Sunday Ndidi V. The State (2005)
LawGlobal-Hub Lead Judgment Report
AMAIZU, J.C.A.
This is an appeal against the judgment of Diaw, sitting at the Agbor Judicial Division of the High Court of the Delta State. The judgment was given on the 29th day of November, 2001.
Briefly, the facts which led to this appeal so far as they are material to the questions which call for our determination are: at the wee hours of 4th day of January, 2000, armed robbers struck at Abavo in Delta State. PW1, PW2 and PW3 were the alleged victims of the armed robbery.
The incident was reported to the police. One Sunday Ndidi, was accused of the robbery. He was later arraigned before the lower court.
During his trial, five persons gave evidence for the prosecution.
He testified in his own behalf and called no witness. The learned trial Judge after hearing the evidence of witnesses and the defence held as follows:
“I have carefully considered the counts contained in the information of which the accused is charged, the evidence led by the prosecution in proof thereof, and the defence put forward by the accused person, and being satisfied that the prosecution has proved counts 1 & 2 thereof beyond reasonable doubt, find the accused person guilty in each of these counts. The prosecution has failed to prove count 3 against the accused beyond reasonable doubt. I accordingly discharge and acquit the accused person in count 3 thereof.”
The accused, now the appellant, was dissatisfied with the judgment. He has appealed to this court. At first, he filed two grounds of appeal. He later, with the leave of this court, filed six additional grounds of appeal.
The parties through their counsel and in accordance with the rules of this court, filed and exchanged briefs of argument, wherein they identified issues for determination arising from the grounds of appeal.
In his brief of argument, the appellant identified the following issues for determination –
- Whether the evidence of PW1 was sufficient to support the conviction of the appellant without further corroboration?
- Whether the failure of the learned trial Judge to act on the evidence on record had not occasioned a miscarriage of justice?
The prosecution also formulated two issues, which though couched in a different language, on a close examination boil down to the above two issues formulated by the appellant. I shall consider the appeal on the basis of the issues formulated by the appellant.
Arguing issue one, Alegeh, Esq. of counsel, submitted that the conviction of the appellant was based solely on the evidence of PW1, Comfort Apokueze. In the learned counsel’s view, the case against the appellant depended wholly or substantially on the identification of the appellant. In that case, still in his view. as the defence has alleged that PW1 was mistaken in her identification, the learned trial Judge should have exercised caution by warning himself before convicting on the identification of PW1. He placed reliance on the case of Abudu v. The State (1985) 1 NWLR (Pt.1) 55.
The learned counsel contended that the identification was too suspicious to be relied upon in convicting the appellant. He cited the case of Mbenu v. The State (1988) 3 NWLR (Pt.84) 615.
The learned counsel referred to the evidence of PW1 on which the conviction was based –
(3) Under cross-examination PW1 testified as follows:-
“1 was sleeping and around 1.00am. I heard voices shouting open, open. My protector was broken and the door too and (sic) people entered my house. The first person was the accused.”
The learned counsel submitted that the learned trial Judge should have taken judicial notice of the fact that it would be dark by 1.00 am in the morning. In that case, PW1 should have stated how she was able to recognize the appellant under that condition.
The learned counsel submitted that PW1, having woken up suddenly and confronted by six armed robbers, would have been confused as a result of fear.
(2) The learned counsel referred to this part of the evidence of PW 1 that is to say:-
“I knew the accused before the incident occurred. It is not true that there was no light in Abavo. On the night in question, I told the Police there was light. It is true I told the Police I carried a small lantern. The robbers told me to put the lamp down and quench it.”
The learned counsel submitted that either there was light on that day or there was no light. According to the learned counsel, if there was light on that day, why did she need a lantern? If there was light he asked, why did the armed robbers need a torch light after the woman had put off the lantern? In his view, the reasonable inference to be drawn from the use of lantern by the woman and torch light by the robbers is that there was no light at Abavo on that day.
Continuing, the learned counsel submitted that the evidence of PW1 that she went to the accused’s house with PW4 was not corroborated. He observed that PW1 made two statements, one at Abavo and the other at Agbor. He further observed that the 1st statement made by the witness was not tendered. This was deliberate in order to hide the fact that she did not mention at the earliest opportunity the fact that she identified the appellant as one of the robbers. He referred to section 149(d) of the Evidence Act. He contented that the weakness in the identification of the appellant by PW1 is highlighted in this part of evidence of PW1 that is to say:-
“I did not recognize any of the three people who entered my room with the accused”.
The learned counsel then posed the question, how was she able to recognize the appellant? In his view. if the learned trial Judge had adverted his mind to that fact he would not have heavily relied on the evidence of PW1.
The learned counsel reminded the court that PW1 did not state in exhibit ‘A’ that the armed robbers asked her husband and the children to lie down. He submitted that the failure of the prosecution to call the husband of PW1 to give evidence raises a presumption under section 149(d) of the Evidence Act, 1990.
