account of the crime.
He referred to Adekoya Vs The State (2012) LRCN 125 & 152.
He submitted that the evidence of the three prosecution witnesses convincingly established that there was an armed robbery, while the evidence of PW1 established that the robbers were armed with an
offensive weapon i.e. an iron rod.
On the identity of the appellant as one of those who committed the armed robbery, he submitted that the eye-witness evidence of PW1 who positively identified the appellant, was credible and convincing and was never impugned throughout the trial. He submitted, relying on Oyakhere Vs The State (2005) 15 NWLR (Pt.947) 159 @ 180. that eye witness testimony is usually the best evidence in criminal trials. He also referred to Ndike Vs The State (1994) 8 NWLR (Pt. 360) 33 & 45D. He argued further that the mere fact that PW1 was the only eye witness to the crime is not fatal to the prosecution’s case, as the court can convict on the evidence of a single witness if the evidence is credible. He referred to Oluwatoba Vs The State (1985) CR 357 (5) 362; Ekpenyona Vs The State (1994) 6 NWLR (Pt.200) 583; Onafowokan Vs The State (1987) 3 NWLR (Pt.61) 538 0 553.
On the issue of alleged contradictions in the evidence of the prosecution witnesses, he submitted
that in order to overturn a conviction, the contradictions must be material and must affect the live issues in the trial. He referred to Omonga Vs The State (2006) ALL FWLR (Pt.306) 930 @ 948 B, (2006) 14 NWLR (Pt.1000) 532.
He submitted that the alleged contradictions pointed out by learned counsel for the appellant are not material enough to overturn the appellant’s conviction. He noted that prosecution witnesses are not expected to narrate the course of events with mathematical exactitude, as this would lead to the inference that they had been coached as to what to say at the trial. He relied on Dominic Princet Vs The State (2003) 12 SCN 3 280; Yaki Vs The State (2008) 160 LRCN 1 @ 33.
Finally, he submitted that where a trial court has discharged its primary duty of evaluating and ascribing probative value to the evidence before it, an appellate court would not usually interfere. He submitted that the judgment of the trial court, which was upheld by the lower court was neither perverse nor has it occasioned a miscarriage of justice. He urged the court to resolve the appeal in the respondent’s favour and dismiss same.
It is hardly necessary to restate the law that in criminal proceedings the prosecution has a duty to prove the charge against the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. It is equally trite that the general burden of proof remains on the prosecution throughout the trial and does not shift. See: Woolmington Vs D.P.P (1935) AC 462; Igabele Vs The State (2006) 6 NWLR (Pt.975) 100; Abokokuyanro Vs The State (2016) 9 NWLR (Pt. 1519) 520. Even where an accused person pleads guilty to the charge, the prosecution is not relieved of the burden of establishing his guilt beyond reasonable doubt. See: Aigbadion Vs The State (2000) 7 NWLR (Pt.666) 686 @ 704 B-C; Ameh Vs The State (1978) 6-7 SC 27.
In order to establish a charge of armed robbery, the prosecution must prove the following beyond reasonable doubt:
1.That there was a robbery or series of robberies.
2.That the robbery or robberies were armed robberies.
3.That the accused person was one of those who participated in the armed robbery.
See: Bozin Vs The State (1985) 2 NWLR (Pt.8) 465: Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455: Okosi Vs A.G. Bendel State (1989) 2 SC (Pt.1) 126: Emeka Vs The State (2014) 6-7 SC (Pt.1) 64.
Before delving into the arguments proffered by learned counsel on either side, I deem it necessary to reproduce the evidence of PW1 who was the star witness for the prosecution. It spans pages 26-28 and 29 of the record. She testified as follows:
“Sworn on bible. States in English. My name is Mrs Chinwe Osuji. … I live at No. 11 Etiti Street, Aladinma Estate. I am a Student in Imo State University Owerri.
I know the accused persons. I remember 23/12/2005. On that day, all started around 4.am when I heard noise coming from the main building. It is the noise that woke me. I heard my Landlord and his wife screaming and shouting thief! Thief!
I was naked. I was looking for something because I noticed they were armed robbers. They banged on my door shouting open, open, open. Then I was busy finding something to put on. They pulled out my protector outside. They forced the door open. When they push down the door the torch one of them was holding fell down.
The torch the other one was holding flashed on both of them and I was able to recognise them. The accused persons I recognised were Onuwa (1st accused) and the (2nd accused). They started beating me and started demanding for money saying where is that money, where is that money.
Immediately one of them went to my bag and collected the money, the other one collected my wrist watch and bangle and continued to beat me.
