Israel Pius V. The State (2015)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The case put forward by the prosecution upon which the accused (now appellant) was convicted for armed robbery and sentenced to death was that on 29/9/2006 the appellant went to Ogidi Health Centre Atan in Ijebu North-East Local Government Area of Ogun State where he met P.W.1, Miss Ogunlana Olufunke Ajibola and P.W.2, Mrs. Adedoja Odebode and said he was looking for an accident victim and they directed him to another hospital. About 10 minutes later he returned to the Health Centre where he pulled a gun and ordered them to lie down and face the ground. They were frightened and complied with his order. He removed their mobile phones from where they were charging them. He then led them to the injection room and asked them to undress. They tried to put up a resistance but the accused told them that there were others with him. He then led them to a bush at the back of the Health Centre where he ordered P.W.2 to lie down and asked P.W.1 to lie on top of P.W.2 and thereafter raped P.W.1 after threatening to shoot P.W.1 if she refused to co-operate. He then asked them to run back to the Heath Centre. On getting back to the Health Centre they dressed up and went to lodge a complaint at Erunwon Police Station. They met P.W.3 Idehen Joseph who directed them to Atan Police Station. It was P.W.3 who shortly after accosted the accused and recovered the two phones belonging of P.W.1 and P.W.2. When P.W.1 and P.W. 2 were making their statements at the Atan Police Station, P.W.3 brought the phones he recovered from the accused and P.W.1 and P.W.2 identified the phones as theirs. Some days later they were invited to the Police Station where they identified the accused amongst several suspects as the person who attacked them. During investigation P.W.4, Police Constable Babatunde Ibukun F/No. 359252 recovered a jack knife from the residence of the accused. Based on this evidence the accused was found guilty of armed robbery and sentenced to death.
He appealed to the Court of Appeal, Ibadan which dismissed the appeal. The lower court however found that robbery without firearms or offensive weapon was proved by the respondent against the appellant and substituted the conviction for the lesser offence of robbery without firearms or offensive weapon under section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 (as amended).
The appellant felt dissatisfied and has further appealed to this Court. In the brief, appellant submitted two issues for determination, namely:-
- Whether, after expunging the evidence of use of arm or force from record, the remaining evidence of the prosecution could support appellant’s conviction for robbery.
- Whether P.W.3 and P.W.4 were tainted witnesses whose evidence required corroboration or caution, and if the answer is in the affirmative, whether the reliance on their evidence by the trial court and the Court of Appeal without corroborative evidence or caution was in grave error
The respondent adopted the issues framed by the appellant.
The pertinent question to ask is: Did the lower court expunge the evidence of the use of arms or force The lower court found that the respondent failed to prove with certainty the weapon used in the robbery. Although P.W.1 and P.W.2 gave evidence that the appellant pulled out a gun and threatened to shoot them if they refused to co-operate with him, no gun was found on the appellant when P.W.3 accosted him shortly after he had dispossessed them of the phones and when the appellant’s residence was searched it was a jack knife that was recovered. This however does not detract from the fact that P.W.1 and P.W.2 were put in fear at the time the appellant took away their phones and when he raped P.W.1. Armed robbery is an aggravated form of robbery and the offence of robbery can be committed without the use of arms. The offence of robbery is theft or extortion by force or fear of force. See: Kerenku v. Tiv N.A. (1965) All NLR 570 at 571. The lower court agreed with the finding of the trial Judge that P.W.1 and P.W.2 parted with their handsets Exhibits A and B under threat by the appellant. The court said at page 102 of the record:-
“The element of fear overwhelmed them at the material time, bringing the act of the appellant within the confines of the offence of mere robbery.”
The court held per Ikyegh, JCA thus:
“Robbery without firearms or offensive weapon was in my considered view, proved by the respondent against the appellant beyond reasonable doubt.”
While the appellant did not use actual force, there is no doubt that he threatened to use force or violence on P.W.1 and P.W.2 at the time he dispossessed them of their phones. See: Otti v. The State (1991) 8 NWLR (Pt.207) 103 at 118. The appellant instilled fear and intimidation on P.W. 1 and P.W.2 and this made it difficult or impossible for them to offer any resistance to the act of the appellant. See: Nwokoro v. The State (1995) 1 NWLR (Pt.3782) 432. Even if Exhibit E was expunged from the record, there was still evidence on which the appellant could be found guilty of the offence of robbery and the lower court rightly convicted the appellant of the lesser offence of robbery simpliciter and thus imposed a sentence of 21 years imprisonment.
Learned counsel for the appellant has argued that P.W.3 and P.W. 4 were tainted witnesses whose evidence requires corroboration. In Okoro v. The State (1998) 14 NWLR (Pt.589) 181 at 215 – 216 a tainted witness was defined as:-
“—a witness who might have his own purpose to serve in giving evidence.”
Another category of tainted witnesses is an accomplice. Where a witness is shown to be a tainted witness the court must warn itself before admitting his evidence and if he is an accomplice, his evidence requires corroboration. See: Adetola v. The State (1992) 4 NWLR (Pt.235) 267 at 273.
Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 461 – 462. The evidence did not reveal P.W.3 and P.W.4 were involved in the commission of the offence and had no interest to serve except carrying out their lawful duty as policemen.
P.W.3 stated as follows in his evidence:-
“I had known the accused person before the date of the incident. So as the bike was taking me along the road leading to Erunwon, I saw the accused on the back of another motor bike and I asked him to stop so that I could ask him if he saw any strange faces in that neighbourhood that date, but the accused told the Okada rider not to stop— I noticed that his trouser pockets were bulging and I asked him what he had in his pocket. He said they are market wares he wanted to sell. He brought out the items and they were three mobile phones…..I collected the two phones from him,….As I went to the counter to drop the two handsets, the P.W.1 and P.W.2 who were in the charge room saw them and immediately identified the two handsets.”
And P.W.4 also stated in his evidence:-
“P.C. Idehen had mentioned in his statement that he recovered the handsets – exhibits A and B from the accused. On getting to the accused person’s house, we met one Adewunmi inside the accused person’s room. Immediately Adewunmi sighted us, he jumped down through the window for (sic) the storey building. We chased and arrested Adewunmi and brought him back to the room with a search warrant. We searched the room and we discovered many items including jack knife und eleven pieces of fireworks.”
Apart from the evidence of the appellant under cross-examination in which he said he knew P.W.3 as a police officer and that he used to collect money from him (appellant) when he sells Indian hemp, there is nothing to suggest that P.W.3 and P.W 4 were accomplices or had any personal interest to serve in ensuring that the appellant was convicted.
I cannot find any merit in this appeal and it is accordingly dismissed. His conviction for robbery simpliciter and sentence to 21 years imprisonment under section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 (as amended) by the Court of Appeal, Ibadan in CA/I/275/2008 delivered on 23rd June, 2011 is hereby affirmed. Appeal dismissed.
SC.299/2012