He submitted that where the testimony of a witness in court differs from the statement of the witness to the police the trial court should discountenance the two statements. The learned trial Judge should not rely on any of the conflicting statements, as he should not pick and choose which of the two versions he is to believe. He relied on the following-
(1) Iortim v. The State (1997) 2 NWLR (Pt. 490) 711
(2) Akalonu v. The State (2000) 2 NWLR (Pt. 643) 165
(3) Siwobi v. C.O.P. (1997) 1 NWLR (Pt. 482) 411
The learned counsel urged the court to resolve the issue in favour
of the appellant. In his reply, Professor Utuama, Hon. Attorney General/Commissioner for Justice, Delta State, submitted that it is not in dispute that PW1 was assaulted and robbed by armed robbers in the night of 4th January, 2000.
He observed that the gravamen of the appellant’s appeal revolves around the issue of his identification by PW1 as one of the robbers who robbed her. He submitted that the learned trial Judge was right in holding that the vivid eye witness evidence given by PW1, positively identified, and linked the appellant to the robbery.
He gave his reasons. They are –
(1) The identification of the appellant by PW1 was at the earliest opportunity. The relevant part of the testimony of PW1 reads:-
“At day break, I raised alarm, and our community member came around, he (sic) reported the matter to the police. I told the police that I saw the accused person. I made a statement to the police at Abavo.”
Under cross-examination she said –
“When I raised the alarm I shouted and also said that I saw the accused.”
It is the view of the learned counsel that there was no delay whatsoever on the part of PW1 in identifying the appellant. And, in the circumstance, the court is enjoined by law to accept the evidence of PW1. Abudu v. The State (1985) 1 NWLR (Pt.1) 55.
The learned counsel referred to the invocation of the provision of section 149(d) of the Evidence Act by the appellant. He submitted that the provision would apply where there was no evidence called in respect of the issue in controversy. He referred to the case of Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521 at 553 (E & O). In that case, the Supreme Court held that the presumption under section 149(d) of the Evidence Act will only apply against whom it is sought, where that party has infact withheld the particular evidence in issue. And also, if he did not call any evidence on the point. He emphasized that exhibit ‘A’ made by PW1 and her evidence in court coupled with the statements and the evidence of the appellant himself confirm beyond doubt that PW1 identified the appellant at day break after the robbery at night. He contended that the mere failure to produce evidence would not necessarily amount to withholding such evidence. He relied on T. A. Aguda – Article 21109 at page 369.
This is more so as the defence did not call for the statement made by PW1 at Abavo. In that case, it cannot be said that the prosecution withheld the statement, since it was not called by the defence during the trial. The learned counsel referred to the fact that PW1 knew the appellant before the incident. She saw the appellant with the aid of a lantern she was carrying when the armed robbers entered her room.
He observed that the submission by the defence counsel that the learned trial Judge found aspects of the evidence of PW1 unreliable is not correct. Rather, he submitted that the court found the whole testimony of PW1 consistent and reliable. He referred to the following passage in the judgment of the lower court-
“There was ample opportunity and favourable circumstances from which she could identify the accused person as one of those who while armed, robbed her on the night of 4/1/2000. The court accepts as satisfactory her identification of the accused and the circumstances under which she could identify him.”
The learned counsel observed that as the appellant did not raise the defence of alibi prior to the trial he cannot avail himself of the said defence. He relied on the case of Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt. 763) 512 at 536.
He referred to ex. D. the statement of the appellant. (Part of) it reads –
“It is true that I was arrested by my blood brothers in my village on 5/1/2000. In the process of arresting me, my brothers, namely Ugoh Ndidi, Aboyi Ndidi, Agility Ndidi and my mother Mrs. Josephine Ndidi …”
In the learned counsel’s view, it is inconceivable that the appellant’s mother would join in arresting him, if the appellant had slept in her house in the night of the incident.
Finally, the learned counsel submitted that the identification of the appellant by an eye witness does not require corroboration. He observed that the test applicable to the evidence of a single witness is whether the witness who identified the accused did so at the earliest opportunity. And, whether the evidence of that witness is consistent and cogent. He relied on the case of Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521.
He urged the court to resolve the issue against the appellant.
On issue 2, Alegeh, Esq. of counsel, submitted that in the light of the unsatisfactory identification of the appellant and the total absence of corroborative evidence, the judgment of the lower court cannot stand. He reminded the court that in his submission in the lower court, he highlighted the fact that PW5 said that-
”That the accused was later charged with armed robbery in view of his antecedents.”
It is the learned counsel’s view that the piece of evidence is enough to discharge and acquit the appellant. He urged the court to allow the appeal.
In his reply, Professor Utuama, of counsel, submitted that the learned trial Judge received and properly acted on the evidence on record. He emphasized the fact that the appellant was not arraigned before the lower court on basis of suspicion arising from the appellant’s previous records as a known thief in the community. He confirmed the submission by referring to PW5’s evidence-
“It is true that the community members mentioned to me that the accused has a notorious reputation, but I did not act on their information.”
He urged the court to resolve the issue in favour of the prosecution.
