Christopher Okosi & Anor V. The State (1989) LLJR-SC

Christopher Okosi & Anor V. The State (1989)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

On 29th July, 1983, at about 2200 hours, at Onitsha, one Raymond Okonkwo was in his patent medicine shop along New Cemetery Road, just closing for the day. He had his lights on and he heard a knock on his door. He never opened but spoke to whoever the visitor was.

The visitor asked for a medicine which he (Raymond Okonkwo, alias Boy-Boy and P.W.5 at the trial court) said he never had, but offered a substitute which the enquirer seemed to like. He then opened his door. It was the first appellant that came in with a rush. He ordered P. W.5 to lie down and not to get up. He requested him for money and on his replying that he had no money on him, he slapped him twice on the face, and warned him not to cry otherwise he would be shot.

The first appellant then ransacked his drawer and found N30.00 and asked if that was all his takings for the day. P. W.5 was in the process of answering when the second appellant walked in and produced a gun from his pocket and showed it to P. W.5, asking in the process if he knew what he held was. He then ordered P. W.5 to show him where the bulk of the money was or else he would be killed. This threat by the second appellant was immediately followed by first appellant’s hitting P.W.5 on the head with an iron rod and blood gushed out.

From this moment, P.W.5 obeyed the two assailants, for he seemed to be at their mercy. He was frightened and he quickly produced N50.00 he had in his pocket. They (appellants) then asked P.W.5 to open a door that appeared to lead to another room. He convinced them it was not his room but that a woman selling cigarettes was occupying it and that the entry into it was at the back.

The second appellant then held P.W.5 by his shirt collar and dragged him out, warning him that he would shoot him at the slightest alarm he raised. He was ordered to hail the occupier of the room, who obviously opened her door on recognizing the voice of P.W.5. She is Mrs. Ocheze Ikwueme (P. W.1). To her astonishment she saw P. W.5 was a captive and the second appellant pointing a gun at her. She raised an alarm but the appellants warned her to stop raising an alarm otherwise she and P.W.5 would be shot.

The first appellant then entered the room of P. W.1 and ransacked it. At this stage, Sylvester Offiah, a neighbour, perhaps due to the alarm raised or innocent venturing out, walked towards the scene and was tying a wrapper round his waist. The second appellant aimed and shot at him. Offiah fell and died on the spot after shouting “you have come to my house to shoot me” twice.

The two appellants there and then ran to a motorcycle and escaped into the darkness. They were both charged with the murder of Sylvester Offiah, tried and convicted. The Court of Appeal, sitting at Enugu, affirmed both the conviction and sentence passed on the two appellants, giving rise to the present appeal.

The two appellants filed separate Notices of Appeal. But much as the two notices contained various grounds of appeal which in many cases are not overlapping, the issues canvassed in the briefs could be summarized as follows:

1. Whether the identification of the appellants by P. W.5 was convincing, in view of the fact that the incident took place at night and in the absence of cogent evidence of there being light in the two rooms.
2. Whether the identification parade by the police was fixed and thus improper and lead to injustice.
3. Whether P.W.5 was an accomplice and as such his uncorroborated evidence ought to be received with caution by the trial Judge warning himself of the danger of relying on such evidence.
4. Whether in respect of the first appellant the alibi put up by him was properly assessed and acted upon.
5. Whether the trial Judge by asking some questions unwittingly descended into the arena and thus a miscarriage of justice was occasioned which the Court of Appeal failed to rectify.
6. Whether upon all the evidence before the trial court, the Court of Appeal was right in upholding the conviction and sentence passed on the appellants.

There was, however, another issue that arose from the grounds and the issues summarized above, to wit:

Whether the first appellant was guilty of murder when all he went out to do was to commit the offence of robbery which was in fact committed and it was after this completion of the offence of robbery that the second appellant on his own shot at and killed the deceased.

Oral argument were proffered by Chief N. N. Anah and Mrs. Ajayi-Obe, of counsel, for the first and second appellants respectively, to highlight their briefs. The emphasis on behalf of the first appellant centered on the last issue summarized above.

The issue of identification of the appellants is not as complicated as it was made to look in the grounds of appeal. There was evidence of light in the two rooms where the robbery took place. P. W.5 and P. W.1 saw the two persons, that is, the appellants. Each identified the second appellant as the person with the gun and the first appellant as the one ransacking for money in the two rooms. Each identified by evidence in court the first appellant on each occasion in each room as the first to enter. By the time identification parade was conducted at the police station, P. W.5 had no difficulty in identifying the two appellants.