I know the accused persons very well they are my neighbours. I have been seeing them before. They demanded for my car key parked inside the yard. I did not give them my car key.
The money they were demanding was the money sent to me by my husband on 22/12/2005. The amount was N200, 000.00 (Two Hundred Thousand Naira). The money was meant for my wedding ceremony scheduled for 31/12/2005. They collected the money and my phone ~ Motorola V.3 Handset and gold wrist watch, gold chain and gold bangles. They continued beating me asking me for the car key I told them the car key was not with me.
One of them pulled my window louvers and the moon light extended to my room and made me to recognise them even more. One of them used a piece of rod and hit me on my face and one of them stabbed me on my right hand.
I can recognise the rod if I see it. Witness was shown the rod which she recognised.
Mrs Dimkpa applied to tender the rod as Id. Rod tender (sic) and admitted as ID.1. Witness showed the scare (sic) of the stab wound.
The rod left a scare (sic) on my forehead.
They tried to kill me but for the gun shot from somewhere and they left. As they were leaving the cap one of the accused person was putting on felt (sic) down. He picked it and left. I was able to identify him more as he bent down and picked the cap.
Following my crying and shouting people came and took me to the Federal Medical Centre, Owerri. I saw a doctor who treated me and give a medical report. Thereafter I reported to the police. They told me that “the police were at your premises already” ……… I told the court that prior to this incident I know the accused persons. Prior to the incident I had had no previous quarrels with any of the accused persons. I have not had any problem with anybody related to the accused person ………”
Under cross-examination she testified inter alia as follows:
“In my statement I said that when accused persons opened the window from the moonlight I saw their faces. I told the court that torchlight fell down – that’s how I saw the accused person ……. The torch the other one was focusing on me was the one with which I saw their faces ……. I told the court that when I came back from the hospital the police had been alerted and they arrested the accused persons. I made my first contact with the police when I came back from the hospital ………..The building where the 2nd accused was staying is opposite our building. Each of them lives with people. After the incident people gathered in my house. When people gathered the houses of the accused persons were not visited. When the people gathered I did not mention the names of the accused persons. The mobile police were guarding No. 10 Etiti Street My own is number 11. I did not tell the Mobile policemen that the accused person robbed me”
PW2, who lives at the same address as PW1 was also a victim of the armed robbery. He testified as to how the robbers entered his room, butted him on the head and demanded money and handset from him and his wife. He testified that though there were two robbers, only one entered his room. He said he could not identify the one who entered his room because he wore a face cap and also because they used torch on him.
I shall make reference to the evidence of PW3, the Investigating Police Officer in the course of the judgment.
It must be noted that there is no appeal against the concurrent findings of the two lower courts that there was a robbery at 11 Etiti Street, Aladinma Estate, Owerri on 23rd December 2005 at around 4a.m. and that it was an armed robbery. The bone of contention is whether the appellant was one of those who participated in the armed robbery. No doubt this is the most crucial factor in the determination of this appeal.
Where the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the appellant’s guilt beyond reasonable doubt. Where the eye witness account does not meet this quality of evidence, it cannot sustain a conviction. See: Anekwe Vs The State (2014) 10 NWLR (Pt.1415) 353.
The importance of correctly identifying the perpetrator of a crime in a criminal trial cannot be overemphasised. This is because not only his liberty, but in the case of a capital offence, his life, is at stake. In The State Vs Aibangbee (1988) 3 NWLR (Pt.84) 548 @ 590 D-E, His Lordship Nnaemeka-Agu, JSC opined thus:
“…. identification is a whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprit by witnesses who saw him in the act of commission which is called in question or a combination of two or more of these. Where …………evidence of the recollection of the witness of the features of the culprit is relied upon, it must be very cautiously regarded by the courts for fear of mistaken identification. But fear of mistaken identification could be removed by evidence such as that the identifying witness gave full and correct description of the accused person to the police at the earliest opportunity after the commission of the offence”
(Underlining mine for emphasis).
See also: Archibong Vs The State (2006) 14 NWLR (Pt.1000) 349; Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555.
The decisions of this court are all to the effect that where the identity of an accused person is in issue, the court must not only warn itself but must meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused was sufficiently recognised by the witness. See: Ndidi Vs The State (2007) 13 NWLR (Pt.1052) 633 @ 651-652 H-A; R Vs Turnbull and Ors (1976) 3 AER 549: Ikemson Vs The State (supra).
