Musa Ikaria Vs The State (2012)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is a further appeal against the judgment of the Ogun State High Court, hereinafter referred to as the trial court, before which the appellant, Godwin Awin and others then at large were tried for conspiracy to commit robbery and armed robbery contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Fire Arms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments Etc) Act 1999.

Aggrieved by his conviction and sentence by the trial court, the appellant appealed to the Ibadan Division of the Appeal Court. The court, hereinafter referred to as the court below, in its judgment dated 28th October, 2010, affirmed appellant’s conviction by the trial court but reduced the sentence imposed on him from death to life imprisonment.

The appeal before us, on a Notice containing two grounds, arises out of appellant’s dissatisfaction with the judgment of the court below.

Parties have filed and exchanged their briefs of argument. At the hearing, they adopted and relied on these briefs as their arguments for and against the appeal and urged that the appeal be allowed or dismissed.

The appellant has identified two issues in his brief for the determination of the appeal. The issues read:-

“1. Whether the prosecutor proved its case beyond reasonable doubt to warrant the affirmation of the conviction of the appellant by the Court of Appeal.

2. Whether the learned justices of the Court of Appeal were right in law to hold that the testimonies of PW1 and PW2 were not hearsay and therefore inadmissible.”

Respondent’s sole issue for the determination of the appeal which is not dissimilar to appellant’s 1st issue reads:-

“Whether the learned justices of the Court of Appeal were wrong in law to hold that the prosecution had proved the charge of robbery against the appellant beyond all reasonable doubt.”

It is argued in the appellant’s brief that the respondent, by Section 138 of the Evidence Act, has the onus of proving its case against the appellant beyond reasonable doubt. Reliance is placed on Bagudu V State (1996) 7 NWLR (part 460) 279; Onugbogu V State (1974) 9 SC 1; Chia v State (1996) 6 NWLR (part 455) 465 and Morka v State (1998) 2 NWLR (Part 537) 294 at 307 by learned appellant’s counsel in submitting that the respondent has not discharged the burden the law places on it. The court below, therefore, argues learned counsel, erred by affirming the wrong finding of the trial court in that regard.

The evidence of PW1 and PW2 and indeed PW4, learned appellant counsel contends, are inadmissible in law and cannot form the basis of the conviction of the appellant. The testimonies of PW1 and PW2 submits learned counsel, are hearsay while the testimony of PW4 who has not been cross examined is equally unavailable to the respondent.

This leaves the trial court and indeed the court below with the testimony of PW3. The finding of the court below at page 126 lines 4 – 14 fixing the appellant as a participant in the robbery is a serious error that has occasioned miscarriage of justice. The testimony of PW3, it is further argued, is incoherent not only on the vital issue of the identity of the appellant but also his presence at the scene of the crime. Such evidence being unreliable is incapable of sustaining a conviction for the grave offence of robbery. Relying on Chukwu V State (1996) 7 NWLR (Part 463) 686 at 702; Alabi V State (1993) 7 NWLR (part 307) 511 at 533; Orimoloye V the State (1984) NSCC 654; Okosi V State (1989) NWLR (part 100) 642 at 665 and Nwabueze V the State (1988) NWLR (part 86) 16 at 30, learned appellant’s counsel urges that the sole issue the appeal raises be resolved in appellant’s favour. Learned counsel to the respondent strongly supports the judgment of the court below. He refers to the findings of the trial court at pages 51 and 52 of the record and submits that the evidence that pw3 was robbed at about 9:00 pm on 1st February, 1999 and the appellant being one of the armed robbers remains uncontroverted. The court below cannot lawfully interfere with the trial court’s findings from such evidence.

Relying on the decision in Afolalu v State (2010) 16 NWLR (part 1220) 584, learned counsel argues that what is in issue here is the credibility of respondent’s witnesses which in law the appellate court is not empowered to interfere with. It is entirely within the province of the trial court to appraise evidence led by the respondent and ascribe probative value to them. The lower court can only interfere where the trial court’s decision is perverse. The court’s finding at page 126 of the record of appeal, on the appellant’s participation in the robbery is clearly attested to by respondent’s witnesses except as to whether the appellant was upstairs or not when PW3 was being robbed.

This court, learned counsel finally submits, does not usually interfere with concurrent findings of the two lower courts. He urges that the court keeps to this practice by further affirming the lower court’s decision that has not been shown to be perverse. Learned respondent’s counsel supports his submissions with the decisions in Igwe V State (1982) 9 SC (Reprint) 87; Ogbodu V State (1987) 2 NWLR (part 54) 20 at 29; Afolalu V State (supra) and Archibong V State (2004) 1 NWLR (part 855) 488 in urging that the unmeritorious appeal be dismissed.