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:-
“My father and I are very close. My father does not hate me”.
However the evidence given by PW1 and PW2 showed that the appellant nursed a bitter resentment towards PW3 and on account of this he made up his mind to teach the father a bitter lesson. According to PW1, it was the appellant who told him about the humiliation he was suffering at the hands of his father (PW3) and his resolve to teach PW3 a bitter lesson. When PW1 asked him the bitter lesson he intended to teach his father, the appellant replied that:-
“he had joined a gang and he would appeal to the gang to teach his father a bitter lesson”.
PW2 corroborated the evidence of PW1. He said he was together with PW1 when the appellant informed them he was unto a gang and that he was going to deal with his father.
It was the appellant who spoke directly with PW1 and PW2 and disclosed to them the plans he had to deal with PW3. The inference which the court could draw from the evidence of PW1 and PW2 is that the appellant made good his plan to teach PW3 the bitter lesson he had disclosed to them. Any other inference to be drawn on the evidence of PW1 and PW2 in favour of the appellant would be perverse.
The Court of Appeal properly addressed the issue of the probative value of PW3’s evidence on the sour relationship that existed between him and the appellant when it stated at page 128 of the record per Lokulo-Sodipe, JCA as follows:-
”The existence of a “sour” relationship between the appellant and PW3 pertain to the two of them and evidence in that regard can only flow from them. The appellant never made an issue of the “sour” relationship between him and PW3 before the lower court. On the contrary and as earlier indicated, his evidence was to the effect that the relationship between him and his father (PW3) is convivial. The appellant in my considered view cannot now be seen to raise the fact of the “sour” relationship between him and his father (PW3) as raising any doubt concerning his identification by recognition by PW3 as he never placed this fact before the lower court in any manner. In its judgment the lower court having noted that the identification of the appellant was not challenged under cross-examination not only noted that the fact that PW3 and the appellant are father and son underscores the fact that the appellant’s identification was not in doubt but also moved a step further to say that it made the identification of the appellant by PW3 much easier”.
It is settled law that the evidence of a single witness can justify a conviction if the evidence proves the case alleged and is believed by the court which receives it. See: Igbo v. State (1975) 9 NSC 415 at 418 per Obaseki JSC; Onafowokan v. State (1987) Vol. 18 (Pt. II) NSCC 1101; Ali v. State (1988) 1 NWLR (Pt. 68) 1 and Abosede v. State (1996) 5 NWLR (Pt. 448) 270.
The learned trial Judge accepted and believed the evidence of PW3 on the identification of the appellant as one of the robbers who attacked him and his household on 2/4/2003. The evidence proved the case alleged namely that the appellant participated in the robbery and the learned trial Judge believed PW3.
The findings made by the learned trial Judge were upheld by the Court of Appeal. They are concurrent findings of facts.
The appellant has not shown that the decisions of the two lower courts are perverse or cannot be supported having regard to the evidence adduced by the prosecution. There is no reason whatsoever to disturb the findings made by the trial court and affirmed by the court below, See: Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423; Attah v. State (2010) 10 NWLR (Pt. 1201) 1.
The last point is the issue of alibi which the appellant said was not investigated which should avail him leading to the success of the appeal. The appellant has argued that the alibi he raised was not exhaustively and comprehensively investigated.
Whenever an accused person puts up a plea of alibi, it is his duty to furnish the prosecution with the full particulars of the alibi. He must furnish his whereabouts and those present with him at the material time of the incident. The duty is then shifted to the prosecution to investigate and disprove same. See: Gachi v. State (1965) NMLR 333. Yanor v. State (1965) NMLR 337; Odu v. State (2001) 10 NWLR (Pt. 722) 668 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112.
When the appellant was arrested, he made two statements. He made the first statement on 14/4/2003 and an additional statement on 12/5/2003. The two statements were received in evidence as Exhibits P1 and P2 respectively. In Exhibit P1 he stated that he left home with his master Elvis to Warri to lift fuel and did not return until 5th April, 2003. The appellant called Elvis Eghaghe who testified as DW1. He said he travelled with the appellant to Warri Refinery on 30/3/2003 and they did not return to Benin City until 5th April, 2003.
