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IN THE SUPREME COURT OF NIGERIA
BEFORE THEIR LORDSHIPS
ANDREWS OTUTU OBASEKI, J.S.C (Presided)
ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.
SALIHU MODIBBO ALFA BELGORE, J.S.C. (Read the leading Judgment)
Chief Milton Paul Ohwovoriole (with him, P.A.Mrakpor, ESQ.) – for the Appellants
David Onycike, ESQ., Legal Officer, Ministry of Justice, Lagos State – for the Respondent
ACTION -Applicable law to a cause or matter -What determines.
COURT -Evaluation of evidence –Duty on trial court to consider and evaluate all evidence before it.
CRIMINAL LAW AND PROCEDURE – Identification of accused person – Now conducted.
EVIDENCE-Evaluation of evidence-Duty on trial court to consider and evaluate all evidence before it.
EVIDENCE -Identification of accused – Now to conduct – What determines type of identification necessary.
INTERPRETATION OF STATUTES -Rule against retrospectivity-Application of -Section 6(1), Interpretation Act, 1964.
PRINCIPLES OF INTERPRETATION-Interpretation of statutes-Rule against retrospectivity – Application of – Section 6(1). Interpretation Act. 1964 contained
STATUTES-Interpretation of statutes-Rule against retrospectivity-Application of – Section 6(l), Interpretation Act, 1964 contained.
PRACTICE AND PROCEDURE – Applicable law to a cause or matter – What determines.
BELGORE, J.S.C.: (Delivering the Leading Judgment):
This is a case of robbery in which the appellants were convicted and sentenced to twenty-one years imprisonment on each of the two counts under S. 3A(b) and S.1(1) Robbery and Firearms (Special Provisions) Decree 1970 for conspiracy to commit robbery and robbery respectively. The accused persons were originally six in number but one of them, Rowland Uche, died before trial and his name was struck off the list of the accused persons.
On 13th October, 1978, the victim of the robbery, Ishola Adisa Smith (P.W.3) was around Maryland about to negotiate a bend into Oworonshoki so as to go to his house at Amuwo Odofin. He was driving his saloon car of Datsun 180K make, registration number LAD 62 A. It was around 10 p.m. In front of him, virtually blocking his path, was a minibus, popularly known in Lagos as Danfo. Some men got out of the Danfo and forced open his car’s door on his side and forced him with nozzle of a pistol threateningly on him into the back seat. Two of the men broke the rear windscreen to gain entry into the rear seats and forced down the P.W.3. One of the men, who held the gun and was half masked, drove the vehicle followed by the Danfo. He later identified this man as Romanus John the 5th appellant He also recognised Geraldo Aliou (3rd appellant), Eze Okafor (4th appellant) and Romanus John as among those that first stopped him and held him captive in his own car. At Ow ronshoki the vehicle stopped and he then knew that the Danfo was driven behind him. Then another Danfo surfaced into which he was shuffled. He saw knives, a small axe and an iron rod in the Danfo. Meanwhile his own car was driven towards Badagry road. In the Danfo, he felt strong smell of smoke like that of Indian hemp. He remained with four men in the Danfo that was now at Oworonshoki. He appealed to the men to release him since they had taken away his car. A police patrol came passing by and to prevent him from raising alarm, the men pushed him down. The men later engaged him in discussion about affluent people with cars etc. He clearly recognised the 3rd, 4th and 5th appellants. They remained in that place and by about 0430 hours, they looked worried that their colleagues had not come to them as planned. He was finally thrown out of the minibus (Danfo) after they took his wristwatch. He walked into Ikorodu Road and a motorist who pitied him gave him N5.00 with which he caught a taxi to the police station where he lodged his report. Six persons first attacked him at Onigbongbo where his car was snatched. He was able to identify 3rd, 4th and 5th appellants among those that snatched his car because when they forcibly entered into the car, the courtesy light was on and he was able to see their faces. He was able to identify these three appellants out of fifteen men at the Badagry Police Station.
Meanwhile, on 15th October, 1978, about four days after the robbery, one Gani, who the P.W.3 said was among those that held him in the minibus but not seen up to now, in company of 1st and 2nd appellants, called at the workshop of P. W.2, Bamidele Ariyo, a rewiring electrician at Badagry. They invited the P.W.2 to a Datsun saloon car parked by a Church. He repaired the kick starter of the vehicle and the three men – Gani 1st and 2nd appellants pushed the car to the workshop of P.W.1,Tetede Akanni. On 16th October, 1978. it was when P.W.1 was working on the vehicle that the police surfaced. The 1st appellant seemed to be paying the repairs bills. However, it has to be pointed out that on 15th October, 1978, the 1st and 2nd appellants visited the P.W.2 twice and on the second visit they were accompanied by 3rd and 5th appellants who exposed anxiety at the slow pace of the repairs by P.W.1. Later that same day the 3rd appellant and one Uche (an accused person who died before the hearing commenced), called to remove two crates of empty coca kola bottles from the vehicle. When police however called P.W.1 they arrested him and took him to their station. He also remembered the 4th appellant once at his workshop claiming the vehicle belonged to his father. The police arrested the 4th appellant, Eze Okafor at the workshop and with the 1st and 2nd appellants went to the 1st appellant’s house where 3rd and 5th appellants were arrested. The 1st and 2nd appellants never helped the police investigation as they denied ever giving any vehicle to P.W.1 or P.W.2. In fact the 2nd appellant said he heard that the 1st appellant was arrested and in attempt to find out what was the matter from the police he was also arrested. The complainant, P.W.3, firmly testified that the 1st and 2nd appellants were not among those that robbed him and that he saw them for the first time at Badagry Police Station when the police invited him to identify his car and his assailants. This is the summary of the evidence the trial judge believed and he convicted all the appellants on the two counts and on each count he sentenced each accused to 21 years imprisonment for robbery and conspiracy to commit robbery. He applied 5.148 (a) Evidence Act to convict the 1st and 2nd appellants. The Court of Appeal dismissed their appeal and thus the appeal to this court.
