In The Supreme Court of Nigeria
the 4th day of
Before Their Lordships
Judgement of the Court
Philip Nnaemeka-Agu. J.S.C.
This appeal came up for hearing on the 5th day of July, 1990. After reading the record and briefs filed by learned counsel for the appellants and the respondent and listening to the oral argument of counsel on both sides, the court summarily allowed the appeal but postponed the reasons for its judgment till today. I now give the reasons for my judgment.
The two appellants were, in the year 1980, in an Armed Robbery Court of the Criminal Division of the High Court of Lagos State presided over by Agoro, J. (as he then was) charged on an information with the offence of armed robbery contrary to section 1(2)(b) of the Robbery and Firearms Decree No.47 of 1970. The particulars of the offence were stated as follows:
Particulars of Offence
Aruna (m) and Victor Audu (m) on about the 4th day of June, 1977 at about
12.00am at Apapa in the Lagos State Judicial Division being armed with offensive
weapons to wit, broken bottles robbed one Mishack Ekwueme (m) of the sum of
The names of six witnesses were listed at the back of the information as intended to be called by the prosecution. But in fact only two, that is the complainant and one other person, were called at the trial. Each of the two appellants testified on his own behalf but called no witnesses.
to the complainant, Mishack Ekwueme, the offence was committed about 11.30 p.m.
on the 4th day of June, 1977. He was returning from work. As he was walking
along Idowu Street, Olodi, Apapa, he saw four men. including the two appellants
standing by the corner of the road. When he wanted to turn into the street.
Akogun street leading to his house, they stopped him and engaged him in a
dialogue and asked him to search his pockets. In his attempt to run away from
them he ran into Rasco Hotel, Ajegunle, but they pursued him to that place. He
pleaded with them to leave him alone, but they refused. The manager of the hotel
joined in pleading with them, but to no avail. At the order of one of them who
is still at large, the 2nd appellant inflicted a wound on his eye-brow with a
dagger. The 1st appellant hit him on the neck with an empty bottle, which he
picked up from around the place. As a result, he had a cut in the neck. He added
that the cut in the neck required two stitches. When he fell on the ground as a
result, the 2nd appellant removed
The complainant himself stated that he was referred by the police for treatment at the General Hospital. Lagos. where the wounds at his eye-brow and the back were stitched. He tendered his card and medical report for his treatment as Exhs.A and Al. Under cross-examination, he admitted that there were no light along Akogun Street but added that he was able to identify the suspects because he argued with them for almost one hour. The only other witness was Solomon Olufemi Akinboni, the Manager of Rasco Hotel. who testified as P.W.2. Because of the import of the testimony of this witness in this appeal. I shall later quote his evidence in extenso.
Each appellant testified on his own behalf but called no witnesses. It was the lst appellant's case that when he closed from work on that day he went home. As he was in his house his attention was attracted outside where he observed a group of people gathered near the road at Idowu Street, Ajegunle. He went to see what was happening. At the scene one Victor, an old friend of his who worked in an hotel near their house invited him into the hotel where he served him with beer. While he was drinking the beer, he heard a group of people shouting "thief" "thief" and he went to see what was happening. There the police arrested Victor and himself and two other boys outside the hotel. They were taken to Ajeromi Police Station where they were detained. He denied ever knowing P.W.1 or the 2nd appellant before that date. He also denied taking part in the robbery.
The 2nd appellant testified that he was a soldier attached to the Nigerian Army Artillery Unit, Agege. His evidence was to the effect that he was nowhere near the scene of the incident on the day in question. It was on the 6th of June, 1977 that the police arrested him in his house. He denied ever taking part in the offence or knowing the 1st appellant previously or wounding the complainant.
After hearing, the learned trial Judge believed the case for the prosecution and found the appellants guilty as charged.
