Audu Aruna & Anor V. The State (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This appeal came up for hearing on the 5th day of July, 1990. After reading the record and briefs filed by learned counsel for the appellants and the respondent and listening to the oral argument of counsel on both sides, the court summarily allowed the appeal but postponed the reasons for its judgment till today. I now give the reasons for my judgment.

The two appellants were, in the year 1980. in an Armed Robbery Court of the Criminal Division of the High Court of Lagos State presided over by Agora, J. (as he then was) charged on an information with the offence of armed robbery contrary to section 1(2)(b) of the Robbery and Firearms Decree No.47 of 1970. The particulars of the offence were stated as follows:

PARTICULARS OF OFFENCE

Audu Aruna (m) and Victor Audu (m) on about the 4th day of June, 1977 at about 12.00a.m. at Apapa in the Lagos State Judicial Division being armed with offensive weapons to wit, broken bottles robbed one Mishack Ekwueme (m) of the sum of N45.00 and a raincoat value N10.00 and before the robbery wounded the said Mishack Ekwueme.

The names of six witnesses were listed at the back of the information as intended to be called by the prosecution. But in fact only two, that is the complainant and one other person, were called at the trial. Each of the two appellants testified on his own behalf but called no witnesses.

According to the complainant, Mishack Ekwueme, the offence was committed about 11.30 p.m. on the 4th day of June, 1977. He was returning from work. As he was walking along Idowu Street, Olodi, Apapa, he saw four men, including the two appellants standing by the corner of the road. When he wanted to turn into the street. Akogun street leading to his house, they stopped him and engaged him in a dialogue and asked him to search his pockets.

In his attempt to run away from them he ran into Rasco Hotel, Ajegunle, but they pursued him to that place. He pleaded with them to leave him alone, but they refused. The manager of the hotel joined in pleading with them, but to no avail. At the order of one of them who is still at large, the 2nd appellant inflicted a wound on his eye brow with a dagger. The 1st appellant hit him on the neck with an empty bottle which he picked up from around the place.

As a result, he had a cut in the neck. He added that the cut in the neck required two stiches. When he fell on the ground as a result, the 2nd appellant removed N45.00 from his socks and took his raincoat away. Thus, he said the 4 persons ran away from the scene. On the way to the police station he met a team of mobile policemen who followed him back to the scene of the incident. The mobile policemen searched the area for the suspects and found the 4 persons at the Peoples Hotel where the police arrested the 1st appellant while the other suspects ran away. The following day, the investigation of the case was referred to the police at the C.I.D. Panti Street, Yaba who later arrested the 2nd appellant along Muyibi Street, Olodi Apapa.

The complainant himself stated that he was referred by the police for treatment at the General Hospital, Lagos, where the wounds at his eye brow and the back were stitched. He tendered his card and medical report for his treatment as Exhs.A and A1. Under cross-examination, he admitted that there were no light along Akogun Street but added that he was able to identify the suspects because he argued with them for almost one hour. The only other witness was Solomon Olufemi Akinboni, the Manager of Rasco Hotel, who testified as p.w.2. Because of the import of the testimony of this witness in this appeal, I shall later quote his evidence in extenso.

Each appellant testified on his own behalf but called no witnesses. It was the 1st appellant’s case that when he closed from work on that day, he went home. As he was in his house his attention was attracted outside where he observed a group of people gathered near the road at Idowu Street,Ajegunle. He went to see what was happening. At the scene one Victor, an old friend of his who worked in an hotel near their house invited him into the hotel where he served him with beer. While he was drinking the beer, he heard a group of people shouting and he went to see what was happening. There the police arrested Victor and himself and two other boys outside the hotel. They were taken to Ajeromi police station where they were detained. He denied ever knowing p.w.1 or the 2nd appellant before that date. He also denied taking part in the robbery.

The 2nd appellant testified that he was a soldier attached to the Nigerian Army Artillery Unit, Agege. His evidence was to the effect that he was nowhere near the scene of the incident on the day in question. It was on the 6th of June, 1977 that the police arrested him in his house. He denied ever taking part in the offence or knowing the 1st appellant previously or wounding the complainant.

