SUPREME COURT OF NIGERIA
CITATION: (1992) 2 NWLR (Pt.244) 642

CORAM
MUHAMMADU LAWAL UWAIS                                               JUSTICE, SUPREME COURT
SAIDU KAWU                                                                            JUSTICE, SUPREME COURT
SALIHU MODIBBO ALFA BELGORE                                       JUSTICE, SUPREME COURT
ABUBAKAR BASHIR WALI                                                        JUSTICE, SUPREME COURT
IDRIS LEGBO KUTIGI                                                                JUSTICE, SUPREME COURT

BETWEEN

EUGENE IBE                                                                            APPELLANT

AND

THE STATE                                                                               RESPONDENTS

KUTIGI, JSC. (Delivering the Leading Judgment): At the Owerri High Court the appellant was charged as follows:-

“STATEMENT OF OFFENCE.

Robbery, contrary to section 1(2)(d) of the Robbery and Firearms (Special Provisions Act 1970 (Decree No. 47 of 1970) as amended by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeal etc) Decree No. 105 of 1979.

PARTICULARS OF OFFENCE

Eugene The on or about the 14th day of September, 1981, at Apostolic Faith Church along Owerri/Uratta Road, Owerri in the Judicial Division “in company with another person unknown armed with firearms robbed Stella Oleribe, the sum of N16.00”

At the trial the appellant pleaded not guilty to the charge. The prosecution called a total of six witnesses to prove their case while the appellant testified in his own defence. He called no witnesses. The learned trial judge after considering the evidence adduced by the prosecution and the defence of the appellant found the appellant guilty as charged and sentenced him to death. On appeal, the Court of Appeal dismissed the appeal. It is against that judgment that the appellant has now further appealed to this court.

The facts of the case are briefly that the appellant, in company of another person armed, with firearms at night robbed one Stella Oleribe of the sum of #16.00. She testified as PW.2. She was beaten with the butt of the gun. The incident took place at the premises of the Apostolic Faith Mission Aladinma, Owerri. PWs. 1,3, & 4 who were in the church premises with PW. 2 on the fateful day also narrated how they were maltreated and beaten up by the appellant and his comrade. PW.2 recognised the appellant because he had before then carried out some carpentry jobs for the mission in the premises. She even knew the appellant’s workshop. As the appellant also spoke to his victims on the fateful, night PW.2 recognised his voice as well. It was PW2 who led police to the appellant;s workshop where he was arrested.

The appellant in his defence denied robbing anyone. He said he was in his house on the day of the incident. He however admitted having carried out some carpentry works for the church and having seen PW.2 pass by his workshop before this incident.

In the Court of Appeal the following four issues were raised for determination:-

“i. Whether the learned trial judge made a correct evaluation of the evidence led by the parties by arriving at a proper conclusion on the prosecution’s evidence before considering that of the defence.

Whether the learned trial judge properly directed himself as to the standard of proof, having regard to the issues before him especially the evidence led by the prosecution in attempting to rebut the defence of alibi raised by the accused.

Whether it was proved that Eugene lbe, the accused was actually identified by the prosecution witnessess that is one of the main reasons why the learned trial judge convicted him and neglected his defence.

Whether the learned trial judge considered the material contradictions in the evidence of prosecution witnesses which if he had done he might not still prefer the prosecution?s case.

The Court of Appeal considered all these issues some of which had been raised before and determined by the trial court. It rejected the submissions that the appellant?s alibi was neither challenged nor refuted by the respondent holding rather that there was no evidence upon which the trial court could have construed the defence of alibi in favour of the appellant, and that the prosecution in fact adduced sufficient and credible evidence to fix the appellant at the scene of crime at the material time. It held that the appellant was properly identified by two principal eye witnesses (PW.s, 2 and 4) called by the prosecution as one of the armed robbers on the night in question. The court also held that there were no material contracdictions in the evidence of the prosecution witnesses to warrant its interference with judgment of the trial court. It finally held that the prosecution proved its case beyond reasonable doubt and dismissed appellant’s appeal.

Now in this court Chief Akande learned Senior Advocate for the appellant in his brief submitted three issues for determination thus:

Are the contradictions in the evidence of the prosecution not serious enough to justify setting aside the conviction?

Was the case of the prosecution established beyond reasonable doubt?

In (sic) the cross-examination of P.W. 3 at page 11 fair to the case of the accused?

