Abdullahi v. State (2008)

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ENESI LUKMAN ABDULLAHI

V.

THE STATE

SC.207/2007

SUPREME COURT OF NIGERIA

ALOYSIUS IYORGYER KATSINA-ALU, J.S.C. (Presided and Readthe Leading Judgment)

SUNDAY AKINOLA AKINTAN, J.S.C.

MAHMUD MOHAMMED, J.S.C.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

IBRAHIM TANKO MUHAMMAD, J.S.C.

FRIDAY, 23RD MAY, 2008

APPEAL – Findings of fact by trial court – Finding of trial court incriminal case – When appellate court will interfere therewith.

CRIMINAL LAW AND PROCEDURE – Armed robbery – Ingredientsof.

CRIMINAL LAW AND PROCEDURE – Conspiracy – Ingredients of.

CRIMINAL LAW AND PROCEDURE – Findings of fact by trialcourt – Finding of trial court in criminal case – When appellatecourt will interfere therewith.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Burden ofproof on prosecution – How discharged – Whether shifts.

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CRIMINAL LAW AND PROCEDURE – Proof of crime – Name ofaccused person – Failure of witness to mention to police atearliest opportunity – Effect.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Recognitionof accused person – Evidence of – How treated.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Standardof proof required in criminal cases.

EVIDENCE – Proof of crime – Burden of proof on prosecution – Howdischarged – Whether shifts.

EVIDENCE – Proof of crime – Name of accused person – Failure ofwitness to mention to police at earliest opportunity – Effect.

EVIDENCE – Proof of crime – Recognition of accused person -Evidence of – How treated.

EVIDENCE – Proof of crime – Standard of proof required in criminalcases.

Issue:

Whether there was proper identification of theappellant.

Facts:

At the High Court of Kogi State, Okene, the appellantand five others were charged with conspiracy and armedrobbery. Only the 2nd accused person and the appellant stoodtrial and the other accused persons absconded from prisoncustody and could not be apprehended to stand trial for thetwo offences.

The appellant was the 3rd accused at the trial. The mainevidence against him came from PW1 and PW2. They were thevictims of the armed robberies. PW1 was robbed on 9/8/2001and 11/8/2001 while PW2 was robbed on 11/8/2001. Thetwo witnesses claimed to have known the appellant and someof the accused persons long before the incidents and that helived in the area. The witnesses knew him by name. It wasalso their evidence that he participated in the three armedrobbery attacks on them. They also disclosed that when theyfirst reported the matter at the police station shortly after

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incident, neither of them told the police that he knew anyof the robbers that attacked him. They also did not disclosethe identity of the appellant to the head of the communityto whom they immediately reported the incidents. PW1, inaddition, did not tell his neighbours who took him to thehospital after one of the attacks that he knew the appellant.It was about five days later that the witnesses mentioned thenames of some of the robbers, including that of the appellantto the police.

During the course of the trial, PW1 and PW2 did notexplain why they failed to mention the name of the appellant.

At the conclusion of trial, the trial court convicted the2nd accused person and the appellant and sentenced each ofthem to seven years imprisonment on the count of robberyand N3,000.00 fine or one year in lieu on the count ofconspiracy.

The appellant’s appeal to the Court of Appeal wasdismissed.

Dissatisfied, the appellant appealed further to theSupreme Court.

Held (Unanimously allowing the appeal):

1.On Ingredients of offence of conspiracy –

In order to discharge the burden of proof placed onit by law, it is the duty of the prosecution to adduceevidence to establish the following ingredients of theoffence of conspiracy:-

an agreement between two or more persons todo an illegal act or an act which is not illegal(a)by illegal means; and

that an illegal act was done in furtherance ofthe agreement and that each of the accused(b)persons participated in the illegality.

(P. 221, paras. F-H)

2.On Ingredients of offence of armed robbery –

Where an accused person is charged with the offenceof armed robbery, it is the duty of the prosecutionto establish by evidence the following ingredientsbeyond reasonable doubt, to wit:

(a)theft by the accused person;

the causing of hurt or wrongful restraint on(b)the victim by the accused person;

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that the acts complained of were done in theprocess of committing the theft or in orderto commit the theft and/or carry away the(c)property obtained by the theft;

that the accused person did the acts(d)complained of voluntarily; and

that the accused person was armed with adangerous weapon while committing the(e)offence in question.

