Samuel Bozin V. The State (1985)

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OPUTA, J.S.C.

This appeal was heard on Thursday, 16th May, 1985. After carefully reading the records of proceedings, the Briefs of Argument filed on both sides. and listening to learned counsel, the Court decided to allow the appeal.

The appeal was then allowed, the judgments of the courts below set aside, as well as the conviction and sentence of the trial court. In their stead, a verdict of Not Guilty was entered and the appellant was accordingly acquitted and discharged. The Court then indicated that Reasons for Judgment would be given on the 11th July, 1985. Hereunder are my reasons.

The appellant was in the court of first instance charged with Armed Robbery punishable by death under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. He was on 29/9/83 found guilty by Ajuyah, J. sitting in the Warri Judicial Division of the Bendel State High Court, and sentenced to death. The appellant then appealed against his conviction and sentence to the Court of Appeal, Benin Division. In that court, the point was raised and seriously argued that “the evidence of witnesses of identity of the appellant is irregular, that it was the police who pointed the appellant to the witnesses as the armed robber.” “This,” it was submitted “is unsatisfactory.” The Court of Appeal holding “that this contention in my view is not valid in view of the evidence before the court,” dismissed the appeal and against that dismissal the appellant has now appealed to this Court.

The main ground canvassed before this Court was the omnibus ground that the decision cannot be supported, having regard to the totality of the evidence in general and particularly to the shaky and shady as well as improper and unorthodox evidence of identification; that the court below was wrong in allowing a finding of guilty based on such evidence to stand. It was also contended that the defence of the appellant was inadequately considered by the courts below.

I shall deal first with the crucial issue of identification. For the prosecution to succeed in this case, there ought to be proof beyond reasonable doubt:

(i) That there was a robbery or a series of robberies.

(ii) That each robbery was an Armed Robbery.

(iii) That the appellant was one of those who took part in the armed robberies.

There is here evidence galore that a series of robberies took place in the early hours of the 8th July, 1979 at Okumagba Layout Warri. It is common ground that force was used and guns were fired during and even after the robberies. No one can be in any doubt that what happened around the vicinity ofOkumagba Layout Warri on the night/early morning of 8th July, 1979, each amounted to armed robbery as defined by the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.

The victims of the various robberies testified for the prosecution as Prosecution Witnesses 1-6. From the totality of their evidence, the robbers were four in number; they were not masked; there was amply light inside as well as bright security lights outside. Each of the six prosecution witnesses identified the appellant the following morning as being one of the four armed robbers who invaded his house the previous night. Each witness testified that he knew the appellant before the night of the robberies. They knew him by name; they knew that he lived at No.6 Eboh Road, close by No. 8 Eboh Road where 1st P.W. Samuel Okorefe (one of the victims of the robberies) lived. No.8 was a kiosk or a barber’s shop where the appellant usually slept. This is admitted by the defence. Also the 2nd P. W. William Emeurude who lives at No. 38 Idama Street, Okumagba Layout and who was also robbed was emphatic in, and sure of, his identification of the appellant who like him comes from Isoko.

The learned trial judge reviewed the evidence identifying the appellant and connecting him with the series of robberies that took place in and around Okumagba Layout on the night of sn/79 and found as follows:-

“I am satisfied that there is a lot of variance in the evidence as to what happened after daybreak. I am of the view however that a clean line can be drawn between the evidence of the robbery and the evidence after the robbery. I am satisfied that P.Ws. 1-6 clearly recognised the accused person. They knew him before 8/7/79 and clearly saw him by means of the security light outside. The accused was unmasked and it was to him the 3rd, 4th, 5th and 6th P.Ws. gave money.”

The appellant in his defence denied taking part in any of the robberies. He set up an alibi which was disbelieved by the learned trial judge – Ajuyah, J.