The People Of Lagos State Vs Mohammed Umaru (2014)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

From the facts contained in the printed record of the appeal, the prosecution’s case against the respondent is that the respondent along with others, were charged before the High Court of Lagos, holden at Lagos Judicial Division [the trial Court], with Armed Robbery, contrary to section 402 [2] [a] of the Criminal Code Law, Cap 17, vol. 12, Laws of Lagos State, 2003. The respondent with others at large, were alleged to have, on or about the 11th day of March, 2006, at Din Alloy Close, Oke Afa, Ilamose Estate Ejigbo, Lagos in the Ikeja Judicial Division, whilst armed with offensive weapons to wit: a dagger and a shot gun robbed and stabbed one Mr. Nnosiri on the chest. The amount robbed was (N5,000.00) five thousand naira. The respondent was arrested by some OPC members a little distance from where the robbery had taken place. Mr. Nnosiri, as PW1, identified the respondent from his sandals which had been by his door entrance before the robbers came and on a closer look, PW1 was sure the respondent was the one who stabbed him with a dagger.

After completion of hearing of the case, the learned trial judge found for the prosecution; convicted and sentenced the respondent to death by hanging.

The respondent, dissatisfied with the trial court’s judgment appealed to the Court of Appeal, Lagos Division (Court below). The Court below, having reviewed the whole case, allowed the appeal set aside the trial court’s judgment, discharged and acquitted the respondent. The prosecution, now as appellant, dissatisfied with the Court below’s judgment appealed to this Court.

After settlement of briefs, learned counsel for the respective parties, on the hearing date, adopted and relied on the briefs filed filled and exchanged among them.

Learned counsel for the appellant set out the following issues for determination.

“1. Whether considering the circumstances of this case and the evidence presented at trial, the Court of Appeal was right in settling aside the judgment and sentence of the trial court. (Grounds 1, 2 and 4 of the Notice of Appeal)

2. Whether the refusal or failure of the appellant to tender the statement of PW1 and the dagger was fatal to the case of the prosecution. (Grounds 3, 5, and 6 of the Notice of Appeal)
3. Whether the prosecution established the ingredients in section 149(a) of the Evidence Act to ground conviction under that provision. (Grounds 7 and 8 of the Notice of Appeal)

In his submissions, the learned counsel for the appellant, Dr. Banire, argued that the Court of Appeal was wrong when it set aside the judgment and sentence of the learned trial judge convicting the respondent of the offence charged. Learned counsel set out the ingredients to be proved before conviction. He cited the case of ABDULLAHI v. THE STATE (2008) 17 NWLR (part 1115) 203 at page 221-222 A-C. The evidence given by PW1 establishes the fact that an armed robbery was committed. Further, the respondent made a confessional statement and that it is the best evidence which the court can rely on. The case of NWACHUKWU v. THE STATE (2007) 17 NWLR (part 1062) at page 70 was cited in support. The document (confessional statement) is not disputed by the respondent and it forms part of the record before the court which the court is entitled to look at AKINDA v. VICE CHANCELLOR UNILORIN (2004) 35 WRN 79, cited.

On the second issue, the learned counsel submitted that the failure of the appellant to tender the statement of PW1 and the dagger, as held by the Court of Appeal, is not fatal to the case of the prosecution. No cross-examination was offered by the respondent to debunk the testimonies of PW1 and the corroborating evidence of PW2. No discrepancy between the statement made to the Police and the evidence led in open Court. Further, the wound inflicted on PW1 is sufficient to obviate the need to tender the weapon used. Learned counsel argued that the identification of the accused/respondent by PW1 upon sighting him on the morning of the incident together with the sandals of PW1 to found on the accused/respondent constitutes sufficient circumstantial evidence to ground a conviction. He cited the case of ADIEU v. THE STATE (1980) NSCC 51 at page 63.

On the third issue, learned counsel for the appellant relies on the doctrine of recent possession to cite the provision of section 167(a) of the Evidence Act. He argued that the presumption in this case is in favour of the prosecution which the accused/respondent needed to rebut but has failed to rebut the fact that a pair of sandals stolen around 1:50am was lawfully found in his possession at 5:20am, less than four hours after the robbery.

Learned counsel urged this court to allow the appeal; set aside the judgment of the Court of Appeal and uphold the decision of the trial court.

Learned counsel for the respondent, Mr. Igboekwe, in his brief of argument did not agree with the appellant’s issues as formulated by his counsel. Learned counsel opted for different issues which he claimed were from the same grounds of appeal. The issues are as follows:

“1. Whether from the facts and circumstances of this case, the Court of Appeal was right when it applied section 149(d) of Evidence Act 2004 in holding that the failure of the appellant to tender the statements of PW1 and the dagger allegedly used for the robbery was fatal to the case of the appellant. (Grounds 3, 5 and 6)

2. Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that from the record of the court, the appellant did not establish any of the ingredients of section 149(a) of Evidence Act 2004 to warrant a conviction of the respondent under that section by the learned trial judge (Grounds 4 and 8)
3. Whether the Court of Appeal was right when, in reaching its decision, it did not rely on the alleged confessional statement of the respondent which was not tendered as an exhibit at the trial. (Grounds 4)
4. Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the appellant as the prosecution did not discharge the burden of proof placed on it by law with regard to the armed robbery charge brought against the appellant (Grounds 1 and 2)”

It is my observation that from the respondent’s issues, ground No. 7 of the appellant’s grounds of appeal seems to be abandoned as it is not covered by any issue. I would have struck it out if the respondent was the appellant. Again, two issues: 2 and 3; relate to grounds 4. In the history of brief writing in appellate Courts, it is incongruous for one ground of appeal to relate to or be split into more than one issue and one of the issues is subject to being struck out. See: MADAGWA v. STATE (1988) 5 (part 92) 60; AGBETOBA v. L.S.E.C. (1991) 4 NWLR (part 188) 664. I have observed, issue two (2) cannot relate to ground four (4) is on confession. The ground, shorn of its particulars, reads as follows: