Matthew Thomas Vs The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKAAHS JSC

The appellant was the 2nd of the three accused who were arraigned before the Ondo State High Court sitting at Akure on a two count charge of conspiracy to commit armed robbery and robbery contrary to sections 6(b) and l (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap RII Vol. 14 Laws of the Federal Republic of Nigeria 2004. The 1st and 3rd accused were Benjamin Friday and Nelson Friday respectively. The Charge No. HOD/5C/2008 reads as follows:- COUNT 1 STATEMENT OF OFFENCE CONSPIRACY to commit armed robbery, contrary to and punishable under, section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap RII Vol. 14 Laws of the Federal Republic of Nigeria 2004. PARTICULARS OF OFFENCE BENJAMIN FRIDAY MATTHEW THOMAS and NELSON FRIDAY on or about the 1st day of February, 2008 at Ondo in the Ondo Judicial Division did conspire with one another to commit a felony, to wit armed robbery. COUNT II STATEMENT OF OFFENCE ARMED ROBBERY contrary to and punishable under section l (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap RII Vol. 14 Laws of the Federal Republic of Nigeria 2004. PARTCULARS OF OFFENCE BENJAMIN FRIDAY, MATTHEW THOMAS and NELSON FRIDAY on or about the 1st day of February, 2008 at Ondo in the Ondo Judicial Division robbed Hon. Justice Williams Akin Akintoroye of a sum of N14, 000.00, two sets of laptop computers, a suit, a wrist watch, a pen, a double-barrelled gun and jewelleries and at the time of the robbery you were armed with offensive weapons, viz: guns, cutlasses etc. The accused pleaded not guilty to the charge. In proof of its case the prosecution called four witnesses and tendered several exhibits. PW1 and PW2 were the victims of the robbery while PW3 and PW4 were the Police Officers who investigated the case. Apart from the toy gun which was recovered during the search conducted in the accused residence which was tendered as exhibit B, none of the items mentioned in the charge sheet could be seen. At the end of the trial, all the accused were found guilty of the offences charged and sentenced to death by hanging. Dissatisfied with the conviction each of the accused appealed against the conviction and sentence but the appeals were dismissed. They all filed Notices of Appeal to this court. The 1st and 3rd appellants’ appeals Nos. SC. 382/2014 and SC. 383/2014 respectively were dismissed on 1st July, 2016. This appeal no SC. 384/2014 is the appeal by the 2nd appellant. The appellant’s counsel, Ayo Asala Esq. filed a brief on behalf of the appellant on 16/9/2014 while Tunde Babalola Esq. of counsel also filed an amended brief of argument on behalf of the respondent on 21/10/2016 but was deemed filed on 1/12/2016, the same date the appeal was heard. Two issues were raised in the appellant’s brief which are:- (i) Whether the lower court was right in affirming the decision of the learned trial Judge that the prosecution led credible evidence of identification of the appellant as one of the armed robbers that attacked PW1 and PW2. (ii) Whether having regard to the circumstances and from the totality of the evidence on the record, the lower court was right in upholding the decision of the trial court that the prosecution proved the offences of conspiracy to rob and armed robbery against the appellant beyond reasonable doubt. The respondent adopted the issues framed by the appellant. In his argument on issue No. 1 learned counsel for the appellant attacked the findings made by the trial Judge on the identification of the appellant which were accepted by the court below and submitted under paragraph 3.08 page 7 of the appellant’s brief that the person that was identified as the appellant by PW1 and PW2 did not enter the house with the other four armed robbers and so there was no contact between the person that was identified as the appellant and the victims. Learned counsel also submitted that the evidence of PW2 contrasted sharply with that of PW1 on the recognition of the appellant as one of the armed robbers. He therefore contended that there are material contradictions in the evidence of the prosecution witnesses on the vital issue of the recognition of the appellant. On issue 2 learned counsel submitted that since PW1 did not mention exhibit B as one of the items stolen from his house, the heavy reliance which the learned trial Judge placed on the ownership of the said exhibit to convict the appellant is not supported by the totality of the evidence adduced and so the findings are perverse and the lower court should have set aside the said findings relying on Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521 and Aruna v. State (1990) 6 NWLR) (Pt. 155)125. Learned counsel for the respondent submitted that the lower court was right in affirming the decision