Kehinde Ajumobi V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The appellant and Raheem Ayinde were arraigned before the Kwara State High Court, llorin Division in charge No. KWS/36C/2010 for Criminal Conspiracy and Robbery contrary to Sections 97 of the Penal Code and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria 2004. The charge contained six counts; count 1 was for conspiracy while the remaining five counts were for armed robbery. The learned trial Judge found that the prosecution proved the ingredients of the offence of armed robbery against the accused and convicted them accordingly. He thereafter sentenced each of them to 14 years imprisonment without an option of fine and did not specify the count on which the sentence was based.
The appellants appealed separately against the judgment of the trial Court to the Court of Appeal, Ilorin Division complaining against the non specification of the counts on which the trial Court based its sentence. The Court below dismissed the appeal as being predicated on technicalities in its judgment delivered on 10 July, 2014.
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The appellant was further dissatisfied with the judgment of the Court of Appeal and appealed against it in the Notice of Appeal dated and filed on 4 August, 2014.
The appellant’s brief was filed along with an amended Notice of Appeal on 2 March, 2017. Both the amended Notice and the appellant’s brief were deemed filed on 17 May, 2017. Two issues were formulated from the Amended Notice of Appeal to wit:-
- Whether the learned Justices of the Court of Appeal came to a justifiable conclusion in law and equity when their Lordships held that the appellant was sufficiently identified as one of the armed robbers that committed the offence in issue and that the discrepancies between the appellant’s extra judicial statement and his oral testimony in Court relate in substance and not form such that the appellant’s defence of mistaken identity may be thrown away with the wave of hand.
- Whether the learned Justices of the Court of Appeal were correct in law and equity when their Lordships failed/refused to consider issue (3) distilled by the appellant herein who was also the appellant at the Court below and whether same failure did not lead to a miscarriage of justice
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The respondent adopted the issues raised by the appellant. Learned counsel for the appellant, Awosika Esq. submitted on issue 1 that even though there is a concurrent finding of facts by the two lower Courts as to the identity of the appellant as one of those who participated in the robbery offence, nevertheless the defence of mistaken identity incapsulated in Exhibits P4 and P7 is probable in the entire circumstances of the case. While conceding that it is not the law that the prosecution must tender every item stolen before it can secure conviction, he submitted that where the tendering of items stolen goes to the credibility or otherwise of the robbery story, the law requires such items to be tendered so that their whereabouts can be accounted for. He argued that since the appellant denied participating in any robbery and that he was seeing off his friend at the time of the arrest, the production of the stolen items traceable to him would have made the prosecution’s case foolproof. He maintained that for the credibility of the evidence that the appellant was arrested around the scene of crime to be believed, the items which he stole and which he had taken into his possession
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must be found with him or the people who saw him being arrested should give an explanation on how he managed to dispose of the items at the point of arrest. Learned counsel drew a distinction between being caught at the scene of crime and being identified as a criminal. When an accused is being caught at the scene of crime, there should be credible evidence such as being found in possession of the stolen item but where the accused is identified as the criminal, the credible evidence to be adduced is most often by identification parade. He cited the case of Bozin v. State (1985) 2 NWLR (Pt. 8) 465 and Adisa v. State (1991) 1 NWLR (Pt. 168) 490. He said no identification parade was carried out in this case. Since the appellant was not apprehended with the stolen items particularly the wallet which was alleged to contain N34,000.00, his story that he was arrested while escorting the 2nd accused should be believed.
On issue No. 2, learned counsel argued that the Justices of the Court of Appeal failed to properly evaluate and consider whether the trial Court was right or not in considering the
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alleged oral confession which the appellant made to PW8 and that the Honourable Court did not give the issue the consideration it deserves. It was the contention of learned counsel that all Courts ought to consider and resolve all arguments on all the material issues canvassed by parties before it. He relied on Olowolagba v. Bakare (1998) 3 NWLR (Pt. 543) 528 where lguh JSC posited thus at page 534:-
“It is indisputable, pursuant to the right of parties to any litigation to fair hearing, that a trial Court ought to hear and consider all legal and admissible evidence adduced before it in respect of all relevant issues joined by the parties. In the same vein an appellate Court ought to hear and consider the arguments on all material issues canvassed by parties before it.
