Osaro Nomayo V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin Division or Court below or Lower Court, CORAM: Helen Moronikeji Ogunwumiju, Ayobode Olujimi Lokulo-Sodupe and Tom Shaibu Yakubu JJCA which affirmed the conviction of the appellant by the Edo State High Court.
FACTS BRIEFLY STATED
At the trial four witnesses testified for the prosecution while the appellant testified on his own behalf and called two witnesses.
On 9th March, 2004 at about 9.00pm, PW1 (Bola Akinsanya) was in her restaurant where she sold food. At the material time some of her customers and sales girls were with her. All of a sudden a vehicle stopped in front of her restaurant and three boys and a girl came out and entered her restaurant. PW1 saw a shot gun with one of the boys. The boy with the gun ordered those in the restaurant to lie down and they all obeyed. The robber with the gun, shot three times into the air. One of the robbers walked straight to PW1 and collected the sum of N19,520 from her. The robber also collected the sum of N540 from the sales girl called Kudirat.
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Some of the customers were also robbed. The armed robbers later ran away. The following day at about 6.00am PW1 went to visit and thank her neighbours who assisted her the previous night. On her way she heard shouts of “thief, thief’. She found out that the thief was caught. On getting to the scene, PW1 identified the thief with red cap and shirt he had on when she was robbed and she identified him as one of those who robbed her of her money the previous night,
The appellant was arrested and tried on five count charge of conspiracy and Armed Robbery. The Appellant was found not guilty in counts III to v of the charge as the prosecution did not lead evidence in proof of the counts but was however found guilty on counts 1 and II of the charge. On the 8th day of March, 2018 date of hearing, learned counsel for the appellant, Emmanuel Achukwu Esq. adopted the brief of the appellant filed on 21st May, 2012 and he distilled a sole issue for determination which is thus:-
Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
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Learned Solicitor General of Edo State, Oluwole O. Iyamu Esq. and counsel for the respondent adopted its brief of argument filed on 22nd October, 2014 and deemed filed on 6th May, 2015. It adopted the single issue for determination formulated by the appellant.
The sole issue is apt in the determination of this appeal and I do not hesitate in utilising it.
SOLE ISSUE
Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
Mr. Emmanuel Achukwu of counsel for the appellant contended that the decision of the learned justices of the Court below in the circumstances of this case is not correct. That the defence of alibi put forward by the appellant was not investigated and learned trial judge had not considered that fact which error the appellate Court went along with. That the conclusion of the Lower Court in view of the facts as borne out by the evidence adduced by the prosecution and defence is incorrect. That it must be borne in mind that in criminal cases especially armed robbery offences which carry death penalty, the onus is on the
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prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred to Ozaki v The State (1990) 1 NWLR (Pt.124) 92 at 115; Ikem v The State (1985) 1 NWLR (Pt.2) 378; Section 135 Evidence Act 2011; Cyracus Ogidi & Ors v. The State (2005) 1 SCNJ 67 at 85-86.
Going further, learned counsel for the appellant observed that the PW1 did not state how she was able to identify the appellant as one of the robbers that night of the incident. He cited Sunday Ndidi v The State (2007) 41 WRN 1 at 15-16; (2007) SCNJ 274 at 287-288; Ochiba v State (2011) 17 NWLR (Pt.1277) 663 at 694-695; Abudu v State (1985) 1 NWLR (Pt.1) 55.
He stated that the evidence of PW2, Mathew Idugboe, member of the neighbourhood watchmen was pure hearsay evidence without a linkage between appellant and the alleged offence. Also suffering the same fate was the evidence of PW3 and PW4, Police Officers who obtained the statement and the one who re-arrested the appellant respectively. That their evidence left a gap which made it difficult for the prosecution to establish the offence beyond reasonable doubt. He relied on Umani v The State (1988) 1 NWLR (Pt.70) 274.<br< p=””
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Mr. Achukwu of counsel for the appellant stated that when the appellant impugned the voluntariness of the purported confessional statement a trial within trial ought to have been carried out by the trial Court and that failure affected the admissibility of that statement. He cited Olayinka v The State (2007) 9 NWLR (Pt.1040) 561 at 577; The State v Salawu (2011) 18 NWLR (Pt.1279) 580 at 605-606; Ogudo v The State (2011) 18 NWLR (Pt.1278) 1 at 25.
