In The Court of Appeal
(Ilorin Judicial Division)
On Thursday, the 6th day of December, 2007
Suit No: CA/IL/C.79/2006
HELEN MORONKEII OGUNWUMIJU ....... Justice, Court of Appeal
JUMMAI HANNATU SANKEY ....... Justice, Court of Appeal
IGNATIUS IGWE AGUBE ....... Justice, Court of Appeal
Between
KAZEEM OMOPUPA .. Appellants
And
THE STATE Respondents
UMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Appellant herein, KazeemOmopupa, was arraigned before the High Court of Justice, Ilorin, coram Hon. Justice M.A. Afolayan, on a one count charge that read thus:
'That you KazeemOmopupa and 2 other now at large on or about the 15th day of March, 2003 at about 11.40 hours at No. 1A Obangede Road, Adewole Estate, Ilorin within the jurisdiction of this Honourable Court whilst armed with a gun attacked and robbed one Alhaji Mustapha Alabi of two necklaces, one size a tennis shoes, 2 rings, two Motorola handsets (V70 and V-66) and the sum of about N99,000.00 and you thereby committed an offence punishable under Section '(2) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria, '1990."
The Appellant pleaded not guilty to the charge and the matter went to full trial. In the course of hearing, three witnesses testified for the prosecution. The Appellant testified in his defence but called no other witness. Thereafter, both learned Counsel for the accused, and the State addressed the Court on the issues of facts and law arising.
At the close of trial, the learned trial Judge convicted the Appellant as charged and sentenced him to death by hanging. It is against this conviction and sentence that the Appellant has now appealed. He filed four original Grounds of Appeal along with his Notice of Appeal, and four Additional Grounds which are set out hereunder shorn of their particulars:
GROUNDS OF APPEAL
1. The learned trial judge erred in law by holding that the prosecution had proved their case beyond reasonable doubt, when this was not so thereby wrongly convicting the accused person.
2. The learned trial judge erred in law when he held thus:
"The difference in the date of arrest of the accused is not so material and PW3's evidence that more than N100,000 cash was stolen from Alhaji Mustapha, whereas the charge sheet says N99,000 is also not material in view of the evidence of the prosecution that there was a robbery and some of the items were recovered from the accused."
3. The learned trial judge erred in law by holding that "Having watched the demeanour of the accused in general and particularly at this stage and the contradictory evidence as to the description of the house of the man who sold the mobile phone to him, the court has a cause to disbelieve the accused and I hold that he not a witness of truth. "
4. The conviction of the convict is all together unreasonable, unwarranted and cannot be supported having regard to the evidence before the trial court.
ADDITIONAL GROUNDS OF APPEAL
5. The learned trial judge misdirected himself on the facts in holding
"Secondly, the two Motorola handsets V700 and V60 that were said to be stolen during the robbery, PW3was able to give account of how the two phones got to a mobile phone Technician Applied Technology Services also a friend to Alhaji Mustapha, who recorded the particulars of the Motorola phones when Alhaji Mustapha brought them from USA and took them to him to help him unlock the phones, when the same phones were brought some months later by this accused for repairs the technician was able to detect them through the particulars of the phone he already recorded and he alerted Alhaji Mustapha which led to the arrest of this accused who gave the two Motorola sets to the Applied Technology Services. He said the phone dropped and got damaged and he took it to the Applied Technology Services for repairs. The same phone that was stolen during robbery was found with accused. This raises a prima facie linkage with the alleged robbery, this calls for credible evidence from accused to establish that he came about the handsets in an honest manner".
6. The Learned trial judge erred in law in holding that:
"The accused was accompanied by the police to the house of the person he alleged sold the mobile phone to him. PW2 in his evidence said the accused confessed to him that the phones were part of his share of the robbery proceed and the accused took them to the house of the gang leader who he referred as "Aka" alias Alhaji but that one escaped"
7. The learned trial judge erred in law in treating the accused as an unreliable witness and in disbelieving his testimony thereby reaching the conclusion to convict him based on the evidence of the prosecution.
8. The learned trial judge erred in law in convicting the accused principally on the testimony of the PW3when from his own (PW3's) showing his testimony is incredible, unintelligible and unworthy of belief.
The Appellant'91s Brief of Argument in respect of the Appeal is dated 26th February 2007 and deemed filed on the 13th March, 2007. At the hearing of the Appeal, Mr. Bello, learned Counsel for the Appellant, adopted the Appellant'91s Brief of Arguments. He made a few brief oral submissions and cited the additional authority of Ndidi v. The State (2007) 5 SCNJ 274 at 287. He prayed the Court to allow the Appeal. The Respondent'91s Brief of Argument dated 5th March, 2007 was filed on the same date. Learned Director of Public Prosecution for the Respondent, Mr. J. A. Mumini, also adopted the Respondent'91s Brief of Argument and made a few brief oral submissions wherein he cited the additional authority of The State VNnoli(1994) 5 NWLR'abPt. 345) 394 at 414. He urged the Court not to reverse the Judgment of the trial Court.
In his written Brief of Argument, the Appellant identified the following two issues for the determination of the Court in this
Appeal:
1. Whether the learned trial Judge was right in holding that the guilt of the accused person was proved beyond reasonable doubt as required by law.
Grounds 1, 2, 4, 5, and 8.
2. Whether the trial Court properly appraised the evidence before it especially the defence of the accused person and came to the right conclusion in respect thereof. Grounds 3, 6 and 7.
Learned Counsel for the Respondent agreed with him on the issues arising for determination. I have examined the issues formulated and I also agree that they aptly cover all the grounds upon which the Appellant is appealing the Judgement of the trial Court. I therefore adopt them as the issues to be determined in this Appeal and proceed to post-haste determine same.
Issue One.
Whether the learned trial Judge was right in holding that the guilt of the accused person was proved beyond reasonable doubt.Grounds 1, 2, 4, 5 and 8.