Learned counsel complained that the Court below merely copied and pasted the arguments of both counsel on issues 3 and 4 submitted JUSTICES and made no pronouncement on their resolution especially on issue 3 and went ahead to conclude on another point without making known their consideration and resolution of the issue. He submitted that the failure by the lower Court to consider the
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said issue 3 occasioned grave injustice to the appellant herein.
Learned counsel has tried to identify the argument on this issue under the omnibus ground because according to him when the trial Judge made reference to the evidence of the prosecution, his Lordship used the totality of evidence led by the prosecution which included the purported oral confession allegedly made by the appellant to PW8. He went on to state that since the learned justices of the Court below affirmed the judgment of the trial Court in all its ramifications, he was of the view that it should be taken for granted that their Lordships found nothing wrong with the usage of the said oral confession against the appellant.
Learned counsel for the respondent, Obafemi Esq. relying on his brief filed on 27/7/2017 submitted that it is desirable that issues formulated in the brief of argument be tied or married to the grounds of appeal. I agree entirely with this submission. Ground 2 of the amended notice of appeal which complained about the failure of the lower Court to enter separate verdicts in respect of each count in the charge was abandoned as no issue was formulated from it.
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See: Nwokearu v. State (2013) 16 NWLR (Pt. 1380) 207 at 233. It is accordingly struck out.
In respect of issue 1 dealing with the case of mistaken identity, learned counsel for the respondent argued that the appellant completely ignored the direct and unchallenged evidence given by PW3, PW4, PW5 and PW6 before the trial Court which the lower Court found to be credible. He contended that a clear examination of the evidence from the victims of the robbery which was not challenged or destroyed under cross examination point to the irresistible conclusion that the appellant was one of the armed robbers that robbed and wounded the victims who testified before the Court. He said a concession was made in paragraph 4.1 in the appellant’s brief about appellant being one of the robbers and that PW2 and PW3 were victims of the robbery but the contention of learned counsel is based principally on the possibility of reasonable doubt of the appellant being one of the robbers. He enumerated the necessary ingredients which the prosecution must establish beyond reasonable doubt in order to sustain a charge of armed robbery which include:-
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(a) There was a robbery or series of robberies;
(b) The robbery or each robbery was an armed robbery, and
(c) The accused was one of those who took part in the armed robbery. He cited several cases for this submission such as:-
Bozin v. State (supra); Okosi v. Attorney-General Bendel State (1989) 2 SC (Pt. 1) 126; (1989) 1 NWLR (Pt.100) 642; Martins v. State (1997) 1 NWLR (Pt.481) 355; Osuagwu v. State (2013) 1- 2 SC (Pt. 1) 37: (2013) 5 NWLR (Pt. 1347) 360; Emeka v. State (2014) 6-7 SC (Pt. 1} 64, {2014} 13 NWLR (Pt. 1425} 614; Simon v. State (2017) 8 NWLR (Pt. 1566) 119 at 136.
He said that the arguments advanced by learned counsel for the appellant under issue 1 centre on the mistaken identity of the appellant and submitted that the lower Court was right to have followed the Court of 1st instance in dismissing the appeal by holding that the appellant was properly convicted for the offence of armed robbery by the High Court because of the evidence of PW2 who identified the appellant as the one who stabbed PW2 on the stomach with a broken bottle. He maintained that it is the circumstances of a case that determines the form of identification necessary and relied on
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the dictum of Belgore JSC (as he then was) in Adamu v. State (1991) 4 NWLR (Pt. 187) 530 at 537 for this submission. He further submitted that in the identification of the appellant by the victims of the robbery, the Court of first instance gave good consideration to the defence of mistaken identity which was faintly put forward by the appellant. The lower Court looked into the trial Court’s consideration of the evidence offered in defence vis-a-vis the extra judicial statement before concluding that the evidence was not only contradictory to the extra judicial statement and found that the appellant’s evidence was not credible.
As regards the prosecution’s inability to investigate the contents of Exhibit P7, learned counsel for the respondent submitted that the appellant did not set up any defence which required to be investigated. It was a bare statement that he was not an armed robber.
