Sumaila Sokoto V. The State (2006)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A.
In the High Court of Lagos State, in the Ikeja Judicial Division, the appellant Sumaila Sokoto was charged along with two others for the offences of conspiracy to commit armed robbery as well as armed robbery contrary to sections 403 A, 402 (a) of the Criminal Code Law, Cap 31 of the Laws of Lagos State of Nigeria, 1973.
In the course of the trial, the prosecution called two witnesses, the person allegedly robbed and the investigating police officer. Each of the three accused testified on his own behalf. Thereafter, learned counsel for the prosecutions and the accused addressed the court. The learned trial judge, in his reserved and considered judgment, found the accused persons guilty and accordingly convicted them. Learned trial judge sentenced them to a term of twenty-one years for conspiracy and to death by hanging for robbery. The accused persons being dissatisfied with the conviction and sentence appealed to this court. The appeal of the third accused, Danladi Abdullahi v. The State, CA/L/274/02 in a judgment delivered on 5th July, 2004 resulted in his discharged and acquittal. I intend to return to this point later in the course of this judgment.
The appellant in the instant appeal was convicted on 26th day of April, 1985 in the High Court of Lagos State. The record of appeal which was by way of departure from the Rules, granted on 6/11/2003, does not carry any notice of appeal. The appellant however filed a notice of appeal on 9th May 1985 containing four grounds of appeal and, with leave of the court, filed five additional grounds.
Briefs of argument were filed and exchanged in accordance with the practice and procedure of this court’s Order 6 rules 2 and 4. in the appellant’s amended brief, the following issues were identified as calling for consideration and determination –
“(1) whether or not any evidence exists on the record capable of sustaining a finding of guilty in respect of the offence of conspiracy to commit robbery?
(2) whether the prosecution discharged the burden of proof imposed upon him to prove beyond reasonable doubt that the accused persons committed the offence of armed robbery?
In the respondent’s brief settled by Bola Okikiolu-Ighile (Mrs) the two issues framed in the appellant’s brief were set down ippissima verba. In neither formulations were the grounds of appeal from which the respective issues derived were stated. The parties, particularly the appellant, failed to relate the ground or grounds of appeal to any of the two issues distilled in this appeal. The sources of the issues are consequently shrouded in mystery, contrary to the express provisions of Order 6 r3 (1) of the Court of Appeal Rules, 2002, which states thus –
“3 (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view the issues arising in the appeal as well as amended or additional grounds of appeal.
(underlining mine)
The provisions respectfully are not cosmetic nor discretionary. It is mandatory; nevertheless most of our counsel comply with it more in breach than in compliance. The appellant having neglected, refused or failed to relate the grounds of appeal to the issues, he is deemed to have abandoned them. The ground ought to have been struck out and the appeal dismissed but the respondent took no objection to the appeal.
Apart from this inadequacy, the appellant canvassed several issues ranging from want of evidence, conflicting evidence, failure to call material witnesses, standard of proof to alibi under these two issues. Clearly this is not the intendment and purport of the provisions of Order 6 r 3. the purpose is for each issue to emanate from a ground or grounds of appeal which are related so that each issue can be treated together. It is not the intention of the rule to lump everything together in the manner, Mr. Onigbanjo has done and thereby creating a muddle. This is a criminal case especially that of a heinous crime such as armed robbery which is punishable by death otherwise the brief would have been struck out and the appeal dismissed summarily.
The succinct facts of the case is to the effect that on the 12th day of September, 1981, at about 7.30 p.m., the victim, Mrs. Rhoda Atiati who, incidentally was the first prosecution witness in the company of three Togolese was on her way home from work near Mile 2 when she was attacked by ten men who were alleged to be armed. She shouted for help which shouting attracted the attention of two Hausa men by name Ibrahim and Dan Yaro who came to assist her but they were unfortunately machete and beat a retreat. Her assailants striped her and made away with N=200.00 the money she wrapped in an handkerchief tied to her pants. After she was extricated she ran home for dear life. She remained at home until the following day when the head of the hausa community, Alhaji Bala, invited and took her to the Festac Police Station where the accused persons were being detained. At the time of the robbery. Mrs. Rhoda Atiati said she recognized one of the robbers but did not call his name at the material time out of abundance of caution because the men were armed with knives and could harm her.