It can be seen that these issues with the exception of issue three are issues which had been taken up both at the trial court and in the Court of Appeal.

Issue three was covered not by any ground of appeal and is therefore incompetent. That much was conceded by Chief Akande himself. An Appeal Court can only hear and decide an Issue on the grounds of appeal filed before it. (See Management Enterprises v. otusanya (1987) 2 NWLR. (pt. 55)170. The issue is hereby struck out.

In respect of issues one and two for determination it was the submission of Chief Akande that contradictions in the evidence of prosecution witnesses were serious enough to affect the conviction of the appellant and that the Court of Appeal was in error when he held that there were no material contradictions in the evidence as a whole. The first of such contradictions referred to by counsel was that while P.Ws 1 and 2 gave evidence that they saw only two armed robbers, PW.4 said she saw three. Secondly, while PW.2 said all the two robbers were armed, PW.1 said only one of the robbers was armed.Thirdly, PW. 2 said the robbers forced open her mother?s box and removed the N16.00 in it, whereas PW 4 said the robbers asked PW2 to bring out the money and that she did. Fourthly, that P W. 1 said the robbers did not allow them (victims) to see their (robbers) faces, and that PWs. 1 & 3 said they could not recognise any of the robbers, whereas PWs 2 & 4 said they recognised the appellant as one of the robbers. The cases of Aderemi v. The State (1975) 9-11 SC. 115 and Asuquo Brown v. The State (1975) 9-11 SC. 139 were cited in support.

It was also submitted that the highlighted contradictions above made the identity of the appellant negative. He said in the light of glaring contradictions the prosecution had failed to prove its case beyond reasonable doubt.

It was further submitted that the omission by the prosecution to call one MBARI IDIR mentioned by the appellant in Exhibit ?F”, was unfair and unjust to the defence who was denied the opportunity of cross-examining him. He said we should invoke section 148(d) of the Evidence Act and hold that the defence of alibi raised by the appellant was not discredited.

In reply learned counsel for the respondent Mr. Okoro, submitted that the conflict as to the number of robbers was not a material contradiction. On the number of guns used, counsel said it did not make any difference because the offence of armed robbery was grounded once there was evidence that as least one gun was used during the robbery as in this case. Equally it was immaterial which of the robbers was actually armed because the appellant and his comrade or comrades were acting in concert with a common intention and common purpose. On the manner of taking the N16.00 it was submitted that whether the money was taken by the robbers or given to them by PW.2, the offence of robbery was properly grounded in the condition in which PW.2 found herself amidst robbers who were armed, and therefore there was no contradiction. The following cases were cited Musa Sokoto v. The State (1976) 2 SC. 133, Alagba & ors.v. R (1950) 19 NLR. 129.

It was further submitted that the alibi put up by the appellant was properly investigated and proved to be baseless and false. He referred to the evidence of PW.5 who investigated the alibi. That when PW5 interrogated MBARI IDIR he denied seeing the appellant on the night in question and that this was in the presence of the appellant himself who said nothing further. The appellant therefore had a duty to testify to the accuracy and authenticity of his alibi which he failed to do. He referred in Yanor. &Anor. v. The State (1965) NMLR. 337, Ntam &Anor v. The State (1968) NMLR., and Gachi & Ors. v. The State (1965) NMLR. 33.

It was also submitted that credibility of prosecution witnesses was not destroyed by inconsistencies or contradictions on minor or immaterial points and that having regard to the evidence led at the trial, the charge against the appellant was proved with the certainty required by law. The cases of Nasamu v. The State (1976) 6-9 SC. 153 and Miller v. Minister of Pensions (1947) 2 All E.R. 373 were cited in support.

Now, ft is settled beyond question that for any conflict or contradiction In the evidence of the prosecution witnesses to be fatal to the case, the conflict or contradiction must be substantial and fundamental to the main issues in question before the court. (see for example Onubogu & Anor. v. The State (1974) 1 NLR.(pt. 11) 5, Nasamu v. The State (supra), Enahoro v. queen (1965) 1 ANLR. (125). I completely agree with Court of Appeal and the able submissions of learned counsel for the respondent that the contradictions highlighted by appellant are not material contradictions. The exact number of robbers and the exact numbers of gun used were clearly in my view not material to the charge against the appellant. Both PWs.2 & 4 stated unequivocally in their evidence before the court that they identified the appellant as one of the robbers on the night in question. PW.2 in particular said she had known the appellant before the robbery as he had done some woodwork previously in their premises. She took the police to the appellant’s workshop later where he was arrested. She also said she recognised the appellant from his voice as he talked that night. It is settled too that there may be sufficient identification of a person by his voice - see R. v. John Keating (1909) 2 CAR 61. I think also that the facts and circumstances of the entire case show that it was immaterial whether the appellant was actually armed because his comrade or comrades were. It was also immaterial whether the N16.00 were handed over to the appellant by PW.2 or whether he collected them direct from the box in which they were kept. The fact was that the money was obtained under threat or menace of a gun.