In his consideration of issue 2 learned counsel for the respondent submitted that the conviction of the appellant which was affirmed by the lower Court was not hinged on the appellants oral confession to PW8. He said that the lower
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Court dealt with issues 3 and 4 together and resolved them based on the decision in Uwagboe v. State (2008) 12 NWLR (Pt. 1102) 621. He submitted further that the appellant has not pointed to any portion of the holdings or findings of the Court where the alleged confessional statement was made the fulcrum of the decision and a clear reading of the judgment of the lower Court showed that the conviction of the appellant was premised on the positive identification of the appellant by the victims of the armed robbery. He argued that there is nowhere in the appellants brief where it was argued that if the alleged oral confession of the appellant is expunged there will be no other material evidence to support the conviction or that the non specific pronouncement on the substance of the oral confession of the appellant to PW8 has occasioned any miscarriage of Justice.
The main thrust of this appeal revolves on the non tendering of the items which were allegedly stolen by the appellant and the 2nd accused during the robbery. In the evidence of PW2 he enumerated the stolen items to include:-
- A wallet containing N34,000.00
- PW2’s wife Nokia handset
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PW2 double sim Lumia handset
- PW2 wrist watch.
Learned counsel for the appellant in arguing the appeal submitted that for the story of PW2 to command and commend belief, the PW2 ought to be able to tell the Court what happened to those items that were purportedly stolen from the scene of crime. In other words the stolen items should be tendered as evidence and if not tendered there should be explanation from the prosecution why they cannot be produced in evidence. Learned counsel however agreed that it is not the law that the prosecution must tender every item stolen before it can secure conviction. See: Olayinka v. State (2007) 9 NWLR (Pt. 1040) 551 where it was held that, to secure a conviction for armed robbery the prosecution must prove the following:-
(a) that there was an armed robbery;
(b) that the accused was armed; and
(c) that the accused, while with the arm or arms, participated in the robbery. Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused
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person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility.
The production of the stolen items no doubt will make water tight the case of the prosecution. The law however still remains that where the evidence adduced by the prosecution is capable of being believed and the trial judge believed it and convicts the accused, an appellate Court will be slow to overturn the verdict simply on the basis that the trial Court could have viewed such evidence otherwise. Where it is suggested that a piece of evidence casts some doubt on the prosecution’s case, it is necessary to show, unless such is manifest or evident from the records, what aspect becomes doubtful by reason of the evidence. See: Archibong v. State (2006) 14 NWLR (Pt. 1000) 349.
The attitude of the Supreme Court on concurrent findings of fact is that of non interference unless it is shown to have resulted in miscarriage of justice or a violation of some principles of law or the same is demonstrated to be perverse. See:Wankey v. State (1993) 5 NWLR Pt.759 135. The task for the prosecution in the instant appeal is to show that the appellant participated in the robbery while
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armed. As learned counsel has shown in his brief there is no dispute that a robbery took place within the vicinity where the appellant was arrested.
The story put up by the appellant was that on the fateful evening of his arrest, he had invited the 2nd accused whom he requested to work for him at his car wash centre and he was seeing off the 2nd accused when they encountered people who accosted them and accused them of being the persons who disrupted the neighbourhood. And according to the appellant he denied the accusation and tried to give an explanation but the people did not believe him; instead they attacked and brutally injured him which resulted in his hospitalization.