After hearing, the learned trial Judge believed the case for the prosecution and found the appellants guilty as charged. Appellants’ appeal to the Court of Appeal was dismissed by a majority of two to one. In the dissenting judgment of Akpata, J .C.A. (as he then was) he held the view that the identification of the appellants was, in the absence of identification parade, unsatisfactory. It amount to an identification in the dock in so far as they were not arrested at the scene of the crime, he opined. On the other hand, Babalakin and Awogu, JJ.C.A. held a contrary view and dismissed the appeal. Both appellants have appealed further to this court. Through their counsel, Chief Milton Paul Ohwovoriole, they filed each identical ground of appeal. Two additional grounds of appeal were also filed on behalf of each. It is not necessary to set them out in full. Suffice it to say that arising from all these grounds of appeal, learned counsel on behalf of the appellants formulated the following issues for determination in the appeal.

ISSUES FOR DETERMINATION

1. Were the appellants properly and positively identified by the prosecution witnesses to wit p.w.1 and p.w.2 in accordance with any form of identification known to the administration of criminal justice, moreso when no identification parade was ever conducted by the police prior to the commencement of proceedings against the appellants at the trial court
2. Are there no material discrepancies in the evidence of the two witnesses for the prosecution as clearly shown in the record of proceedings before this Honourable Court which ought to have created reasonable doubts in the mind of the trial court
3. Can the prosecution, in all the circumstances of this case dispense with the tendering of the alleged offensive weapons and a valid medical report by a medical doctor at the trial of this case in the court of first instance
4. Are the mobile police on night patrol and/or the regular policemen from the Ajeromi Police Station who allegedly arrested the 1st and 2nd appellants respectively in connection with this offence, not vital witnesses who ought to have been called by the prosecution
5. Is the evidence adduced by the two witnesses for the prosecution not at variance with the offence with which the appellants were arraigned before the trial court

The learned counsel for the respondent, Fola Arthur Worrey, also filed the respondent’s brief and a supplementary brief. This issues as formulated by him agreed substantially with those for and on behalf of the appellants. Each counsel adopted his brief/briefs of argument and addressed us orally. The learned counsel for the appellants after pursuing the issue of identification half way abandoned it. So also did he abandon the issue of failure to call the necessary witnesses. In the end the appeal fell to be decided mainly on the question of whether or not on the evidence of p.w.2, the only independent witness a case of armed robbery was made out by the prosecution. In his submission, evidence of p. w.2 reveals a case of p. w.1 and the police haggling and struggling for their respective shares in a business transaction rather than a case of armed robbery.

No case of armed robbery was made out. He referred extensively to the testimony of this witness on record and submitted that although it was believed it did not amount to armed robbery. In his reply, the learned counsel for the respondent, Mr. Arthur Worrey, submitted that if the appellants sought to enforce a business transaction or a debt due to them by using offensive weapons it would justify a conviction for armed robbery.

He conceded it that on the evidence, there was argument about a share of money. He also admitted that the issue was resolved by p.w.2 paying a sum of N5.00 He also conceded it that on the perspective of p.w.2 what was in issue was a sharing of money. He however, urged the court that in view of the appellants’ use of offensive weapons to do so, the appeal should be dismissed.

Now p.w.2 testified inter alia as follows: I know the two accused persons. I came to know them on 4/6/77 at about 12 midnight. I was in the hotel when the waiters came to inform me that there was trouble outside the hotel. I went outside to see what was happening (sic).

There I saw four persons including the two accused persons and p.w.1. The two younger ones were dragging p.w.1 while the 1st and 2nd accused were attacking p.w.1 with a dagger and broken bottle. The four persons asked p. w.1 to give them their share of money. I tried unsuccessfully to separate them. I even offered the four persons N5.00 in order to leave p. w.1 alone. They took N5.00 from my waiter and they left P.W. 1 who had been injured with dagger and broken bottle. I saw the 1st accused search the pockets of P.W.1 with the two younger ones.

