Musa Ikaria Vs The State (2012)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is a further appeal against the judgment of the Ogun State High Court, hereinafter referred to as the trial court, before which the appellant, Godwin Awin and others then at large were tried for conspiracy to commit robbery and armed robbery contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Fire Arms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments Etc) Act 1999.
Aggrieved by his conviction and sentence by the trial court, the appellant appealed to the Ibadan Division of the Appeal Court. The court, hereinafter referred to as the court below, in its judgment dated 28th October, 2010, affirmed appellant’s conviction by the trial court but reduced the sentence imposed on him from death to life imprisonment.
The appeal before us, on a Notice containing two grounds, arises out of appellant’s dissatisfaction with the judgment of the court below.
Parties have filed and exchanged their briefs of argument. At the hearing, they adopted and relied on these briefs as their arguments for and against the appeal and urged that the appeal be allowed or dismissed.
The appellant has identified two issues in his brief for the determination of the appeal. The issues read:-
“1. Whether the prosecutor proved its case beyond reasonable doubt to warrant the affirmation of the conviction of the appellant by the Court of Appeal.
- Whether the learned justices of the Court of Appeal were right in law to hold that the testimonies of PW1 and PW2 were not hearsay and therefore inadmissible.”
Respondent’s sole issue for the determination of the appeal which is not dissimilar to appellant’s 1st issue reads:-
“Whether the learned justices of the Court of Appeal were wrong in law to hold that the prosecution had proved the charge of robbery against the appellant beyond all reasonable doubt.”
It is argued in the appellant’s brief that the respondent, by Section 138 of the Evidence Act, has the onus of proving its case against the appellant beyond reasonable doubt. Reliance is placed on Bagudu V State (1996) 7 NWLR (part 460) 279; Onugbogu V State (1974) 9 SC 1; Chia v State (1996) 6 NWLR (part 455) 465 and Morka v State (1998) 2 NWLR (Part 537) 294 at 307 by learned appellant’s counsel in submitting that the respondent has not discharged the burden the law places on it. The court below, therefore, argues learned counsel, erred by affirming the wrong finding of the trial court in that regard.
The evidence of PW1 and PW2 and indeed PW4, learned appellant counsel contends, are inadmissible in law and cannot form the basis of the conviction of the appellant. The testimonies of PW1 and PW2 submits learned counsel, are hearsay while the testimony of PW4 who has not been cross examined is equally unavailable to the respondent.
This leaves the trial court and indeed the court below with the testimony of PW3. The finding of the court below at page 126 lines 4 – 14 fixing the appellant as a participant in the robbery is a serious error that has occasioned miscarriage of justice. The testimony of PW3, it is further argued, is incoherent not only on the vital issue of the identity of the appellant but also his presence at the scene of the crime. Such evidence being unreliable is incapable of sustaining a conviction for the grave offence of robbery. Relying on Chukwu V State (1996) 7 NWLR (Part 463) 686 at 702; Alabi V State (1993) 7 NWLR (part 307) 511 at 533; Orimoloye V the State (1984) NSCC 654; Okosi V State (1989) NWLR (part 100) 642 at 665 and Nwabueze V the State (1988) NWLR (part 86) 16 at 30, learned appellant’s counsel urges that the sole issue the appeal raises be resolved in appellant’s favour. Learned counsel to the respondent strongly supports the judgment of the court below. He refers to the findings of the trial court at pages 51 and 52 of the record and submits that the evidence that pw3 was robbed at about 9:00 pm on 1st February, 1999 and the appellant being one of the armed robbers remains uncontroverted. The court below cannot lawfully interfere with the trial court’s findings from such evidence.
Relying on the decision in Afolalu v State (2010) 16 NWLR (part 1220) 584, learned counsel argues that what is in issue here is the credibility of respondent’s witnesses which in law the appellate court is not empowered to interfere with. It is entirely within the province of the trial court to appraise evidence led by the respondent and ascribe probative value to them. The lower court can only interfere where the trial court’s decision is perverse. The court’s finding at page 126 of the record of appeal, on the appellant’s participation in the robbery is clearly attested to by respondent’s witnesses except as to whether the appellant was upstairs or not when PW3 was being robbed.
This court, learned counsel finally submits, does not usually interfere with concurrent findings of the two lower courts. He urges that the court keeps to this practice by further affirming the lower court’s decision that has not been shown to be perverse. Learned respondent’s counsel supports his submissions with the decisions in Igwe V State (1982) 9 SC (Reprint) 87; Ogbodu V State (1987) 2 NWLR (part 54) 20 at 29; Afolalu V State (supra) and Archibong V State (2004) 1 NWLR (part 855) 488 in urging that the unmeritorious appeal be dismissed.