The evidence which the trial Court relied upon was given by PW2, PW3 and PW4. PW2, lsmail Kolawole stated that after he had eaten the food served by his wife, he asked her to throw away the water they used in washing their hands. As she got to the passage, he heard people shouting and he enquired what caused the noise. He then ran out to see what was happening in the passage and on getting to the passage he noticed the 1st accused holding his wife and as he opened
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the door, the 2nd accused hit him with a bottle on the head and then asked him (PW2) to lead him (2nd accused) into the bedroom. While in the bedroom he demanded for money but PW2 said he had no money. The 2nd accused then used the broken bottle to stab him on the stomach. PW3, Saadu Garba who lives in the same compound with PW2 and PW4 narrated how he heard some people shouting in the corridor passage and decided to find out what was responsible for the noise. As he opened the door to go out, the 1st accused met him at the door holding a cutlass and ordered him back into the room where he commanded him to lie down and was beating him. The 1st accused asked for money. He showed him N5,000.00 which was on the table. He collected the money and PW3’s handset. 1st accused left and returned to ask for more money. It was at that instance that he heard the door being banged and an alarm of thief, thief was raised. The 1st accused then ran out of the room and when he ventured out he noticed that the 2nd accused had been arrested and was being beaten while some people were chasing the 1st accused who ran away but was caught when he attempted to
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scale the fence. When PW3 was cross-examined he said that after the 1st accused had robbed him, he went out of the room and returned a second time demanding for more money and it was then that he heard people shouting thief, thief and the 1st accused then ran out and tried to escape. A room separated his own from that of PW2. PW4, Rashidat lsmaila who is the wife of PW2 also gave evidence on what happened on the night of 12/8/2009. She confirmed that it was the 2nd accused who took away her phone and hit her husband with a bottle on the head. She said that the 2nd accused was arrested inside the house while the 1st accused ran outside and attempted to jump the fence.
There were other witnesses who testified. PW6 recorded the statements of the two accused persons which were admitted in evidence without objection and were marked Exhibits P4 and P5 respectively. In exhibit P4 which is the statement of the 1st accused, he said he was accompanying the 2nd accused away from his house because his mother was cooking for him and had asked him not to take any visitors into the house. PW6 stated that 1st accused was not arrested in his house but quite far away.
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The accused testified in their own defence. The 1st accused said he was planning to open a car wash station and to this end he bought blocks and arranged for a well digger to dig a well for him.
The 2nd accused who was his apprentice accompanied him to buy a pumping machine from the shop. After leaving the shop, they were about boarding a vehicle which will take the 2nd accused home but he said he did not have any transport money and he invited the 2nd accused to accompany him home to eat some food since the 2nd accused said he was hungry. They left for his mother’s house. On reaching the house the food was not yet ready so he gave N100.00 to the 2nd accused to use as transport money and also buy some food with N70.00. His mother sent him with #5,400.00 to give to the caretaker who gave him the land. He then decided to escort the 2nd accused to where he could board a vehicle and return home while he went to deliver his mother’s message to the caretaker. While on the way they met two men who were travelling in the opposite direction. As they made to pass one of the men called them back and asked them where they were coming from and he told the people
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they were from his house. They further asked where the house was located and he said it was the house of Alhaja working in the General hospital. One of the men then said he and 2nd accused resembled those who were disturbing the neighbourhood and he protested. One of the men then told them to kneel down but he refused. One of the men told them that if they refused to kneel down, they will see what will happen to them. They entered into an altercation and the man slapped him and he held his hand and they started to fight. He sustained injury. Other people joined in the fight. He later fainted and was taken to hospital where he regained his consciousness the next day and realized that he was in handcuffs. He denied having robbed any body in his life as he was gainfully employed. He said the police took 2 men and a woman to the hospital but they could not identify him. He denied any knowledge of the cutlass, stick and broken bottle which were admitted as exhibits P1, P2 and PW3.
In his evaluation of the evidence of PW2, 3 and 4, the learned trial Judge stated at page 109 of the records as follows:-
“In analyzing the evidence of PW2, 3 and 4, it is clear that
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they all identified the two accused persons as having attacked them with cutlass and broken bottle on the 12th day of August,2012 at about 9- 9.30 pm. The evidence of PW2 and 3 in my view corroborates one another as to how Rashidat lsmail was about throwing away water used in using (sic) hand after their dinner and she encountered the two accused persons in their corridor or passage, how she shouted and her shout attracted her husband and he was attacked by 2nd accused who hit him with a bottle on the head. The evidence of PW4 corroborates the evidence of PW2 who she said is her husband that the 2nd accused hit him with a bottle on the head. The three prosecution witnesses PW2, 3 and 4 identified the two accused persons as having attacked them with bottle and cutlass on the 12/8/2012. Under cross-examination the PW2 and PW3 identified exhibit P3 pieces of broken bottle as being green like the beer bottle the 2nd accused used in hitting PW2 on the head and stabbing him in the stomach, while PW3 identified exhibit P1 the cutlass as being like the one the 1st accused attached him with”.
