Wilfred Okafor V. The State (2005)

LawGlobal-Hub Lead Judgment Report

OLABODE RHODES-VIVOUR, J.C.A.

The appellant was charged in the High Court Niger State, sitting in Minna with Robbery, contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 1990. He was found guilty of the offence on the 6th day of May, 2002, by the Hon. Justice Aisha A.L.B. Bwari and sentenced to 21 years in prison.

To substantiate its case, the State, now respondent in this appeal, called six witnesses and tendered documentary evidence, among which are the statements of the accused person and the complainant, PW1.

The prosecution’s case was that on the 5th day of November, 1999, one Mohammed Ahmed, a commercial driver who testified as the PW1 drove his vehicle, a 505 Peugeot Station Wagon from Lagos to Minna, The registration number of his vehicle is XA 978 MNA. There were passengers and their belongings in the vehicle. On arriving at Edozhigi road junction, about 15 Kilometres from Bida, he ran over oranges stuck with nails. The two front tyres of his vehicle ran flat. He and all the passengers disembarked from the vehicle. He told the passengers to go to the Police checkpoint which was not too far off. He followed them, but on his way, he heard a gun shot. The passengers ran into the bush. Two robbers came out of the bush and attacked PW1 with a stick and robbed him of N11,800 and made away with the passengers’ goods.

PW1 reported the matter to the Police at Lemu Division, Edozhigi. The robbery occurred at about 8.30 p.m.

In her judgment, the learned trial Judge rejected the appellant’s defence. Her lordship accepted the evidence of the prosecution witness and ended her judgment summarizing thus-

“I dare say, I find no such contradictions in the prosecution evidence. Each of the witness (Prosecution) stated step by step what they knew and did with regard to their investigation of the case. Court can do no other than to find the accused person guilty. The accused person, Wilfred Okafor, is hereby found guilty of the offence of robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 1990.”

Aggrieved by the decision, the Appellant appealed against the conviction by the learned trial Judge to this Court.

In accordance with the Rules of this Court to wit: Order 6 rules 2 and 4 both sides filed and exchanged briefs of argument.

The appellant’s brief filed on 16/1/04 contained seven grounds of appeal, and they are:

“1. The judgment of the lower court is unreasonable and cannot be supported having regard to the evidence adduced during the trial.

2. The court below erred in Law, when it found the appellant guilty of an offence of Robbery, when the offence was not proved beyond reasonable doubt, or even that there was robbery at all and that the Appellant participated in it.
3. The learned trial Judge erred in Law, to have convicted the Appellant in the absence of properly conducted identification parade and proper evidence of identification.
4. The learned trial Judge by attaching undue weight to the evidence of the complainant/PW1 despite previous inconsistent statement made by him to the Police and his evidence in the court.
5. The learned trial Judge erred in Law, when it held that the sentence is the minimum imposed by the Law.
6. The learned trial Judge erred in Law, by trying and convicting the Appellant under the Robbery and Firearms (Special Provisions) Act 1990, whereas it has no such jurisdiction under the said Law and therefore, causing substantial miscarriage of justice.
7. The whole trial conducted by the lower court was a nullity in that the substantial part of the proceedings and delivery of judgment were conducted by the lower court inside the judge’s chambers.”

Five issues for us to determine have been postulated in the Appellant’s brief. They are:-

“1. Whether considering the evidence before the court, the Hon. trial Court was right to have returned verdict of guilt.

2. Whether having regards to the totality of evidence before the trial court and the circumstances of this case, a case of Robbery was proved beyond reasonable doubt against the Appellant.
3. Whether the evidence of identification in this case was proper and reliable for the Hon. Trial court to have acted upon, in convicting and sentencing the Appellant.
4. Whether in the face of irreconcilable contradictions in the evidence of PW1, the Star Witness for the prosecution, the learned trial Judge was right to have convicted the Appellant.
5. Whether the trial and conviction of the Appellant under the Robbery and Firearms (Special Provisions) Act by the Niger State High Court of Justice was not invalid.”

On his own part, the respondent formulated the following issues for determination in his brief filed on 29/4/04.

“1. Whether considering the evidence before the trial court, the Hon. Trial Court was not right to have returned a verdict of guilt?

2. Whether having regard to the totality of Evidence before the Court, the prosecution did not prove its case beyond reasonable doubt?
3. Whether the Minna High Court had no jurisdiction to have tried the robbery case the offence being an Act of National Assembly and not that of the State Assembly. In another word, being a federal offence.
4. Whether there was even any need for identification parade in this case?”

At the hearing of the appeal on the 11th October, 2005, learned Counsel for the appellant adopted his brief and urged us to allow the appeal and quash the conviction of the appellant.

