Friday Michael V. The State (2001)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The appellant was tried in the High Court of Imo State in the Aba Judicial Division (now in Abia State) of the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Decree No. 47 of 1970 as amended by the Constitution of the Federal Republic (Certain Consequential Repeals) Decree No. 105 of 1979. The information contained altogether five counts alleging the offence of armed robbery against the appellant. The prosecution called three witnesses to testify in support of the offence charged against the appellant. P.W.1, Josiah Nwosuagwu Azuka testified on how his house was broken into by armed robbers in the night of 20th and 21st July, 1978 at about 2.a.m. He saw some of them holding dane guns. The appellant was the first to enter his room and pointed his gun at him. They removed a sum of N4,100.00 from a hole in his mattress and another sum of N200.00 from one of the pockets of his trousers. He said that he had known the accused before and he was asked to identify him by his voice and appearance. PW2, Chintuwa Azuka testified that some armed robbers broke into his father’s house on the night of 20th July, 1978 and took away some money. He said that he saw three of the armed robbers but two entered his room and that two of them carried guns. He could not describe the type of dress the thieves wore on that night. The 3rd witness was Sunday Azuka. He gave evidence of how the appellant was caught carrying a carton about 6 years from the time he was testifying on the 15th of May, 1984. The carton contained his stolen pyjamas. He later found that the sum of N800.00 was stolen from his house. He did not see the appellant carrying any gun or any offensive weapon when he was arrested with the carton. The prosecution did not complete its case but on the 3rd of February, 1986 the court unilaterally closed the case for the prosecution in the following words: “Inspite of warning by the court, there is no State counsel to prosecute this case. I take it that they have closed their case. I will now take defence.” The learned counsel for the appellant before the lower court then made a no-case submission. He started by saying that the accused person had no case to answer and that he would rest on his submission. At the end of the submission he urged the court to acquit and discharge the appellant. The learned trial Judge did not rule on the no case submission but evaluated the evidence and convicted the appellant of the 1st and 3rd charges. He however discharged and acquitted him on the 2nd, 4th and 5th charges. He then sentenced him to death by a firing squad. Dissatisfied with that decision, the appellant has appealed to this court and filed a brief of argument identifying the following issues for determination: “1. Whether from all the facts and surrounding circumstances of this case, there was convincing evidence of proper identification of the appellant as one of the robbers who committed the armed robbery subject matter of count one of the information?

2. Whether the evidence of PW3 was sufficient to justify the conviction of the appellant for armed robbery as per count three of the information?
3. Whether the learned trial Judge was right in failing to uphold the no case submission made on behalf of the appellant at the trial court and in not giving a ruling on it before giving a final judgment convicting the appellant for armed robbery and sentencing him to death by firing squad?
4. Whether the mere assertion by defence counsel at the trial court at the time he made a no case submission that he would rest on his submission automatically relieves the learned trial Judge of his vital duties of:-

(a) complying strictly with the mandatory provisions of section 287(1)(b) of the Criminal Procedure Act, Cap. 80 Vol. V, Laws of the Federation of Nigeria, 1990; and

(b) protecting and enforcing the appellant is fundamental right to fair hearing guaranteed by section 33 (1) of the 1979 Constitution of the Federal Republic of Nigeria then in force?” The learned Director of Public Prosecutions for the respondent also filed a brief of argument in which he adopted the issues formulated by the appellant. On the 1st issue the learned counsel for the appellant submitted that there was no satisfactory identification of the appellant on the evidence before the trial court. He said that the 1st and 2nd prosecution witnesses knew the appellant well before the incident but in the statement of the 1st prosecution witness to the police made on the 22nd July, 1978 a day after the report he merely told the police that 6 persons with guns broke and entered his room without mentioning the name of the appellant. Later, he said he recognized the appellant by his voice and that method of identification is entirely unsatisfactory. He relied heavily on the case of William ldahosa & Ors. v. The Queen (1965) NMLR 85 which is on all fours with the present case. In that case, the Supreme Court said that the 1st prosecution witness who admitted that he knew the 2nd appellant very well but failed to mention his name at the earliest opportunity did not give satisfactory evidence of identification. In reply to this, the learned Director of Public Prosecutions, Abia State submitted that there was satisfactory identification of the appellant before the trial court. On the failure by PW1 to mention the name of the appellant to the police in his statement, the DPP submitted that since that statement was not tendered, the submission is speculative and should be ignored. He referred to the case of Akalonu v. The State (2000) 2 NWLR (Pt.643) 165.

The importance of an eye-witness acting timely by using the earliest opportunity to identify and mention the name of a person he saw committing an offence has time and again been emphasized in the several cases. See the cases of Commissioner of Police v. Alao (1959) WNLR 19; Bozin v. The State (1985) 2 NWLR (Pt.8) 465; William ldahosa & Ors v. The Queen (1965) NMLR 85, where on similar facts of identification Onyeama, JSC had this to say on page 88 of the report: “In the view of this court, the identification by Margaret, the third prosecution witness, of the 2nd and 3rd appellants was hardly satisfactory. It is difficult to understand her failure to identify the 2nd appellant by name, especially as, on her own admission, the 2nd appellant was very well known to her. She knew his name, his place of abode and nature of employment; yet at the earliest opportunity, she failed to give his name to the police and even in court she merely referred to him as a tall man.”

