Sani Lawali V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The appellant, convicted by the High Court of Sokoto State (Coram: D. B. Sambo, J) for the robbery while armed with dangerous weapon, and for culpable homicide punishable with death, was sentenced to death. His conviction and sentence were upon his appeal, affirmed by the Court of Appeal, Sokoto division on 16th February, 2017. He has further appealed to this Court on four (4) grounds of appeal all which are grounds or complaints of pure facts. Three of the grounds, that is grounds 2, 3, 8, 4, were though prefaced as errors in law. In actuality, they are complaints of fact. The right of appellant to appeal as of right on the 4 grounds complaining on facts is secured by Section 233 (2) (d) of the Constitution, the Court of Appeal having affirmed his death sentence.

The main thrust of the appeal, as argued by M. O. Folorunsho, Esq., of Counsel for the appellant, on a sole issue for the determination of the appeal is bifurcated as follows –

1. The Pw.6’s identification of the appellant at the identification parade and the trial. Appellant’s counsel argues that the identification of

1

the appellant was faulty. On the other hand, the Respondent’s case or answer to this charge is fastened firmly on the Pw.6 (the complainant’s) insistence, particularly in his extra-judicial statement to the police Exhibit P9, wherein he stated categorically that he could –

Identify these armed robbers at wherever (he) see them. This is because I saw them with my naked eyes; Even though they wore “turban to cover their faces”. He made Exhibit P9 on 8th July, 2009, a day after the robbery. He testified on 17th March, 2014 and was cross-examined. He maintained his stance in Exhibit PS; and

2. The appellant was said to have raised an alibi that he was in detention at the material time the alleged armed robbery and culpable homicide took place. His extra-judicial statement wherein he made the assertion was not in evidence. The appellant, testifying as Dw.2, at page 77 of Record categorically denied that he made any statement at the State CID. The stance of the appellant on the alleged alibi and his Counsel’s position on it, at page 25 of the Record, are divergent and materially inconsistent. The implication of this is: No alibi, even if pleaded, was established.

2

The complaint in the sole issue raised for the determination of the appeal is that the Lower Court was not right in affirming the judgment of the trial Court that the prosecution had proved the commission of the two offences by the appellant beyond reasonable doubt.

The appellant, though charged for the offence of criminal conspiracy, was not convicted for that offence. Accordingly, all submissions on whether the offence of criminal conspiracy was proved beyond reasonable doubt against the appellant therefore go to naught.

It is submitted for the appellant, as if the counsel thought he was still at the trial Court, that the prosecution must show “that the appellant participated in the act or fact that culminated to (sic: “culminated in”) the charge” (I guess the offences he was convicted for). To ramp the submission, counsel asked rhetorically; was the appellant identified by the prosecution to have committed the offences He pointed out that this is the question that this Court is called upon to determine in this appeal.

3

The appellant had himself demolished any defence of alibi that may avail him. He testified as Dw.2. The substance of his short testimony at page 77 is;

I don’t know anything about the robbery. It is not true weapons were kept in my house for robbery operation. I was arrested at Achida Market while leading when a police man called me and brought me to CID Sokoto.

Under cross-examination he testified –

When police came to me at Achida, I was with other Union members. The police invited me to make statement. I did not make any statement at CID.

It is not true I was stealing before. I have never seen Pw.6 before. Pw.6 told lies against me.

Earlier the Pw.6 had testified (at pages 70 – 73 of the Record), undiscredited, that the 1st Accused and the appellant (the 2nd Accused) were among the robbers who attacked them on their way from Sokoto on 7th July, 2009. He narrated:

When the driver (of their vehicle) packed, Jaho (1st Accused) asked us to give our money and we gave it to the 2nd accused (the appellant herein).

The 2nd accused collected my two handset; he removed my SIMs and gave them to me. The 2nd accused also collected from me N1,800.00 only. The same 2nd accused collected a recording tape, my

4

security gadgets. He tried to remove the cassette but he could not. So he went away with it. While I was lying down, the 2nd accused removed my new sandals. … I was there (at the identification parade), In the identification parade I was able to identify the 1st accused and the 2nd accused (appellant), Sani Lawali.

Cross-examined the Pw.6 affirmed that 5 persons in all were killed in the bloody robbery operation and that “the mobile policemen who died had guns on them”. The Pw.6 was not discredited in his evidence that the appellant actively participated in the robbery operation in which the robbers shot dead 5 persons. The appellant did correctly restate the law well when he submitted that “where an accused person is accosted at the scene of crime there cannot be a problem of identifying such accused person”. The undiscredited evidence of the Pw.6 had categorically fixed the appellant, not only to the locus criminis but also to the violent robbery operation during which 5 persons, including armed mobile policemen were killed. His alibi, if he ever had any, had been outrightly and severely demolished by the evidence of Pw.6 and his own self-destruct evidence.