There was never a suggestion at the trial court that the police fixed any identification; even if that was suggested, the onus of proving such a blatant disregard for truth and justice would be on the appellants and this onus was never discharged. I have nothing to fault in the decision of the Court of Appeal in upholding the finding of the trial court on this issue.

The best identification of an accused person is by the victim of the crime or a witness to the crime and once there was a proper identification parade conducted by selecting persons of similar physical stature of the accused lined up with the accused before the victim of the crime or witness of the crime is brought out to identify the criminal and there is no evidence of the accused ever being shown before hand physically or by photograph or any visual means, that identification parade is proper and evidence based on it is admissible.

Identification parade is helpful even though not always necessary in that in many instances question of identity may not be in issue. P.W.5, who first saw the first appellant and was attacked and injured by him, also threatened with a gun by the second appellant and later dragged by him to the door of P. W.1 and spoke to both appellants, even though in fear, well identified the two. Similarly P. W.1 who was equally threatened identified the two. What is remarkable in this case is that P.W.5 was not cross-examined by all the counsel for the appellants and P. W.1 was only crossexamined as follows:

“Cross-examined by Ibekwe A. for 1st accused ‘When I was in the P.W.1’s room before hearing gun shot, P.W.2 and another person were in that room.

“Cross-examined by Mr. Aghadiuno for 2nd accused ‘I made my statement to police on 30th July, 1988.

Put: You were inside the room of P.W.1 when the gun was fired

Ans: I saw 2nd accused from my position by the door of room of P.W.1 when he fired at the deceased person”.

“When the two accused rushed out of the room, P. W.1 urged me to close the door that armed robbers would kill her. I heard the gun shot fired by the 2nd accused and the 1st accused rushed out of the room and the door of P.W.1 was closed by me”.

The serious and incriminating testimonies of the P.W.1 and P.W.2 were thus left substantially unchallenged. In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused person wants to dispute it,

the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this Court.

The fact in this case is that the question of identification was settled very early and that was during the evidence of P.W.1 and P.W.5. That the police fixed the identification, with respect, an invention for this Court but there are no materials on record to support the appellants’ contention. It may be safe to say that the object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and be seen to be fair, so that it would not be seen that the attention is being directed to the suspected person instead of equally to all persons paraded. It is for this purpose that witnesses are not allowed beforehand to see the suspected person before the parade. But in some not unusual cases where the witness saw the suspected person and calls police to arrest him, identification parade is not only unnecessary, but a superfluous formality.

The next question is as to the role of P. W.5, whether he could be regarded as an accomplice. An accomplice is certainly a person that participates in a crime for which the accused now in Court are being tried and if tried with them on the same evidence would equally be guilty with the accused being tried. In essence, an accomplice is not tried but if brought to trial along with other participes criminis, would become a co-accused person.

In law, an accomplice is a competent witness against an accused person and a conviction based on the evidence of such accomplice is not illegal, even where such evidence is uncorroborated, but by virtue of S.177(1) Evidence Act, there is a proviso that where such a trial is with a jury, the Judge shall warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice. This provision has great influence on decisions of this Court on this type of evidence as there is no more jury trial in this country. It is up to the trial Judge to make sure that he weighs seriously such uncorroborated evidence of an accomplice before convicting on it.

Some say the Judge must warn himself! The evidence of an accomplice is different in law from that of a co-accused whose evidence, though on his own behalf, incriminates another co-accused, does not render him an accomplice. Such evidence will be considered in the special circumstance in which it is given (S.177(2) Evidence Act). The P.W.5 was not only robbed violently by the appellants, but under the nozzle of a gun and with second appellant holding him by his shirt collar, was directed to lead the appellants to the room of P.W.1, who was to be equally robbed by them.

A person shall not be criminally responsible for his act or omission if the act or omission is direct and reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence so far as he does not himself commit a crime against anybody. It is the old principle of self preservation. If the P. W.5 failed to take the appellants to the room of PW.1 perhaps he would have been shot; the threat against him looked real, for he was already bashed on the head with blood coming out. It would have been different if he was given a weapon to attack the P. W.1. It may be observed that the shooting of the deceased had nothing to do with the P. W.5. This ground of appeal by first appellant has no substance. (See S.32(3) Criminal Code.)

The trial of the appellants is misconstrued by learned Counsel for the appellants by the submission that the trial Judge descended into the arena by asking many questions. This is not so. The question asked by the trial Judge stopped at the paragraph immediately after the question in the witness’ answer. Thereafter, it was the cross-examination by the counsel. The inverted commas left no doubts as to where the trial Judge stopped and where defence counsel continued. The question asked and the answer given hardly touched the thrust of the prosecution’s case, only misconceptions might have been cleared. This issue hardly touches on the merit of the appeal.

