Saleh Dawai V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division delivered on 8th March, 2013 wherein the Lower Court dismissed the appeal of the Appellant and affirmed the decision of the trial High Court which convicted and sentenced the Appellant to 14 years imprisonment for the offence of Armed Robbery contrary to Section 2 (1) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria 1990.

A brief facts of the case are that on the 31st day of January 2004, at Kachia in Kaduna State, the Appellant was alleged to have forcefully entered the residence of one Alhaji Maharazi Saidu while armed with a locally made pistol and robbed the said victim of the sum of N500,000= (five hundred thousand naira) only.

At the trial, the prosecution called four witnesses and tendered one exhibit to prove the charge against the Appellant while the Appellant gave evidence in his defence.

After the conclusion of the trial, the learned trial Judge convicted the Appellant for committing the offence of armed robbery and was

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accordingly sentenced to 14 years imprisonment.

Dissatisfied with the decision of the Learned trial judge, the Appellant filed an appeal at the Court of Appeal, Kaduna which dismissed the appeal for lacking in merit.

Being further dissatisfied with the judgment of the Lower Court, the Appellant has again, appealed to this Court. Notice of Appeal was filed on 5th April, 2013 which has two grounds of appeal. Out of the two grounds of appeal, the Appellant has formulated two issues for the determination of this appeal.

On 28th September, 2017 when this appeal was heard, the learned counsel for the Appellant, Tajudeen O. Oladoja, Esq., identified and adopted the brief of the Appellant which was filed on the 5th of September, 2013. The two issues are contained on page 4 of the said brief as follows: –

1. Whether the prosecution proved the case at the trial Court beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the Appellant by the Court of Appeal.
2. Whether in the circumstances of this case, it was not imperative to conduct an identification parade in order to ascertain whether the Appellant was part of

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the Armed Robbery gang who robbed PW1.

Also, in the Respondent’s brief settled by Sakinatu Hassan Idris, Esq., and filed on the 16th day of September 2013, only one issue is donated for the determination of this appeal which states: –

“Whether the Court below was right to have affirmed the conviction and sentence of the Appellant for the offence of armed robbery.”

Bearing in mind the issues that were ventilated at the Court below and the judgment generated therefrom, it is my view that the lone issue donated by the Respondent can adequately determine this appeal, afterall the two issues formulated by the Appellant are clearly subsumed in the Respondent’s sole issue. I shall therefore determine this appeal on the sole issue as distilled by the Respondent.

The learned counsel for the Appellant submitted that the burden of proving that any person has committed a crime rests on the prosecution, and that in discharging this burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. He opined that should a Court be in doubt having regard to the whole gamut of evidence before it, the prosecution would have

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failed to discharge the burden of proof which the law lays upon it and the accused will be entitled to an acquittal, relying on the cases of Uzoka v. FRN (2010) 2 NWLR (pt. 1177) 118, Jua v. State (2010) 4 NWLR (pt. 1184) 217, Gabriel v. The State (2010) 6 NWLR (pt. 1190) 280, Miller v Minister of Pensions (1974) 2 All E R 372.

As to what constitutes armed robbery under Section 2 (1) of the Robbery and Firearms (Special Provisions) Act (supra) learned counsel referred to the cases of Bello v. The State (2007) 10 NWLR (pt. 1043) 564 and Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561.

Referring to the evidence of PW1, learned counsel submitted that where an eye witness to an incident claimed to have suspected a specific person, but failed to mention the name of such person to the police at the earliest opportunity, the Court will not ascribe any credibility to his evidence, relying on Abdullahi v. The State (2008) 5 SCNJ 197 at 205 – 206.

Learned counsel further submitted that the failure of the PW1 to describe the clothes which the Appellant wore at the scene of crime is fatal to the prosecution’s case, citing Udeh v. The State (1999) 7 NWLR

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(pt. 609) 1 and Wakala v. The State (1991) 8 NWLR (pt. 211) 552.

It is his further submission that the offence for which the Appellant was charged was not proved beyond reasonable doubt in that the evidence of the prosecution witnesses are full of material contradictions, though the learned counsel did not point out even one of such contradictions.

He submitted further that exhibit A does not qualify as a confessional statement in that it was not direct, positive and properly made in law. That the burden of proving affirmatively that the confession was made voluntarily lies with the prosecution, citing the case Isiaka Auta v. The State (1975) NMLR 60 at 65 amongst others. On the test to be applied to a confessional statement, he cited the case of R. V. Sykes (1913) 8 CR App. R 233.

Learned counsel wanted to make submission on issue of alibi but could not make it through. He then urged the Court to resolve this issue in favour of the Appellant.

On the 2nd issue he submitted that the question begging for an answer is whether the evidence of PW1 regarding the recognition of the Appellant as the person who robbed him of his money has the potency

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superimposed on it by both the trial Court and the Court of Appeal. He opined that identification parade was necessary in the circumstance, citing Ani v. The State (2009) 6 MJSC (pt. 11) 1.