Appellants' appeal to the Court of Appeal was dismissed by a majority H of two to one. In the dissenting judgment of Akpata, J.C.A. (as he then was) he held the view that the identification of the appellants was, in the absence of identification parade, unsatisfactory. It amount to an identification in the dock in so far as they were not arrested at the scene of the crime, he opined. On the other hand, Babalakin and Awogu. JJ.C.A. held a contrary view and dismissed the appeal. Both appellants have appealed further to this A court. Through their counsel, Chief Milton Paul Ohwovoriole, they filed each identical ground of appeal. Two additional grounds of appeal were also filed on behalf of each. It is not necessary to set them out in full. Suffice it to s;fy that arising from all these grounds of appeal, learned counsel on behalf
the appellants formulated the following issues for determination in the appeal:
Issues For Determination
1. Were the Appellants properly and positively identified by the prosecution witnesses to wit: P.W. 1 and P.W.2 in accordance with any form of identification known to the administration of criminal justice, moreso when no identification parade was ever conducted by the police prior to the commencement of proceedings against the appellants at the trial court?
2. Are there no material discrepancies in the evidence of the two witnesses for the prosecution as clearly shown in the record of proeeedings before this Honourable Court which ought to have created reasonable doubts in the mind of the trial court?
3. Can the prosecution, in all the circumstances of this case dispense with the tendering of the alleged offensive weapons and a valid medical report by a medical doctor at the trial of this case in the court of first instance?
4. Are the Mobile Police on night patrol and/or the regular policemen from the Ajeromi Police Station who allegedly arrested the 1st and 2nd appellants respectively in connection with this offence, not vital witnesses who ought to have been called by the prosecution.?
5. Is the evidence adduced by the two witnesses for the prosecution not at variance with the offence with which the appellants were arraigned before the trial court?
learned counsel for the respondent. Fola Arthur-Worrey, also filed the
respondentís brief and a supplementary brief. This issues as formulated by him
agreed substantially with those for and on behalf of the appellants. Each
counsel adopted his brief/briefs of argument and addressed us orally. The
learned counsel for the appellants after pursuing the issue of identification
half-way abandoned it. So also did he abandon the issue of failure to call the
necessary witnesses? In the end the appeal fell to be decided mainly on the
question of whether or not on the evidence of P.W.2, the only independent
witness a case of armed robbery was made out by the prosecution. In his
submission, evidence of p. w. 2 reveals a case of p. w. 1 and the police
haggling and struggling for their respective shares in a business transaction
rather than a case of armed robbery. No case of armed robbery was made out. He
referred extensively to the testimony of this witness on record and submitted
that although it was believed it did not amount to armed robbery. In his reply,
the learned counsel for the respondent, Mr.
Arthur-Worrey, submitted that if the
appellants sought to enforce a business transaction or a debt due to them by
using offensive weapons it would justify a conviction for armed robbery. He
conceded it that on the evidence, there was argument about a share of money. He
also admitted that the issue was resolved by P.W.2 paying a sum of
Now P.W.2 testified inter alia as follows:
I know the two accused persons. I came to know them on 4/6/77 at about 12 mid-night. I was in the hotel when the waiters came to inform me that there was trouble outside the hotel. I went outside to see what was happen (sic).
I saw four persons including the two accused persons and P.W.1. The two younger
ones were dragging P.W.1 while the 1st and 2nd accuseds were attacking P.W.1
with a dagger and broken bottle. The four persons asked P.W.1 to give them their
share of money . I tried unsuccessfully to separate them. I even offered the
was light outside the hotel and I was able to see their faces: The 1st and 2nd
accused persons were among the four persons at the scene. I managed to settle
the matter within seven minutes with the offer of
Under cross-examination he continued:
I saw P.W.T for the first time on the day of the incident on 4th June 1977.
