IN THE COURT OF APPEAL
ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN
ON TUESDAY, THE 22ND DAY OF MARCH, 2016
BEFORE THEIR LORDSHIPS
MOHAMMED LADAN TSAMIYA (PJ) JUSTICE COURT OF APPEAL
CHIDI NWAOMA UWA JUSTICE COURT OF APPEAL
UCHECHUKWU ONYEMENAM JUSTICE COURT OF APPEAL
APPEAL NO. CA/IL/C.105/2014
USMAN SHEU……………………………. APPELLANT
THE STATE ……………………………….. RESPONDENT
DELIVERED BY MOHAMMED LADAN TSAMIYA, JCA
The appellant, who was the 2nd accused at the High Court (the trial Court) Kwara State, was arraigned on two (2) counts charge which alleged that the appellant on or about 10th December 2007 together with one Hassan and another person both now late and two other persons at large attacked a 14-passenger Bus along Jebba/Bose Saadu Road within the jurisdiction of the trial court and at gun point robbed one Bode Samson and other passengers in the Bus of their properties, and did conspire to rob one Bode Samson and other passengers in the Bus of their belongings, contrary to ‘Section 1(2) of the Armed Robbery and fire Arms (Special Provision) Act No. 5, Cap. 398 Laws of Federation of Nigeria 1990 and 97 of the Penal Code. He pleaded not guilty to the charges and six (6) witnesses (tagged 1 – 6) testified for the prosecution. The Appellant gave evidence in his own defence and called on witness. Learned Counsel for both the prosecution and the defence addressed the trial court and in a reserved judgment, the learned trial Judge found the Appellant guilty as charged and sentenced him to death…
Briefly, the facts of the case as found by the trial Court are as follows:-
On 10/12/2007, the 2nd accused was among a gang of Armed Robbers who robbed a 14-Seater Passenger Bus along Jebba/Bose Sa’adu Road. That on the aforesaid date, one Bode Samson was robbed with other passengers in the Bus, of a SAGEM MY X telephone handset after the bus was stopped at Aderan Junction. The 2nd accused person with others ordered the passengers to disembark from the bus and further directed that all of them should lie down flat on the ground while robbery operation lasted.
The robbery happened between 5.00pm and 5.30pm. About a month thereafter and specifically on 07/01/2008, the 1st accused took the handset to one Oloye Ajayi (PW5) to assist him to buy SIM card and also recharge the handset, he discovered that the handset has its SIM card. PW5 removed the SIM and puts it in his own handset and dialed some numbers. One of the numbers dialed informed PW5 that he knows the owner of the said handset and that the owner was robbed between Jebba/Bode Sa’adu by Armed Robbers who collected handset and money. While the PW5 told the 1st accused to sit down, he sent one Suraju to call the Police. The police came and arrested the 1st accused in PW5’s shop. The 1st accused informed the Police that he purchased the handset from one Hassan. The Police consequently got the owner of the handset (PW3) and the driver of the passenger’s bus (PW4) to attend the Jebba/Police Station.
Before PW3 and PW4 got to the Police Station, the Police Officers who were directed to arrest the said Hassan had led the 1st accused in search of Hassan and other accused persons. Immediately Hassan saw the police, he opened fire and attempted to run away. He was shot together with one other accused and both died instantly. The 2nd accused was arrested and taken to the Police Station with corpses of the two (2) accused persons.
Following the arrest of Appellant, he denied knowledge of the offence with which he was arrested. He pleaded alibi. In his statement to the Police, and in his testimony at the trial, he said he lives in Lagos at a place Alabarago. He is a motorcyclist in Lagos and he only came to Kosa Village where he was arrested on a visit to his father some five (5) days before his arrest. He claimed that he was not arrested in the company of the other accused but at a restaurant.
I have already indicated, the prosecution called six (6) witnesses. The vital witnesses were however, PW3 and PW4. PW3 is the owner of the hand while PW4 is the driver of the passenger Bus.
I think the most important issue for determination is of identification parade raised by the Appellant. The Learned Counsel for Appellant has submitted that an identification parade is necessary in the instance case as there is no evidence to show that PW3 and PW4 or any prosecution witness in this case knew the Appellant before the incident. The submission of learned Counsel for the Respondent is that the peculiarity of this case does not warrant any identification parade, because the peculiarity and circumstances of this offence links the Appellant beyond reasonable doubt and makes identification parade dispensable. That the testimonies of PW3 and PW4 sufficiently link the Appellant with the commission of the offence and he refers to their testimonies contained on Pages 36 – 39 of the records with regards to the specific role played by the Appellant. It was further submitted that the identification of Appellant by PW3 and PW4 done in the presence of the two (2) accused persons jointly standing trial is a clear testimony to the correctness of the identification of the Appellant.
On failure of the Appellant to cross-examine PW3 and PW4 another ground upon which the trial Court convicted the Appellant; I am of the view that this is also wrong, having regard to the duty of the prosecution to prove his case beyond reasonable doubt at all times. Where he fails to meet the stand of proof required by the law there is no duty on the Appellant to disprove the evidence of the prosecution. The onus on the prosecution is one that never shifts and until it is so discharged there is no obligation on the Appellant to rebut the prosecution’s evidence…
“I was living in Lagos. I came from Lagos five days before my arrest…I cannot remember where I was on 10/12/2007.” This is a plea of alibi in law.
The undoubted effect of this piece of evidence is that the Appellant could not have participated in the robbery that took place along Jebba Road when he was at all material times in Lagos…
“Such that where as in this instant case, an accused in addition on to his not being arrested at the scene of crime he pleads, alibi, a proper identification parade ought to be conducted.”
The evidence of the Appellant that he did not know where he was on the 10/12/2007, should not in view, diminish the claim that he was not at the scene of crime. This is because the evidence of the Appellant that he was not at the scene of the crime by virtue of his living in Lagos and is a motorcyclist there and that he only came to Kosa Village some five days before his arrest is clear and unambiguous. This piece of evidence have no doubt buttressed the defence of alibi raised by the Appellant, for it has corroborated and reinforced the fact that at the time of the crime, the Appellant was not in the scene of the crime he was somewhere else. In this view, I disagree with the trial Judge when in his judgment he found as follows: –
“I am convinced that the 2nd accused (Appellant) participated in the execution of the two offences levied against him…. It is enough that the prosecution’s witnesses sighted the 2nd accused (Appellant) among the culprit holding a gun.”
Finally, one does not need a soothsayer to see that from the evidence I have highlighted that the Appellant was not at the scene of the crime. The evidence called by the prosecution did not in any way link him with the commission of the offence with which he was charged, tried and convicted. The prosecution clearly failed to prove its case beyond reasonable doubt as required by law.
In my Judgment, this Appeal has merit, it must be allowed, I therefore, allows the Appeal, set aside the Appellant’s conviction and sentence. He is consequentially acquitted and discharged.