In Ndidi Vs The State (supra) at 653 B-F, His Lordship Aderemi, JSC made a distinction between “recognition” and “identification” as follows:
“Recognition……presupposes prior knowledge of the appellant before 4.1.00. but identification connotes knowledge of the person of the appellant acquired by PW1 for the first time on the day of the incident”
His Lordship noted that “recognition is one of the guidelines laid down in R.Vs Turnbuli (supra) wherein it was held inter alia:
“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made”
In the ordinary course of things, it is expected that where an eye witness to a crime claims to have known the perpetrators prior to the commission of the offence, he would mention this fact to the Police at the earliest opportunity. Where he fails to do so, the court must be cautious in accepting evidence given later which implicates the accused person. See: Onuoha Vs The State (1989) 2 NWLR (Pt. 101) 23 @ 43-44 H-A: Okiemute Vs The State (2016) LPELR-40639 (SC) @ 52-53 D-A: Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164 & 189-190 F-C; Adeyoye Vs C. 0. P. (1959) WRNLR 100.
In the course of her evidence in Chief, PW1 stated, inter alia:
“I know the accused persons very well. They are my neighbours. I have been seeing them before.
…. I told the court that prior to this incident I know (sic) the accused person.”
Under cross-examination she stated further:
“The building where the 2nd accused [appellant] was staying is opposite our building.”
There is therefore no doubt whatsoever that the appellant was well known to PW1 before the incident. What would have been the earliest opportunity for her to have mentioned the identities of those who robbed her? In the course of her evidence in Chief she stated that her assailants tried to kill her but for a gunshot that was heard, which caused them to flee. Her crying and shouting brought people who came and took her to the Federal Medical Centre for treatment, This, in my view., was the earliest opportunity the appellant had to identify her attackers since they were known to her. PW2f who lived in the same building as PW1 was also a victim of the armed robbery that night. He testified that when he emerged from his room after the attack, he saw PW1 coming towards him and he saw that she was brutally beaten. He testified that she sat on a chair and later fainted and was rushed to the hospital. Under cross examination, he stated that he had lived at Etiti Street for up to seven years. PW1 admitted that when people gathered around her immediately after the incident, she did not mention the names of the accused persons to anyone, including PW2 who suffered the same fate.
At page 161 lines 20-33 and 162 lines 10-12 and 22-24, the learned trial Judge held as follows:
“The defence did not dispute that PWI was rushed to the hospital. It is not disputed that in her statement to the Police, PWI identified each of the accused persons by name. The only quarrel is that PWI did not mention the names of the accused persons to people who gathered at her yard after the incident at the mobile police.
Evidence of PW2 which was not challenged in cross-examination was that immediate concern of the people around was to rush PW1 who had fainted to the hospital. There is no evidence that the mobile police visited the scene at any time at all.
….
From all that I have said above on this point, it is clear that PWI mentioned the names of the accused persons to the Police and I so hold.
PWI was firm in her evidence identifying each of the accused persons. She was not shaken in cross-examination.
In sum I hold that PW1’s identification of each accused is reliable and proper.”
(Underlining is mine).
It is to be noted here that the extra-judicial statement PWI made to the Police was not tendered in evidence. An application to re-call PWI to tender the statement was refused by the learned trial Judge and there was no appeal against the refusal There was no basis for the finding of the learned trial Judge that PW1 identified each of the accused persons by name in her statement to the Police, At page 298 of the record, the lower court, in its judgment noted that the said extra-judicial statement would have been useful in determining whether PWI mentioned the appellant to the Police timeously. The court found it to be correct, as asserted by learned counsel for the appellant, that PW1 did not mention the appellant to her neighbours immediately after the incident.
His Lordship, TSAMMANI, JCA, who wrote the lead Judgment, however proceeded to examine the evidence to see if there was any plausible explanation for PW1’s failure to mention the appellant to her neighbours (see page 301 of the record). He concluded that the evidence of PW2 who testified that he saw PWI brutally beaten up, that she fainted and that they (neighbours) were in the process of planning how to take her to the hospital, was sufficient explanation as to why she did not mention the appellant to her neighbours at the earliest opportunity.
Also relied on was the evidence of PW3 to the effect that PWI and PW2 were able to give vivid descriptions of the accused persons. He also referred to the evidence of PW3 under cross examination to the effect that PWI went to the Police Station at 10a.m. while the appellant was arrested at around 11a.m. The court therefore concluded that PWI mentioned the name of the appellant to the Police at the earliest opportunity.