Learned counsel for the appellant observed that the alibi raised by the appellant was not investigated and alongside the faulty confessional statement, the prosecution cannot be said to have made out its case as required by law. He referred to Eke v The State (2011) 3 NWLR (Pt.1235) 589 at 606; Shehu v The State (2010) 8 NWLR (Pt.1195) 112 at 132-134; Queen v Obiasa (1962) 1 ALL NLR 645; Almu v The State (2009) 10 NWLR (Pt.1148) 31 at 50, 53.
Responding, Mr. Iyamu, Solicitor General for the respondent stated that the prosecution proved its case beyond reasonable doubt. That there was prompt and positive identification of the appellant made by PW1, victim of the armed robbery. That the Court below rightly
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appraised the defence of alibi raised by the appellant and was satisfied that the prosecution adduced sufficient and accepted evidence which fixed the appellant at the scene of crime and at the material time and so the defence of alibi was demolished. He cited Hausa v State (1994) 6 NWLR (Pt.350) 281 at 301-302; Monday Odu v The State (2001) 10 NWLR (Pt.722) 668 at 674; Egboghonome v The State (1993) 7 NWLR (Pt.306) 383.
That the confessional statement was properly admitted. He further observed that a Court can convict on the evidence of one credible witness if believed. He cited Alli v The State (1998) 1 SC 35 at 47.
The learned counsel for the respondent observed that this is an instance where the Court being appellate will not disturb the concurrent findings of two Lower Courts as there is not perverse in the findings. He cited the case of Oguonzee v The State (1998) 4 SC 110 at 121-122.
In brief, the appellant is contending that the prosecution/respondent failed to prove the offences of conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 laws of the Federation of Nigeria 1990.
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That the standard of proof for criminal offences such as the ones in this case at hand is beyond reasonable doubt and what the respondent has put across falls short of that required standard.
The angle taken by the respondent is on the opposite direction to the effect that prosecution carried out its bouden duty to prove the offences charged against the appellant as expected and not beyond reasonable doubt.
Taking these two opposing views, it needs be said that the prosecution is not expected to prove its case with absolute certainty as absolute certainty is the prerogative and preserve of the Eternal God and beyond the realm in any human adventure of which the administration of criminal justice is one of its components. It is with that in focus at all times that the onus placed on the prosecution merely admits a high degree of probability. To state it another way is to say that what the prosecution needs do to discharge the burden of proof for a charge of conspiracy and armed robbery was to show in keeping with Section 135 Evidence Act 2011 thus:-
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(a) There was a robbery or series of robberies,
(b) The accused was one of the robbers or the robber
(c) That the accused or one of the robbers was armed.
I referred to Onafowokan v The State (1987) SCNJ 328; Ozaki v The State (1990)1 NWLR (Pt.124) 92 at 115; Ikem v State (1985) 1 NWLR (Pt.2) 378; Nwachukwu v. The State (1985) 11 NWLR (Pt.11) 218; Adeyemi v The State (1991) 1 NWLR (Pt.170) 679; Cyracus Ogidi & Ors v The State (2005) 1 SCNJ 67 at 85-86.
In proving this case, the prosecution had called four witnesses and tendered Exhibits A-C1. I shall restate excerpts from the testimonies of the witness PW1- PW4.
PW1 stated thus:-
Four of the occupants i.e. three boys and one girl came out and entered my restaurant. As they entered, they told us they were armed robbers. I was asked to lie on the ground. I saw only one boy holding a gun among them. They searched everyone in the restaurant. They took my money N19,520.00. They removed G.S.M. handsets from the customers…”
PW1 stated further as follows:-
“I saw the boy they held and I identified him with the red cap and shirt he had on as the boy who took my money in my restaurant during the robbery the
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previous night. The boy that was caught is the accused”.