Mr. Bello has submitted that the prosecution failed to prove its case as required by law, i.e. beyond reasonable doubt, and consequently the trial Court was in serious error in convicting the Appellant as charged. He contended that the prosecution failed to prove all the ingredients of the offence, especially the fact that it was the Appellant who committed the robbery. He submitted that from the record, no arrest was made at the scene of crime until several months later. There was a conflict in the evidence of the prosecution witnesses as to the dates of the alleged robbery, when it was discovered that the Appellant took the handset to Applied Technology for repairs and the arrest of the Appellant.
Secondly, learned Counsel contended that from the search on the Appellant's house, only the mobile phone and the ring case recovered was traced to him. The Appellant took the police to the home of the person who sold the handset to him and gave him the ring case as a gift. Unfortunately, the person escaped from the police. He therefore submitted that the defence of the Appellant that he bought the handset from Gbenga who also gave him the ring case as a gift has created a doubt about his participation in the robbery. This doubt must be resolved in favour of the Appellant. He relied on Azeez v. the State (2006) All FWLR(Pt. 337) 485 at 498 and Namsoh v. The State (1993) 5 NWLR (Pt.128) 129.
Learned Counsel again submitted that the sole witness who identified the Appellant did not state that he knew the Appellant prior to the day of the alleged robbery. Also there was no identification parade to ascertain whether the Appellant was well known to the PW3 so as to avoid the possibility of mistaken identity. Since PW3 did not identify the offenders at the scene of crime until December, 2005, it was wrong for the trial Court to rely on his evidence of identification in convicting the Appellant. He relied on DanladiAbdullahi v. The State (2005) ALL FWLR (Pt.263) 698 at 718. He submitted that there was no corroboration of the evidence of the PW3as to the identity of theAppellant. It is the contention of learned Counsel that it is incumbent on the prosecution to call witnesses whose evidence are material such as the policemen who effected the arrest of the Appellant, Alhaji Mustapha the victim, especially as the Appellant denied in his testimony that the PW3was not one of those who came to his place of work to affect his arrest, (Page36 of the record). On the authority of NmaDogo V The State (2001) 5 NSCQR 307 at 330, learned Counsel submitted that where the quality of the evidence of identification is poor, it would be unsafe to convict on it.
Learned Counsel further submitted that the trial Court ought to have considered how unreasonable it was for the Appellant to have given his correct identity, including his name and address, to the man at the Applied Technology if he knew that the phone was the product of a robbery in which he took part as same could be used in tracing him. He referred to page 32 of the record where the learned trial Judge found the Appellant to be a truthful witness in relation to the confessional statement which was rejected. Again at page 43 of the record, the learned trial Judge found him to be a truthful witness in relation to all the exhibits except Exhibit 13, a Jincheng Motorcycle. Learned Counsel submitted that, in any case, lying is not proof of guilt in a criminal trial, and it does not relieve the prosecution of the duty of proving the guilt of the accused beyond reasonable doubt. The evidence against the Appellant must not fall short of that needed to warrant the conclusion that he participated in the robbery. He relied on Ogidi v The State (2005) ALL FWLR(Pt. 251) 202 at 224-225.
Learned Counsel went on to submit that the trial Court relied heavily on section 149 of the Evidence Act and circumstantial evidence to convict the Appellant. It failed to however consider the circumstantial evidence which created doubt in the evidence of the prosecution. He contended that there were fundamental inconsistencies in the testimony of the PW3in respect of the date of arrest of the Appellant. He submitted that the Appellant was arrested in December, 2005 and not January, 2004. Also, since the PW3testified that the victim, Alhaji Mustapha Alabi, comes home once a year, (page 33 of the record), and he could not have been home again in December of the same year. It is his contention that due to these inconsistencies in the evidence of the PW3, his testimony ought to have been considered unreliable, more so as PW3 was not mentioned as a victim in the charge against the Appellant. Consequently, learned Counsel case was not proved beyond reasonable doubt, relying on the cases of Onugbogu V The State (1974) 1 ALL NLC (Pt.2) 5 and Dibie v. The State (2005) ALL FWLR (Pt.259) 1995 at 2015-2016. He urged the Court to also resolve this issue in favour of the Appellant and to upturn the Judgment of the trial Court.
On his own part, Mr. Mumini, learned DPP for the Respondent, submitted that in a criminal trial, where the prosecution is required to prove the guilt of an accused person beyond reasonable doubt, once it proves all the ingredients of the offence, that burden is taken to have been met in law. On the authority of Nasiru v The State (1999) 1 SCNJ 83 at 94 and NkudaEdamine v. The State (1996) 3-4 MAC 147, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. He listed out the ingredients of the offence of armed robbery for which the Appellant was convicted under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990 thus:
(i) That there was a robbery.
(ii) That the accused person was armed with dangerous weapons at thetime of commission of the offence.
(iii) That the accused person before the Court was the person who committed the offence.
For this, he relied on the case of Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 467. In respect of the first and second ingredients of the offence, learned Counsel referred to the testimony of the PW3at page 33 of the record, which he said was unchallenged, that there was a robbery attack in their home on 15th March, 2005 at about midnight wherein money and valuables were carted away by robbers who were armed with guns. In respect of the third ingredient, PW3, a victim of the robbery, stated that the Appellant, along with three others, broke into the house through the door and ordered him to use the key to open the door which they had already damaged. They came with short guns, pointed same at him and ordered him to take them to Alhaji Mustapha's room. The Appellant took him outside and promised not to kill anyone if he cooperated by showing them where Alhaji Mustapha kept his money. He recognized the Appellant at Lubcon, his work place because, on the day of the robbery the fluorescent light was on and so, he was able to identify him to the police as the person who had spoken to him on the night of the robbery. Learned DPP submitted that the evidence of a witness, where cogent, compelling and direct, as in this case, is sufficient to ground a conviction. He relied on Imo v. The State (2001) 1 NWLR (Pt. 694) 314; Onuegbu v. The State (1995) 4 NWLR (Pt. 391) 510 at 529-530; Ali V the State (2003) ACLR581 at 597 and The State v. Ajie (2000) 7 SC 1 at 33. The learned DPP contended that the Appellant did not offer any evidence to contradict the version of the robbery incident given by the PW3 and same was not discredited under cross examination. He submitted that evidence which is not challenged through cross-examination nor controverted by other evidence and which is by itself not incredible is qualified to be accepted and acted upon.