The only issue that arises for the determination of the appeal is appellant’s first issue which clearly subsumes his 2nd issue.
Respondent’s lone issue is similar to appellant’s first too. The appeal accordingly deserves to be determined on the basis of appellant’s first issue alone.
It is trite that the law requires the respondent to prove its case against the appellant beyond reasonable doubt. This Court’s decisions in Onugbogu V the State (supra) and Morka V State (supra) restate this principle of great antiquity. The quality of evidence the respondent adduces invariably determines if that burden has been discharged. Once the burden has not been discharged, concurrent findings holding otherwise, being perverse, on review on a further appeal would be interfered with and set-aside. See Iyaro v. State (1988) 1 NWLR (Pt.69) 256; Sugh V. State (1988) 2 NWLR (pt.77) 475 and Ekwunife V. Wayne (W.A.) Ltd (1989) 5 NWLR (Pt.122) 422.
In the instant case the respondent relied on four witnesses to establish its case. It does appear that of these witnesses only one, PW3, the victim of the offences for which the appellant is convicted, testified directly.
At page 9 line 19-21 of the record of proceedings, PW1 under cross examination stated as follows:
“I was not there when the offence alleged was committed. I confirm that I was told what I told the court about the fact that the accused person committed the offence” (underlining supplied for emphasis).
With the foregoing testimony, learned appellant’s counsel cannot be wrong in his submission that PW1’s evidence being hearsay is unhelpful to the respondent. See Pharmacist Board of Nigeria V Adegbesole (1986) 5 NWLR (Part 44) 707 and Management Enterprises Ltd V Otunsanya (1987) 2 NWLR (part 55) 179.
Under cross examination, PW2, like PW1 testified as follows:-
“The 1st defendant was alone when I saw him. Apart from the fact that I saw the accused running away, I was never a witness to any robbery. “(underlining supplied for emphasis).
The foregoing makes PW2’s testimony similarly worthless.
The trial court, and correctly too, discountenanced, the evidence of PW4 that was untested.
Now, the question to answer is whether the court below is right to have affirmed the finding of the trial court on the basis of the evidence led before it that the respondent has discharged the burden of proof the law saddles it with. Put differently, has the respondent proved its case against the appellant beyond reasonable doubt I think not.
It seems to me that the crucial issue the two lower courts failed to adequately consider is if indeed the appellant was one of the persons that robbed PW3 on the 1st of February, 1999 at her residence. It is not in doubt that neither PW1 nor PW2 witnessed the commission of the very robbery the appellant has been convicted for. They were not at the scene when the robbery took place. Whether or not the appellant was a member of the gang and had participated in the robbery, only PW3 can testify to that fact. As rightly asked by learned appellant’s counsel, is PW3’s testimony devoid of doubt on this vital issue of the identity of the appellant and his participation in the robbery
I agree with learned appellant’s counsel that a careful examination of the evidence of PW3 reveals serious lacuna regarding the identity and presence of the appellant at PW3’s residence where and when the robbery took place. PW3’s evidence it is that it was appellant’s gang that robbed her on that fateful day. By her testimony, appellant was not the person who met her in the shop, pointed a gun at her and requested money from her. It is also evident from her testimony that she ceased to be composed on her being pointed a gun at by the person who approached her in the shop. She said she was “shaking” on her being pointed the gun. In the house where she was subsequently led to, it would appear, she never regained that composure. She was glaringly distressed. PW3 is ambivalent in her evidence on whether the appellant was one of the persons that went with her upstairs to retrieve some further loot. She ended up, under cross examination, stating that appellant was not one of the two that went with her upstairs to collect the remaining money she had and her jewellery. Appellant was left down stairs when the other two went upstairs with her.
Again, throughout her evidence, PW3 never described how the appellant dressed on the fateful day or the particular features that gave him out as being a member of the gang that robbed her. The robbery in her house was still ongoing when the alarm she told the court raised by PW2 forced the robbers to flee. She told the trial court that she identified the appellant as being one of those that robbed her after PW2 had raised alarm as to the presence of thieves in the vicinity and apprehended the appellant. She identified the appellant at the stake he was tied to.