The learned trial Judge proceeded to hold at page III that:-
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“l am of the considered view that the said prosecution witnesses had adduced evidence beyond reasonable doubt to show and prove that the two accused persons attacked and robbed them with a cutlass broken bottle and a gun. I do agree with the submission of learned prosecution counsel that the evidence of the prosecution witnesses were direct, cogent and compelling and were unshaken under cross examination to the effect that they maintained their evidence in-chief that they were robbed by the two accused persons with dangerous weapons such as cutlass which they identified as exhibit P1, broken bottle as exhibit P3 and gun not tendered.
Notwithstanding the fact that none of the items allegedly stolen from the prosecution witnesses were tendered in evidence by the prosecution i.e. PW2’s N34,000.00 (Thirty four thousand naira) only, his wallet containing the said sum, his Fuma dual Sim GSM, his wife’s Nokia handset and his wrist watch, PW3’s N5,000.00 (five thousand naira) and handset with GLO Sim, PW7’s N14,000.00 (fourteen thousand naira), her VCD and DVD players and two GSM handsets. I am of the view that the prosecution witnesses were
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consistent in their evidence of being attacked by the two accused persons on the 11 and 12 of August, 2009 with a gun, cutlass and broken bottle as earlier on stated in the course of this judgment”.
The lower Court in reviewing the judgment of the learned trial Judge and the submissions of counsel on issue 1 held at pages 281-282 of the record thus:-
“After perusal of submissions of both counsel on issue 1, I hereby resolved (sic) that there was commission of armed robbery by the appellant and 2nd accused person. In Nwaturuocha v. The State in Suit No. SC 197/2010 delivered on 11/3/2011, which is reported in (2011)6 NWLR (pt. 1242) 170 the Supreme Court held that where the appellant was identified by the prosecution witness without equivocation, a straight issue of credibility will arise, that is to say where an alibi has been raised and there is visual positive identification of the accused, which is believed by the trial Court, the appellate Court should not disturb such a finding i.e. where there is more credible evidence fixing the accused person with the commission of the crime, the defence of alibi will not avail him – per J. A. Fabiyi JSC.
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His Lordship went further to say that proof beyond reasonable doubt is not proof beyond all iota of doubt, and not be stretched beyond reasonable limit, otherwise it will cleave”.
The learned trial Judge settled the issue of the appellant’s identification and the non production of the allegedly stolen items and the lower Court rightly saw no compelling reason to disturb the findings and credibility of witnesses as they were not perverse. This Court sees no reason whatsoever to interfere with the decisions arrived at by the two lower Courts.
Learned counsel for the appellant hammered on the possibility of mistaken identity which led to the arrest of the appellant but this argument cannot fly because of the positive identification of the appellant by PW2, PW3, and PW4. The evidence given by these witnesses is rock solid. The learned trial Judge found them to be credible evidence and believed them. He could not have done otherwise; hence the conclusion was to reject the appellant’s version. The prosecution therefore proved its case beyond reasonable doubt. The lower Court endorsed the judgment of the trial Judge.
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There is no doubt in my mind that the two lower Courts did the right thing and I will therefore affirm the judgment of the lower Court.
The appellant’s issues 3 and 4 in the lower court which learned counsel is complaining were not considered in the judgment of the lower Court and therefore led to a miscarriage of justice read as follows:-
“3.03 Taking into consideration the quality and nature of the purported oral confession allegedly made by the appellant to PW8, was it proper for the learned trial judge to have relied on such a confession that the appellant was guilty as charged (Ground 6)
3.04 Taking into consideration the fact that prosecution led evidence which showed that the appellant was already in the custody of the police prior to the hours of 9pm – 9.30 of 12/8/2009 that the said offence (sic) were allegedly committed, is it not obvious that this piece of evidence created a serious doubt in the case of prosecution such that it could not have been proper and just for the learned trial judge to hold as His Lordship did that the appellant was guilty as charged”.