(Pp. 221-222, paras. H-C)

3.On Effect of failure of witness to mention name ofaccused person to police at earliest opportunity –

In a criminal matter, where a witness failed tomention the name of an accused whom he knewbefore the commission of a crime to the police atthe earliest opportunity, that would detract fromwhatever credibility the trial court may wish toascribe to his evidence. In addition, he shoulddescribe the clothes the accused wore at the scene ofthe crime. A failure to adopt this approach wouldinvariably result in the acquittal and discharge ofthe accused. In the instant case, the omission todisclose the identity of the appellant at the earliestopportunity was enough to vitiate the credibility ofthe evidence given by the two principal witnesses whowere the victims of the offence which they accusedthe appellant of committing. [Udeh v. State (1999) 7. (Pt. 609) 1; Wakala v. State (1991) 8 .(Pt. 211) 552 referred to.] (Pp. 216, paras. E-G; 217,para. H)

Per ONNOGHEN, J.S.C. at pages 223-224, paras.F-C:

“In view of the facts, can it be said that theprosecution has proved that appellant was oneof those who robbed the victims – PW1 & PW2on dates in question beyond reasonable doubtparticularly having regards to the fact thatappellant had maintained that he was never atthe scenes and even raised a defence of alibi whichwas testified to by DW4, his wife? Is it safe to son

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convict the appellant of the offences chargedunder the circumstances? I do not think so. BothPW1 and PW2 know the appellant before thedate of the robberies and testified to the fact thatthe robbers were not masked while carryingout the robberies. Yet at the first opportunity ofreporting the incidents to the police, neighboursand community leader neither PW1 and PW2mentioned the identity of the appellant as beingone of the armed robbers who carried out theraid. They only mentioned the name of theappellant 5 days after the incidents and whenthey made their statements to the police. Thereis no explanation from the prosecution as to whyPW1 and PW2 omitted to mention the nameof the appellant as being part of the gang ofrobbers of that date in the first opportunity. Ihold the view that the circumstances of the nonmentioning of the name of the appellant to thepolice, community leader, and neighbour soonafter the robbery incidents has raised somedoubts as to the reliability of the statementsof PW1 and PW2 as to the participation of theappellant in the robbery incidents in questionparticularly as it is in evidence that the saidrobbers were not masked during the operation.”

4.On Treatment of evidence of recognition of accusedperson –

Recognition is more reliable than identification ofa stranger. But even when the witness is purportingto recognize someone whom he knew, the trial courtmust warn itself that mistakes in recognition of closerelatives and friends are sometimes made. [Abudu v.State (1985) 1 . (Pt.1) 55 referred to.] (P. 216,paras. G-H)

5.On Burden and standard of proof and duty on court incriminal case –

In a criminal trial, the onus remains on the prosecutionto prove or establish the case against the accused per

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beyond reasonable doubt and the onus or burden ofproof never changes or shifts. And it is incumbentupon the court to arrive at its decision through a pro-cess of reasoning which is analytical and commandsconfidence. In the instant case, the prosecution didnot present any other evidence that linked the ap-pellant with the commission of the crime with whichhe was charged. [Ahmed v. State (1999) 7 . (Pt.612) 641; Anekwe v. State (1998) ACLR 426; Obiakorv. State (2002) 10 . (Pt. 776) 612 referred to.](Pp. 216-217, paras. H-C; 221, paras. D-E)

6.On Standard of proof required in criminal case –

In a criminal trial, the standard of proof is proofbeyond reasonable doubt. Where there exists anydoubt, the doubt must be resolved in favour of theaccused person. In the instant case, the subsequentmentioning of the name of the appellant in thestatements of PW1 and PW2 was an afterthoughtwhich raised serious doubt as to the participationof the appellant in the crime with which he wascharged. The doubt ought to be and was resolvedin favour of the appellant. (P. 224, paras. C-D)

7.On When appellate court will interfere with finding oftrial court in criminal matter –

.Where a trial court had drawn a conclusion fromaccepted or proved facts and which facts do notprove the prosecution’s case, an appellate court hasthe duty to interfere with such findings because theyare perverse. In the instant case, the interferenceof the Supreme Court was necessary as the identityof the appellant was not established by credibleevidence. [Okolo v. Uzoka (1978) 4 SC 77; Fatoyinbov. Williams (1956) SCNLR 274; Adio v. State (1986)2 . (Pt.24) 581; Kada v. State (1991) 8 .(Pt.208) 134 referred to.] (P. 219, paras. A-C)

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Nigerian Cases Referred to in the Judgment:

Abudu v. State (1985) 1 . (Pt. 1) 55

Adio v. State (1986) 2 . (Pt. 24) 581

Ahmed v. State (1999) 7 . (Pt. 612) 641

Anekwe v. State (1998) ACLR 426

Archibong v. State (2006) 14 . (Pt.1000) 349

Balogun v. A.-G., Ogun (2002) 6 . (Pt. 512) 763

C.O.P. v. Alao (1959) WRNLR 39

Fatoyinbo v. Williams (1956) SCNLR 274

Idahosa v. Queen (1965) NMLR 85

Igbi v. State (2002) 3 . (Pt. 648) 169

Ikemson v. State (1989) 3 . (Pt. 110) 455

Kada v. State (1991) 8 . (Pt. 208) 134

Obiakor v. State (2002) 10 . (Pt. 776) 612

Okolo v. Uzoka (1978) 4 SC 77

Tsaku v. State (1986) 1 . (Pt. 17) 516

Udeh v. State (1999) 7 . (Pt. 609) 1

Wakala v. State (1991) 8 . (Pt. 211) 552

Foreign Case Referred to in the Judgment:

R. v. Turnbull (1976) CAR 132

Nigerian Statute Referred to in the Judgment:

Penal Code, Ss. 97(1) and 298(c)

Appeal:

This was an appeal against the decision of the Court ofAppeal which dismissed the appellant’s appeal against thejudgment of the High Court convicting him of the offencesof conspiracy and armed robbery. The Supreme Court, ina unanimous decision, allowed the appeal and dischargedand acquitted the appellant.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: AloysiusIyorgyer Katsina-Alu, J.S.C. (Presided and Readthe Leading Judgment); Sunday Akinola Akintan,J.S.C.; Mahmud Mohammed, J.S.C.; WalterSamuel Nkanu Onnoghen, J.S.C.; Ibrahim TankoMuhammad, J.S.C.

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Appeal No.: SC.207/2007

Date of Judgment: Friday, 23rd May, 2008

Names of Counsel: Chukwuma-Machukwu Ume,Esq. (with him, C. U. Ekomaru, I. M. Njka, U. J.Chukwu and E. Dyagas) – for the Appellant

Joe Abrahams, Esq., Attorney-General, Kogi State(with him, Chris E. Adejo, Esq., Legal Officer) – forthe Respondent

Court of Appeal:

Division of the Court of Appeal from which the appeal wasbrought: Court of Appeal, Abuja

Names of Justices that sat on the appeal: OlufunlolaOyelola Adekeye, J.C.A. (Presided and Read theLeading Judgment); Mary Peter Odili, J.C.A.; BodeRhodes-Vivour, J.C.A.

Appeal No.: CA/A/15C/05

Date of Judgment: Tuesday, 16th January, 2007

Names of Counsel: Mr. A. M. Aliyu – for the Appellants

Mrs. T. A. Alfa, Chief Legal Officer, Ministry ofJustice, Kogi State – for the Respondent

High Court:

Name of the High Court: High Court of Kogi State,Okene

Name of the Judge: Olusiyi, J.

Charge No: KGS/OK/IC/2002

Date of Judgment: Thursday, 24th June, 2004

Names of Counsel: I. A. Jemuh, Principal LegalOfficer – for the Prosecution

Francis Afeigbe – for the Accused

Counsel:

Chukwuma-Machukwu Ume, Esq. (with him, C. U.Ekomaru, I. M. Njka, U. J. Chukwu and E. Dyagas)- for the Appellant

Joe Abrahams, Esq., Attorney-General, Kogi State(with him, Chris E. Adejo, Esq., Legal Officer) – for theRespondent

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KATSINA-ALU, J.S.C. (Delivering the Leading Judgment): Thisis an appeal against the judgment of the Court of Appeal,Abuja Division delivered on 16th January, 2007. The appellantand five others were the accused persons at the trial court.They were charged before Okene High Court on a two countcharge of conspiracy and armed robbery as follows:

“That you Monday Lawal, Abu Osah, EnesiLukman Abdullahi, Abdulazeez Hassan, HassanSuberu, and Mohammed Ismaila on or about the9th and 11th of August, 2001 at Paul Nzeni andBenneth Onwugbufor’s residence, Iruvuchaba,Okene, in Okene Local Government Area with-in the Kogi State Judicial Division agreed to anillicit act, to wit, you agreed to commit armedrobbery at the premises of Paul Nzeni and Ben-neth Onwugbufor’s residence, Iruvuchaba Okeneand that same act was done in pursuance of theagreement and that you thereby committed theoffence of criminal conspiracy punishable undersection 97(1) of the Penal Code.

That you, Monday Lawal, Abu Isah, EnesiLukman Abdullahi, Abdulazeez Hassan, HassanSuberu, and Mohammed Ismaila on or about the9th and 11th of August 2001 at Paul Nzeni andBenneth Onwugbufor’s residence, Iruvuchaba,Okene, in Okene Local Government Area with-in the Kogi State Judicial Division while armedwith guns, machetes and cutlasses attacked onePaul Nzeni and Benneth Onwugbufor and robbedPaul Nzeni of the sum of N52,000.00 in cashand Benneth Onwugbufor the sum of N68,000,00and you thereby committed the offence of armedrobbery punishable under section 298(c) of thePenal Code.”

Four of the accused persons absconded from prison cus-tody and could not be apprehended to stand trial for the twooffences. The two accused who stood trial were Abu Isah andEnesi Lukman Abdullahi (2nd and 3rd accused respectively).They were tried and convicted of the two count charge andwere each sentenced to seven years imprisonment on thecount of robbery and N3,000.00 fine or one year in lieu onthe conspiracy count. The sentences of imprisonment wereto run concurrently. Their appeals to the Court of Appealwere dismissed, hence the present appeal to this court byEnesi Lukman Abdullahi.

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The parties filed their respective brief of argument inthis court. The appellant formulated the following lone issuein the appellant’s brief.

