Patrick Ikemson & Ors Vs The State (1989)
LawGlobal-Hub Lead Judgment Report
On the 9th of December, 1982, one Emmanuel Abaraoha, a cashier with the National Trucks Manufacturers Ltd., Kano, was returning to the company’s factory from various banks where he collected the total sum of N10.507.00 on behalf of the company. He was sitting at the back seat of a car, of FIAT make driven by Sani Abdullahi. Emmanuel Abaraoha and Sani Abaullahi were the P.W.1 and P.W.2 respectively at the trial Court.
The vehicle was negotiating a ramp just at the junction to the factory, when the first accused ordered the vehicle to stop and drew out a gun. In no time he shot at P.W.1 injuring him at the back of the shoulder. In the meantime, the P. W.2 was also attacked and shot at both thighs; the shooting could be by first appellant or by the second accused at the trial, Samuel Nwogu (alias G.O.C.) who was discharged at the Court of Appeal.
By the time Patrick Ikemson (1st appellant) accosted the P.W.1, the path of the car had been blocked with a motor cycle riden by two of the attackers, Anthony Odeh (2nd appellant) and Ikechukwu Uzochukwu (3rd appellant). The P.W.1 and P.W.2 were dragged out of the car and the robbers made away with it, leaving their motor cycle at the scene. The P.W.1 must have passed out by the time the robbers made their escape from the scene because he came round only at the hospital.
Meanwhile, a prompt report of the armed brigandage had got to the Police Post at Zaria Road and a chase was immediately set in motion. A few hundred meters away at the junction of the road leading to Maiduguri, the vehicle snatched was sited. About four persons were inside and three of them got out of the car leaving Ikechukwu Uzochukwu (3rd appellant) inside. Seeing the policemen, he also got out of the car and took to his heels. He was pursued and finally apprehended. The whole incident took place in broad daylight. As a result of the voluntary statement by this 3rd appellant, the police arrested the first appellant at his house. Later the second appellant was also arrested. The P.W.1 was sure he was shot at by the first appellant because he could vividly remember him by his complexion and beard. The 3rd appellant was arrested after he abandoned the snatched car and attempted to escape. The P.W.2 could recognise the second appellant as one of the two robbers that blocked the path of the car with a motor cycle. The four accused were found guilty at the High Court, convicted and sentenced to death. They appealed to the Court of Appeal where the 2nd accused, Samuel Nwogu (alias G.O.C.) was discharged and conviction and sentence passed on the three appellants now before us were affirmed.
The appellants raised some issues for determination based on their grounds of appeal and they could be summarised as follows:
- Was the identification of the appellants in accordance with the law
- Because there were contradictions in the evidence of prosecution witnesses, was the Court right in convicting the appellants on such evidence
- Was the discharge of Samuel Nwogu (alias G.O.C.) by the Court of Appeal not sufficient ground for the discharge of the present appellants
- Because the prosecution never called witnesses, could this Court not exercise its powers under S.26(1) Supreme Court Act
The three appellants filed identical grounds, on general ground of appeal and on the contradictions of the evidence of the prosecution witnesses.
I will deal first with the alleged contradictions. The onus always in a criminal offence is for the prosecution to prove beyond reasonable doubt the guilt of the accused and failure so to do, will automatically lead to the discharge of the accused person. Onubogu v. The State (1974) 9 S.C.1; Stephen v. The State (1986) 5 N.W.L.R. (Pt.46) 918. If there are contradictions in the evidence of the prosecution, and the contradictions go materially to the charge, doubt will be created and benefit of it must be given the accused person, in which case he will be discharged.
The question in the instant case is whether there was a robbery. If there was one, the next question is whether any of the appellants participated in the robbery. If they participated, that is enough, for it does not matter what each one did in furtherance of the commission of the crime. The mere fact of common object to commit armed robbery and manifesting at the scene of crime to execute that object in law rendered all the appellants guilty of the offence of armed robbery.