of the learned trial Judge who relied on the evidence of identification/recognition of the appellant by PW1 and PW2. The fact that PW1 and PW2 knew the appellant as their gateman before the armed robbery incident and the evidence of PW2 that he saw the appellant as the person who was outside with the dogs on the night of the robbery made the lower court to invoke the provisions of section 9(b) of the Evidence Act to arrive at the conclusion that there are other facts which by themselves make the identification of the appellant by PW2 probable. The lower court relied on Anekwe v. The State (1976) 9-10 SC 255 to hold that a Judge is permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence. The evidence given by PW2 regarding the appellant is as follows:- “As the dogs barked my father and I peeped through the glass door to see what was the problem if any. I notice that the dogs were attracted to a particular object near the gate area. It was at this stage we saw Matthew Thomas (2nd accused). In the process my mother screamed, alerting us that there were intruders in the compound ………………………………………………………. The 2nd accused was our gate-keeper in the house up to December, 2007. He was in charge of the dogs. He fed them, apart from his normal gatekeeping duties. The dogs stopped barking when they were attracted to the gate ………………………………………….. On the following morning, my father and I were in company of policemen when we saw the 2nd accused person (Matthew Thomas). He was trying to buy something from a kiosk when we saw him. My father pointed him out to the policemen who immediately arrested him. He was taken to the police station at Funbi Fagun from where a team of policemen came to look for the other accused person. It was the 2nd accused who told the police the names and addresses of the 1st and 3rd accused persons”. On being cross-examined PW2 said: The incident happened at about 8.30p.m. The scene of attack was well lit. I confirm that the 2nd accused was arrested a day after the incident. I was with the Police when they visited the house of the 1st and 3rd accused with the 2nd accused acting as pointer. I have not suspected the 2nd accused but I actually saw him on our premises on the night of the robbery attack”. The 1st accused testified that the 2nd accused who had asked him to help him find a job passed the night in the house where he was living with the 3rd accused who is his elder brother. They had arranged to go to the woman who was to offer the 2nd accused work in the farm on the morning of the day of his arrival but he had to wash his master’s car so he advised 2nd accused to go out and buy a recharge card and call the woman. No sooner the 2nd accused left him to make the call as suggested than he saw him come back in handcuffs accompanied by policemen. The policemen asked him if he knew the 2nd accused and he answered in the affirmative. The policemen then demanded to see where the 2nd accused slept the previous night. On being shown the house they entered and searched the house where they recovered the toy gun (Exhibit B) and army camouflage trousers (Exhibits “C”) and the identity card belonging to one “Samuel Peace” a trailer driver and member of the N.U.R.T.W Ondo Branch (Exhibit D). He said the exhibits were inside a bag left behind by one Enete who is his cousin and he was away to Oshogbo where he was working. He said the three of them (1st, 2nd and 3rd accused) slept in the same room in the night prior to the arrest of the 2nd accused. The trial Judge accepted the evidence both direct and circumstantial which backed the involvement of the three accused persons in the armed robbery attack on PW1 and his household on 1st February, 2008. The court below accepted the findings by the learned trial Judge that there is direct and circumstantial evidence which backed the involvement of the three accused in the armed robbery attack on the PW1 and his household on 1st February, 2008. In the lead judgement of Professor Owoade JCA, he stated at page 260 of the record of appeal – “In deciding appellant’s issue 1, if the question were limited to the unchallenged and direct evidence of PW2 that he saw the appellant on the night of the armed robbery incident, there would be enough room to argue as the learned counsel for the appellant did that in this important respect, the evidence of PW1 contradicted that of PW2. To that extent little or no weight would be given to the evidence of identification of the appellant offered by PW2. However, the circumstances presented by the facts of the case become totally different if we are to proffer an answer to the wider question of whether the learned trial Judge was right to have relied on the evidence of identification/recognition of the appellant by PW1 and PW2 to hold that the prosecution proved the charges against the appellant