It is his view that the circumstantial evidence relied upon by the trial Court to convict the Appellant is not sufficient and same does not satisfy the ingredients required by law to entitle the Court to hold that the Appellant is guilty of the offence charged. He opined that having regard to the evidence of PW2 and PW3 it cannot be safely concluded that the Appellant was the robber or one of the robbers.

It is his view that identification parade was necessary in this case, relying on the case of Alabi v. The State (1993) 7 NWLR (pt. 307) 511. That failure to conduct identification parade was fatal to the prosecution’s case. He urged the Court to resolve this issue in favour of the appellant.

In response, the learned counsel for the Respondent agrees with the appellant that the burden of proof in criminal cases lies with the prosecution. That from the evidence of the prosecution witnesses, it is crystal clear that armed robbers broke into the house of PW1

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about 31st January 2004 and robbed him of money amounting to about N500,000. Reviewing the evidence of the PW1 in this case, learned counsel submitted that the PW1 clearly identified the Appellant as one of the robbers since he had seen him in his shop a day before the incident. He specifically referred to the contact the Appellant had with PW1 in relation to issue of charm against armed robbery attack and the Appellant’s 2nd visit two weeks after the robbery attack and asked him if anything happened to him.

It is the submission of the learned counsel that with these interactions, it is beyond doubt that the PW1 identified the Appellant as one of the robbers. He opined that the PW1 testified that he removed the money from under his bed and gave to the robbers and the Appellant in his confessional statement also said that the PW1 took the money from under his bed and gave to them. Learned counsel urged this Court to affirm that the Court below was right to uphold the conviction of the appellant.

It is his further submission that even if the confessional statement was the only evidence before the Court, it was sufficient to convict the Appellant,

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relying on the case of Yahaya v. The State (1986) 12 SC 282.

On the defence put up by the Appellant, learned counsel for the Respondent, submitted that apart from stating that he did not commit the offence and that he did not confess to committing the offence, he did not say anything to contradict the overwhelming evidence put forward by the prosecution. He urged the Court to resolve this issue against the Appellant.

The law is trite and well established that in criminal proceedings, the onus lies on the prosecution to prove and/or establish the guilt of an accused person beyond reasonable doubt. To be able to achieve this, the prosecution must ensure that all necessary and vital ingredients of the charge are proved by evidence. By Section 135 of the Evidence Act, 2011, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. This proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which

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is consistent with a high degree of probability. See Fabian Nwaturuocha v. The State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (pt. 1242) 170, Osuagwu v. State (2013) LPELR – 19823 (SC), Adekoya v. The State (2017) LPELR – 41564 (SC), Oseni v. The State (2012) LPELR – 7833 (SC), (2012) 5 NWLR (Pt 1293) 351.

By Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990, armed robbery takes place where at the time of the robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed at or immediately before or immediately after the robbery, and the said offender wounds or uses any personal violence to any person. The essential ingredients of the offence of armed robbery which prosecution must prove beyond reasonable doubt to secure the conviction of an accused person include the following: –

1. that there was indeed a robbery or series of robberies;
2. that the robbers were armed with dangerous weapons; and
3. that the accused person was the robber or one of the robbers. See Afolalu v. The State (2010) 16 NWLR (pt. 1220) 584, Emeka v. The State (2014) LPELR – 23020 (SC), (2014) 13

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NWLR (pt. 1425) 614, Musa Ikaria v. The State (2012) LPELR – 15533 (SC) (2014) 1 NWLR (pt. 1389) 639, Agugua v. The State (2017) LPELR – 42021 (SC).

In order to establish or prove the above ingredients of the offence of armed robbery, the prosecution’s evidence may flow from any of the following ways: –

(i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence.

(ii) By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged.

(iii) By direct evidence of eye witnesses who actually saw the accused committing the offence.

In the instant case, the prosecution relied both on the direct evidence of prosecution witnesses especially PW1 and the confessional statement of the Appellant to prove the charge of armed robbery against the Appellant. On page 160 of the record of appeal, the Lower Court states this much as follows:-

“It is manifestly clear from their snippets of evidence which when clustered together tend to establish the fact that the Appellant was part of the gang of

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armed men that attacked PW1 in his premises.

The appellant in his confessional statement, contained in exhibit A categorically admitted partaking in the said armed robbery that took place in PW1’s premises. The admissibility of the said Exhibit A was neither objected to by the learned counsel to the Appellant when it was sought to be tendered at the Lower Court. See page 18. Similarly, PW1 had in the course of his examination also stated that the Appellant had admitted before the D.P.O. at Kachia Police Station that he was part of the gang of armed robbers attacked (sic) his premises. The said witness had in page 13 of the record stated thus:

“The DPO asked me to ask the accused question. I then ask the accused that he gave me a charm to protect me from armed robbery but I never rob why Accused then said he cheated me. He said himself and four were the people that robbed me. He said himself, Yau, Wada, Manu and Sani.”

It could be deduced from the testimony of the PW1 that the Appellant had orally confessed to the commissioning of the offence for which he was convicted. It is also imperative to note that the testimony of PW1 had neither been

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controverted nor contradicted by the Appellant his (sic) defence.”