On Alhaji Mustapha, while agreeing that his evidence would have been relevant, the learned DPP referred to page 34 of the record where his absence was properly explained. It is his further submission that the non-calling of Alhaji Mustapha as a witness has not affected the case of the prosecution as the law does not require the prosecution to call every witness present at the locus criminis. It is only required to call witnesses who would give relevant evidence in proof of its case. He relied on Iziren v. The State (2001) 1 SC (Pt.1) 3812. Learned DPP submitted that the learned trial Judge did not convict the Appellant solely on the evidence of the PW3 but also on the evidence that months after the robbery, a handset and a ring case, (Exhibit 9), stolen during the robbery were recovered from the Appellant. The Appellant never denied that they were found in his, possession. Instead, he admitted that he took the Motorola handset which belonged to Alhaji Mustapha to Applied Technology for repairs. Learned DPP submitted that, by the doctrine of recent possession under Section 149 (a) of the Evidence Act, the Appellant, having failed to lead any satisfactory and credible evidence as to how he came about the stolen items found in his possession, is presumed to be one of the armed robbers who robbed the premises. He relied on Madawa v. The State (1988) 12 SC (Pt.1) 68 at 94-95. He submitted further that PW3 was able to recognise the Appellant and to see that the robbers were armedwith short guns as a result of the fluorescent light that was on at the time of the robbery. His evidence was corroborated by the fact that two of the items stolen during the robbery, i.e. Exhibit 9 and the Motorola handset, were recovered from the Appellant who has not denied this but has given contradictory evidence as to how he got the items. He urged the Court to hold that the trial Court was right to have held that the guilt of the Appellant was proved beyond reasonable doubt and to resolve the 1st issue in favour of the Respondent.
From the evidence adduced, it would appear that the learned trial Judge convicted the Appellant based mainly on the testimony of the PW3 which he believed, and the fact that the Motorola handset and the ring case stolen during the robbery were recovered from the Appellant. The conviction was therefore premised on both direct evidence, (being the alleged eyewitness testimony of PW3),coupled with the circumstantial evidence. I will first direct my attention to the evidence of BabatundeKazeem. He testified as PW3at the trial Court. He alleged that on the night of the incident, he was asleep in the living room of Alhaji Mustapha's house when armed robbers attacked. It is as a consequence of this that he was able to identify the Appellant as one of the two robbers who came to the house. Due to the pivotal nature of the testimony of this witness and the issues raised in the Respondent's Brief, I have used a magnifying glass to examine the background to his appearing as a witness in the suit. From page 3 of the transcribed record of the trial Court, it is apparent from the face of the charge, (which has been reproduced earlier in the body of this Judgment), that this witness was not mentioned as a victim of the armed robbery incident. The only victim of the robbery mentioned in the charge is Alhaji Mustapha. Secondly, pages 3 and 4 of the record of the trial Court set out the proofs of evidence and the list of witnesses who were to be called to establish the truth of the charge against the Appellant. Again, BabatundeKazeem, the PW3 is neither listed as a potential witness nor is the evidence he was supposed to give set out. It was only subsequently that the State, (Respondent herein), brought an application to call an additional witness, BabatundeKazeem. This application, which was not opposed, was granted and the PW3 was introduced into the case. Since there is no appeal on this score, no more will be said on it save for the inferences which am obliged to draw based on the critical nature of his evidence before the Court.
It is the evidence of the PW3 that the incident took place at midnight of 15th March, 2006. Two robbers broke into the house armed with guns which he described as short, (as opposed to long). They ordered him to open the door to the entrance of the house with a key and the Appellant took him outside and threatened him. Subsequently, when the Appellant was traced to his work place, PW3 was able to immediately identify him because, from his account, on the day of the robbery, the fluorescent light was on and he saw the two robbers. From this piece of evidence, it is apparent that PW3 did not know the Appellant prior to the night of the robbery. He did not see the Appellant again until the date of his arrest, at least 10 months later. Yet he was able to make a positive identification of the Appellant as the person he saw momentarily on the night of the robbery. The question this raises is that, having not known the Appellant prior to the date of the robbery, should the trial Court have acted on his identification of the Appellant by the PW3 without an identification parade having been being held? Generally, identification evidence is evidence, which tends to show that the person charged with the offence is the same as the person who was seen committing the offence. When, therefore, a trial Court is faced with making a finding on the identification evidence before it, it is obliged to ensure and be well satisfied that the evidence proves beyond reasonable doubt that the accused before the court was the person to the exclusion of any other who actually committed the offence with which he is charged. See Patrick Ikemson v.The State (1989) CLRN 1 at 24. The law is settled that the question whether an accused person was properly identified is a question of fact to be considered by the trial Court and it is not in every case that an identification parade is essential. See the case of Jonathan Igbi& another v The State (2000) 2 SCNJ 63. An identification parade is however useful and indeed essential whenever there is a doubt about the power of a witness to recognise an accused person or when the identity of the accused person is in dispute. It is not necessary where the witness knew or was familiar with the accused or suspect well before the time the alleged crime was committed. See SegunBalogun v. Attorney General of Ogun State (2002) 2 SCNJ 196; Kenneth Oguala v. The State (1991) 3 SCNJ 143. Where there is clear evidence linking the accused person with the crime alleged it will not be necessary to carry out an identification parade. Emmanuel Ugwumba v The State (1993) 6 SCNJ 217. Consequently, as a rule, an identification parade is not a sine qua non for the identification of suspects in every case where there has been a fleeting encounter with the victim of the crime, if there is any other piece of evidence leading overwhelmingly to the identity of the perpetrator of the crime. An identification parade only becomes necessary in the following situations of visual identification:
(i) where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence;
(ii) where the victim was confronted by the offender for a very short time; and
(iii) where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
Whenever any of these situations Occur, it is vital that a proper identification parade takes into account the following:
(a) the description of the accused given to the police shortly after the commission of the offence;
(b) the opportunity the victim had of observing the accused; and
(c) the features of the accused noted by the victim and communicated to the police which marks the accused from other persons.