As regards the appellant’s defence of alibi, I also agree with the Court of Appeal that there was no evidence upon which the trial court could construe that defence of alibi in favour of the appellant. The policeman P W.5 had told the court that the Hausa man Mbari Idir, mentioned by the appellant had denied in the presence of the appellant that he saw the appellant on the night in question. The evidence of both P Ws.2 & 4 also show that the appellant was one of the armed robbers. I think the prosecution had clearly adduced sufficient evidence to fix the appellant at the scene of crime at the material time. While the prosecution had the onus to prove its case beyond reasonable doubt the appellant had the duty of proving his alibi albeit on a balance of probability. (See Yanor & Anor. v. The State (supra) Dankwa v. R. (1951) 13 WACA. 134; Abguyuluwa & Ors v. C.O.P (1961) All NLR. 850; Gachi & ors. v. The State (Supra).

The prosecution in this case had no duty to call Mbari Idir again to come and testify. He had denied seeing the appellant that night and in the presence of the appellant. If the appellant wanted him he should have called him to come and testify on his behalf. He failed to do so. The prosecution cannot be blamed.

Having carefully examined the totality of evidence adduced at the trial, I am firmly of the view that there was no merit whatsoever in this appeal. I am satisfied that the prosecution proved its case against the appellant. Consequently the appeal fails and it is hereby dismissed. The judgment of the Court of Appeal affirming that of the trial court is hereby confirmed.

UWAIS, JSC.: I have had the privilege of reading in draft the judgment read by my learned brother Kutigi, JSC. I entirely agree, for the reasons contained therein, that the appeal lacks merit. affirmed.

Accordingly, it is hereby dismissed and the decision of the Court of Appeal is KAWU, JSC.; I have had the advantage of reading, in draft, the lead judgment of my learned brother, Kutigi, JSC. which has just been delivered. I am in complete agreement with his conclusion that this appeal lacks merit and should be dismissed. In my view on the totality of the evidence adduced at the trial the conviction of the appellant of the offence charged was absolutely justified and the Court of Appeal was right in dismissing his appeal and confirming his conviction. I see no merit whatsoever in this appeal and it is accordingly dismissed. I confirm the appellant’s conviction and the sentence of death imposed on him.

BELGORE, JSC.; I read in advance the judgment of my learned brother, Kutigi, JSC. with which I am in full agreement. I adopt the judgment as mine in dismissing this appeal.

WALI., JSC.: I have had the privilege of reading in advance, a copy of the lead judgment of my learned brother, Kutigi, JSC., and for the reasons ably stated therein, I also agree that the appeal lacks substance and must therefore fail. I subscribe to the order of its dismissal made in the lead judgment.

The facts of this case have been sufficiently stated in the lead judgment of my learned brother, Kutigi, JSC. and therefore need no further repetition.

The appellant was charged with armed robbery contrary to section 1(2)(a) of the Robbery and Firearms [Special Provision] Act 1970 as amended. The appellant denied the charge and put up a defence of alibi.

The prosecution called six witnesses in proof of the case against the appellant.

Among these witnesses were PW.2 and PW.4.

In her evidence, PW2, on the incident and identity of the appellant, narrated thus:

“That night two persons forced the door open and came into the room. I recognised one of them. It is the accused now in court. I had known the accused before that day. He did carpentry jobs in the mission. I also know his workshop. That night we left our lantern on, so I saw his face and recognised him. He spoke and I also recognised his voice........ I later took the police to the accused workshop [a carpentry workshop]”.

PW.4 also in her testimony stated as follows:

“In the night of that day, I was in the Church compound with my 4 other sisters and a brother. It was about 3.00 a.m. we heard footsteps near the windows. We suspected they were thieves. My elder sister Stella (PW 2) told us to keep quiet. Suddenly we saw them rushed (sic) into the room. I did not know how they opened the door. They told us to keep quiet. The lantern was on.