As to whether the first appellant, being involved in robbery only, could be held guilty of murder when he neither fired the shot that killed the deceased nor held any weapon, is a question of law. A person who unlawfully kills another in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger life, or to cause grievous harm to some person for the purpose of facilitating either the commission of a crime or the flight of an offender who has committed or attempted to commit any such offence, is guilty of murder. (See S.316(3) and (4) Criminal Code.)

In the instant case, the dividing line between armed robber and murder is very thin, if there is a dividing line at all. The P.W.5., P.W.2, (Ngozi Ikwueme, who was with P.W.1 in the room) and P.W.1 were under serious threat of violence and P.W.5, having been already robbed of his money, P.W.1 was to surrender more to the appellants when the deceased intervened by manifesting at the scene and was instantly and fatally shot by the second appellant so that the first appellant joined him in jumping on a motor-cycle for their escape from the scene.

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence” – S.8 Criminal Code.

Thus the appellants on the fateful night had a common purpose, to wit, to commit robbery with violence. For the prosecution of this common purpose, the second appellant bore firearm, a handgun. At the shop where P.W.5 was, it was also clear the first appellant carried a weapon, an iron rod with which he injured P.W.5 on the head. The two appellants knew each was dangerously armed, as each weapon was capable of causing grievous harm.

While the first appellant hit P.W.5 with iron rod on the head, causing blood to gush out, the second appellant never hid his determination to use his gun if necessary by threatening both P. W.5 and P. W.1 physically and verbally with it. The common purpose of the appellants was to commit robbery with actual violence of firearm and iron rod, an offence they committed. Nobody who goes out to commit robbery and holding a gun is said to be joking, the more so if the robbery is in fact committed.

Both appellants knew the other was carrying a weapon capable of causing grievous harm when they embarked upon the robbery venture and they are liable for all consequences of their act. (Alagba and Ors. v. R (1950) 19 N.L.R. 129; Gyang & Nafam v. R. (1954) XIV W.A.C.A.584; Atanyi v. R. (1955) XV W.A.C.A. 34; Garba v. Hadejia N. A.(1961)N. R. N. L. R. 44; Muonwem and Ors v. R. (1963)1 All N.L.R. 95. ) But for second appellant shooting the deceased perhaps escape from the robbery scene by the appellants would have been foiled for the deceased was going towards the scene. (Gyang and Nafam, supra.) The first appellant knew the second appellant was armed with a gun and by the evidence the second appellant provided the cover while the first appellant did the searching and ransacking.

At the slightest threat of interference at the scene by the deceased he shot at him and he fell thus facilitating the escape of the appellants from the scene. Gyang and Nafam v. R. (supra). The fact that the first appellant knew that the second appellant bore firearms was enough for the common purpose to make him equally guilty of murder. Digbehin and Ors. v. R (1963)All N.L.R. 388 and S.8 Criminal Code Law (Laws of E. Nigeria 1963).

There was thus a common intention right from the outset to apply force that was capable of causing grievous harm in prosecuting the robbery and each knew or ought to reasonably know that death was a probable consequence of such an act. The result would have been different if the first appellant did not know that the second appellant had a gun on him. (Yakubu Mohammed and Telekrini v. The State (1980) N .C.R. 140 A.L.R.

The first appellant denied being ever present at the scene of crime. He denied at first ever knowing or going out with the second appellant. He merely raised this alibi without more. He never gave particulars of where he was and who was there with him. If an accused raises unequivocally the issue of alibi, that is to say, that he was somewhere else other than the locus delicti at the time of the commission of the offence for which he was charged, and gives some facts and circumstances of his whereabouts, the prosecution must investigate that alibi to verify its truthfulness or otherwise.

The failure of the prosecution to investigate renders the alibi unrebutted and it may vitiate the proof beyond reasonable doubt against the accused raising the alibi. The issue of alibi is not part of the law of evidence but a rule of practice that has its own peculiarities.

An instance is that no burden is placed on the accused to prove his alibi once he has given particulars of his whereabouts clearly. He must give some lead that will reasonably lead the prosecution in their investigation. Yanor & Another v. The State (1965) 1 All N .L.R. 193. But the accused should not merely state that he was not at the locus delicti without giving any lead, for by failing to give particulars of his whereabouts, the prosecution will have no lead to their investigation. (Ozulonye & Ors. v. The State (1981) N.C.R. 38,50 and 51) A.L.R.

It is for the foregoing reasons that I find no merit in this appeal by the two appellants. I therefore dismiss this appeal and uphold the decision of the Court of Appeal which affirmed the conviction and sentence of the High Court on the appellants.

SC.175/1988