Onaghise Timothy PC. No. 433382 who testified as PW8 stated as follow:-
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“On 12/8/2009, at about 23 hours one Ganiyu Rahmon PW5 (m) of Buda Nuhu area llorin, member of Nigeria Vigilante group came to Adewole Police Station and reported a case of armed robbery at Budo Nuhu area. Immediately I and three other police officers went to the scene and met the victim by name Ismail Kolawole (m) of Budo Nuhu area in a pool of blood and the two accused persons already arrested by the community members and some exhibits such as 1 cutlass, broken bottles, short plank were also recovered. In that moment I put up a question to the 2 accused persons i.e. their motive of coming to the area where they were arrested and they said they came to rob but luck ran against them and in order to save the victims life I rushed him to the hospital because he was bleeding profusely.
When reviewing the evidence adduced at the trial in the course of the judgment the learned trial Judge said at pages 120-121 of the record:-
“The Court do agree with the submission of the prosecution counsel that the evidence of PW8 the IPO was neither denied nor controverted by any of the accused persons to the effect that he asked the two accused persons at the scene,
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meeting them being made to sit down by the community members who arrested them what they came to do, they said they came to rob and luck ran against them. The said IPO was not cross-examined on this piece of evidence and neither did any of the accused persons adduced evidence to contradict same.
Was this the basis on which the learned trial Judge found the accused guilty of the robbery which led to the sentence of 14 years imprisonment imposed on them
In his consideration of the evidence of the appellant and 2nd accused, the learned trial Judge said:-
“In perusing the statements of the two accused persons admitted and marked as exhibits P4 and P5 tendered through PW6 Inspector Augustine Onwuka recorded at the Special Anti Robbery squad on the 16/8/2009 and the statement of the 2nd accused tendered and admitted through PW8 Police Corporal Onaghise Timothy and exhibit P7, the statement of the 1st accused person tendered and admitted through PW9 Corporal Omotosho who testified to have only taken the statement of the 1st accused person on the 12/8/2009, I am of the considered view that the evidence of the two accused persons in Court contradicts their statements.
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He analysed exhibits 4 and 5 vis-a-vis the accused persons oral evidence in Court where he found several contradictions and the submission of counsel to the parties and then proceeded to make the following findings and conclusion:-
The Court would rather believe the submission of the prosecution counsel where he states in his adopted written address at page 8 thereof that the two accused persons did not address the robbery incident of 12/8/2009 for which they were arrested but were rather addressing what happened to them on 11/8/2009, that they tactically avoided the incident for which they were arrested and arraigned in Court.
In exhibit P4 the 1st accused did not refer to any date while in exhibit P5 the 2nd accused referred to three days before the 11/8/2009 and also referred to 11/8/2009 when he states (sic) that the 1st accused called him and therein stated all other statement to the point of being arrested in front of the complainants house which contradicts his evidence in-chief of being beaten by two men to the extent of shedding blood and he becoming unconscious.
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In view of the foregoing, I am of the view that the evidence of the two accused persons as adduced before the Court contradicts their statements, exhibits P4, P5 and P7 thus cannot be believed or manifestly relied upon. The evidence of the prosecution in my view is direct, cogent, corroborative and has proved or fulfilled the ingredients of the offence of Armed Robbery charged, and I hereby hold that the prosecution has proved its case beyond reasonable doubt and the two accused persons are hereby convicted accordingly”.
The learned trial Judge gave full consideration to the evidence adduced by the prosecution and the defence and found that the prosecution proved its case beyond reasonable doubt. The conviction was not based on the purported admission which the accused were said to have made to PW8 that they had gone to rob and luck ran out on them. Even if the said evidence of PW8 is expunged, it will not adversely affect the outcome of the case. Consequently, even if the lower Court did not consider issues 3 and 4 submitted to it by the appellant in depth, no miscarriage of justice has been occasioned which will lead to allowing the
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appeal.
In sum this appeal is totally bereft of merit and it is accordingly dismissed.
I affirm the judgment of the Court of Appeal, Ilorin Division delivered on 10 July, 2014 in CA/IL/C.7/2013 which had affirmed the conviction of the appellant by Ajayi J. of the Kwara State High Court, Ilorin on 11/7/2012 in Charge No. KWS/36C/2010. Appeal is dismissed.
SC.515/2014