Joel Ighalo V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appeal of the appellant is predicated on the ground that the prosecution did not prove his guilt beyond reasonable doubt and so the Court of Appeal was wrong in affirming the decision of the trial court which found him guilty of armed robbery and sentenced him to death by hanging.

The facts of the case are as follows:

On the 1st of April, 2003 at about 2a.m., a gang of armed robbers invaded the residence of Musa Ighalo at No. 18, Umeri Street, Upper Mosheshe, off Sakponba Road, Benin City. They were armed with guns, machetes, battle axes and iron rod. They beat up the said Musa Ighalo who testified as PW3, robbed him of the sum of N25,000.00 and inflicted serious injuries on him and members of his family which eventually led to the death of Ehinome Ighalo, step-brother of the appellant who was then seventeen years old and a student of the Federal Polytechnic Auchi.

The appellant is the first son of PW3 but PW3 did not marry the appellant’s mother. The appellant lived with his mother from birth until he was 20 years old when the appellant went to stay with PW3. At the time the robbery took place the appellant was living in PW3’s house. In March 2003 the appellant visited his father’s working place at the State Hospital Management Board Benin City. There he met Frank Evokhon and Godwin Oide who were also employees of the State Hospital Management Board. They testified as PW1 and PW2 respectively. He complained about the conduct of his father towards him in not showing him respect and providing for his needs. He then informed PW1 and PW2 that he had made up his mind to teach his father a bitter lesson by joining a gang who will deal with his father.

After the robbery PW3 made a statement to the police stating that he recognized the appellant among the robbers who invaded his residence. This led to the arrest of the appellant who denied his involvement in the robbery attack on the PW3 and other members of his household. In his extra Judicial statement to the police, he set up a defense of alibi to the effect that he was in Warri from 31/3/03 to 5/5/03 having gone there with his master, a petrol tanker driver to load petrol. The investigating Police Officer Sgt. Sunday Ogodo who testified as PW4 investigated this defence but did not visit Warri. He however visited the place where the appellant’s master could be found as supplied by the appellant but the said master could not be traced. Subsequently the appellant was charged to court on a one count charge of Conspiracy to commit armed robbery and two counts of robbery while armed with offensive weapons. He was acquitted and discharged on counts 1 and 2 but found guilty on count 3 and was convicted and sentenced to death. He unsuccessfully appealed to the Court of Appeal, Benin City which was dismissed on 19/4/2013; hence the further appeal to this Court. The Notice of Appeal is dated 2/5/2013 and from it a sole issue was distilled for determination. The appellant filed a reply brief in response to the respondent’s brief in which he alleged that two new issues were raised in the respondent’s brief dealing with inconsistencies in the evidence of the appellant and DW1 and the concurrent findings of fact made by the courts below.

Learned counsel for the appellant listed the ingredients that needed to be proved to sustain the charge of armed robbery and concentrated his arguments on the identification of the appellant by PW3. He argued that because of the sour relationship which existed between the appellant and PW3, the evidence he gave about his recognizing the appellant in the dark from the flash of a torch should be accepted with circumspection since the robbers were said to be wearing face caps as it is common knowledge that a person in the dark on whom torchlight is flashed would ordinarily not have a clear vision of the objects at the source of the light so it is doubtful that PW3 could have had a clear vision to be able to identify any of the robbers as the appellant under such a condition, moreso when they were all wearing face caps. He maintained that even if PW3’s evidence of identification was not challenged, that does not derogate from the principle that such evidence must still be credible and probable before the court can accept and act on it as was decided in Gonzee (Nig.) Ltd v. NERDC (2005) 13 NWLR (Pt. 943) 534. Learned counsel then referred to Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663 on the principles that should guide the Court when dealing with the evidence of identification and submitted that because of the bad blood which existed at the material time between the appellant and PW3, the latter already harboured some prejudices against the appellant and so he was convinced in his mind that the appellant was among the gang that attacked him. Since PW3 did not give evidence as to any other factors such as voice or height which assisted him in identifying the appellant, a serious doubt has been cast on the appellant’s identification by PW3 and rendered same improbable. Learned counsel then dealt with the alibi the appellant raised which was not investigated and submitted that since PW4 did not exhaustively and comprehensively investigate the alibi set up by the appellant, this has led to a fundamental failure which warrants that the defence of alibi set up by the appellant should succeed. Learned counsel impressed on this court to hold that the prosecution failed to prove that the appellant participated in the robbery which is the most essential ingredient of the offence since the defence of alibi set up by the appellant was not destroyed and the evidence of identification given by PW3 is fundamentally flawed and cannot safely be relied upon in fixing the appellant to the scene of the crime.