The prosecution called Sgt. Sunday Ogodo who testified as PW4. He was the one that took over the investigation of the case at the state C.I.D. after it was transferred from Ugbekun Police Division. He said that after recording the accused/appellant’s statement where he alleged he was in Warri with his master, he took him to Texaco Oil Company Ltd. Uselu to look for Elvis but they did not find the said Elvis. It was there he ended his investigation as there was no need to travel to Warri in search of Elvis who was supposed to be living in Benin.
The appellant denied under cross-examination that PW4 ever requested him to take him to DW1’s house.
The learned trial Judge believed the evidence of PW4 who took over the investigation of the case when it was transferred from Ugbekun Police Division to the State C.I.D. It was PW4 who recorded Exhibits P1 and P2 from the appellant and the statements of PW1 and PW2. In Exhibit P1 the appellant raised the defence of alibi and stated that on the date of the robbery he was away to Warri in the company of his master Elvis to lift fuel. In his evidence-in-chief PW4 said:-
“The accused person alleged that on the fateful day he was in Warri. However he failed to take us to the master he said he accompanied to Warri and he also failed to take me to where he said he went to in Warri. The accused took me to Texaco Oil Coy. Ltd. Uselu which he mentioned in Exhibit P1 but there was no one called Elvis in the place”.
Under cross-examination PW4 maintained that the evidence he gave in court was from the investigation he carried out and when he was asked why he failed to visit Warri he replied:-
“I did not see the need to go to Warri since the accused told me his master lives in Benin and I accompanied him to the Benin address he gave and the said master could not be traced at that address”.
The learned trial Judge in dealing with the evidence of PW4 as it related to the plea of alibi said at page 64 of the record:-
”The defence of alibi he put forward is hollow. This is not full disclosure as alleged by the prosecution but principally because his story turned out to be brazen falsehood. For instance, PW4 told the Court and I believe him that he went to Texaco Filling Station Uselu where accused told him his so-called Master Elvis worked but that there was no trace of him there”.
The alibi set up the appellant was investigated. PW4 could not be expected to travel to Warri in search of Elvis since he could not locate him at the Texaco Filling Station Uselu where he was said to be working. It does not always follow that once the prosecution failed to investigate an alibi, such failure is fatal to the case for the prosecution. The trial judge has a duty, even in the absence of investigation to consider the credibility of the evidence adduced by the prosecution vis-Ã -vis the alibi. See: Umani v. State 1988 1 NWLR (Pt. 70) 274; Ozaki v. State (1990) 1 NWLR (Pt. 124) 92. In this case PW4 went to Texaco Filling Station Uselu where Elvis was said to be working but did not meet him.
The learned trial Judge believed PW4 and disbelieved the evidence put forward by the appellant and DW1. He was entitled to do so. The court below saw no reason to interfere and this Court cannot on the printed record say that the learned trial judge was wrong in believing PW4.
The learned trial Judge accepted the evidence of PW3 in finding that the appellant was one of the robbers. His evidence is one of recognition of the appellant since he was well known to him. This recognition therefore dispels any shadow of doubt that he committed the offence and therefore completely knocks, out the defence of alibi. See: State v. Aigbangbee (1988) 3 NWLR (Pt. 84) 548; Walaka v. State (2010) 10 NWLR (Pt. 271) 522; Attah v. State (2010) 10 NWLR (Pt. 1201) 190. Since the alibi set up by the appellant was disproved by the evidence of PW3 and PW4 which the learned trial Judge believed, thus proving the commission of the offence of robbery by the appellant beyond all reasonable doubt, the Court of Appeal was right affirming the judgment of the learned trial Judge and dismissing the appeal. This court further affirms the decision of the court below. The appeal is totally lacking in merit and I accordingly dismiss it.