“1. Whether from the totality of the evidence adducedat the trial court, the Court of Appeal rightlyaffirmed that the charges of conspiracy and armedrobbery against the appellant were proved beyondreasonable doubt.”

The respondent in its brief of argument adopted the soleissue raised by the appellant.

I think the core issue in this appeal is whether there wasa proper identification of the appellant. This issue clearlyrelates to visual identification of the appellant. It was the caseof the prosecution that the appellant and one Abu Isah, whowas tried along with him committed three armed robberiesagainst PW1 Paul Nzewi and PW2 Benneth Onwugbufor.It was said that PW1 was robbed on 9th August, 2001 and11th August, 2001. PW2, it was contended, was robbed on11th August, 2001. All the incidents occurred at night. Thecase of the prosecution is as told by PW1 and PW2, the twovictims of the robberies. I think it is vital to relate the wholestory as given by these witnesses.

PW1 gave evidence and stated as follows:

“On 9/8/2001 about 1.50 a.m. I was sleeping in myroom when I heard a knock on my door. I askedwho was knocking but there was no response.Instead the door of my room was forced open.I quickly rose up from my bed as three men,armed, came into my room. The three men werethe two accused persons and one other man whois at large now. I grabbed the man who is nowat large and he hit my head with the gun he washolding as a result of which I fell down.

The 3rd accused was holding a knife and a stick.He broke the bulb in my room. The accusedperson who is now at large pulled me up andasked me to take them to where I kept my money.I opened my cupboard which was containing thesum of N42,000. The 2nd accused person whowas holding a gun picked the money from mycupboard. I was told to lie down which I did. Iwas lying down when the three armed robbersleft.

My daughter by name Uchenna and two of myneighbours by name Achuchukwu and Salihu took

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to a clinic where I was treated and discharged. Iwas able to recognize the accused persons and the otherperson at large because I saw them clearly before theybroke the bulb in my room. At the time they struck, thelight in my room was on.

On 11/8/2001 about 2.10 a.m. I was sleepingin my room when I heard a knock on my door.Before I could do anything, the door of my roomwas forced open by the same set of armed robbers, i.e.the two accused persons and the one at large. The2nd accused person was holding a gun while the3rd accused person was holding a stick. The oneat large was holding a gun. My daughter wasshouting for help but there was no help.

The person at large demanded for my moneyand I gave him the sum of N15,000 that was inmy room.

The 3rd accused person said I was a stubbornman and ordered me to lie down. I lied down andhe was beating me with a stick he was holding.

The 2nd accused person and the one atlarge forced my daughter to take them to myneighbour’s room. My neighbour’s name isBenneth Onwugbufor.

There was a gunshot into my sitting room whichscattered some of my property there.

While I was lying down on the floor in myroom, I heard somebody asking whether they hadgot the money to which someone responded, yes,after which they all left. It was at this stage that Igot up from where I was lying down. I later wentto the clinic for treatment.

After each robbery incident I went to report to thepolice.

By Afeigbe: The accused persons were arrestedafter the second armed robbery incident. WhenI made the first report to the police, I did not mentionthe names of the accused persons. The accused personswere not masked when they robbed me. I knew theaccused person at large and the 2 nd accused personbefore the incident.

The names I mentioned in my statementto the police were Monday, Abu andOje Audu in respect of the first robberyincident. In respect of the second robbery

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incident, I mentioned Monday and Ojo Audu.The person I referred to as Ojo Audu is the 3rdaccused person before the court.

The person I referred to as Abu in my statementto the police is the 2nd accused person before thecourt.

When my neighbours came to take me to the hospital,I did not tell them about the identity of the armedrobbers.

(Italics for emphasis)

For his part PW2 gave evidence and said:

“On 9/8/2001 about 1.10 a.m. I took my wife tothe Total filling station, Okene, to board a bus toAba. On getting back to my house, I discoveredthat the fluorescent light which was on before Iwent out was no longer on. When I was won-dering what happened, my neighbour’s daughter,Uchenna Nzewi told me that armed robbers hadjust struck in our compound.

I went into my neighbour’s room where I methim crying. He, that is PW1, told me that armedrobbers had just attacked him and made awaywith his money.

On 11/8/2001 about 2.30 a.m. I was sleepingin my room when I heard gunshots. I got up andpeeped through my window and saw some mendownstairs. I recognized those men. They areMonday, James, Ojo, Hassan and German, anelectronic repairer and Abu. The 2nd accused isAbu while the 3rd accused is an electronic repairer,popularly known as German.

These men climbed upstairs to my room wherethey demanded that I should open the door or theywould kill me. I refused to open the door but theyforced it open. When they came in my light wason. The 3rd accused person and the one at largeby name Monday pointed torch light on my faceand demanded for N1 million. I told them that Idid not have that type of money. Monday shoutedthat I should bring the money and I responded byshouting “Jesus”. I was ordered to lie down on myface by Monday who put a gun to my head anddemanded that I should bring N1 million. I toldhim I had none and that they should ransack myroom take whatever amount of money they saw.They were searching my room for money. Aftersometime, I heard someone shouting outside say

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“Mapo, Sergeant, Alright” as a result of which allof them left. When I gathered myself I stood upand went round my room where I discovered thatthe armed robbers including the accused personshad made away with the sum of N68,000.