I refer to the two issues formulated by the parties. I intend to treat them together as they overlap in some areas. The onus is on the prosecution throughout the criminal proceeding to establish the guilt of the accused person beyond all reasonable doubt. The prosecution is not however expected to prove its case beyond any shadow of doubt. It is also not necessary for the prosecution in order for him to discharge the above burden to call every available piece of evidence. It is enough if the evidence adduced by the prosecution is sufficient to discharge the onus placed on it.
Alegeh, Esq., of counsel in his submission reminded the court that the appellant in his evidence in court raised the defence of alibi. He contended that the lower court should have considered the defence. I do not think so. The word “alibi” is a Latin word meaning “elsewhere”.
It is accepted that the impossibility of a person being present in two places at the same time gives the defence of alibi its efficacy when established. It is however a matter that is exclusively within the knowledge of an accused person where he was at a given time. It follows that the defence must be raised at the first opportunity or at such a time that the police would be in a position to investigate it. If the defence is not so raised, the police should not be expected to prove an unknown fact. The defence cannot avail the appellant in the present case as the defence was raised when the appellant was giving evidence.
It is the case of the appellant that he was convicted solely on the evidence of PW1, one Comfort Akpokueze. It does seem to me that the law is quite clear on this point. Section 179(1) of the Evidence Act provides that:-
“Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.”
See also the case of Mohammadu v. The State (1986) 2 NWLR (Pt. 22) page 331. It was held in that case that an accused can be convicted on the evidence of one credible witness if the offence is not one of the offences which requires corroboration under section 179 of the Evidence Act. The present case does not fall within the exceptions provided in the section. Having said this, the following findings of the lower court justify the conviction of the appellant solely on the evidence of PW 1. The findings are:-
“Now, having dealt with these issues, as between the creditability of the PW1 and the accused, the court believes the evidence of the PW1 and disbelieves that of the accused person. There was ample and favourable circumstances from which she could identify the accused person as one of those who while armed, robbed her on the night of 4/1/2000. The court accepts as satisfactory, her identification of the accused and the circumstances under which she could identify him. The court therefore finds count II of the charge proved beyond reasonable doubt …”.
I am aware of the fact that Alegeh, Esq., of counsel argue strenuously on the authorities of the cases of Mbenu v. The State (supra) and Abudu v. The State (supra) that if the learned trial Judge had exercised caution, he would not have convicted the appellant. I have no doubt that the learned counsel is relying on the doctrine of stare decisis. The doctrine would apply if the facts of the case before the lower court are on all fours with above cases decided by the Supreme Court. For example, in the case of Abudu v. The State (supra), although the accused was well known to the victim, he was not identified by her at the earliest opportunity.
It was the delay in identifying the accused that made the evidence of identification suspect, and reduced the truth content of her evidence below an acceptable and probative level.
The two cases are not on all fours with the present case. The lower court was right therefore in not following the decisions.
I refer to the submission of the learned counsel for the appellant that –
(1) The statement of PW 1made at Abavo was not tendered.
(2) PW1 did not state in her statement to the police that her husband and her children were ordered by the armed robbers to lie down.
It is the view of the learned counsel for the defence that the omission by the prosecution to tender the two statements raise the issue of presumption under section 149(d) of the Evidence Act, 1990.
It is my view that it is not necessary for the prosecution to tender the statement made by a witness who is called to testify in the cause of a proceeding. The exception to this rule of practice is, if the statement is tendered to cross-examine the witness. In that case, the learned defence counsel should formally request for the production of the statement by the prosecution. I observe that in the instant case, the learned defence counsel did not ask for the statements.
Secondly, the provision of section 149(d) of the Evidence Act. 1990, are concerned with withholding of evidence and not with failure of a party to call a particular witness or tender a particular document.
Finally, I refer to the evidence of PW5. In my view, his evidence should be considered as a whole and not piece meal in order to bring out the correct meaning of the evidence. Even if this court accepts the version of the evidence put forward by the defence counsel, what is necessary in proving a case beyond reasonable doubt is not the reason for bringing the accused to court but the quality of evidence before the court. In the present case, the prosecution adduced enough evidence to obtain conviction.
It is further the case of the appellant that the lower court should have taken judicial notice that by 1 a.m. in the morning it would be dark. I observe that the Evidence Act, Cap. 112 of Laws of the Federation of Nigeria, 1990 provides for the law of evidence to be applied in all judicial proceedings in or before courts in Nigeria.
Section 74 thereof provides for facts of which the courts in Nigeria must take judicial notice. The fact that it is dark by 1 a.m. in the morning, is not one of those facts our courts should take judicial notice of. There must be evidence to prove it.
Although the learned counsel for the defence did not identify the alleged contradictions in the prosecution’s case, I observe that it is trite law that it is not every contradiction in the evidence of a witness for the prosecution that may warrant interfering with the decision of a trial Judge by an appeal court. For any such contradiction to be fatal to a case, it must not only relate to material fact, it must result in a miscarriage of justice. Queen v. Iyanda (1960) 5 FSC 263, (1960) SCNLR 595. I am firm in my view that it is not the case here.
In the result, I find no merit in this appeal which should be dismissed and it is hereby dismissed.
The appeal is dismissed.
Other Citations: (2005)LCN/1700(CA)