The principle must be restated here that where the quality of the evidence of identification of the accused in the commission of the offence with which he is charged is poor, the accused, on the authorities, should be acquitted unless other evidence abounds in support of the identification. In the case at hand it is clear that respondent’s case depends solely on the identification of the appellant as one of those who robbed PW3. The glance PW3 had of the appellant accured under very intimidating and difficult circumstances. Respondent’s evidence on the identity of the appellant as one of the robbers, from the record, is manifestly weak. The circumstances for which respondent’s witnesses associate the appellant with the offences he has been convicted for are doubtful and suspect. The trial court should have applied caution in convicting the appellant. See Olalekan V State (2001) 18 NWLR (Part 746) 796; Abudu V State (1985) 1 NWLR (part 55; and Ajibade V State (1987) 1 NWLR (part 48) 205.
In Alabi v State (1993) 7 NWLR (part 307) 511 at 537 has stated the position thus:-
“In a case where the witness had a fleeting glance of the accused, during which he could not even identify the dress the accused was wearing, it calls for caution before the trial court could convict. It is relevant to establish how long did the witness have the accused under observation and whether the distressed condition of the witness during the commission of the crime would be an impediment to clear identification of the accused. The angle where the witness was standing during the commission of the crime, which facilitated his perception of the scene, should also be considered.” (underlining supplied for emphasis).
An impartial view of the evidence before the trial court certainly induces some doubt in appellant’s identification the benefit of which the court below in its affirmation of the trial court’s decision denied him. In Bozin V State (1985) 2 NSCC 1087 at 1091 this court held:-
“… When, as in this case, the evidence of the identity of the appellant is punctured with improbabilities and so many questions remain unanswered and unexplained, the trial court should have hesitated a lot before being satisfied and if it were in doubt, (a doubt which any impartial view of the evidence in this case should induce), it was its duty to give the benefit of that doubt to the appellant.”
See also Bashaya V State (1998) 4 SCMJ 202 and Chukwu V State (1996) 7 NWLR (part 63) 686.
Furthermore, the trial court appears to have considered appellant’s story unworthy of its attention. And the court below endorsed that stance. It is however very glaring from the record of appeal that appellant has totally denied being at the scene of the robbery or having had anything to do with the offences. He stated where he was coming from his abode, the purpose of his being to Ifo and whom he was visiting on that fateful day. He neither knew PW3 nor belonged to the gang that robbed her. Appellant said he was not at PW3’s house at the time of the robbery. He said he was arrested at the Ifo motor park by 6:00 pm and held by the people who accused him of the robbery he is convicted for. In his circumstance, the appellant is perfectly entitled to the alibi he raises. The respondent did not investigate appellant’s assertion let alone make the outcome of such investigation available to the trial court. The respondent has a duty to investigate appellant’s alibi and its failure in doing so and providing the trial court any evidence to prefer and rely on in place of appellant’s version remains fatal to its case. The trial court’s decision on appellant’s guilt in total disregard of the alibi he raises and in the absence of any evidence of rebuttal as well as the lower court’s affirmation of that decision is perverse. See Nwosisi v State (1976) 6 SC 109; Odidika v state (1977) 2 SC 21; Njovens v State (1975) 5 SC 17 and Ikemson v State (1989) 3 NWLR (Part 110) 455 at 481.
The trial court found that it is appellant’s burden to prove the truth of what he told the court. It cannot be!
The burden of proving the guilt of an accused person beyond reasonable doubt is always on the prosecution. The burden never shifts being the ultimate burden. Admittedly, evidential burden in criminal cases, being the burden of introducing, adducing or producing evidence on any particular issue at the trial court could be placed on either the prosecution or the accused depending on the issue and, where the burden is not discharged the issue can be resolved against the party. In the instant case, however, appellant has discharged the evidential burden of introducing evidence of his alibi. The onus of disproving it as well as the general one of proving appellant’s guilt beyond reasonable doubt remains that of the respondent. In the absence of any evidence of rebuttal of the alibi the appellant raises, the court below is wrong to have affirmed the trial court’s conviction of the appellant for the offences the respondent failed to establish beyond reasonable doubt. See Umani V State (1988) 1 NWLR (Pt.70) 274 at 284; Nwosisi v. State (1976) 6 SC 109 and Okosun V A.G. Bendel State (1985) 3 NWLR (part 12) 283.
Finally, this Court held in Ikemson V the State (supra), a case relied upon by the trial court which decision the court below affirmed, that it is not enough for the prosecution to prove that there was armed robbery it must further establish beyond reasonable doubt that the appellant had participated in the robbery. In the instant case the respondent cannot be said to have proved appellant’s participation in the robbery beyond reasonable doubt.
I resolve the issue raised for determination by the appellant in favour of the appellant. The appeal being meritorious is hereby allowed. The judgment of the lower court affirming the conviction of the appellant by the trial court and imposing a sentence of life imprisonment is hereby set-aside. Appellant is discharged and acquitted.
SC.48/2011