Interestingly, the appellant was present in Court. This is what his Counsel, Mr. Chukwuma-Machukwu Ume said concluding his submissions:

“The Chief Judge of Niger State quickly freed him because he realized he was wrongly convicted.”

I shall say nothing on this.

Learned Counsel for the respondent adopted his brief and urged us to dismiss the appeal and uphold the judgment of the court below delivered on the 6th of May, 2002.

No issue was formulated for determination from grounds 5 and 7. The position of the Law is that where no issue is formulated in respect of a ground of appeal such ground of appeal is deemed to have been abandoned and would be struck out by the appellate court.

In this appeal as no issue was formulated in respect of grounds 5 and 7 of the ground of appeal, the said grounds 5 and 7 are hereby, struck out having been abandoned by the appellant. See:

Iyayi v. Eyigebe 1987 3 NWLR Pt. 61 p. 528;

Obasi v. Onwuka 1987 3 NWLR Pt. 61 p. 369;

Western Steel Works v. Iron & Steel Workers Union 19871 NWLR Pt. 49 p. 304.

Having given the arguments adduced in the briefs, the most careful consideration the questions for determination in this appeal are-

1. Whether there was the need for an identification parade in this case.
2. Whether in the face of irreconcilable contradiction in the evidence of PW1, the star witness for the prosecution the learned trial Judge was right to have convicted the Appellant.
3. Whether the trial and conviction of the Appellant under the Robbery and Firearms (Special Provisions) Act by the Niger State High Court of Justice was not invalid.

I must at this stage, observe that in all Criminal trials, the burden is always on the prosecution to prove beyond reasonable doubt the guilt of the accused person. See-

Chia v. State 1996 6 NWLR Pt. 455 p. 465;

Babuga v. State 1996 7 NWLR Pt. 460 p. 279.

Consequently, where there are material contradictions on vital issues which create reasonable doubt, the learned trial Judge has the duty to resolve the doubt in favour of the accused person. See Baruwa v. State 1996 7 NWLR Pt. 460 p. 302.

I now deal with the issues for determination in this appeal.

Issue No. 1

Learned Counsel for the appellant observed that what was given as evidence of Identification parade was a shamble, outrageous and very improper. Reference was made to

Okeke v. State 1995 4 NWLR Pt. 392 p. 688;

Madugwa v. State 1988 5 NWLR Pt. 92 p. 60

He argued that since the robbery occurred at night (8.30 p.m.) and the complainant never saw the appellant before the robbery incident a proper Identification parade ought to have been conducted.

Concluding, he submitted that the Hon. trial Judge misunderstood the evidence of identification.

Further reference was made to:

Lado v. State /9999 NWLR Pt. 619 p. 373.

In his own submission, learned Counsel for the respondent observed that an identification parade is one of the ways of identifying an accused person. He submitted that there was no need for any identification parade since the evidence of PW1 is not one of visual or fleeting identification, but that of actual recognition of the appellant.

This is what the learned trial Judge had to say on the identification of the appellant:

“However, I do not hold the view that visibility at about 8.30 p.m. was not possible/or purpose of identification of accused person by the PW1………”

I fail to see how the learned trial Judge can so hold when PW1 said under cross-examination as follows:

“Yes this incident took place at night at about 8.30 p.m. At 8.30 p.m. it is already night since there is no sun. ”

There is no doubt that Nigerian Highways are very dark at night, and once the scene of the Robbery is dark the identity of the offender which is indeed of crucial importance can only be properly done by an identification parade. This is done where as in this case the appellant was not arrested at the scene of the crime. PW1 never knew the appellant before the Robbery. Even if PW1 was confronted by the appellant it was for a very short time and PW1 never observed any features of the appellant as he did not make any mention of that in his statement or in oral sworn testimony in court.

PW1 was robbed in the night of 5/11/99. He reported to the Police. In his statement made to the Police on 9/11/99 he said:

“…………… I can identify them if seen or through their voice ………… and they also speak Igbo …………… the Police suspected some group of Igbo boys in that area and I accompany the Policemen to the houses of the suspected persons……………”

PW2, PW3, PW4, PW5 AND PW6 are all Police officers. The need for an Identification parade becomes mandatory after examining what they said.

PW2 – he charged the appellant to the Magistrates Court.

PW3 – his evidence under cross examination is interesting. He said:

“The complainant told me the people that robbed him spoke Ibo language and that was why my investigation was limited to Ibo speaking people. The first person, I arrested was Victor Okoro. I went in company of the complainant who identified him. The arrest and identification was done at Victor’s house. So also was Cletus Ogbonna and Ogbonna Onye.”

Those people were never charged to Court. His evidence continued:

“Later I showed accused person to the complainant to be one of the Ibos in the area and immediately, he suspects the accused.”