I came out of my room and I saw my neigh-bour, P.W.1, who told me that he was also robbedby the accused persons.

About 9.00a.m. both the PW1 and myself went toreport to the police. We also reported to the head of theIruvuchaba community.”

(Italics for emphasis)

It will be seen clearly from the evidence of PW1 andPW2 – the two victims of the robberies that they knew theappellant and the accused persons by name at the time ofthe incidents. Both witnesses recognized the appellant. It isalso clear that they reported these incidents to the policeand their community leader on the morning of the daysin question. Lastly the witnesses testified that they did notdisclose the identity of the appellant to the police nor thehead of their community nor indeed to PW1’s neighbourswho took him to hospital.

In his issue 1, the appellant contended that his purportedrecognition by PW1 and PW2 was an after thought and afarce meant to implicate the appellant for whatever reason.This, it was pointed out, was borne out by the failure ofthe victims of the robberies (PW1 and PW2) to disclose theidentity of the appellant to either the police when they madetheir reports or to the head of the community immediatelyafter the incidents. The witness (PW1) also did not mentionthe name of the appellant to his neighbours who took himto hospital as one of the persons who robbed him. It wasalso said that this omission, which was not explained, wasfatal to the case of the prosecution.

It was further pointed out that PW1 and PW2 waiteduntil five days after they were robbed before disclosing theidentity of the appellant and the other accused persons whothey alleged robbed them. If, it was submitted, the learnedtrial judge had averted his mind to this fact, he would haverejected the evidence linking the appellant to the robberies.

The respondent in reply pointed out that the evidencecalled by the prosecution shows that the appellant incompany of his colleagues in crime robbed the PW2immediately after robbing the PW1. It was said that in thesecircumstances it was immaterial whether these witnessesmentioned the name of the appellant to the police at the time

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reports to the police. The respondent further submitted thatthe evidence of these witnesses is sufficient to support theconviction of the appellant for the offences with which hewas charged.

As I have pointed out earlier on in this judgment, theappellant was the accused at the trial. The main evidenceagainst him came from PW1 and PW2. They were the victimsof the robberies. The two witnesses claimed that they knewthe appellant long before the incidents and that he lived inthe area. They knew him by name. It was also their evidencethat he participated in the three armed robbery attacks onthem on 9th and 11th August, 2001. They also disclosed thatwhen they first reported the matter at the police stationshortly after each robbery incident none of them told thepolice that they knew any of the robbers that attacked them.They also did not disclose the identity of the appellant tothe head of the community to whom they reported. PW1 inaddition did not tell his neighbours who took him to hospitalafter the attack that he knew any of the robbers.

The record shows that it was after about five days lat-er that the witnesses mentioned the names of some of therobbers, including that of the appellant.

It is significant to point out at this stage that PW1 andPW2 did not explain throughout the trial why they failed tomention the name of the appellant.

The position of the law is this. Where a witness failedto mention the name of an accused whom he knew beforethe commission of a crime, to the police at the earliest op-portunity, that would detract from whatever credibility thetrial court may wish to ascribe to his evidence. In addition,he should describe the clothes the accused wore at the sceneof the crime. Surely, this is common sense and failure toadopt this common sense approach would inevitably resultin the acquittal and discharge of the accused. See Udeh v. TheState (1999) 7 . (Pt.609) 1; Wakala v. The State (1991) 8. (Pt.211) 552; R. v. Turnbull (1976) Cr. App. R. 132.Recognition is undoubtedly more reliable than identificationof a stranger. But even when the witness is purporting torecognize someone whom he knows, the trial Judge mustwarn himself that mistakes in recognition of close relativesand friends are sometimes made. See R. v. Turnbull (1976) CrApp. R. 132; Abudu v. The State (1985) 1 . (Pt.1) 55.Incriminal trials, the burden is always on the prosecution to

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court to arrive at its decision through a process of reasoningwhich is analytical and commands confidence.

So having regard to these facts and circumstances, wasthe appellant at the scene of the crime? He said he was not.He told the police at the earliest opportunity that he wasin his house sleeping at the material time. His wife SikiratLukman testified as DW4 and confirmed her husband’s ali-bi. The police conducted a search of the appellant’s houseshortly after his arrest and found nothing incriminating theappellant. The prosecution did not present any other evi-dence that linked the appellant with the commission of thecrime with which he was charged.

Having regard therefore to the circumstances of thiscase, I think the verdict was unsafe and unsatisfactory. Iwould therefore allow this appeal and set aside the convictionand sentence. The appellant is accordingly acquitted anddischarged.