In this case, the PW1 said he knew the appellant very well before the incident. He said he was the first person to enter his room and pointed a gun at him. Under cross-examination, it became clear that he only identified the appellant by his voice and his appearance. He did not say how. He did not tell the court how the appellant appeared in the night of the incident or how he could recognise him by the voice. According to him, there was light in his room when the robbers came there and they were not masked. If the appellant was one of them and he had known him before, why did he not recognise him by his face straight away? He did not mention the appellant’s name to the police when he made a statement the following day. Even though the witness statement was not before the court, it was clear from his evidence that he merely told the police that 6 armed robbers broke into his house without mentioning the name of the appellant or any other suspect. In my view, the identification was entirely unsatisfactory to prove a serious crime of armed robbery.

On the 2nd issue, the learned counsel for the appellant submitted that the ingredients of the offence of armed robbery were not established before the trial court and the court was wrong to convict the appellant on the two charges for which he was convicted. He relied on the case of Ikemson & Ors v. The State (1989) NWLR (Pt. 110) 455. In reply to this, the learned counsel to the respondent submitted that the ingredients of armed robbery were duly established by the evidence on record. He relied on the case of Bozin v. The State (supra), and submitted that the appellant was among the armed robbery gang that robbed the prosecution witness. The offence of robbery with fire arms is committed where at the time of the commission of the robbery the accused is proved to be armed with fire arms or an offensive weapon. See Bozin v. The State (supra). In respect of the 1st charge, there was evidence that the appellant pointed a gun at PW1. If the evidence of identification had been satisfactory, I would have had no hesitation in holding that the ingredients of armed robbery were established. But in respect of the 3rd charge for which the appellant was convicted, PW3 who was mentioned in that charge as being robbed stated specifically in his evidence under cross-examination that he did not see the appellant carrying a gun or any offensive weapon. He only saw him carrying a carton from which his pyjamas was found. There was clearly therefore no evidence that that witness, Sunday Azuka, was robbed of money when the appellant was armed with fire arms.

On the 3rd issue, the learned counsel for the appellant submitted that the trial court was wrong not to have ruled on the no-case submission. Instead, it went ahead to give judgment, convicted the appellant without hearing his defence.

On the 4th issue, he contended that the learned trial Judge ought to have complied with the mandatory provisions at section 287(1)(b) of the Criminal Procedure Act to give the appellant an opportunity to present his own defence.

In reply to issues 2 and 4, the learned DPP submitted that the trial Judge could not be faulted for not giving a ruling on no-case submission especially as the counsel who represented the appellant before the lower court rested his case on no-case submission. The trial of this case was full of procedural blunders. In the first place ,the prosecution did not conclude its case against the appellant before the trial Judge closed the case for the prosecution. No police witness testified. The appellant’s statement to the police, if any, was never tendered. No exhibits were tendered in the case when the court unilaterally closed the case for the prosecution. The learned counsel for the appellant before the lower court, in making a no-case submission also stated that he was resting his case on no case submission. This did not help matters either. He should have simply made a no-case submission and waited for the Judge to rule on that before making his strategy of defence known. The trial Judge instead of ruling on no-case submission went ahead to give judgment on the scanty evidence led by the prosecution. Section 287(1)(b) of the Criminal Procedure Law which the trial court was enjoined to follow reads: “287(1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and:- (c) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.” These provisions are very clear and unambiguous and it is mandatory on the trial court. At the close of the prosecution’s case, a trial Judge is duty bound to look at the evidence so far given and determine whether a prima facie case has been made out and if satisfied that a prima facie case has been made, he shall call upon the accused person for his defence, and if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence. These two conditions are like rituals that must be followed in a criminal trial.

The procedure adopted showed that both the trial Judge and the learned counsel for the appellant in the court below did not fully appreciate the nature of a criminal trial and therefore denied the appellant the chance to present his case if he wanted to. For example, if the trial Judge had ruled on the no-case submission and held that the appellant had a case to answer, even if the appellant had earlier on decided not to give evidence, he might change his mind and give evidence and even call witnesses in his support. In my respectful view, the procedure adopted obviously led to a miscarriage of justice and the judgment of the trial court cannot be allowed to stand. Ordinarily, I would have ordered a retrial of this case on the ground that no satisfactory trial was conducted but I consider such an option oppressive because of the fact that the appellant had been convicted of serious offences of armed robbery since 1986 and had been in prison custody since 1988 awaiting execution, if this appeal does not succeed. To subject him to retrial would not serve the ends of justice. From all I have said in this judgment I allow this appeal, set aside the convictions and sentences of the appellant by the court below. In their place, I enter a verdict of acquittal and discharge of the appellant for the offences preferred against him.

Other Citations: (2001)LCN/0952(CA)