Under cross-examination at pages 30 lines 5-9 PW1 stated as follows:-
“It was night when they came to rob me but there was light. I recognized the accused because of the shirt he had on, it was red and white. But I saw accused face when I faced him to give him money he demanded from me in the restaurant.”
The learned trial judge at page 63 lines 17-23 stated as follows:-
“The identification of the accused by PW1 at the scene of the early morning alarm as one of the armed robbers who robbed at her restaurant was spontaneous and unshaken as the cross-examining counsel failed to establish her error of observation rather he helped to confirm her ability of identification, Somehow she impressed me as truthful and I believe her evidence of identification of accused. I do not find it to be prompted. It was timeous with no suggestion from anyone.”
The Court of Appeal stated thus:-
“Though some doubt could have been entertained as to whether it was red cap and shirt that prompted the identification of the Appellant (in other words that PW1 was not identifying the Appellant but
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clothes he had on), such a doubt would appear to have been clarified by the answer elicited from the witness under cross-examination concerning the circumstances under which PW1 came to identify the Appellant. In this regard, PW1 under cross-examination made it clear that though she did not know the Appellant before the date of the incident which also occurred in the night, there was light when the robbers came. It was also her evidence under cross-examination to the effect that she not only identified the Appellant from his shirt he had on but that she saw the Appellant’s face when she faced him in order to give him the money he demanded from her.”
The appellant had raised issues on the impropriety of the identification of the appellant as one of the robbers and that the appellant was in no way connected with the crimes alleged.
The PW1 said she saw the boy that was held and she was able to identify him with the red cap and shirt he had on as the person who took her money at her restaurant. That even though it was night time, the light was on and she had seen his face when he demanded the money from her and she gave him.
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Added to PW1’s Evidence was that of the PW2 who stated in corrobation as follows:-
“I then saw a boy inside the very large plantation. I called the boy, he did not come to me rather he wanted to take to flight and actually ran and I started shouting thief, thief and people in the area came out and joined me in pursing the boy. We caught him. People rushed down and among them was PW1 who identified the accused as one of those who robbed them yesterday. She said the shirt he was wearing was that he wore yesterday. He was taken to Ugbekun police Station.”
The Learned Justices of Court of Appeal stated thus:-
“The Appellant has not argued that the circumstances of his identification warranted the holding of a formal identification parade. Having, regard to the position of the law concerning when a formal identification must be held during Police Investigation into a case, it is clear from the circumstances leading to the identification of the Appellant by PW1, that the holding of a formal identification parade was uncalled for. It is in considered view clear from the evidence of PW1 as elicited under cross-examination, that the identification of the appellant on the day
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immediately following that on which she was robbed, was not based solely on what encounter between the appellant and PW1. In the light of the view expressed above, I am therefore in total agreement with Lower Court when it said at pages 63 of the Record to the effect that PW1 was unshaken during cross-examination and that Appellant’s counsel failed to establish any error of observation on the part of PW1 rather; that learned counsel helped to confirm her ability of identification.”
It has to be reiterated that it is not in all instances that an identification parade is a necessity as in this case at hand where PW1 made a prompt identification of the appellant when he was caught immediately after the incident after the shout of thief, thief early hours of the morning of the following day. The spontaneity of PW1’s reaction on seeing appellant when he was accosted made further identification parade unnecessary. My learned brother Ariwoola JSC had shown the way aptly even for this purpose in the case of Folorunsho Alufohai v The State (2014) LPELR-24215 at pages 25-26 thus:-
“I am not in the slightest doubt that the appellant
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was properly identified by the victims and there was no need for any formal identification parade any longer.”
In Mathew Orimoloye v The State (1984) 10 SC 138, this Court in case almost in all fours had stated as follows:-
“It is not in every case that parade is necessary to identify culprits. The appellant was identified by PW1 as soon as the latter saw him at the Police Satiation and even before he was asked to identify him.”
In the same case, this Court went further as follows:-
“It is necessary to point out that the spontaneous reaction towards the recognition of the appellant in respect of the offence committed 6 hours earlier is a more acceptable identification of the appellant than a programmed identification”.