AKINTAN, J.S.C.: The appellant and another co-accusedwere arraigned, tried and convicted at Okene High Courtfor the offence of armed robbery.

They were both convicted and sentenced to termsof imprisonment. The appellant’s appeal to the Court ofAppeal against his conviction and sentence was dismissed.The present appeal is against the judgment of the Court ofAppeal dismissing his appeal to that court.

The main attack launched against the judgment in thiscourt is against the evidence relied on in support of theconviction of the appellant. It is argued that the evidencerelating to the identity of the appellant, as given by thetwo witnesses who happened to be the victims of robberies,should have been treated as unreliable. The reason given forthat contention is that although each of the two witnessesclaimed to have known the appellant long before theincident, yet they failed to disclose his name and identityto both the police and others shortly after the incidents andeven at the time they made their statement to the police onthe incident. It was after about five days later that the twoprincipal witnesses decided to name the appellant as one ofthe people that carried out the robbery and no reason wasgiven for the delay.

The omission to disclose the identity of the appellantat the earliest opportunity is said to be enough to vitiatethe credibility of the evidence given by the two principalwitnesses. I share the same view.

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I had the privilege of reading the draft of the lead judg-ment written by my learned brother, Katsina-Alu, JSC. Forthe reason I have given above and the fuller reasons given inthe lead judgment, which I hereby adopt, I agree that thereis merit in the appeal. I accordingly allow it and set asidethe conviction and sentences passed on the appellant and Ireplace them with an order of discharge and acquitted.

MOHAMMED, J.S.C.: This appeal is against the judgmentof the Court of Appeal, Abuja Division dismissing theappellant’s appeal on 16/1/2007 against his convictions andsentences by the High Court of Justice of Kogi State, of theoffences of conspiracy and armed robbery under sections97(1) and 298(c) of the Penal Code.

The appellant together with five other persons werearrested and detained in prison custody on the accusationof having been involved in a number of armed robberiescommitted in Okene town of Kogi State. However four ofthe persons accused along with the appellant had abscondedduring a jail break and could not be apprehended to standtrial. Consequently, the appellant and one other accused,were tried together and convicted by the trial High Court.Their appeal to the Court of Appeal was heard and dismissed.The present appeal by the appellant alone, is thereforeagainst the dismissal of his appeal. The only issue arising fordetermination in this appeal, is whether from the evidenceon record adduced by the prosecution, the appellant wasrightly convicted of the offences of conspiracy and armedrobbery, under sections 97(1) and 298(c) of the Penal Code.

The main complaint of the appellant in this issue ison the quality of the evidence of PW1 who connected himby name to the offences he was charged and convicted.It was argued on behalf of the appellant, that since PW1claimed to have known the appellant before the incident ofthe armed robbery, the witness should not have hesitatedto mention his name to the police at the time of reportingthe incident. Learned appellant’s counsel therefore attackedthe findings of the trial court affirmed by the court belowthat the fact that PW1 said he did not mention the nameof the appellant in his report to the police after the firstincident, did not weaken the prosecution’s case in anyway,as erroneous. In the circumstances of this case, I fullyagree that the failure of PW1, who claimed to know theappellant not only by recognizing him on the face but also in

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reporting the robbery incident as one of the participants, asfatal to credibility of the evidence of PW1 on the identityof the appellant as one of those who took part in therobbery. The law is trite that where a trial court had drawna conclusion from accepted or proved facts and which factsdo not prove the prosecution’s case, an appellate court has aduty to interfere with such findings because they are perverse.See Okolo v. Uzoka (1978) 4 SC 77; Fatoyinbo v. Williams (1956)SCNLR 274; Adio v. State (1986) 2 . (Pt.24) 581; and.Dare Kada v. The State (1991) 8 . (Pt.208) 134 at 146.

In the instant case where the identity of the appellantwas not established by credible evidence, the interferenceby this court has become necessary.

It is with these few comments that I entirely agree withthe judgment of my learned brother, Katsina-Alu, JSC, whichI had the opportunity of reading in advance that there ismerit in this appeal. Accordingly, I also allow this appeal.The convictions and sentences passed on the appellant un-der sections 97(1) and 298(c) of the Penal Code by the trialcourt and affirmed by the court below, are hereby set aside.The appellant is acquitted and discharged.

Onnoghen, J.S.C.: The appellant was one of six accusedpersons charged before the Kogi High Court of Justice holdenat Okene in charge No. KGS/OK/IC/2002, with offencesof criminal conspiracy and armed robbery punishable undersection 97(1) and 298(c) of the Penal Code respectively.The appellant was the 3rd accused in the charge. At theconclusion of the hearing, appellant together with the otheraccused persons were found guilty as charged, convicted andsentenced accordingly. Appellant’s appeal to the Court ofAppeal holden at Abuja in appeal No. CA/A/15C/05 wasdismissed in a judgment delivered by that court on the 16thday of January, 2007 resulting in the instant appeal, the issuefor the determination of which has been identified by thelearned counsel for the appellant, Chukwuma-MachukwuUme, Esq in the appellant’s brief of argument filed on the2nd day of August, 2007 as follows:-

“Was there any proper identification evidence tohave enabled the Hon. Court of Appeal arrive to(sic) the conclusion that the appellant committedthe robberies?”