I raised up my head to see whether I could recognise them. At that time I saw the accused person. He observed I raised my head and ordered me to lie down...............................

Three of them entered into our room. It was only the accused I saw with a gun............. Before that night I had known the accused. He once worked in the Church as a carpenter.”

Against this evidence, the appellant, in support of his alibi gave the following evidence:

“I did not rob Stella Oleribe or anyone else on 14th September, 1981 with arms. I remember working at the Apostolic Church Ikenegbu.

At the Police Station I saw some other persons including one of the girls who gave evidence here in court in respect of this case. I now understand that the girl?s name is Stella Oleribe.

I was locked up at the police station for about 3 days thereafter, I requested that I be taken to my house in order to let my neighbour know my whereabouts. The man I referred to as my neighbour is, in fact an Hausa man. I did not know his name but he takes care of my things each time I leave the workshop........ I introduce the Hausa man to the policeman and told him that the Hausa man could speak about me. The police returned with me and the Hausa man to the police Station. I was locked up.”

The learned trial judge, after considering the evidence adduced by both the prosecution and the defence, made the following findings:

“This is a case where I consider the facts are straight forward. Infact I am constrained to say that the accused apart from mere denial of the offence before me did not put up any definite defence in this Case. His oral testimony is a sham. Absolute nonsense.

“This accused to my mind merely puts up a spurious defence of alibi which is absolutely baseless .......... as I observed earlier, the accused has merely put up this defence of alibi as a cover-up.”

“The identity of the accused with regard to this offence poses no problem at all. P W. 2 impressed me as a truthful witness. She knew the accused ever before the incident. Both PW.2 and the accused admit this fact. PW.4 also knew the accused ever before the incident. Both PW.2 and the accused admit this fact. PW4 also knew the accused; both of them saw and recognised him on the night of 14th September, 1981 as the armed robber who chose to visit a familiar premises for his illicit and unholy operation.”

In confirming these findings by the trial court, the Court of Appeal in its unanimous judgment written by Onu, JCA., said:

“I am to stress with utmost due respect that there was no evidence upon which the trial court could construe the defence of alibi in favour of the appellant by reason of the fact that even though it is admittedly the duty of the prosecution to check on a statement of alibi by an accused person and disprove same or attempt to do so, there is no inflexible or invariable way of doing this. If as in the case in hand, the prosecution had adduced sufficient and acceptable evidence to fix the appellant at the scene of crime at the material time, his alibi is thereby logically and physically demolished, and that would be enough to render such plea ineffective as a defence.

See Patrick Njovens & Ors. v. The State (1973) 1 NMLR. 331 at 351.”

The learned trial judge, rightly in my view accepted and relied on the evidence of PW.2 and PW.4 to convict the appellant of the offence charged. The testimony of P W.2 as regards the identity of the appellant and the part he played in carrying out the robbery was corroborated in all material points by the evidence of PW.4. Although the prosecution had a duty to Investigate the defence of alibi where I is raised by an accused person, the law does not Impose a duty on them to call as a witness or witnesses Interviewed In that regard where they consider such evidence very weak or worthless as against the much stronger evidence that fixes the accused at the scene of the Crime. Both the PW. 2 and PW.4 gave credible and unshaken evidence that they saw the appellant participating in the armed robbery and whom they claimed to have known before the incident. This fixed the appellant beyond any reasonable doubt, at the scene of the crime. After all the duty is on the accused to prove his alibi to the preponderance of probability. In this case, the appellant woefully failed to do that. See Yanor & Anor v. The State (1965) NMLR. 337 Nwosisi v. The State (1976) 6 SC. 109.

Throughout the trial, the appellant was defended by counsel and if the defence had felt strongly about the material of the evidence of Mbari Idir, whom the prosecution interviewed as regard the alibi raised by the appellant and found not to be helpful to either their case or that of the defence, nothing stopped the defence from calling him as their witness.

They did not do that and preferred to rely upon the evidence of the appellant who was their only witness.

For these and the more detailed reasons contained in the lead judgment of my learned brother, Kutigi, JSC., I also conclude that the appeal has no merit and I dismiss it. The judgments of both the lower court and the court below are affirmed.

Appeal dismissed.

Counsel:

Chief Debo Akande, SAN (with him, Igbosua Edo-Ukeh and Ibitola Tope) - for the appellant.

C.C. Okoro, Deputy Director of Public prosecutions, Ministry of Justice, Imo State - for the respondent.