I tried to pacify the four persons who attacked P.W.1. I became Manager of National Hotel (now Rasco Hotel) since 1976.
four persons who attacked
P.W. 1 on 416/77 said they wanted their share of a
business they did together. My waiter gave
The 2nd accused appeared to be in charge of the operation that night and it was he (2nd accused) who ordered the 1st accused to stab P.W.1 with a broken bottle. The 1st accused hit P.W.1 with a broken bottle in my presence. The 2nd accused stood there with dagger in his hand. The two younger ones were busy searching the pockets of P.W.1. I advised P.W. 1 who has was bleeding from all over his face, head and neck to report the incident to the police.
this evidence gave the impression that
P.W. I had an earlier transaction with
the so-called armed robbers and that the latter were asking for their share of
the proceeds. As a result a long argument and some scuffle ensued. The four
persons asked P.W.1 to give them their own share of the money.
P.W. 2 offered
I was able to see the faces of the four persons who attacked me A because we argued for almost one hour.
The learned counsel for the respondent submitted that even if it was true that the appellants were demanding their share of an old transaction, they would still be guilty of armed robbery as they used violence against P.W. 1. My first observation from the state of the case for the prosecution as testified to by P.W.1 and P.W.2 is that their testimonies clearly conflict. B Whereas the P.W. 1. the complainant gave the impression of clear-cut case of armed robbery, P.W.2 gave the impression of a struggle over a booty by old business associates.
In that state of the facts, it was not open to the prosecution to pick and choose between the testimonies of the two witnesses. Neither was it open to the courts below to credit one and discredit the other when no foundation was laid for such a course. See on this Onubogu v. The State(1974) 9 S.C. 1. In that case, Fatayi-Williams, J.S.C. (as he then was) said at page 20 of the report:
We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution, which called them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness, discredit F one and accredit the other. (See Summer and Leivesley v. Brown & Co. (1909) 25 T.L.R.745)
We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witness should furnish the explanation and thus give the F defence the opportunity of testing by cross-examination, the validity of the proffered explanation.
See also Albert Ikem v. The State (1985)1 N.W.L.R. (Pt.2) 378; Akosile v. The State (1972)5S.C.332.
On a proper approach, the learned trial Judge and the learned justices of the court below should at least have seen that the conflict in the evidence of the only two available prosecution witnesses raised a doubt as to the truth of the testimony of the complainant. They should have resolved that doubt in favour of the appellant. Assuming, but not agreeing, that it was open to the court to pick and choose between the testimonies bf the only two available witnesses without any further explanation or foundation for a different course, one would have thought that it was safer to have preferred that of the P.W.2 an independent witness, rather than that of P.W. 1, an interested party.
I shall now consider the submission of learned counsel for the respondent that even if the appellants were demanding their share of the proceeds of a previous common transaction by the parties, use of violence made it an armed robbery. It must be noted that "robbery" is defined under the Decree as meaning:
stealing anything, and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
Obviously before there can be robbery there must be first of all an act which amounts to stealing. "stealing" is defined under the Decree as meaning:
to take or convert to one's use or the use of any other person anything other than immovable property with any of the following intents:
(a) an intent permanently to deprive the owner of the thing of it
(b) an intent permanently to deprive any person who has any special property in the thing of such property, the term "special property" here in eluding any charge or lien upon the thing in question, whether by the person entitled to such right or by some other person for his benefit;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may he unable to perform
(e) an intent to deal with the thing in such a manner that it can-not be returned in the condition in which it was at the time of taking or conversion:
(f) in the ease of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner
So, armed robbery means simply stealing plus violence used or threatened. On the evidence of P.W. 2. it appears to me that the appellants were taking from P.W.l what they believed they were entitled to, that is to say something over which they believed they had a claim of right. Taking such from him in the circumstances cannot in my view amount to stealing. Addition of violence or threat of violence in the circumstances may amount to another offence, which was not charged, but certainly it could not amount to armed robbery for the simple reason that an important element of the offence. i.e. stealing was lacking. This disposed of this appeal in favour of the appellants. Learned counsel for the appellants also complained about contradictions in the evidence called by the prosecution and the failure of the courts below to resolve them. I only mention a few obvious ones.
apart, I cannot fail to comment on the nature of the case as presented by the
prosecution. A case of armed robbery in which the "armed robber" will
argue with the victim for about one hour only to walk away on an offer of
For the above reasons, this Court allowed the appeals of both appellants summarily on the 5th of July, 1990, and postponed the Reasons for the Judgment till today. I have now given my reasons.
