Nangi Dokubo V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment)

The Appellant, Nangi Dokubo alias Hassan, was tried and convicted by the Rivers State High Court coram Ogbuji J. for armed robbery contrary to section 1(2) (a) of the Robbery and Firearms (special provisions) Act Cap 398 Laws of the Federation 1990.

The appellant was arraigned and charged for the robbery he committed on 21st February 2002 while armed with a gun and a machete. He is said to have robbed PW3 a double 75 HP Yamaha out board Engine boat. The prosecution relied on six witnesses four of whom, PW1, PW2, PW3 and PW4, were eye witnesses while PW5 and PW6 are the investigating police officer and the doctor who treated PW3 following the injury inflicted on him by the appellant during the robbery. The appellant gave evidence in his own defence. At the end of trial the lower court decided that the prosecution had proved its case beyond reasonable doubt and convicted the appellant accordingly. Aggrieved by the conviction and sentence, the appellant has appeared against the court’s judgment dated 10th October 2006 vide his Notice of Appeal containing six grounds.

Following the order of this court, the appeal was heard on the appellant’s brief alone. The respondent though put on Notice was absent at the hearing of the appeal. The lone issue distilled in the appellant’s brief for the determination of the appeal reads:

“Whether the trial court was right to conclude by its finding that from the totality of the evidence by the prosecution it proved its case beyond reasonable doubt as required by law.”

Arguing the lone issue in the appellant’s brief which was adopted and relied upon at the hearing of the appeal, learned counsel submits that the prosecution did not prove the elements of the offence Appellant was convicted for beyond reasonable doubt as the law required. He contends that the lower court had ignored contradictions in the testimonies of the prosecution witnesses on material facts. The lapse, it is argued has occasioned miscarriage of justice, learned counsel supports his submissions with Majekodunmi v. The Queen 14 WACA 64 at 65, COP v. Adeyemi (1961) 1 All NLR (pt.2) 387 and Ejurin v. C.O.P. (1961) 1 All NLR (Pt.2) 387 and Ejurin v. C.O.P. (1961) All NLR (Pt.3) 478 at 479.

More particularly, learned appellant counsel has further argued, the prosecution witnesses neither agreed on the scene of crime nor the date the offence was committed. PW1, it is contended, never mentioned nor described the scene. PW2, PW3 and PW4, on the other hand, differ from each other as to the scene of the crime. Again, learned appellant counsel submits, whereas PWI and PW2 and PW4 told the court that the offence was committed on 2’d February 2002, PW3 in Exhibits 5 and 6 gave 1/6/2002 and 2/2/2002 respectively as the dates the crime was committed. These very witnesses also gave, as to the date they reported the case, 21212002 while Exhibit 5 the police report shows that the case was reported on 24/6/2002. The court’s resolution of these contradictions leaves much to be desired. Learned counsel submits that the prosecution witnesses who had contradicted themselves on these material points are unworthy of being believed. The court was in no position of picking and choosing whose evidence amongst these witnesses it should believe and has erred when it so did.

Convictions based on such contradictory testimonies arc liable to be set aside on appeal. Relying on Onubogu v. the State (1974) 1 All NLR (Pt. 2) 5, Ankwa v. The State (1969) 1 NLR 133, The State v. Emine (1992) 7 NWLR (Pt. 256) 658, Anka v. Lokoja (2001) 4 NWLR (Pt. 702) 178, Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 596) 96 and Okeke v. The State (1995) NWLR (Pt. 392) 678, learned Appellant submits, the lower court’s decision arrived at inspite of the contradictions in the prosecution’s witnesses on material points cannot be sustained. He urges that their lone issue be resolved against the respondent and the appeal allowed.

The submissions made by learned appellants counsel are glaringly portent and unassailable.

Firstly, it is certainly the cardinal principle of our criminal law that in all cases the burden of proving that any person is guilty of a criminal act, subject to certain exceptions, is on the prosecution. Again, the law requires that the guilt of an accused person must be proved beyond reasonable doubt and where there is any doubt as to the guilt of the accused benefit of the doubt must be given to the accused. See Onafowokan v. The State (1937) 3 NWLR (Pt. 61) 536 at 545, Onubogu v. State (supra) Okagbue v. Commissioner of Police (1965) NMLR 232 and R v. Lawrence (1932) 11 NLR 6.

Secondly, once there are inconsistencies in the evidence of the prosecution on material facts these must be resolved by the prosecution and it is not the duty of the judge to provide explanation for the inconsistencies. The judge is an independent and impartial arbiter whose duty is limited to acting on the evidence presented before him. See Mohammed v. State (1991) 5 NWLR (Pt. 192) 438, Ibrahim v. State (1991) 4 NWLR (Pt. 136) 399, State v. Emine (1992) 7 NWLR (Pt. 256) 658 v.667 and Onubogu v. State (supra).

Thirdly, learned appellant counsel is also right that in a criminal trial the prosecution is duty bound to disclose all important and material evidence and where it deliberately withholds such evidence, section 148 (d) of the evidence Act will be involved in favour of the accused person and against the prosecution. See Apayemi v. State (1985) 2 NWLR (Pt. 5) 101, and Abudu v. State (1985) 1 NWLR (Pt. 1) 55.

The question the appeal raises and requires to be answered is whether indeed there are contradictions in the testimonies of the prosecution witnesses and if there are whether the contradictions are material enough to warrant the conclusions other than the ones reached by the lower court.

An examination of the record of appeal reveals that the prosecution witnesses are neither agreed on the scene of the crime nor the date the crime was committed. The record clearly bears out learned appellant counsel that PW1 completely omitted to state where the crime occurred. At page 24 lines 2-3 of the Record of Appeal, PW2 testified that the robbery the appellant committed took place at Boro Creek. PW3, at page 29 lines 25-26 of the record told the court that the robbery took place at Ekulama Creek. PW4 said the crime took place between Ekulama and Darima. Yet all these witnesses were travelling together in one boat, the very boat they were robbed and dispossed of by the appellant and his gang. Inspite of their knowledge of the terrain, they were unable to state with precision the scene of crime.