See R. v. Turnbull (1976) ALL ER 549; Ikemson v. The State (Supra);
MaikudiAliyu v.The State (2007) ALL FWLR (Pt.388) 1123.
In the instant case, the learned trial judge believed the PW3 on his identification evidence and these were his reasons as stated at page 40 of the record of appeal:
"Now, on how this accused was linked with the robbery, PW3 said the whole of their street was attacked by armed robbers that night and they lied down face down for about two hours that night while the robbers were operating. He said the two people that came to their house had short guns in their hands and they pointed the guns at him and ordered him to take them to Alhaji Mustapha's room, which he did... That the light was on so he could recognise this accused very well and in fact immediately he was brought out at his working place (Lubcon) he quickly recognize (sic) him and identified him to the police that it was the same boy that ordered him to use the key to open the door, took him outside and told him to cooperate. This is the first link. Brightness, locus and distance are paramount for identification and here, these three factors are in favour of the prosecution as the accused was easily recognised by PW3. So I do not believe the evidence of the accused that he was seeing the PW3 for the 1st time in court."
The PW3 made no pretence of knowing the Appellant before the incident. After Alhaji Mustapha and PW3 lodged a complaint of the robbery at the Adewole Police Station, nothing more was heard of police investigation until Alhaji Mustapha, who is apparently resident in America, returned in December, 2003. It was only then that he was told by his friend at Applied Technology that someone had brought his Motorola handset, stolen in the robbery 10 months before to be unlocked and the person's name and address had been taken down. On a further report to the police, PW3 ostensibly accompanied the police officers to the address given. These are his words on the identification saga at page 33 of the record:
"We followed the police, the name of the person which he filled on the form with Applied Technology is KazeemOmopupa. As they brought him out and I saw him I quickly remembered his face and identified him as the person who took me out that I should open the main door and when we got outside he was the one that told me to cooperate and tell him where Alhaji kept his money."
My concern with this testimony is that the PW3 did not know the Appellant before the date of the robbery incident. After the robbery, he gave no description of any of the assailants to the police to aid in tracing and/or identifying them when the report was lodged. Such a description at the earliest opportunity may have helped in jolting his memory at a later date and helped the police to cross check and confirm the veracity of his identification at a later date, especially in the absence of any corroborative testimony to that effect. He only identified the Appellant after he was shown a particular person who was said to bear the name and address retrieved from the man at Applied Technology. What this suggests to me, (in the absence of any corroboration), is that the PW3 would have readily identified anyone presented to him bearing that name and at the given address since it had already been alleged that it was the person bearing that name and at that address who was in possession of the stolen Motorola handset.
In this case it happened to be the Appellant and so the PW3 rubber-stamped the suggestion that he was one of the armed robbers. The snag here is that the Appellant had a feasible and reasonable explanation as to how he came to be in possession of the handset as well as the ring case, Exhibit 9. This explanation was that he bought same from one Gbenga who equally gave him the ring case as a gift. It must be remembered that no ring was recovered from the Appellant, even though two rings were alleged to be among the items stolen.
The Appellant proceeded to take the police to the said Gbenga. However, Gbenga, who seemed to have come by the handset and the ring case in a manner that must have been less than honest, boldly escaped from three armed policemen just like the famous Houdini, the great escapist. Having allowed Gbenga to slip through their fingers, the police now latched onto the Appellant as if their lives depended on it and proceeded to extract a confession from him by means of beatings and torture until he was at the point of death. Wisely, the learned trial Judge threw out the alleged confessional statement obtained under duress, torture and threats of death. The fact however remains that the identification of the Appellant by the PW3 under these circumstances was never tested to confirm its veracity or otherwise. Alhaji Mustapha, the named victim in the case, never testified. The police did not deem it necessary to conduct an identification parade in this case when all the indices in the cake pointed to the necessity for one.
There were other issues. Upon being furnished with the name and address of the Appellant as the person who took the handset to Applied Technology for repairs, one would have expected the police to proceed to first invite him for questioning or even to arrest him. Once they had him in their custody, they could have then proceeded to get the eyewitness, PW3, to make a positive identification of him from a lineup of people similarly attired and/or of similar height, weight and age as the Appellant. This would have eliminated the possibility that the PW3 was merely influenced by the fact that he was confronted with only the Appellant as the very person who had taken the handset for repairs. In my view, in the absence of any corroboration, this was not a proper identification of the Appellant and cannot lead to the inexorable and irresistible conclusion that he was one of the robbers on the night in question.
This leads me to the next issue of the doctrine, of recent possession in respect of the ring case. At page 41 of the Judgment, the lower Court found that the recovery of two items stolen in the robbery with the Appellant raises the presumption that he either took part in the alleged robbery or had received them knowing that they were stolen. Section 149(a) of the Evidence Act which codifies this common law doctrine states thus:
"149. The court may presume the existence of any fact which it thinks likely to have happened, recourse being had to the common course of natural events, human conduct and public and private business, in relation to the facts of the particular case; and in particular the court may presume -
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
Where facts are not proved directly, but are inferred from facts that have been proved, the inference is called a presumption of fact expressed in Latin as Presumptiohominis. A presumption of fact is rebuttable by evidence. Any presumption under this section is an inference from circumstantial evidence. However, for circumstantial evidence to ground conviction in a criminal case, such evidence must be cogent, conclusive and positive. Therefore, the presumption in the opening statement of paragraph 140 of the Evidence Act can only be drawn where the facts are overwhelming and the accused is unable to account for his possession of goods recently stolen. This is because where the accused is not able to explain the circumstances of his possession of the stolen goods, the inference that he is the thief is conclusive and must be drawn. However, where the totality of the evidence and the surrounding circumstances do not support the inference that the accused was the thief or receiver of the stolen goods, the presumption cannot be drawn. Therefore, the essential elements that are required to draw this presumption are:
(i) It must be established that the goods are stolen.