There was light outside the hotel and I was able to see their faces. The 1st and 2nd accused persons were among the four persons at the scene. I managed to settle the matter within seven minutes with the offer of N5.00.

Under cross-examination he continued:

I saw P.W.1 for the first time on the day of the incident on 4th June 1977.

I tried to pacify the four persons who attacked p.w.1, I became manager of National Hotel (now Rasco Hotel) since 1976.

The four person who attacked P.W.1 on 4/6/77 said they wanted their share of a business they did together. My waiter gave N5.00 to the 2nd accused. The four persons withdrew from the scene, and P.W.1 left later.

The 2nd accused appeared to be in charge of the operation that night and it was he (2nd accused) who ordered the 1st accused to stab P.W.1 with a broken bottle. The 1st accused hit P.W.1 with a broken bottle in my presence. The 2nd accused stood there with dagger in his hand. The two younger ones were busy searching the pockets of P.W.1.

I advised P.W.1 who was bleeding from all over his face, head and neck to report the incident to the police.

Clearly this evidence gave the impression that P.W.1 had an earlier transaction with the so called armed robbers and that the latter were asking for their share of the proceeds. As a result a long argument and some scuffle ensued. The four persons asked P.W. 1 to give them their own share of the money. P.W. 2 offered them N5.00 which was produced by his waiter and the four so called armed robbers left the scene. Indeed P.W.2 himself said rather triumphantly I managed to settle the matter within seven minutes with the offer of N5.00.

As if in confirmation, P.W.1 the complainant said:

I was able to see the faces of the four persons who attacked me because we argued for almost one hour.

The learned counsel for the respondent submitted that even if it was true that the appellants were demanding their share of an old transaction, they would still be guilty of armed robbery as they used violence against P.W.1. My first observation from the state of the case for the prosecution as testified to by P.W.1 and P.W.2 is that their testimonies clearly conflict. Whereas the p.w.1. the complainant gave the impression of clear cut case of armed robbery, P.W.2 gave the impression of a struggle over a booty by old business associates.

In that state of the facts, it was not open to the prosecution to pick and choose between the testimonies of the two witnesses. Neither was it open to the courts below to credit one and discredit the other when no foundation was laid for such a course. See on this Onubogu v. The State (1974) 9 S.C.1. In that case, Fatayi-Williams, J.S.C. (as he then was) said at page 20 of the report:

We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness, discredit one and accredit the other. (See Summer and Leivesley v. Brown & Co. (1909) 25 T.L.R.745)

We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witness should furnish the explanation and thus give the defence the opportunity of testing by cross-examination, the validity of the proffered explanation.

See also Albert Ikem v. The State (1985) 1 N.W.L.R. (Pt.2) 378; Akosile v. The State (1972) 5 S.C.332. On a proper approach, the learned trial Judge and the learned justices of the court below should at least have seen that the conflict in the evidence of the only two available prosecution witnesses raised a doubt as to the truth of the testimony of the complainant. They should have resolved that doubt in favour of the appellant. Assuming, but not agreeing, that it was open to the court to pick and choose between the testimonies of the only two available witnesses without any further explanation or foundation for a different course, one would have thought that it was safer to have preferred that of the P.W.2 an independent witness, rather than that of P.W.1, an interested party. I shall now consider the submission of learned counsel for the respondent that even if the appellants were demanding their share of the proceeds of a previous common transaction by the parties, use of violence made it an armed robbery. It must be noted that is defined under the decree as meaning:

stealing anything, and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

Obviously before there can be robbery there must be first of all an act which amounts to stealing. Is defined under the decree as meaning: to take or convert to one’s use or the use of any other person anything other than immovable property with any of the following intents:

(a) an intent permanently to deprive the owner of the thing of it;

(b) an intent permanently to deprive any person who has any special property in the thing of such property, the term special property here including any charge or lien upon the thing in question, whether by the person entitled to such right or by some other person for his benefit;

(c) an intent to use the thing as a pledge or security;

(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion;

(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

So, armed robbery means simply stealing plus violence used or threatened. On the evidence of P.W. 2, it appears to me that the appellants were taking from P.W.1 what they believed they were entitled to, that is to say something over which they believed they had a claim of right. Taking such from him in the circumstances cannot in my view amount to stealing. Addition of violence or threat of violence in the circumstances may amount to another offence, which was not charged, but certainly it could not amount to armed robbery for the simple reason that an important element of the offence, i.e. stealing was lacking. This disposed of this appeal in favour of the appellants.