beyond reasonable doubt. This is because in the words of section 9(b) of the Evidence Act 2011 there are other facts which by themselves or in connection with the fact of identification of the appellant by PW2 which make the identification of the appellant by PW2 probable in the circumstances of this case”. He then enumerated the facts and circumstances which when considered together would support or buttress the reliance of the learned trial Judge on the evidence of identification/recognition of the appellant by PW1 and PW2 which are:- (i) PW1 and PW2 knew the appellant as their gateman before the armed robbery incident. (ii) PW2 gave evidence that he saw the appellant as the person who was outside with the dogs on the night of the robbery incident . (iii) On the morning of the armed robbery incident PW1 (who earlier mentioned the name of the appellant to the police as a member of gang) spotted the appellant on the road. (iv) The appellant on sighting PW1 took to his heels but PW1 held on to him and was arrested with the assistance of PW3 and another policeman. (v) In the company of PW2 the appellant took them to their house where the police met the 1st and 3rd accused. (vi) In the presence of the appellant and the two accused persons the police executed a search warrant and recovered a bag which amongst other things contained a toy gun which PW1 claimed was one of the items carted away from his house on the day of the robbery incident. (vii) The defence of the appellant was that at the time of the incident he was in the house in company of the 1st accused. (viii) Meanwhile, the evidence of PW1 and PW2 show clearly that the 1st and 3rd accused were amongst those vividly seen as those that came in to attack them on the night of the robbery. The lower court considered the above listed circumstances and agreed with the learned trial Judge that the appellant was among the gang of robbers who attacked PW1 and his household on 1st February, 2008. The appellant hid under the cover that he did not enter the main house and so could not have been sighted by PW1 or PW2. The legal position stated above that a Judge is permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence is sound and sensible. Such evidence must be closely examined in order to be certain that there are no other co-existing circumstances which may weaken or destroy the inference. See: Anekwe v. The State (1976) 9-10 SC 255 at 264; Nasiru v. State (1999) 2 NWLR (Pt. 589) 87; Ijioffor v. State (2001) 9 NWLR (Pt. 718) 371. Having found as a fact that the evidence of the prosecution positively led to the identification/recognition of the appellant, his defence of alibi failed. The appellant admitted sleeping with the 1st accused on the night of 1st February, 2008. Prior to the robbery the appellant was an employee of PW1 up to December, 2007. It was the appellant who informed the police of the whereabouts of the 1st and 3rd accused and he led the Police to arrest them where exhibit “B” was recovered. The dogs were familiar with the appellant and they stopped barking when they were attracted to the gate. The appellant took to his heels when he saw PW1 in the morning following the robbery. If the appellant was not part of the robbery gang, how come he was able to know that they committed the robbery the night before and why was he running away from PW1 in the morning following the robbery? The inescapable inference to be drawn is that he was a member of the gang that carried out the robbery in the residence of PW1 on 1st February, 2008 and it was because of his familiarity with the dogs that made them not to bark when the gang invaded the residence of PW1 in the night of 1st February, 2008. The 1st and 3rd accused were convicted with the appellant on 16th August, 2012 for armed robbery and sentenced to death by hanging and their appeals to Court of Appeal were dismissed on 16th May, 2014. Their further appeals to this Court in Appeal Nos. SC. 382/2014 and SC. 383/2014 respectively were dismissed on 1st July, 2014. There are no extenuating circumstances to warrant allowing this appeal as the evidence adduced by the prosecution positively led to the identification/recognition of the appellant and the inference to be drawn clearly showed that the appellant was among those who entered the residence of PW1 on the night of 1st February, 2008 to carry out the robbery operation. If he did not participate in the robbery, he facilitated it by ensuring that the dogs did not attack the robbers or raise alarm by barking. I find that there is no merit in the appeal and I accordingly dismiss it. I further affirm the judgement of the court below in appeal No. CA/AK/159C/2012 delivered on 16th May, 2014 which affirmed the conviction and sentence of the appellant by Adegbenro J. of Ondo State High Court. Appeal dismissed.

SC. 384/2014