(ii) The accused must have been found in possession.
(iii) The possession must have been soon after the theft.
(iv) The accused is unable to account for his possession of goods recently stolen.
To successfully invoke this doctrine, it is essential to prove beyond reasonable doubt that the goods were in the possession of the accused.
Secondly, the proximity of the time of possession to the theft is an essential component of this presumption. In some cases, 90 minutes was held to be soon enough and in some cases a few hours. See Nwachukwu v.The State (1985) 3 NWLR (Pt.11) 218. It all depends on the facts and circumstances of each case. Where there is enough explanation as to how the property came by, the presumption will not apply. However, the Supreme Court has taken it a step further in The State v. Nnolim (1994) 6 SCJN 48; (1994) 5 NWLR (Pt.345) 394 at 410, where Adio, JSC held that:
"An explanation by the accused person of the way in which a stolen property came into his possession which might be reasonably true and which is consistent with innocence, although the court may not be convinced of its truth would displace the presumption."
An accused person may thus rebut the presumption by giving evidence on a balance of probability and therefore, when the explanation is reasonable, the onus is discharged. He should be acquitted if there is no other evidence against him. See Yongo v. COP (1990) 5 NWLR (Pt. 148) 103. The applicability of the presumption is dependant on three factors, as has been, stated before, which must be established by evidence. These are: (i) that the accused was found in possession of the goods; (ii) these goods were recently stolen; and (iii) that the accused failed to account for his possession of the goods upon interrogation. See Eze v.The State (1985) 3 NWLR (Pt.13) 419 at 436. This presumption, when it applies, is to make the court presume either that the person is the thief or the receiver of the stolen goods knowing it to be stolen. It is important to note, as the Supreme Court stated in the latter case, that the presumption.
It is merely an inference that the court is at liberty to draw, (not must draw), from the facts and circumstances of the present case."
In the instant case, the trial Court took the liberty to draw the inference that the Appellant was one of the two persons that robbed
Alhaji Mustapha from the facts that the Motorola handset was traced to him and that the ring case was found in his possession approximately 10 months after the robbery. Since his extra-judicial statement to the police has been excluded by the court on the ground that it was not voluntary, we are left with the Appellant's explanation in court as to how he came to be in possession of these items. This is what he said at page 35 of the record:
"...I told them I took some handsets to Applied Technology Services for repair. That I gave my name, my address and other particulars.
They asked me to make statement and I told them I bought the handset from a man at Agboola. That the man who sold the handset to me also gave me a case for keeping my cuff links ... I was asked whether they have taken me to the man who sold the handset to me and I said no Officer in charge robbery then told one Sergeant Olowo to lead a team of policemen to the man who sold the handset to me when we got to the man's shop we did not meet him we met his boy who took us to his house. We met the man in his house and he confirmed that he sold the handset to me. He too was invited to follow them to police headquarter.
I was led to the vehicle to go and wait but some few minutes later I started hearing the sound of gun shot. I was later made to understand that the man had escaped and the two gunshots missed him. I was taken back to state CID."
Following the flight of this very vital witness for the Appellant from the hands of the police, there is no evidence on record as to what the police did to track down this man who perhaps, was a receiver of stolen property if not even a member of the gang that executed the robbery. The Appellant was in police custody since his arrest, so obviously he could "not help himself not to talk of having the opportunity of rebutting the presumption by tracing Gbenga whom the police had allowed to escape. In the circumstance, where the Appellant had given a reasonable explanation as to how he came about the handset and the ring case, should he bear the brunt of the police, ineptitude which had allowed the one person who could substantiate his story escape? I think not. It would have been a different story if the Appellant's explanation as to how he came about the goods were found to be false or out rightly incredulous or outrageous. The situation here is that the Appellant pointed the police in the right direction and they fouled up the case by allowing Gbenga to elude them.
Therefore, any doubts arising from this, i.e. whether the explanation of the Appellant was true or not, so long as it is feasible, must be resolved in favour of the Appellant. Consequently, even though there was evidence that one of the items taken away during the robbery was, found in the Appellant's possession and another traced to him, he offered a reasonable account of the goods upon interrogation. The trial Court was bound to have acted on it in the peculiar circumstances of this case.
One other important point that must be addressed before I leave this doctrine of recent possession is that the prosecution is required to prove that the stolen goods were found in the accused person's possession "soon" after the robbery. The proximity of the time of possession to the theft is an essential requirement of the presumption whether the accused is 'the thief or received them with the knowledge that they are stolen goods. The word "soon" is defined in Chambers 21st Century Dictionary Revised Edition as:
''in a short time from now or from a stated time; quickly; with little delay."
Now, from the charge against the Appellant at page 3 of the record, the offence of armed robbery took place on the 15th March, 2003. The Appellant in his testimony at page 35 of the record stated that he was arrested on the 12th January, 2004. The period in between these two dates is approximately ten months. Can a period of ten months by any stretch of the imagination be described as "soon" after the robbery? I am of the firm view that', it cannot as this would be stretching the meaning of the word too far. It cannot be said that a person found in possession of stolen goods ten months after the theft of the goods was found in recent possession. So much could have happened within that period of time. This is not what is anticipated by the common law doctrine of recent possession. The length of time anticipated is such that would tend to show, in the absence of any explanation to the contrary, that the person found in possession shortly afterwards must have been the person who stole it. For instance, a trial Court may presume that appellants found in possession of a vehicle stolen about twelve hours earlier were the persons who stole the vehicle in question. See R. v. Isa Braimoh (1843) WACA 193; MufutauAremu&Anor. v. The State (1991) 7 SCNJ (Pt.II) 296 InNwachukwu v. The State (1985) 3 NWLR (Pt. 11) 218, the Appellant, after threatening his victim with a toy gun snatched a bag of money from him and ran away.