Learned counsel for the appellants also complained about contradictions in the evidence called by the prosecution and the failure of the courts below to resolve them. I only mention a few obvious ones.

First it is striking that whereas the complainant himself testified that they mauled him to the ground and snatched his N45.00 and a raincoat and ran away, P.W.2 saw the complainant and his so called assailants arguing over an old deal. He settled the matter within seven minutes by offering N5.00 to the appellants and they walked away quietly.

Secondly the information as filed alleges that the armed robbers were armed with bottles but the evidence revealed that they were armed with knives, daggers and sticks. Considering the fact that it was necessary for the prosecution to prove this element of the offence strictly, it appears to me that the evidence given went to no issue.

For it is elementary that the purpose of a charge is to give to the defence (i.e the accused persons) due notice of the case they are to meet in court.

Thirdly, it appears that the prosecution relied heavily on the nature of the injury as well as the medical evidence to prove their case. No medical doctor was called. Again there is a serious conflict between the oral testimony of P.W.1 and the medical evidence as revealed by Exhibits A and A1. For whereas P.W.1 testified that he was wounded at the eyebrow and the neck, the medical report, Exh. A1 shows a case of assault resulting in a laceration posterior to the left pinna i.e. external ear. On a calm view of this state of events, particularly the contradictions, court was bound to find that the prosecution failed to prove that the complainant was wounded. Besides, the prosecution in the information filed averred that the appellant’s wound the said Mischack Ekwueme. So, they must prove a wound in order to succeed. As it is so, medical evidence by a doctor who alone could prove a wound was imperative. When, in addition to the failure to call a doctor the evidence called by them is contradictory inter se it follows that the charge was not proved. From all these, it appears to me that the complaint of the learned counsel for the appellants that the courts below failed to consider the various contradictions in the evidence appears to me unanswerable.

Contradictions apart, I cannot fail to comment on the nature of the case as presented by the prosecution. A case of armed robbery in which the armed robber will argue with the victim for about one hour only to walk away on an offer of N5.00 must be not only rare but highly improbable. True, armed robbery is a public menance, a very painful one at that, in our country today. Every citizen and the courts ought to join hands to extirpate it. But at the same time the possibility of someone feigning it in order to settle old scores cannot be ruled out.

This is why cases, such as this, which have manifestations of vindictive fiction should be scrutinized and, where appropriate, rejected. I am satisfied that if the learned trial Judge and the majority in the court below had approached the case from these perspectives they would have seen that this was neither a true case of armed robbery nor was it proved. Surprisingly, the courts below did not appear to have adverted to this feature of the case. So I have come to the conclusion that because this is a case in which there have been concurrent findings of facts and judgments of two lower courts, I ought not highly differ with them on issues of facts, considering the facts that I had not the opportunity of seeing and listening to the witnesses testify.

But that I must do so in a case like this in which it is manifest that the Court of Appeal confirmed the verdict of the court of trial even though it did not approach the whole case from a correct perspective, that there have been far reaching contradictions in the testimonies of witnesses which were not resolved, that material elements of the charge were not proved, and that the fundamental contradictions between the testimonies of the only two available witnesses entitled the appellants to at least a benefit of doubt which the courts below failed to give them. In the circumstances, it is my view that I have the right, in fact a duty imposed by the interest of justice, to intervene on the issues of fact. The result is that both appellants were entitled to be acquitted and discharged.

For the above reasons, this court allowed the appeals of both appellants summarily on the 5th of July, 1990, and postponed the reasons for the judgment till today. I have now given my reasons.

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SC.121/1989