Judgement delivered by
On the 5th of July, 1990. I allowed this appeal after hearing counsel in oral submissions, reading the record of proceedings and judgment of the court below and studying the briefs filed by counsel and reserved the delivery of my reasons for the judgment till today. I now proceed to give them.
The two appellants were tried for armed robbery contrary to Section 1(2)(b) of the Armed Robbery and Firearms Decree No.47 of 1970 in the Armed Robbery Court of the Criminal Division of the High Court of Lagos presided over by Agoro, J., and convicted and sentenced to death. Their appeal to the Court of Appeal was dismissed and being dissatisfied, they further appealed to this Court against the conviction and sentence.
As stated above, their appeal was allowed by us on the 5th day of July, 1990 and having had the advantage of a preview of the Reasons for Judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C., I am in total agreement with his opinion on all the issues raised in the appeal and I adopt his reasons as my own.
However, I will add these few comments by way of emphasis. The learned trial Judge, from the record, believed the case put forward by the prosecution and rejected the case put forward by the appellants. The case put forward by the appellants was that of absolute denial of knowledge of the complaint, Mishack Ekwueme and the commission or particulars in the commission of the offence.
In our system of administration of criminal justice, the burden is on the prosecution to prove the case against the accused person beyond reasonable doubt. See Section 137 Evidence Act. See Alonge v. Inspector General of Police (1959)N.S.C.C.,page 169;(1959)4FSC;203(1959)S.C.N.L.R.516. The burden of proof never shits. In other words, it is the duty of the prosecution to establish the guilt of the accused person. This is emphasised by the constitutional right of the accused, in this instant appeal, the appellants to the presumption of their innocence. Section 33(5) of the Constitution of the Federal Republic of Nigeria 1979 expressly provides that:
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
main facts alleged by the complainant show that the appellants and 2 others at
about 11.30 p.m. on the 4th day of June, 1977 at Idowu Street, Olodi
stopped him and asked to search his pockets. Frightened, he ran into Resco
Ajegunle, for refuge but the appellants and the two others pursued him to
the place. He pleaded with them and the Manager of A the hotel also pleaded with
them to no avail not to molest him but to leave him alone. One of them still at
large ordered them to launch an attack on him. The 2nd appellant armed with a
dagger stabbed him on the eyebrow and the 1st appellant armed with empty bottle
hit him on the neck and wounded him leaving a cut on his neck which had to be
stitched with two stitches. Under this attack, he fell to the ground and while
on the ground, the 2nd appellant removed
This story fortunately for the appellant was not corroborated by the Manager of the hotel, P.W.2., P.W.2 had a different story to tell. It was not a story of robbery but a story of bickering over the shares of money due to them from the complainant. His testimony inter alia, reads:
I saw four persons including the two accused persons and
P.W. 1. The two younger
ones were dragging
P.W. 1 while 1St and 2nd accused persons were attacking
I with a dagger and broken
hottIe. The four persons asked
P.W. 1 to give them
their share of money, I tried unsuccessfully to separate them. I even offered
the four persons N5.00 in order to leave
P.W. I alone. They took the
Under cross-examination. he said. inter alia:
four accused persons who attacked
P.W. I on 4/6/77 said they wanted their share
of a business they did together. My waiter gave
story is definitely not one of stealing from the complainant with the use or
threat of force or violence either before or after. The story of P.W.1 -the
complainant that he fell down as a result of the attack and as he fell
The 2nd P.W. is definitely a star witness for the prosecution and if the learned trial Judge had given deep thought to and analysed his evidence, he would have seen that it not only created doubt as to the veracity of P.W. 1 the complainant, but utterly destroyed the case of robbery laid and prosecuted against the appellants.
believed the case put tip by the prosecution. the conflict between the evidence
of P.W.I and P.W.2 is fatal to the case for the prosecution. The 1st P.W.'s
story that the four persons refused to listen to the plea and accept the
intervention of the 2nd
P.W. was punctured by the 2nd P.W's evidence that when
he offered them
The appellants may have a case to answer for assault but certainly not a case to answer for robbery. They are entitled to a verdict of NOT GUILTY and breathe the air of freedom from detention.