The P.W.1 was certain that it was the first appellant that ordered the car to stop and fired the gun that injured him. The P.W.2 was certain he saw the 2nd and 3rd appellants on a motor cycle used by them to obstruct his path and he was shot in the thighs by the 2nd accused person who got discharged at the trial. There was conflict in the evidence as to who fired the shots that injured the P.W.2; but there was clear evidence that the three appellants were at the scene of the crime in furtherance of their common object.
The material evidence is that they were present; it does not matter if the victims could not vividly remember the part played by each accused person. The 3rd appellant was the only one that could not get away and he was seen getting out of the vehicle snatched at the scene of the crime a few minutes after the crime and a few yards from the scene of crime.
He was also identified by the P.W.2 as one of the two persons on the motor cycle blocking the path of the car. The P.W.1 was certain it was the first appellant that fired the shot that injured him; he was also sure that the 2nd accused (discharged at the Court of Appeal), shot at the P.W.2. There is hardly any contradiction. The accused persons were convicted not for merely firing gun shots at their victims, but mainly for the offence of armed robbery.
All those who participated in the robbery are guilty whether they fired guns, or blocked the road with motor cycle or drove away from the scene of crime, the motor vehicle snatched.
The accused persons also raised alibi; that they never committed the offence they were charged with, because they were somewhere else when the offence was being committed. Once alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi to find out if it is true the accused was not at the scene of the crime when the crime was being committed; or to rebut the alibi if it was false. Adio v. The State (1986) 3 N.W.L.R. (Pt.31) 714; Onafowokan v. The State (1987) 3 N.W.L.R. (Pt.61) 538. It is however, not enough for the accused just to say he was not at the scene, he must give sufficient particulars as to his whereabouts for the prosecution to investigate. Yanor v. The State (1965) 1 All N.L.R. 193; Okosi v. The State (1989) 1 N.W.L.R. (Pt. 100) 642.
It is a serious matter for a person to be charged for an offence he has not committed the more so if the person being charged was somewhere away from the scene of the crime now in issue. It is for this simple reason that an accused in such predicament should and is expected to at the earliest opportunity protest his innocence by intimating the police who are interrogating him of his whereabouts.
To make statements voluntarily admitting presence at locus delicti and to turn round when giving evidence in Court and raise an alibi pre-supposes untruthfulness on the part of the accused person. In such a case, the police have not been given the opportunity to investigate the alibi.
The first appellant never indicated he had an alibi except when he gave evidence in Court and all he said was that he was at the Area Court, Gwagwarwa, where he stood surety for somebody but that he could not remember the name of the person he stood surety for.
This to my mind was of no help and there was no burden on the police to investigate. Gachi v. The State (1965) N.M.L.R. 333. However incredible an alibi, it should not be disregarded unless there is overwhelming evidence against it, e.g. having regard to the failure of the accused to supply particulars of his whereabouts. Nwosisi v. The State (1976) 6 S.C. 109.
The other matter raised is as to the confessions of the appellants based on the voluntary statements, made by them. The police officer Zakaria Kutse, took the statement of the first appellant, Patrick Ikemson after he cautioned him in line with the Criminal Procedure Code (Statement to Police Officers) Rules, Cap. 30 Laws of Northern Nigeria 1963 (applicable to Kano State). When it was tendered there was no objection and it was admitted as Exhibit 4 and the statement inter alia reads as follows:
“They told me that they are going to Fiat Company along Zaria Road Kana for the operation. Sunday then told them the rest to enter taxi and go and wait for them. Sunday then carry Raphael on the machine 195 (Honda),” (italics mine)
Further he said:
“At 12.30 hours I went to Fiat Company again with Jonathan and met all of them, Sunday and Raphael were on the machine, Sunday told me that they have not yet come……I saw Fedelis driving the car one Fiat 131 white in colour. Inside the fiat car I saw Sunday, Fedelis, Raphael, Ike and Monday……..Fedelis then told me that the Fiat car which they robbed from a staff of the Fiat Company broke down ………Suspects named above were carried by me in my car I saw Sunday carrying……..cloth containing gun they used for the operation”,
Similarly, Ikechukwu Uzochukwu made a voluntary statement admitted as Exhibit 5. It was only in the witness box that these statements were being retracted by the accused persons. Once a statement complies with the law and rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it was admitted as an exhibit, then it is a good evidence and no amount of retraction will vitiate its admission as a voluntary statement.
