Sunday Omega V. The State (1964)

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COKER, J.S.C. 

The appellant was in the High Court of the Jos judicial division of Northern Nigeria (Bate J.) convicted on three counts of robbery and brigandage contrary to sections 298 and 301 of the Penal Code. He was tried along with three others and he was the first accused. The second and fourth accused were acquitted and discharged whilst like the appellant the third accused was convicted on some of the counts charging him with robbery and brigandage. The trial Judge accepted the case for the prosecution to the effect that the appellant was a member of an armed gang of robbers which had waylaid the several persons on the several dates as described on the charge. He rejected the defence of alibi put forward by the appellant.

Learned counsel for the appellant submitted that the verdict was not supported by the evidence and in particular suggested that:

(i) the evidence of the 10th prosecution witness, Lukuman Agai, on which alone the appellant was convicted on the count of robbery is unreliable and uncertain in view of the fact that this witness failed to identify the second accused during an identification parade and indeed identified someone else who was not a suspect, and

(ii) the identification parade at which the appellant was identified by the 5th prosecution witness, Maman Kasada, was improperly conducted as the witness was in the course of the investigation of the case shown photographs of the accused persons and a knife alleged to have been seized from the witness.

With regard to (i) we point out that although the 10th prosecution witness failed to identify the second and third accused persons during the identification parade, he certainly identified the appellant. The evidence established that it was the appellant who offered to drive him to Onitsha and received his fare, and who later threatened him with his gun after ordering him out of the motor-car in which they were all travelling and eventually robbed him of his money. It is true that the witness said that he had been sitting at the back of the car while it was in motion, but he would have had ample opportunity to observe the appellant while paying his fare and while the actual robbery was taking place. The learned trial Judge considered the tenth prosecution witness a truthful witness as to the events and rightly in our view regarded his evidence as sufficiently reliable to ground the conviction of the appellant on the charge of robbery.

With regard to (ii) we observe that although answers were elicited from the 5th prosecution witness in the course of his cross-examination to the effect that he was at some time during the investigation of the case shown the photographs of the accused persons and the knife seized from him, the witness was not examined as to what stage of the investigation he was shown these photographs, for unless it was clear that the photographs were shown to the witness in order to enable him to identify the suspects at a subsequent identification parade, we cannot see how the propriety of the identification parade in the circumstances of the present case can be impugned. The learned trial Judge adverted to this point in his judgment and observed that it was not clear whether this (i.e., the showing of the photographs) was before or after the identification parade and that the police officer who conducted the parade was not questioned on the point. We do not think that there is any substance in this point.

We are satisfied that the learned trial Judge gave adequate consideration to all the evidence and that he rightly concluded that the accepted evidence justified the verdict.

Learned counsel for the appellant also submitted that the refusal of the trial Judge to grant the appellant an adjournment in order to call his witnesses in support of his defence of alibi resulted in a miscarriage of justice. It is to be noted that before the actual trial of the appellant, there was a preliminary investigation by a Magistrate. Apparently when the appellant was being committed for trial before the High Court at the end of the preliminary investigation, the Magistrate as enjoined by the provisions of section 174 of the Criminal Procedure Code Law 1960, asked him for the names of his witnesses and if these particulars were not then available requested the accused to furnish them at a subsequent time. The records of the case show that the appellant failed to comply with the Magistrate’s further direction (pursuant to section 174 (2) of the Criminal Procedure Code Law 1960) that he might supply the names of his witnesses within a week of the order of committal. Learned counsel for the appellant however contended that despite this failure or neglect on the part of the appellant, the refusal by the Judge to adjourn the hearing resulted in a miscarriage of justice. In the course of his argument, counsel suggested that such refusal is tantamount to an infraction of the provisions of section 22(5) of the Constitution of Nigeria which requires that an accused person should be given adequate time and facilities for the preparation of his defence. Counsel also referred to the cases of:

(1) Danjuma Dan Buhari Rimin Auzinawa v. Kano Native Authority (1956) 1 FS.C.27, where, in allowing the appeal, the Federal Supreme Court observed as follows, at p. 28:-

“In cases such as this the accused should always be asked if he has any witnesses he wishes to call in support of his defence, and it is obviously desirable that care should be taken by the trial Court to ensure that the question and answer are recorded.”

That was a murder case and although the point on which the appeal turned was not taken in the Court below, the appellant did indicate in the course of his appeal that he always had witnesses to call.

(2) Jalo Guri and Another v. Hadeiia Native Authority (1959) 4 F.S.C. 44, in which the Federal Supreme Court held, applying the principles of Danjuma’s case, (supra), that the application of Maliki Law as to “hiraba” (highway robbery) which precludes persons accused thereof from having any opportunity to exonerate themselves, although relaxed to some extent in that case, was a procedure which is repugnant to natural justice, equity and good conscience; and

(3) Dixon Gokpa v. Inspector-General of Police [1961] All N.L.R. 423 where it was held by the High Court of Eastern Nigeria on an appeal from a conviction by the Magistrate’s Court that a refusal by the Magistrate to allow the appellant an adjournment in order to secure the presence of his Counsel amounted to a refusal to give him a fair chance of defending himself and of doing so with the aid of Counsel when he was represented by one.