He was apprehended shortly thereafter in a house hiding under the bed and lying on the bag of money. It was held that this doctrine applied since the accused was found hiding and lying on the money so soon after the robbery. In State v. Aiyeola&Ors (1969) 1 ALL NLR 303, the Supreme Court held that the Appellant was presumed to be the person who stole a land certificate because he was found in possession of it within a month of the theft. Indeed in the instant case, the, length of time taken after the robbery and before the items were found in the Appellant's possession lends credence to his story that he may have bought, same from someone who could have either been the thief or the receiver of the stolen goods. In fact, the very fact that the person whom the Appellant identified as having sold the handset to him bolted upon being confronted is very suggestive of the fact that the escapee had something to hide. Since the handset and ring case were not found with the Appellant soon after the robbery which is an essential requirement of Section 149 (a) of the Evidence Act, it defeats the application of the doctrine of recent possession to this case.
Consequently, much as the prosecution was able to prove that there was a robbery committed on the 15th March, 2003, the ,evidence adduced has fallen far short of establishing that the Appellant was one of the two man gang who executed the robbery on the date in question. Having therefore not proved his participation in the robbery, it goes without saying that they were also unable to prove that he committed this robbery with the use of arms. Two of the three elements of the offence of robbery with firearms were therefore not proved. Consequently, the learned trial Judge was in error in finding that the guilt of the accused person was proved beyond reasonable doubt. I do so hold. This issue is resolved in favour of the Appellant. Grounds 1, 2, 4, 5 and 8 succeed.
Issue Two.
Whether the trial Court properly appraised the evidence before it especially the defence of the accused person land came to a right I conclusion in respect thereof. Grounds 3, 6 and 7. Learned Counsel for the Appellant submitted that the gist of this issue is the holding of the trial Court disbelieving the' testimony of the Appellant for no just cause while failing to properly appraise and apply pieces of evidence adduced at the trial which were favourable to the Appellant. Learned Counsel submitted that the learned trial Judge erred when he relied directly or by implication on the statement of the Appellant to the police when same had been rejected and marked accordingly. He relied on Michael Adebayo Agbaje v. Alhaji Lasisi Adigun (1993) 1 SCNJ 1. He contended that the Appellant's testimony in his defence was consistent, credible, plausible and believable. There was therefore no legal or factual basis for the trial Court to have refused to see same as such. He relied on Duru v. Nwosu (1989) 4 NWLR (Pt.113)24 at 39 for the parameters for determining whether or not evidence is credible. He submitted that there was nothing from the demeanour of the Appellant from which it could be inferred that the
Appellant was an unreliable witness.
He contended that, although the trial Court who saw arid heard a witness is entitled to draw an inference from the demeanour of such a witness, the inference is expected to be a true reflection of the evidence If such a witness. Learned Counsel submitted that the learned trial Judge did not point to any incident regarding the Appellant's disposition or 'manifestation in the witness box from which the inference that his demeanour betrayed him could be premised. He submitted that a trial Court must provide the factual basis for its conclusion believing or disbelieving a witness. Where there is and justification for such a conclusion, an appellate court must reverse the trial court on the point. He relied on Nwobe v. Okere (1994) 5 NWLR (Pt.343) 159 at 175. He contended that, instead, from the evidence of the PW2at page 34 of the record, it is confirmed that the Appellant led the police to the house 6f one Aka alias Alhaji who later escaped. This fact ought to have raised doubt in the Court's mind which doubt should have been resolved in the Appellant' favour. He submitted that this Court is competent to invoke its power under Se1ction16 of the Court of Appeal Act to step into the shoes of the trial Court and to resolve the doubt created in his favour. Learned Counsel prayed the Court to therefore set aside the erroneous findings of the trial Court pertaining to the demeanour of the Appellant. He prayed the Court to set aside this finding of the trial Court and a fortiori set aside the Appellant's conviction.
It was further the submission of learned Counsel that the evidence of PW2 in which he said that he accompanied the Appellant to t e house of the person who sold the handset to him corroborates the Appellant's testimony in this regard. He submitted further that the Appellant's testimony was wrongly excluded. This wrongful exclusion and disbelief of the Appellant's testimony has occasioned a grave miscarriage of justice. He submitted that while wrongful, admission or exclusion of evidence is generally not a ground to reverse a trial Court's decision, an Appellate Court will use it as a basis to intervene and upturn a trial Court's decision where such has contributed immensely to the court's final decision. He relied on Okoro v. the State (Supra). He urged the Court to allow the Appeal and substitute an order quashing the death sentence passed on the Appellant for the offence of armed robbery, and an order to discharge and acquit the Appellant.
Under this issue, Learned DPP for the Respondent submitted that the Appellant portrayed himself to be unreliable even in he course of his testifying as he deliberately lied under oath and he was wavering in his evidence on how he came by the alleged stolen items as he could not dislodge the presumption stated in Section 149 (a) of the Evidence Act. He relied on Eyisi v. The State (2001) 1 SC (Pt. 1) 24. He referred to the Appellant's testimony under cross examination on the description of Gbenga's house and timing at pages 35 to 36 of the record. He also pointed out that the Appellant refused to call the man as a witness.
Secondly, the learned DPP referred to the Appellant's testimony wherein he said that he met the PW3for the first time in court. Whereas he corroborated the evidence of the PW3 that three people, i.e. two policemen and a civilian came to affect his arrest. PW3 had earlier testified that he went in company of two policemen to arrest the Appellant at his place of work where he immediately, I recognized him. He contended that this was another pointer that the Appellant, was unreliable and inconsistent.