The appellant filed a reply brief in which he argued that the alleged inconsistencies in the evidence of the appellant and DW1 did not amount to material contradiction which could have adverse effect on the defence of the appellant. He also addressed the issue of concurrent findings of the two lower courts and submitted that although this court would ordinarily not interfere with concurrent findings of fact by the lower courts, an appellate court can in appropriate circumstances look at the evidence on record and make an objective finding where there has been a perverse finding by the trial court which led to a miscarriage of justice as happened the instant case on the identification of the appellant by PW3.

Learned counsel for the respondent submitted that the evidence of a single witness can justify a conviction it the evidence proves the case alleged and is believed by the court which receives it and referred to Igbo v. State (1975) 9 NSCC 415 and Abosede v. State (1996) 5 NWLR (Pt. 448) 270. He argued that the evidence of PW3 was thoroughly considered and evaluated by the trial Judge in the manner required by law and the Court of Appeal was justified in confirming as it did the trial court’s reliance on the evidence of PW3 to convict the appellant. Since there is concurrent findings of fact of the two courts below learned counsel argued, the burden is on the appellant to show that the decision of those courts were perverse or cannot be supported having regard to the evidence adduced by the prosecution or that a principle of law has been violated before this court can interfere with the decisions. On the alleged bad blood between the appellant and PW3 which could have been responsible for PW3’s evidence in wanting to rope the appellant in the commission of the offence, learned counsel contended that neither the appellant nor PW3 alluded to such motive. Learned counsel argued that there an inconsistency between the testimony of DW1 and the appellant on the issue of when they departed Benin for Warri to lift the fuel and the account of what took place on 2/4/2003 and submitted that these made the trial Judge to conclude that the defence of alibi put forward by the accused was bogus.

The evidence given by PW3 by which he was able to recognize the appellant as one of the robbers is this:-

“There and then the second person in the group flashed light on to my face when he did that I saw the first person and saw it was the accused”.

When PW3 was being cross-examined, learned counsel rather than suggest to PW3 that his vision was blurred because of the torchlight that was flashed into his face and so could not definitively say it was the appellant he recognized, decided to ask him the type of light that was flashed on his face and he answered that he did not know. In appraising this piece of evidence the learned trial Judge refused to the contention by counsel that the failure by PW3 to describe the flashlight allegedly beamed on him created some doubt in PW3’s identification of the accused. He considered the point as tenuous. He therefore believed and accepted the evidence of PW3 that the appellant was one of the invaders who invaded the house of pW3 with various offensive weapons and robbed him and members of his household. The court below considered the issue and held that the identification of the appellant was not challenged under cross-examination and concluded that the trial judge painstakingly evaluated the evidence of PW3 accepted and believed the same as establishing the offence of armed robbery against the appellant beyond reasonable doubt.

It is for the trial court to decide what the effect of failure to cross-examine a witness on a particular matter has on its evidence in regard to such matter having regard to the circumstances of the case. Where an adversary fails to cross-examine a witness upon a particular matter, the implication that he accepts the truth of that matter as led in evidence. See: Oforiete v. State (2000) 12 NWLR (Pt. 681) 415. In this case the trial Judge was right accepting the evidence of PW3 that the appellant was one of the robbers who attacked him and his household in the early hours of 2nd April, 2003.

As to the sour relationship which existed between the appellant and PW3 which appellant now says could be the reason why PW3 roped him in the robbery, neither the appellant nor PW3 testified to this fact. When he testified in court, the appellant denied he ever threatened to deal with his father and when he was cross-examined he said:-