At the Festac Police Station, the victim was able to identify the accused persons. The appellant and the second accused were apprehended together at about 9 p.m. of the night of the incident whilst the third accused was picked up at a different location and time. Significantly enough, the appellant and second accused whose appeal is also pending in this court claimed that they met the third accused for the first time at the Festac Police Station after the incident and their respective arrests.
Notwithstanding the protestation or denial of the appellant and second accused that they did not know the third accused and vice versa the three accused were nevertheless arraigned, charged, and convicted of the same offences at a single trial. As stated earlier, they were sentenced to 21 years imprisonment for the offence of conspiracy to commit robbery and death by hanging for the offence of robbery.
Dissatisfied with both the conviction and sentence, third accused Danladi Abdullahi appealed to this court. In the appeal, Danladi Abdullahi v. State CA/L/274/02, the third accused was discharged and acquitted in the judgment delivered on 5th July, 2004. This court in upholding his appeal, and in respect of the evidence adduced by first prosecution witness reasoned as follows per Adamu, JCA-
“Thus even though the learned trial judge in the present case is not required by law to seek for other evidence to corroborate that of PW1 implicating the appellant he should have treated her evidence with some degree of circumspection in view of the apparent uncertainty and inconsistency arising from such evidence as it related to the identity and involvement of the appellant and other accused persons in the robbery incident. It is incredible to believe PW1’s version that even though she knew one or all of the persons who attacked her on the fateful day (or night) she was afraid to mention their names for fear that they might kill or injure her. If she was afraid to call their names during the attack she should have been able to do so after she was rescued by the so called hausa men or immediately and contemporaneously after the attack on the same date. Her failure to mention the names of the attackers or identify them until the following day when she was invited to identify them at the Festac Police Station shows she did not know or recognize the true identity of her attackers. This in my view creates a doubt which should be resolved in favour of the accused persons.”
(underlining mine)
Learned justice of the Court of Appeal went further to hold as follows in respect of the evidence tendered before the trial court –
“In the present case as stated above, the victim PW1 did not identify the appellant and other accused persons at the scene of the alleged robbery either contemporaneously or immediately thereafter till the following day. Even on the following day she did not mention their names till when she was invited to the police station where she identified them as those who robbed her the previous night. There was no formal identification parade conducted at the said police station and the appellant and other accused were the only persons shown to her as those arrested for robbing her. This is contrary to and far short of the requirement for a formal identification parade where the suspect (s) are required to be joined along with other persons of similar height, statures and or dressings and the witness or victim will be called upon to point at or identify the persons who are involved in the alleged crimes. It is also pertinent in this regard to note the contradiction in the evidence of the PW1 on the identification of the accused persons as contained at page 8 of the record. At first she stated that she only knew one of the persons who robbed her. Later on in the same evidence she stated that she knew second accused called Hilla and that the other two also worked with them where they bag cement. There was no explanation by the prosecution on this inconsistency in the evidence of PW1. She was not re-examined on the matter by the prosecution. This inconsistency coupled with the uncertainty of the identification of the accused persons (including the appellant) cast a very serious doubt in the evidence of PW1 which should have been resolved in favour of the appellant and the other accused persons by the trial court. With all the above anomalies and doubts inherent in the present case, it cannot be said that the prosecution has proved its case against the appellant beyond reasonable doubt as required by law.”
I concur in the findings of my learned brother, Adamu, JCA which I adopt as mine. I am bound by them except I want to sit on appeal on the decision of my learned brother; courts of co-ordinate jurisdiction cannot sit on appeal on the decision of one and another: Engineering Enterprises of Niger Contractors & Co. v. A.G. Kaduna State (1987) 5 SCNJ 13, Sken Consult (Nig) Ltd. v. Ukey (1981) 1 SC.1, 6, 33-35, Onwuchekwa vs. CCB (1999) 5 NWLR (Pt.603) 409, 415. I am bound by them except or until it is set aside by the Supreme Court. There is no evidence or material before me from which it could be inferred that the same had been set aside or reversed in a Supreme Court decision. It should also be noted that the first prosecution witness stated in his statement to the police that the accused were apprehended at the scene of the crime on the fateful night contrary to her testimony at the trial that they were subsequently arrested by some hausa men. This is a serious or fundamental contradiction which ought to render both version inadmissible. The first prosecution witness stated that she went home after she was robbed of her N=200.00 without effort to report the incident to the police immediately or soon there after. She claimed to have stayed indoors until the head of hausa community came to summon her to the police station where she met the accused and identified them as her assailants. The testimony of the first prosecution witness smacks of being a suborned witness. It seems to me that there was, after all, no robbery incident that night and the witness was merely acting a script given to her by a rival group to that of the accused. How else does one explain her conduct?