“In the same case at hand, it was clear from the evidence that the victims -PW3 and her late husband did not go to the Police Station for purpose of identifying the appellant. They merely went to lodge complaint to the police of the attack on their family. In the result, the appellant was properly identified by PW1 and PW3, hence identification parade was rightly dispensed with by the Police. It was not necessary any longer.”
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The case of Alufohai v State (Supra) was a reiteration of earlier decisions of this Court such as Mathew Orinmoloye v The State (1984) 10 SC 134 at 139-140 per ESO JSC; Olabowale Aderemi v The State (1984) 11 SC 56.
The appellant is at this stage raising the defence of alibi, just as he did at the Court of Appeal even though it did not come up at the trial. The Court below had considered the alibi since it was a defence open to the appellant even if not brought up by him. The learned justices of the Lower Court stated as follows:-
“It would therefore appear clear, that despite the Lower Court having stated that the Appellant did not put forward any defence for consideration, the said Court still arrived at a right conclusion that “His presence at the scene where he was caught has not been explained by the accused neither has (sic) his where about at the time of commission of the crime” against the backdrop of the evidence of identification on Record.”
The Court of Appeal went on further to say thus:-
“The defence of alibi which the Appellant testified to is that he slept in the same house with his brother, Friday on 9th March, 2004. This fact was confirmed
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by DW2. The armed robbery the Appellant is alleged to have committed and which he was convicted was stated to have occurred at about 9:45pm on 9th March, 2004 and PW1 testified in this regard. The fact that the appellant testified that he slept at home on 9th March, 2004, and DW2 confirmed this, certainly does not explain his movement as at the time of the commission of the offence and at the venue of his arrest 10th March, 2004; in the absence of evidence that he was at home throughout 9th March, 2004, and/or at home as at the time the offence he was convicted of was committed. Also in the absence of evidence from the Appellant that he was elsewhere as at the time he was apprehended by PW2, he cannot be said to have set up an alibi which rendered doubtful the evidence of PW2 that the Appellant was apprehended somewhere close to her restaurant. It would therefore appear clear that despite the Lower Court having stated that the Appellant did not put forward any defence for consideration, the said Court still arrived at a right conclusion that “His presence at the scene where he was caught has not been explained by the accused neither has his where
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about at the time of the commission of the crime against the backdrop of the evidence of identification on record.”
Following in the path laid out by this Court and followed in numerous judicial decisions, I would restate that the principles guiding the use of alibi as a defence open to an accused such as the appellant herein is not an automatic exculpatory defence such that once raised, the accused gets off. The reasons are that an alibi must be put across timeously or at the first opportunity with details for the prosecution or the police to investigate to confirm the truth thereof or that the alibi did not hold water.
However, that an alibi was raised by an accused and not investigated does not translate to the alibi’s acceptance as gospel if the evidence adduced by the prosecution at the trial effectively fixed or apprehended the accused at the scene of crime at the material time. When that happens the alibi is demolished or destroyed and becomes ineffectual or of no use.
I shall refer in support to the case of Monday Odu v. The State (2001) 10 NWLR (Pt.722) 668 at 674 per Mohammed JSC as follows:-
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“…Although there are occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. I do not have to repeat what this Court had said in several decisions, but the onus of establishing alibi, being a matter within the personal knowledge of an accused lies on him. It is not enough for the accused to say to the Court that I was at a particular place away from the scene of crime, he has to prove his assertion. Even if the police have failed to investigate such assertion, the accused has the onus of adducing evidence on which he relies for his defence of alibi. The issue of the defence of alibi has failed.”
See alsoHausa v State (1994) 6 NWLR (Pt.350) 281 at 301-302.
The Court below had held on the point in the light of the materials before them thus:-
“In the judgment on appeal, the Lower Court clearly found the evidence of identification adduced through PW1 (and which identification PW2 confirmed PW1 as having done immediately she set her eyes on the appellant) and confessional
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statements of the Appellant as proving the case against the Appellant beyond reasonable doubt. The position of the law no doubt is that a properly admitted confessional statement is part of the evidence adduced by the prosecution in the proof of its case.”
