In The Court of Appeal
(Ilorin Judicial Division)
On Thursday, the 6th day of December, 2007
Suit No: CA/IL/C.79/2006
Before Their Lordships
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
THESTATE 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 the
Appellant. 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 the
time 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 armed
with 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 line
up 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