It is a different matter from a statement objected to ab initio during trial where voluntariness is challenged; in such a case there will be trial within trial to decide its voluntariness, similarly, this is a different matter from where the accused admits at the time a statement is sought to be tendered that though he signed the statement, he did so not voluntarily but under some undue influence or duress, in which case the Court would weigh the credibility to be all ached to such statement. In the instant case, there was hardly any objection to the statements and the Court of Appeal rightly rejected attack on the statements.
The unfortunate feature of this case is the discharge of the 2nd accused, Samuel Nwogu (alias G.O.C.), whose role in the robbery is so clear from eye witnesses’ accounts, i.e. P.W.1 and P.W.2. The State never cross-appealed. Similarly, the manner where further investigation seemed to have been stopped in its track in a case that could lead to further disclosures is regrettable. One Sunday, whose name kept on recurring and alleged to be once in the Mobile Police Force, sank in a maze of non-charlance, just as the sub-machine gun used was not further investigated.
This appeal, for the reasons advanced in the preceding paragraphs above, has no merit and I hereby dismiss it and affirm the decision of the Court of Appeal, which upheld the conviction and sentence passed by the trial court on the appellants.
NNAMANI, J.S.C., I had before now read in draft the judgment read by my learned brother, Belgore, J.S.C. I entirely agree with his reasoning and conclusions.
The facts of this case were so conclusive that I see no ground on which the judgment of the learned trial judge, which was confirmed by the Court of Appeal could be faulted. This was a brazen day-light robbery and the victims of it. P.W.1 and P.W.2 were positive in their account of the robbery and those who took part in it.
The three areas in which this judgment was attacked were:
(1) that the 2nd accused having been discharged, the other accused persons ought to have been equally discharged. All that one can say is that the 2nd accused person must count himself lucky that the State did not appeal against the decision of the Court of Appeal to discharge him allegedly on the so-called inconsistency between the testimonies of P.W.1 and P.W.2. The issue appears to have centred on who shot the P.W.2; while P.W.1 said it was 1st accused, P.W.2 said it was 2nd accused. I would not have considered this a material contradiction. These discrepancies are to be expected in an account by two persons of a traumatic event as an armed robbery. The fact is both P.W.1 and P.W.2 received gun shot wounds, P.W.2 on his thigh. Both 1st and 2nd accused were shown to have been at the scene of the robbery, the 1st accused was the person who had the gun, while the 2nd and 3rd accused were on the motor cycle with which the robbed vehicle was blocked.
(ii) It was contended that the confessional statements of the appellants were not voluntarily made. This was a most misconceived complaint. Each statement was tendered in evidence at the trial without objection by counsel representing the appellants. It was at the point of tendering the statement that the question of voluntariness would have been tested.
(iii) It was also contended that some of the appellants, particularly the first, had a defence of alibi. Here again this defence was misconceived. Such a defence could have been raised at the earliest opportunity. The prosecution if given sufficient particulars would have been obliged to investigate the alibi. The trial Judge would then weigh such evidence of alibi against the evidence proferred by the prosecution. Any doubt in his mind would have enured to the benefit of the accused person. Instead, in the instant case the evidence of the so-called alibi was given in the witness box at the trial. Besides, particularly in the case of the 1st appellant, the particulars were so vague – he did not even know the name of the person he allegedly went on the day of the incident to bail
One significant aspect of this case that must be constantly kept in view is that the process of catching the appellants started with the arrest of the 3rd appellant. He was the person seen by P.W.3 driving the robbed vehicle. On seeing the Police, he took to his heels. He was chased by Police and caught. He gave details that led to the arrest of the other appellants. Indeed one of those appellants mentioned was 1st appellant. On searching 1st appellant’s house, the Police recovered one of the mirrors of the motor cycle used in the robbery from his vehicle.
In all these circumstances, this appeal lacks merit. For these reasons and the more detailed reasons in the lead judgment, I also dismiss it.
Other Citation: (1988) LCN/2399(SC)