It is not only Ibos that speak Ibo. The Police restricting its investigation to Ibos is wrong as people who are not Ibos, also speak the Ibo language. It must also be noted that immediately PW3 showed the accused person to the complainant, he immediately suspected him. The Law is well settled that suspicion however great is not legal evidence. It does not amount to proof. See

James Ikhare v. Police 1977 6 SC P. 122;

Abiake v. State 1975 9-11 SC. p. 97;

Adio v. State 1986 2 NWLR Pt. 24 p. 581.

PW4 corroborated PW3 and he was also able to recover N22,000 from Victor Okoro, but nothing was recovered in the house of the appellant.

PW5 only recorded the appellant’s statement.

PW6 did not do anything in respect of the appellant.

My Lords, this case rests on the identity of the appellant. In this case, the complainant accompanied the Police to the homes of four Ibo speaking men. He saw them all the time, and did say he suspects the four of them. The identification of the appellant in the circumstances without a properly conducted Identification parade is highly suspect, unfair and unreliable.

ISSUE NO.2

Learned Counsel for the appellant argued that had the learned trial Judge considered the contradictions in the evidence of PW1 on the vital issue of the identity of the appellant the conclusion would have been different.

Reliance was placed on;

Uso v. State 1992 2 NWLR Pt. 224 p. 471;

Onigbogu & Ors. V. The State 1974 ANLR p. 561.

He urged us to set aside the valuation of the entire evidence by the trial court.

In reply, learned Counsel for the respondent submitted that there were no contradictions in the evidence of PW1 and for contradictions to be fatal to the prosecution’s case the contradictions must be in respect of material and not minor facts.

My Lords, the position of the Law is that where a witness has made previous statements inconsistent with the evidence given at the trial, the court has been slow to act on the evidence of such a witness.

In his statement to the Police PW1 said:

“I accompany the Policemen to the houses of the suspected persons……”

In evidence in chief, he said on oath;

“……..I and one Inspector, proceeded to Wuya Village at about 6.30 a.m. and went to the accused’s house, where we were told he has gone to the farm. We then went to the other person’s shop and we were told he is sleeping……”

And in cross examination he said:

“………I did not go to the accused house, it was the Police who went.”

And in re-examination he said:

“I did not go to the house of the accused. It was the Police that went trekking after I had parked my vehicle. At the Police Station ………”

PW1’s previous statement is inconsistent with the evidence he gave at trial.

In C. Onubogu and Anor. v. State 1974 ANLR p. 561, it was held inter alia that where a witness has made a statement before trial which is inconsistent with the evidence he gives in court and he gives no cogent reasons for the inconsistency, the court should regard his evidence as unreliable. See also;

Queen v. Joshua 1964 1 All NLR p. 1 at page 3;

R. v, Golder 1960 1 W.L.R. p. 1169

In the light of the fact that the evidence of the star witness PW1 has been held to be unreliable there is nothing on which to sustain the judgment.

ISSUE NO.3

Learned Counsel for the appellant observed that Armed Robbery is a Federal offence in view of the fact that the Robbery and Firearms (Special Provisions) Act is an Act of the National Assembly.

He further observed that by virtue of the provisions of Section 174(1)(a) of the Constitution it is only the Attorney General of the Federation who has power to prosecute for Armed Robbery.

Concluding he submitted that under Sections 8(1), (2) of the Robbery and Firearms (Special Provisions) Act offences of Armed Robbery can only be tried by a Tribunal and not a High Court. Reference was made to Queen v. Owoh & Ors. 1962 ANLR p.654, contending that the conviction and sentence of the appellant is a nullity.

In reply, learned Counsel for the respondent observed that by the combined effect of Sections 1(1),(3), 6(2),(5),{e), 272, 315(a) the Minna High Court, Niger State is the proper venue to hear cases of Armed Robbery, contending that jurisdiction is only limited by Section 251 of the Constitution.

My Lords, the Tribunals (Certain Consequential Amendments ETC) Decree No. 62 of 1999 came into force on the 28th of May, 1999 with sweeping amendments for the trial of federal offences such as:

(a) Advance Fee Fraud and other related offences;

(b) Counterfeit and Fake Drugs;

(c) Money Laundering;

(d) Failed Banks recovery of debts etc.

Amendments were also made to Section 8 of the Robbery and Firearms (Special Provisions) Decree.

By the amendments offences under the Decree shall be triable in the High Court of the State concerned.

Decree No. 62 of 1999 is an existing law, and that explains the trial of Robbery cases in State High Courts.

Accordingly, the trial and conviction of the appellant by the Niger State High Court was not a nullity.

For the foregoing reasons, this appeal succeeds and it is accordingly allowed. The conviction of the appellant is hereby set aside. The appellant is hereby acquitted and discharged.

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Other Citations: (2005)LCN/1856(CA)