5

The identification of the appellant by the Pw.6 as a participant in the robbery operation cannot be said to be faulty. He had enough time, not a mere fleeting chance, to observe the appellant who, from the Pw.6’s unequivocal narration, had spent enough time with him collecting money from him and other passengers. The appellant took his time, according to the Pw.6, collecting two handsets from the Pw.6 and had removed the SIM cards and “very generously” given them back to the Pw.6. The appellant spent time with the Pw.6 trying unsuccessfully to remove the cassette from the Pw.6’s tape recorder, -which he later went away with. In the peculiar circumstance of this case, the Pw.6 had enough time and opportunity to observe the appellant, his tormentor, and when he testified, he gave good description of the appellant and had graphically fixed the appellant to all he did to him (Pw.6) on 7th July, 2007. In the circumstance, an identification parade was not necessary.IKEMSON v. THE STATE (1989) 3 NWLR (pt. 110) 455 at 472, 479.

So much fuss was made of Exhibit P9 wherein on 8th July, 2009 the Pw.6 gave descriptions of the

6

leader of the robbery gang, the 1st Accused. The trial Court found that so much of that description fitted the 1st Accused, and not the appellant. The learned counsel made an issue of that and suggested that the Pw.6 had contradicted his statement in Exhibit P9. This, to me, turns out merely to making too much ado about nothing. Nothing in Exhibit P9 can be stretched so far as to constitute a material contradiction of the Pw.6’s viva voce testimony in open Court. I hold the firm view, therefore, that between Pw.6’s Exhibit P9 and his oral testimony there was no materia contradiction on the issue of the identification of the appellant as a participe criminis.

I think I should prefatorily make the point: a bare statement from the Bar by a counsel has no force of legal evidence: ONU OBEKPA v. COMMISSIONER OF POLICE (1980) 1 NCR 113. I should also add that the proof of evidence in criminal proceedings serves the same purpose that pleadings serve in civil proceedings. The facts therein are not evidence unless they are proved or established as legal evidence in the proceedings

The appellant’s counsel had pointed at pages 240-241 of the Record, a portion of

7

the judgment of the Lower Court, where an allusion was made to a statement made from the Bar that the appellant had set up a defence of alibi in his extra-judicial statement made on 25th January, 2010. The statement is at pages 25 and 25 of the Record. It was not admitted into the body of evidence in the proceedings. This is the statement the appellant, under cross-examination, at page 77 of the Record emphatically denied he made. The statement, admittedly, raised a defence of alibi if infact it was made and proved. It suffers three fundamental setbacks. The appellant, the supposed maker, denied his authorship of the statement, including the defence of alibi therein. Secondly, it was being smuggled into the proceedings from the Bar by the appellant’s counsel for the first time at the Court of Appeal vide Appellant’s Brief settled by one Musibau Adetunbi, Esq. This is found in paragraph 4.1 of the said Brief, particularly at page 171 of the Record. The third setback is that counsel in the guise of final address or brief of argument cannot lead evidence to fill any lacuna in his client’s case. He is not permitted to do so.

8

Final addresses, no matter how brilliantly they are couched cannot constitute evidence and they are not intended to be so: NWADAIRO v. SPDC (1990) 5 NWLR (pt.150) 322 at 339; ODUBEKO v. FOWLER (1993) 1 NWLR (pt. 308) 637; ISHOLA v. AJIBOYE (1998) 1 NWLR (pt. 532) 71 at 93 ARO v. ARO (2000) 14 WRN 51 at 56. Generally, a counsel, on ethical grounds, is not expected to be a counsel in a matter that he is also a witness. Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007 is all about this.

The totality of all I have been trying to say is that the appellant never raised alibi as a defence and he established none. Alibi, as a defence, therefore does not avail him. The evidence of Pw.6 not only demolished whatever alibi the appellant may have, he having been fixed to the scene and to the offences alleged; it was also an emphatic or unequivocal evidence that identified the appellant as an active participant in the armed robbery operation in which 5 persons were killed. At the identification parade, the Pw.6 made no mistake in his identification of the appellant as one of the armed robbers who, on 7th July 2009, robbed him and others, and killed 5 persons.

9

The evidence of the Pw.2, undiscredited, on how at the identification parade the Pw.6 identified the appellant as one of the robbers amply corroborates and reinforces the Pw.6 evidence.

On both the alleged alibi and the identification of the appellant, as one of the armed robbers, I agree with the respondent that “both the trial Court and the Lower Court, without any iota of doubt, reached concurrent findings of fact”. The concurrent findings, supported by credible evidence, cannot be faulted. The well established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption: BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593. Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loathe to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely disturbed: ENANG v. ADU (1981) 11 – 12 SC 17 at 27 (Reprint).

10

The usual circumstances concurrent findings of fact are disturbed are: when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts: UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224. From the available legal evidence, the concurrent findings of fact, on which the appellant was convicted for armed robbery and culpable homicide punishable with death, do not in any way result in any miscarriage of justice to the appellant.

My Lords, I find no merit in this appeal. It behoves me therefore, to affirm the judgment of the Lower Court delivered on 16th February, 2017 in the appeal No. CA/S/61c/2015. Accordingly, I affirm the decision, as I dismiss the appeal in its entirety.

---

SC.272/2017