In the circumstance, I agree that the prosecution failed to discharge the burden of proof imposed on it by virtue of the provisions of section 138 of the Evidence Act, Cap 112 of the Laws of Federation of Nigeria 1990.
section 138 provides as follows –
“138. If the conmission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
(underlining mine)
See Okuarume vs. Obabokor (1968) NMLR 47 and Nwakwere vs. Adewunmi (1966) 1 All NLR 129, 1967 NMLR 45, 48 and Aigbadion vs. State (2000) 7 NWLR (Pt.666) 686. see also the English case of Hornal vs. Neuberger Products Ltd. (1956) 3 All ER 970, cited in the appellant’s brief. At page 976 of the report, the following passage from Prof. Kenny’s outline of Criminal Law 16th Edition 1952 page 416 was cited with approval ” in criminal cases the burden rest upon the prosecution to proof that the accused is guilty beyond “reasonable doubt.” When therefore the case of the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from the defence, the defence need no more than show that there is reasonable doubt as to the guilt of the accused in criminal cases the presumption of innocence is still stronger and accordingly a still higher minimum of evidence is required; the more heinous the crime the higher will be this minimum of necessary proof.”
I am respectfully of the view that the prosecution failed to adduce minimum of evidence to discharge the burden of proof placed on it. This is a grievous or heinous offence of robbery which is punishable with death. The prosecution’s case would probably have been high and dry if the head of hausa community in the area; the two alleged hausa men who attempted to ward of the first prosecution witness’s assailants and were attacked with machetes; the three Togolese who were in the company of the victim as well as the people who worked with the accused where they bag cement were called to testify. The prosecution’s case was closed out of frustration apparently caused by its witnesses not forthcoming. The stage when the prosecution closed its case it became a matter of oath against oath. She alleged that they worked at the same place the accused denied and even insisted that the first and second met the third accused for the first time at the Festac Police Station. But if there were evidence of other people who could testify to their previous association the position would have been different.
The position could also have been different if the persons who arrested them had come forward to lead evidence of the circumstances of their respective arrests. These and many more would have thrown greater light on the prosecution’s case. It should not be understood that the prosecution’s case requires corroboration. The pieces of evidence that would have been extracted from these witnesses would have thwarted the accused effort to raised reasonable doubt. In the circumstance the accused raise a reasonable doubt that they committed the offences for which they were found guilty and convicted. My learned brother, Adamu, JCA ought to have released all of them on the strength of his evaluation of evidence.
In the High Court of Western Region, Mathew Elesi, who was convicted with others brought application for certiorari to quash the conviction alleging breach of the provisions of sections 215 and 218 of the Criminal Procedure Act in that the court failed to explain the charge to him and also the court did not read the charge as given by the prosecution for the accused to deny. The court felt that these irregularities constitute error of law on the face of the record to warrant quashing of the conviction. Thereupon Abina, J., quashed the applicant’s conviction. See State vs. Acting Chief Magistrate Ado-Ekiti, ex-parte, Elesi, Mathew and two others (1973) 3 ECSLR (Pt.11) 967.
An important question emerged following the quashing of conviction of the applicant out of three persons convicted on a joint charge or trial. On quashing the conviction of the complainant, the learned trial judge ordered the release of the remaining convicted persons apparently acting on the authority of the decision Thomas, J., in Inspector General of Police vs. Morrison Emeozo (1957) WRNLR 213,214 which it was held that where the outcome of an appeal affects a convicted person who did not appeal his conviction may be set aside as if he had appealed. The position taken by the two high court judges of Western Region are merely persuasive. I propose to follow them. I am encouraged in doing so by the Supreme Court decision in Chief Ebiri vs. The State (2004) 11 NWLR (Pt.885) 589.
The appeal succeeds and is allowed. The decision of the trial judge, Desalu, J., is set aside.
The appellant is discharged and acquitted.
Other Citations: (2006)LCN/2097(CA)