From all that have been said above by the Lower Court, there is no appeal against any. The PW1 alleged before the trial Court that the appellant visited him a day before the robbery attack and gave him charm against armed robbery attack. After the robbery attack the Appellant went back to the PW1 to find out if he was attacked. At the Police Station, before the Divisional Police Officer, the PW1 asked the Appellant why the charm did not work and the appellant replied that he cheated him. It is this same Appellant that the PW1 told the trial Court that he tried to cover his face when he was leading other robbers to his wife’s room. He recognized him. The Appellant told the police in exhibit A that he and others were the robbers who robbed the PW1. He also admitted same before the DPO as contained in the evidence of PW1. There is no doubt that since the Appellant did not appeal against the above findings, he is deemed to have admitted them, moreso, as he did not object against the admission of Exhibit A, his confessional statement at the Trial Court. There is, in law, a legal principle

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commonly referred to as admission by conduct. The law is that when a clear and direct accusation is made against a person, in his presence, in circumstances which should warrant instant denial, refutation, or protest from him and he does not deny, refute or protest against the making of the accusation, evidence of such could be given against him as evidence of admission by conduct. See Udo v. R (1964) 1 All NLR 21 at 23, Utteh v. The State (1992) 2 NWLR (pt. 223) 257, Fred Dapere Gira v. The State (1996) LPELR – 1322 (SC), (1996) 4 NWLR (pt. 443) 375.

It follows also that where a Court has made a finding of fact or pronouncement on an issue and a party affected by such finding or pronouncement fails to challenge such finding by an appeal, he is deemed to have admitted or accepted such pronouncement as proper. Thus, the Appellant herein is deemed to have admitted before the DPO that he and Yau, Wada, Manu and Sani were the robbers who attacked the PW1 in his house. The reason is that both at the trial Court and the Court of Appeal, this issue was raised, decided upon and affirmed on appeal and he (the appellant) did not raise any objection. Moreso, when

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Exhibit A was admitted at the trial Court the Appellant did not raise any objection.

It is alleged that the Appellant raised a defence of alibi which the trial Court failed to consider. The said alibi was made by the Appellant in his evidence in chief in Court. The evidence is short on page 21 of the record. I shall reproduce it as follows: –

“My name is Saleh Dawai, I leave (sic) at Saminaka, I am a farmer and a cattle rearer. I know PW1 on 31st January, 2004. I was in my house. I do not know anything nor aware of the allegation against me. The testimony of PW4 is false as I did not make any confessional statement at the Nigeria Police Station, Kachia in respect of this case. It is true that PW1 knew me DW1 came to me through his brother, I admitted in my statement because I was intimidated and tortured. I have two wives and five children.”

Alibi is a Latin word meaning “elsewhere.” It is a plea raised by a person accused of committing an offence that by the time the offence was alleged to have been committed, he was elsewhere. Thus, having regard to the time and place where and where he is alleged to have committed the offence, he could not

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have been present. It indeed postulates the physical impossibility of the presence of the accused at the scene of crime at the time the offence was committed because of his presence at another place. See Iheonunekwu Ndukwe v. The State (2009) LPELR – 1979 (SC), (2009) 7 NWLR (pt. 1139) 43, Ozaki & Anor v. The State (1990) 1 SC. P.109, (1990) 1 NWLR (pt. 124) P.92.

On when should the defence of alibi be raised, it is settled law that for the defence of alibi to be properly raised, it must be raised at the earliest opportunity when the accused person is confronted by the police with the commission of an offence so that the police will be in a position to investigate the alibi. See Sunday Ehimiyein v. The State (2016) LPELR – 40841 (SC), Eyisi v. The State (2000) 15 NWLR (pt. 691) 555 at 596, Salami v. The State (1998) 3 NWLR (pt. 85) 670 at 677. The Appellant raised this alibi in Court while stating his defence. This defence, in my opinion was brought up too late as he ought to have raised it at the earliest opportunity in order to give the prosecution the opportunity to investigate same. Failure to raise the defence timeously, renders the defence of

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alibi a non-starter. See Ehimiyein v. State (supra).

Be that as it may, a defence of alibi crumbles completely in the face of compelling evidence to the contrary that fixes the accused person at the scene of crime. That is to say, if the prosecution can lead a strong and positive evidence which fixes the accused person at the scene of crime and which evidence the Court accepts, any plea of alibi by the accused, naturally collapses. See Kolade v. The State (2017) LPELR – 42362 (SC), Adeyemi v. The State (2017) LPELR – 42584 (SC).

In the instant case, the Appellant was clearly fixed at the scene of crime at the time of the robbery incident by PW1. His belated defence of alibi has no basis whatsoever. I agree with the Court below that the trial Court was right to reject the defence.

From all I have said above, I am on a strong wicket to agree with the Court below that the prosecution proved the charge of armed robbery against the Appellant beyond reasonable doubt. Accordingly, this appeal is devoid of any merit at all. The appeal is hereby dismissed by me. The judgment of the Court of Appeal which affirmed the conviction and sentence of the Apellant is hereby upheld.

SC.459/2013