There are three robbery incidents involved in the charge and

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same gang of armed robbers. The victims of the robberiesare PW1 and PW2 both of who knew the appellant very wellbeing of the same community. PW1 was robbed on 9/8/2001and 11/8/2001 while PW2 was robbed on 11/8/2001.

It is the submission of learned counsel for the appellantin the appellant’s brief of argument that the evidence adducedby the prosecution as to the identification of the appellantas one of the robbers involved in the robberies is not cogentand sufficiently satisfactory to ground his conviction forthe offence charged; that there are doubts arising from theidentification of the appellant which doubts ought to beresolved in favour of the appellant particularly in view of thefact that appellant denied the charge and raised a defenceof alibi; that the identification parade was not conducted inaccordance with laid down standard procedure.

Learned counsel further submitted that PW1 and PW2never mentioned the name of the appellant as one of thosewho robbed them soon after the robbery incidents but didso belatedly, four days after the alleged incident as recordedat pages 87-90 of the record; that if it were true that theappellant was one of the robbers, PW1 and PW2 wouldhave mentioned him at the first opportunity such as whenthey reported the matter to the police and the head of thecommunity immediately after the robbery incident and thatthe failure to so mention the appellant creates a doubt asto whether PW1 and PW2 actually recognized those whoallegedly robbed them, relying on Tsaku v. The State (1986) 1. (Pt.17) 516 at 530; C.O.P. v. Tijani Alao (1959) WRN-LR 39 at 40; Idahosa v. The Queen (1965) NMLR 85 at 88.

It is the submission of learned counsel for the respon-dent that the prosecution did discharge the onus placed onthem by law to prove the charge against the appellant beyondreasonable doubt, that the prosecution proved that therewas an agreement between the accused persons includingthe appellant to do an illegal act, to wit armed robbery; thatthe evidence of PW1 and PW2 established the ingredientsof the offence and that the lower courts were therefore rightin their decisions; relying on Ikemson v. The State (1998) 1ACLR 80 at 102; (1989) 3 . (Pt. 110) 455; Balogunv. A.-G., of Ogun State (2002) 2 SCNJ 196 at 209; (2002) 6. (Pt. 763) 512; that the appellant and his colleaguesin crime were armed with guns, sticks and cutlasses at thetime they committed the armed robbery on PW1 and PW2;that appellant was present at the scene of crime.

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On the issue of identification of the appellant, learnedcounsel submitted that the argument of his learned friendon the matter is misconceived and lack merit; that evidenceshow clearly that PW2 knew the appellant before the robberyincident and that appellant with others robbed PW2 imme-diately after robbing PW1; that it was immaterial whether ornot PW1 or PW2 mentioned the name of the appellant tothe police at the time they made the report or at the earliestopportunity and that the evidence of PW2 is sufficient tosupport the conviction of the appellant for the offences; thatthe identification parade conducted in this case was unnec-essary as the identity of the appellant was never in doubt,relying on Balogun v. A.-G., of Ogun State (2002) 2 SCNJ 196at 211 – 212; (2002) 6 . (Pt. 763) 512; Archibong v.The State (2006) 14 . (Pt.1000) 349 at 372; Igbi v. TheState (2002) 2 SCNJ 63 at 74; (2002) 3 . (Pt. 648)169. Finally learned counsel urged the court to resolve theissue against the appellant and dismiss the appeal.

It is settled law that in a criminal trial, the onus remainswith the prosecution to prove or establish the charge againstthe accused person(s) beyond reasonable doubt and thatthe onus or burden of proof never changes/shifts – see thecase of Ahmed v. The State (2003) 3 ACLR 145 at 177; (1999)7 . (Pt. 612) 641; Anekwe, v. The State (1998) ACLR426 at 433, Obiakor v. The State (2002) 6 SCNJ 193; (2002)10 . (Pt. 776) 612. In the instant case, the appellantwas charged, along with others with the offences of criminalconspiracy and armed robbery contrary to sections 97(1) and298(c) of the Penal Code as applicable to Kogi State. It istherefore the duty of the prosecution, in order to dischargethe burden of proof placed on it by law to adduce evidenceto establish the following ingredients of the offences:-

an agreement between two or more persons todo an illegal act or an act which is not illegal by(a)illegal means; and

that illegal act was done in a furtherance of theagreement and that each of the accused personsparticipated in the illegality – conspiracy. The(b)above is as relates to the offence of conspiracy.

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(a)theft by the accused person(s).

the causing of hurt or wrongful restraint on the(b)victim(s) by the accused person(s)

that the acts complained of were done in theprocess of committing the theft or in order tocommit the theft and/or carry away the property(c)obtained by the theft,

that the accused persons did the acts complained(d)of voluntarily, and

that the accused person(s) was/were armed withdangerous weapons while committing the offence(e)in question.