See Egboghonome v State (1993) 7 NWLR (Pt.306) 383.
The learned Justices of the Court of Appeal had found the confessional statement of the appellant as properly admitted and thereby formed part of the prosecutions case. The appellant had contended that the statement was obtained under duress and in the absence of a trial within trial, the statement should be jettisioned as inadmissible.
Indeed this challenge on the confessional statement in coming at this stage, too late in the day and the two Courts below saw nothing on which there could hinged the inadmissibility thereof and so the confessional statement strolled in un-confronted and properly before Court. However assuming even there was no confession from the appellant, it has to be further repeated that one credible witness if believed is enough to secure a conviction and in this case at hand the evidence of PW1 alone is sufficient,
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then buttressed by that of PW2 with the surrounding circumstances are right on point. Therefore there is no need for more witnesses and between PW1 and PW2’s testimonies there is sufficient material for the trial Court since truth is not discovered by number and preponderance of witnesses who testified on one side, rather it is by the credibility of the witnesses no matter how few. See Alli v The State (1998) 1 SC 35 at 47 (SC).
Also to be said is that the Court below was right to affirm the decision of the trial Court believing the evidence of PW1 which affixed the appellant to the scene of the robbery of 9th March, 2004 and added to the confessional statement of the appellant which tallied with the evidence of PW1 as one out of the others and appellant was armed with a gun.
Indeed this appeal being against concurrent findings of facts and conclusion of two Lower Courts cannot be disturbed off hand being findings that did not arise from perversity and so rendering no basis for the interference by this Court. This is the law and practice and in the light of the findings stemming from solid evidence based on the law this Court cannot interfere or disturb the findings
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and the ensuing conclusion.
See Oguonzee v State (1998) 4 SC 110 at 121-122 per Iguh JSC and I shall for effect quote my Lord Iguh at pages 124 ofOguonzee v State (Supra) thus:-
“It is clear from the above findings of the Court of Appeal that this is a clear case of concurrent findings of facts by both the trial Court and Court of Appeal. In this regard, the law is well settled that where there are concurrent findings of fact by both the trial Court and Court of Appeal, again whether in a civil or criminal proceedings, then unless those findings are:-
(1) found to be perverse: or
(2) not supported by the evidence; or
(3) reached as a result of a wronged application of principle of substantive law or procedure:
This Court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See Enang v Adu (1981) 11-12 SC 25 at 42; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Igwego v Ezeugo (1992) 6 NWLR (Pt.249) 561 etc. Accordingly, this Court will not disturb concurrent findings of fact of both the High Court and the Court of Appeal unless a substantial error apparent on the face of the record
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of proceedings is shown or where an appellant establishes a special circumstance to warrant the reversal of such concurrent findings. See too Sobakin v The State (1981) 5 SC 75; Ige v Olunloyo (1984) 1 SCNLR 158; Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524 at 548.”
The Court of Appeal had made the following conclusion:-
“At the conclusion of the exercise, the Lower Court found that the Appellant had the opportunity of committing the offence for which he has been charged and that the confession of the Appellant is possible and ascertainable from the evidence of PWs 1 and 2. I cannot agree more with the Lower Court. It is thus apparent that the Lower Court in its judgment had sufficient evidence adduced by the prosecution and which it accepted fixing the appellant at the scene of the armed robbery involving PW1. In the circumstance, the non-investigation of the alibi of the Appellant as urged by him was not fatal in the instant case.”
From what is stated above not only did the prosecution carry out its duty of establishing the essential ingredients of the offences of conspiracy to commit armed robbery and armed robber, the two Courts below found
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that as done in keeping with the stipulations of Section 135 (1) &(2) of Evidence Act, 2011. On my own part I see the decision well cut out for me and that is to hold that the two concurrent findings have no ground upon which they and the conclusion thereat reached to be disturbed or upset.
The follow up conclusion is that this appeal has no merit and I have no hesitation in dismissing it. I affirm the decision of the Court of Appeal in its affirmation of the judgment, conviction and sentence of the appellant.
Appeal is dismissed.
SC.169/2013