The learned DPP also faulted the Appellant's contention that the learned trial Judge relied on the rejected statement of the Appellant in convicting him. He contended that the finding at page 41 of the record as a reference to the evidence on oath of the PW2 at page 34 of the record were he stated that the accused took him to the house of his gang leader one 'Aka' alias Alhaji, but that he escaped. He pointed out that there was nowhere in the record of proceeding where PW2 stated that he accompanied the Appellant to the house of the person who sold the handset to him as contended in the Appellant's Brief of argument. He urged the Court to resolve this issue also against the Appellant. Learned DPP urged the Court to affirm the conviction of the Appellant and dismiss his appeal in its entirety.
The portion of the trial Court's judgment which has caused such furore in relation to this issue is found at page 41 of the record of the lower Court and it states thus:
"When cross examined,...he said he could not e5cribe the man's house. It was the man's apprentice who took them to the man's house and it was early in the morning when the Muslim faithful usually wake up to pray. When questioned further that shops are not opened at that time, he changed again and said it was after the prayer at about 7.30am having watched the demeanour of the accused in general and particularly at this stage and the contradictory evidence as to the description of the house of the man who sold the mobile phone to him the court has a cause to I disbelieve the accused and I held (sic) that he is at a witness of truth."
From the above finding of the learned trial judge, it is evident that he disbelieved the evidence of the Appellant and found hi not to be a witness of truth for two reasons, namely,
(i) When asked, he could not give a description of the house of the man who sold the handset to him.
(ii) Secondly, he contradicted himself on the time in which the apprentice took him to the house.
From a totality of the testimony of the Appellant, I am of the view that the learned trial judge made undue heavy weather Out of a few discrepancies in the Appellant's testimony. It was not such an important issue to warrant the disbelief of the Appellant's entire testimony. I agree with the learned Counsel for the Appellant that the trial Court blew the issue out proportion by using it as a basis to disbelieve the Appellant's testimony in its entirety. On the authority of Okoro v. The State (1998) 14 NWLR (Pt. 584) 181 at 209, the finding of the trial court on this is accordingly set aside for being an erroneous findings. Whether or not the Appellant was able to give an accurate description of Gbenga or Aka alias Alhaji's house and whether it was in the morning or at noontime that the apprentice eventually took the Appellant to Gbenga's house is immaterial since the Appellant was subsequently able to lead the police to Gbenga's shop where the apprentice in turn took them to Gbenga's house. Even the PW2, the policeman, confirmed, in his evidence in court, that they went to Gbenga's house but that he escaped their grip.
Therefore, the contradiction in the evidence of the Appellant, if any, is minuscule and is not material, substantial nor fundamental to the main issues in controversy before the lower Court. With due respect to the learned trial judge, he was in error to have drawn such an extreme conclusion from same. In actual life, what such inaccuracies point to is that the Appellant is only human and possibly, due to passage of time, had forgotten minute details of timing and the like. The Appellant had stated in his testimony that he bought the handset from Gbenga in May, 2003 and he was arrested in January, 2004. From the record of the lower Court, he testified on the 8th June, 2006. It is therefore not surprising e would not have an accurate recall. Since however, the information from the Appellant did ultimately lead the police to the source of the handset and the ring case, there was no cause for the lower Court to hold as it did that the Appellant was an untruthful details which do not touch on the substance of the case.
Again, without further ado, I agree with learned Counsel for the Appellant that the trial Court took inadmissible material into consideration in its judgment to disbelieve the Appellant. The reference made by the trial Judge to the purported evidence of the PW2 in its Judgment at page 41 of the record is completely non-existent evidence. This what the court said:
"PW2 in his evidence said the accused confessed to him that the phones were part of his share of the robbery proceed.."
I have searched the length and breadth of the PW2's testimony in the record of the lower court and nowhere therein did the PW2 make this statement ascribed to him by the Court. Instead, it is evidently part of the alleged confessional statement of the accused which the same court had earlier on rejected after conducting a trial within trial.
The trial Court was therefore wrongly influenced by the rejected confessional statement made by the Appellant to the Police, which is not evidence before the Court. Indeed the trial court's obvious reliance on the alleged confessional statement weighed heavily in its mind in arriving at its final decision. This has consequently occasioned a miscarriage of justice. Where, as in this case, a wrongful admission of evidence prejudicial to the accused has been established, what it means is that the case against the Appellant has not been proved beyond reasonable doubt, a burden which rests absolutely on the prosecution. A doubt in the mind of the Court presupposes that the case against the accused person ha not been proved beyond reasonable doubt. See ManshepNamsoh v.The State (1993) 5 NWLR (Pt.292) 129. Consequently, any conviction based on such inadmissible evidence should be quashed while a verdict of acquittal will be substituted for the conviction. See Azeez Okoro v.The State (1998) 14 NWLR (Pt.584) 181. Based on the above, I also resolve issue two in favour of the Appellant. Grounds 3, 6 and 7 succeed.
In the result, it is my finding that the Appeal is meritorious. It is allowed. The judgment of the Court convicting the Appellant and sentencing him to death for robbery with firearms cannot stand. The conviction is quashed and the sentence of death is hereby set aside. I enter a verdict discharging and acquitting the Appellant of the charge of robbery with firearms made against him.
HELEN MORONKEJI OGUNWUMIJU J.C.A.: I have read the erudite and comprehensive judgment just delivered by learned sister JUMMAI HANNATU SANKEY, JCA. I am in complete agreement with her reasoning conclusions that this appeal is eminently meritorious.