It was for the above reasons and the reasons given by my learned brother, Nnaemeka-Agu, J.S.C., that I allowed the appeal.
Judgement delivered by
After reading the record of appeal, the briefs of argument of both appellants and respondents and after hearing counsel on both sides, I summarily allowed this appeal on the 5th July 1990. I indicated that I will give my reasons today.
I have read the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., in this appeal and considered the reasoning therein. I do not think I need add to the arguments so forcibly and ably stated in support of the reasons. I adopt them as mine. It is for the same reasons given therein, which I have herein adopted, that I allowed the appeal of the appellants.
Judgement delivered by
On 5th July after reading the briefs filed by the appellants and the respondent, and after listening to the submissions made by the counsel for the appellants and respondent, I allowed the appeal of the appellants set aside their convictions and sentences, I indicated I would give my reasons today. I now give my reasons.
I had a
preview of the reasons for the judgment of my learned brother,
J.S.C. I agree with the reasons and conclusions reached by him. I will, with
respect adopt them as mine. I need only add that the facts presented by the
prosecution and carefully set out by
J.S.C., made this case of
alleged robbery a unique one. It is unique in the sense that for the first time
and as borne out by reported cases on armed robbery, the armed robbers and their
victim in this appeal entered into an un6 usual conversation and bargain which
led to an effective settlement of alleged robbery by a third party! It was
settled on a mere offer of
The only issue seriously canvassed by the appellants' counsel, Chief Ohwovoriole was that the transaction between the appellants and the complainant was mainly a business transaction a fact vividly brought out in the evidence of 2nd P.W. Care must always be taken by the prosecution to ensure that complainants are neither allowed nor encouraged to use the machinery of government to settle personal scores.
The ridiculous aspect of the case was revealed by 2nd P.W. the Hotel Manager who said under cross-examination:
I tried to pacify the four persons who attacked P.W. 11 became Manager of National Hotel (now Resco Hotel) since 1976.
The four persons who attacked P.W.1 on 4/6/77 said they wanted their own share of a business they did together.
In my view, this piece of evidence, which was not disbelieved by the trial Judge, ought to have thrown serious doubt in the case of the prosecution.
There was evidence that the police arrested the accused persons and were taken to Ajeromi Police Station where they made statements. It would be right to say that their defence was never investigated or if investigated that aspect of the case was never brought to the attention of the court.
The history of the trial leaves much to be desired. The appellants first appeared before the Armed Robbery Tribunal on 25th October 1978. Their pleas were not taken until 10th April, 1979 before Hotonu. J. Between that day and 19th December 1980 there were a lot of unnecessary adjournments. These adjournments were not in the interest of the appellants. Their counsel one Mr. Femi Adewunmi rightly complained against the adjournments. The case started de novo before another Judge on 19th December. 198t). The trial started on 18th June. 1981, and two witnesses were called. For undisclosed reasons the prosecution closed its case without calling the police who investigated the case.
It is astonishing that a crime, which carries a death penalty, the prosecution did not call any police witness who investigated the case notwithstanding the defence set up. Besides, the statements made to the Police at Ajeromi Police Station by the appellants were never tendered. This is a case of "rush to judgment" which. due to non-investigation of the defence of the appellants, leaves much to be desired. It is not only the liberty of the appellants that was toyed with their lives were gambled. Their lives were almost taken without a shred of convincing or reliable evidence in justification.
It was for the above reasons that I allowed the appeal, set aside their convictions and sentences of death passed by the trial court.
On Thursday, the 5th day of July 1990 when this matter came up, Augustine Nnamani, J.S.C. concurred in allowing the appeal. Unfortunately, he died on Saturday, 22nd September 1990 before the Reasons for Judgment were given on Thursday, 4th October 1990.