With the greatest respect to Their Lordships, I must reiterate straight away that the prosecution had the burden of establishing the guilt of the appellant beyond reasonable doubt, If the prosecution failed to elicit evidence from its witness on a particular issue, it is not for the court to fill in the lacuna. At no time in the course of her testimony did PWI give any reason for not mentioning the name of the appellant to the neighbours who gathered immediately after the incident. Furthermore, the evidence of PW3 that he arrested the appellant after PWI made her statement to him is in conflict with the evidence of PWI to the effect that after her treatment at the hospital, she went to make a report to the Police but was told the Police were at her premises already. Under cross examination she stated that when she came back from the hospital the Police had been alerted and had arrested the accused persons. Her evidence is at variance with the evidence of PW3 who said he arrested the appellant after PWI mentioned him in her statement.
Again, PW3 testified that PWI and PW2 “were able to come up with vivid descriptions of the accused persons.” [page 42. line 6-7 of the record). This evidence contradicts the evidence of PW2 that he could not identify any of the robbers. There is nowhere in the evidence of PWI where she gave any kind of description of the appellant that enabled her identify him that night. Being a person she knew very well before the incident she ought to have given evidence of any distinguishing feature by which she was able to identify him.
It is true that she testified that she was able to recognize the accused persons when the torch of one of them fell down and from the moonlight, However, she did not mention them by name nor did she state how she was able to recognize them – by their facial features, complexion, height, voice?
To make matters worse, the statement made to the Police by PWI was not tendered in evidence. An application to recall PWI to tender the statement was refused by the learned trial Judge. As rightly observed by the lower court, the statement would have been of immense assistance to the court in determining whether PWI mentioned the appellant to the Police and how he was described, I also agree with learned counsel for the appellant, that for someone who said she knew the accused persons very well, it was strange that throughout her narration of events, she did not refer to them directly. She stated, inter alia:
“When they pushed down the door the torch one of them was holding fell down. The torch the other one was holding flashed on both of them and I was able to recognize them. The accused persons I recognized were Onuwa (1st accused) and the (2nd accused). They started beating me and started demanding for money saying where is that money, where is that money.
Immediately one of them went to my bag and collected the money, the other one collected my wrist watch
and bangles and continued to beat me.
……..
One of them pulled my window louvers and the moonlight extended to my room and made me to recognize them even more. One of them used a piece of iron rod and hit me on my face and one of them stabbed me on my right hand.
…… As they were leaving the cap one of the accused persons was putting on fell down. He picked it and left I was able to identify him more as he bent down to pick the cap” (Underlining mine).
My Lords, it is apt to note here that the appellant was not identified by means of an identification parade, PW3 testified that he was arrested based on the evidence supplied by PW1. At no time during her testimony did she refer to the appellant by name or description. With regard to learned counsel for the respondent’s contention that the failure of PW1 to specify who did what during the robbery is immaterial, I am not unaware of the provisions of Section 7 of the Criminal Code, which states;
“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it –
(a)every person who actually does the act or makes the omission which constitutes the offence;
(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)every person who aids another person in committing the offence;
(d)any person who counsels or procures any other person to commit the offence.”
The issue here is that since PWI knew her attackers very well prior to the incident, she ought to have been able to be more specific as to who did what. This would have buttressed her evidence of recognition which is quite different from identifying persons she had never seen before the date of the offence. It is for this reason that her evidence that she was able to recognize the appellant by torchlight or by the moonlight is not convincing.
Since the identification of the appellant was disputed, both lower courts ought to have been more cautious in relying on the evidence of PWI and PW3. Not only did PWI fail to mention her attackers at the earliest opportunity, there was no evidence to show that she described the appellant to PW3. There was no other evidence outside of PW1’s testimony tying the appellant to the offence.
I entertain serious doubts that the appellant was in fact identified by PW1. The evidence of PW3 that PW1 gave a vivid description of the robbers could not be relied upon because her extra-judicial statement was never tendered before the trial court. The failure of the eye witness, PWI, to mention the names of her assailants at the earliest opportunity is fatal to the prosecution’s case. See: Ibrahim Vs The State (2015) 11 NWLR (Pt.1469) 164 @ 189 – 190 F -C; Kalu Vs The State (1988) 4 NWLR (Pt. 90) 503; Isah Vs The State (2008) 18 NWLR (Pt. 1119) 285; Adeyoye Vs C.O.P. (Supra).
I hold that there is reasonable doubt in the identification of the appellant as one of those who robbed PWI on the night of 23/12/2005. The doubt must be resolved in the appellant’s favour. I hold that this is one of the circumstances where the concurrent findings of the two lower courts must be interfered with, as the findings are not borne out by the record and have occasioned a miscarriage of justice.
The appeal accordingly succeeds and is hereby allowed. The judgment of the lower court affirming the appellant’s conviction and sentence by the trial court is hereby set aside.
I enter a verdict of not guilty in favour of the appellant. He is accordingly acquitted and discharged.
SC. 217/2013