The police investigation and prosecution of this case has been far from satisfactory. P.W.3 who later became the star witness being a victim of the armed robbery and a vital prosecution witness was initially not listed as such in the charge or proof of evidence. The manner of identification of the Appellant by PW.3 was to say the least most inappropriate and not geared towards finding out the truth not to talk of fulfilling the requirement of removing all doubt in the minds of reasonable people. The police took PW.3 along with them while going to arrest the Appellant and upon his being arrested and brought out of his workplace he was (of course) promptly identified by the belated self proclaimed eye witness to the armed robbery. Since there was no pretence that the Appellant was previously known to the witness, fair play and indeed the search for truth would have dictated that a proper I. D. parade should have been conducted by the police to ensure that the correct person will be prosecuted for the crime. Let us look at the facts of this case more closely. The evidence of the prosecution is that the Appellant - an armed robber who stole two Motorola mobile phones during the course of an armed robbery took one of the said phones for repairs and was foolish enough to leave his full name and correct address with the repairer. The Appellant left the address of his place of work where he was engaged in gainful and lawful employment. He was arrested the months after he left the address with the repairer and almost a year after the crime was committed. The evidence of the Appellant not in any way controverted by the prosecution and indeed supported by P.W.2 is that immediately he was arrested and asked about the source of the phone an the ring case, he told the police he bought the phone from a man who had a shop and promptly to k the police to the man's shop. The man was called Gbenga a.k.a. Alhaji. Gbenga's apprentice or shop boy took the Appellant and the police to Gbenga's house, where he was sighted and he milled that he sold the phone to the Appellant. The police inexplicably then allowed Gbenga to 'escape'. To me, the totality of the evidence in this case screams of the innocence rather than the guilt of the Appellant who has been deliberately made a fall guy for the usual ineptitude of the police and their investigation technique. Having allowed Gbenga to escape and also having 'obtained' a confessional statement from the Appellant, that was the sum total of police investigation of the matter. That is surely not good enough. It is perhaps telling, and this should have weighed on the mind of the learned trial judge in considering the totality of the evidence of the prosecution, that his Lordship found that the retracted confessional statement was secured from the Appellant by torture. Armed robbery continues to be a serious and nefarious crime in our society which should be prevented, detected and promptly punished by allstakeholders in the criminal justice system. In doing this however, we should not be too eager to railroad innocent citizens to the gallows. The prosecution has not proved the case against the Appellant beyond reasonable doubt.
I set aside the conviction of the Appellant and enter a verdict of Not Guilty to the charge of armed robbery. I allow this appeal for the above and fuller reason ably set forth in the lead judgment of my learned sister.
HON. JUSTICE IGNATIUS IGWE, J.C.A.: I have painstakingly read in advance the well research and erudite judgment just rendered by my noble Lord Sankey J.C.A.
I agree totally with her that the, Accused/Appellant ought to be discharged and acquitted in that although the appellant was found with the property stolen in the course of the robbery in Alhaji Mustapha Alabi's house, he has sufficiently explained away the circumstances under which he came by the stolen items.
He had also taken the police investigators to the man (Gbenga) from whom he got the stolen items even though the police allowed the said Gbenga to bolt away to nimbus, thus creating a deep hole in the prosecution's case.
The prosecution on its part did not also help matters when they simply brought the Pw3 in the absence of properly conducted identification parade which was a sine qua non in the face of the fleeting encounter of the said witness with the armed robbers on the night of the incident; to identify the Appellant who was already hand cuffed and shown him as the person who bore the address of the owner of the phone retrieved from Applied Technology Repair shop.
Indeed, the Pw3 was not mentioned in the proof of Evidence as one of the prosecution witnesses and it would appear that the prosecution merely went a shopping for any witness to nail the appellant, when Alhaji Alabi the main Complainant left for America after lodging his compliant of robbery.
It has been held in the recent case of NDIDI VS THE STATE (2007) ALL FWLR (Pt.381) 1650 - 1651 that in criminal trial particulars capital offences like armed robbery, the trial court must arrive at its decision through a process of analytical reasoning which commands confidence and that a judgment such as this which sends a man to the gallows and awaits the hangman's noose for his execution ought to be garnished with logical thinking predicated on cogent and admissible evidence which facts must lead to careful drawn inferences as to nothing else but the guilt of the Accused person See NWOSU VS. THE STATE (1986) 4 NWLR (pt.35) 348.
Also the prosecution must note that he is the peoples' prosecutor and not a persecutor who must look for evidence no matter how unfounded to shore up the conviction of an otherwise innocent person as in our instant case. The ignoble practice of going outside the prosecution's mandate in order to secure the guilt and conviction of an Accused person at all cost must not be encouraged by trial courts and where such a scenario exists as in this case it is incumbent on a Court of Appeal to quash such a conviction.
The Cardinal rule of our Criminal jurisprudence is that in order to sustain a conviction, the prosecution has the burden of proving its case beyond reasonable doubt. See BOZIN VS THE STATE (1985) 2 NWLR (pt.8) 465 at 467; NASIRU VS. THE STATE (1999) 1 S.C.N.J. 94 and also Per Lord Sankey in the English case of WOOL MINGTON VS. D.P.P. (1935) A.C. 462.
Where, as in this case there are gaps in the case of the prosecution which have created doubt as to the guilt of the Accused/Appellant such doubt ought to be resolved in favour of the Appellant.
The Appellant appeared to have been a bona fide purchaser of the cell phone and ring case without the animus furandi which is the essential ingredient of stealing or the mensrea that the items found with him were stolen or fraudulently obtained, which is the essential ingredient of unlawful possession or presumption of guilty knowledge under Section 149 (a) of the Evidence Act.
Accordingly, since the court nevertheless went ahead to convict the Accused/Appellant this court in its appellate jurisdiction, in line with the dicta of OBIODE VS. THE STATE (1970) 1 ALL NLR 35 and R.v. EKA (1955) 15 WACA 32 must intervene to set aside the judgment of the court below, quash the conviction and sentences imposed on the Appellant and enter a verdict of acquittal in his favour.
For the above reasons and the fuller reasons advanced by my learned brother, in the lead judgment, I also allow the appeal.
Appearances
Abdulganiyu Bello Esq. appears with Abdulkadir, T. E. Esq. For the Appelants
J. A. Mumini Esq., DPP Kwara State, appears with H. A. Gegele Esq.,
PSC, A. A. Daibu Esq., SSC., F. I. Abdurahman Esq. (Mrs.), SSC and O.
T. Olubiyi Esq. (Mrs.), SSC For the Respondents