It is the case of the prosecution that it discharged theburden of proof placed on it by law by the evidence of PW1and PW2 on record and as such the appellant was properlyconvicted and sentenced by the trial court for the offencescharged and that the lower court was therefore right in af-firming the said conviction and sentence. The appellant onthe other hand, has argued that the prosecution has not placehim (appellant) firmly at the scene of crime having regardsto the circumstances in which the appellant was identifiedor recognized as one of those who carried out the armedrobberies. In short, the question is whether the prosecutionhas proved beyond reasonable doubt that the appellant par-ticipated in the armed robberies.

It is not in dispute that PW2 knows the appellant priorto the robbery incidents. Also not disputed is the fact that atthe time PW1 and PW2 reported the incidents to the police,the name of the appellant was never mentioned by them asbeing one of those who carried out the robberies in questionand that the name of the appellant was only mentioned inthe statements of PW1 and PW2, 5 to 6 days after the report.

The statement of PW1 to the police stated, inter alia,as follows:

“On Thursday being 9th day of August, 2002 atabout 1.50 am in the night, I was sleeping in myroom when I heard a knock on the door, parlourdoor and I asked who was the person knocking onmy door. There was no respond (sic) from any-body other than to forced (sic) my door openedand some group of boys numbering about threecame inside to meet me where (sic) identifiedone Monday Abu Awe a panel beater who had aworkshop directly opposite river side restaurantLagos Road, Okene and one Ojo Mudu to bethe three men.”

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In PW2’s statement to the police, he stated thus:-

“On 11/8/01 at about 2.10 am I was sleeping inmy house when I heard a sound of gun downstairsin front of our house. On hearing this sound Ipeeped through my window to see what washappening because the florescent light in frontof our house was on. There, I was able to seethe following people whom I know very wellAbu popularly know (sic) as Awe, a panel beaterat opposite Riverside Restaurant, lruvuchaba,Okene Monday living in a … house besideRiverside Restaurant lruvuchaba, OkeneHassan popularly known (sic) as Katsina who useto stay with Abu alias Awe before …..”

At pages 88 and 90 of the record, PW1 and PW2 statedthat after the robbery incidents they reported the incident tothe police with PW2 adding that he also reported the incidentto the head or community leader of Iruvuchaba, Okene.

However, under cross-examination at page 40 of therecord, PW1 stated thus:

“When I made the first report to the police, I didnot mention the names of.the accused persons.The accused persons were not masked when theyrobbed me. I know the accused person at largeand the 2nd accused person before the incident….

When my neighbours came to take me to thehospital, I did not tell them about the identity of.the armed robbers.”

In view of the facts, can it be said that the prosecutionhas proved that appellant was one of those who robbedthe victims – PW1 & PW2 on dates in question beyondreasonable doubt particularly having regards to the fact thatappellant had maintained that he was never at the scenesand even raised a defence of alibi which was testified toby DW4 his wife? Is it safe to convict the appellant ofthe offences charged under the circumstances? I do notthink so. Both PW1 and PW2 know the appellant beforethe date of the robberies and testified to the fact that therobbers were not masked while carrying out the robberies.Yet at the first opportunity of reporting the incidents tothe police, neighbours and community leader neither PW1and PW2 mentioned the identity of the appellant as beingone of the armed robbers who carried out the raid. Theyonly mentioned the name of the appellant 5 days after the

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and when they made their statements to the police. Thereis no explanation from the prosecution as to why PW1and PW2 omitted to mention the name of the appellant asbeing part of the gang of robbers of that date in the firstopportunity. I hold the view that the circumstances of thenon mentioning of the name of the appellant to the police,community leader, and neighbour soon after the robberyincidents has raised some doubts as to the reliability of thestatements of PW1 and PW2 as to the participation of theappellant in the robbery incidents in question particularlyas it is in evidence that the said robbers were not maskedduring the operation.

It is settled law that in a criminal trial, the standard ofproof is proof beyond reasonable doubt and that where thereexists any doubt the same must be resolved in favour of theaccused person. In the instant case, I hold the view that thesubsequent mentioning of the name of the appellant in thestatement of PW1 and PW2 is clearly an afterthought whichraises serious doubt as to the participation of the appellantin the crime in question and therefore hold that the doubtbe and is hereby resolved in favour of the appellant.

It is for the above and the more detailed reasonscontained in the lead judgment of my learned brother,Katsina-Alu, JSC that I too, allow the appeal, set aside thejudgments of the lower courts and in their place, enter averdict of not guilty and discharge and acquit the appellantof the charge against him.

Appeal allowed.

MUHAMMAD, J.S.C.: I have read before now, the judgmentof my learned brother, Katsina-Alu, J.S.C. I agree with hisreasoning and conclusion. The appeal has merit and it isallowed by me too. I abide by all orders made in the leadjudgment.

Appeal allowed.

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