The grounds of appeal are based on alleged identification of the appellants, contradictions in the evidence of prosecution witnesses, wrong evaluation of evidence by the trial court as upheld by the Court of Appeal and conviction under wrong law, the law having been amended since 29th September, 1980. On these grounds of appeal there were raised three issues for determination as follows:
“I. Were the appellants properly identified by prosecution witnesses having regard to the evidence in this case.
The P.W.3, Mr. Smith, identified clearly among fifteen persons held by the Police at Badagry, four persons, to wit, Geraldo Aliou (3rd appellant), Eze Okafor (4th appellant) and Romanus John (5th appellant) and also Rowland Uche (who was to be the third accused at the trial but died before then). He identified them as among those who attacked him at Onigbongbo and those who held him captive for several hours at Oworonshoki. He was emphatic that Yunusa Adamu (1st appellant). and Abdullahi Shehu (2nd appellant) were not among those that attacked him on the night of robbery but that he saw them for the first time at Badagry Police Station on 16th October, 1978. The complaint about the identification should be viewed objectively. The best identification is the prompt one by the victim or people who saw the crime committed. In the instant case, the P.W.3, was with the persons who held him captive for about six hours from Onigbongbo to Oworonshoki. He saw clearly the faces of the 3rd, 4th and 5th appellant among those who took his car from him and held him captive. As the doors’ of his car were opened the courtesy light revealed their faces. He had the unpleasant opportunity of retraining with them and one Gani (now at large) from 10.30 p.m. to 4.30 am. By the time he got to the Police Station at Badagry he was able to pick them up among fifteen other suspects held there. The evidence finally revealed the three appellants had something to do with the stolen car and with the electrician (P.W.2) and the mechanic (P.W.1). The entire circumstance of a case determines the type of identification necessary. In some cases when there is more of suspicion rather than some concrete evidence against an accused person, an identification parade may be necessary whereby the accused person is lined up among other persons or even suspects and the victim or witness is asked to identify the culprit But such method is not necessary if the victim of the crime or a witness thereof promptly identifies the criminal without prodding as has happened in this case. (See Okosi v. State (1989) 1 N.W.L.R. (PLIOO) 642,656; Mbenu v. State (1988) 3 NWLR (Pt.84) 615,628; State v. Aibangbee (1988) 3 N.W.L. R. (Pt.84) 548; Modagwa v. The State (1988) 5 N.W.-R. (Pt92) 60). The time lapse, between 13th -14th October when the attack and kidnap took place and 16th October 1978, when the victim of the crime identified the appellants, was not long enough as to dampen his memory as to identity of the accused persons. I see no substance in this complaint as to identification of 3rd, 4th and 5th appellants. At any rate, other evidence in the written record linked them directly with the crime that identification parade could not be of essence of the prosecution’s case.
As for the rote of 1st and 2nd appellants, it is true on record that the victim of the crime, P.W.3, clearly stated they were not among those who attacked him and robbed him of car. But that is not the only evidence in this case. In company of Gani (not arrested), the two appellants took the car to P.W.1 and P.W.2 for repairs and it was the 1st appellant who was paying the cost of repairs. Further, the two were found in company of 3rd, 4th and 5th appellants, both at his house and with the mechanics . By the evidence of the prosecution, which the trial judge believed, the two accused persons were the ones negotiating the repairs of the stolen car with P.W.1 and P.W.3 making them the real persons in its possession. Learned trial judge adverted to S.148 (a) Evidence Act (Now re-enacted) as 5.149 of Cap 112 Laws of the Federation of Nigerian 1990) which reads:
‘148. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their 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;”
The 1st and 2nd appellants were found in possession of the car soon after it was stolen from P.W.3. They never advanced any account of how they came by it All they told the police and the Court on oath, was that they were never involved in the robbery and nothing more. That was not enough explanation of how they came by the car. The presumption is that they were either among the thieves (in this case P.W.3 said they were not) or they received the car knowing it to be stolen. The latter presumption squarely covers these two appellants and I find no reason why the fording of the trial judge on this point as affirmed by the Court of Appeal should be disturbed.
Trial judge has a duty to consider all the evidence before him, the more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt. 5.138 (1) Evidence Act Cap 112, Laws of the Federation of Nigeria 1990. The justice of a case and statutory requirements will not be met if the trial Court considers one side of the case only. Adequate consideration must be given to both sides. In discharging this duty the judge must evaluate all the evidence. It is not the justice of a case if the judge without evaluating the evidence just holds that he believes one side and disbelieves the other, only evaluation will logically lead to his reasons for believing or disbelieving. Judges, being rational and objective persons, must differ in style. Some evaluate the evidence witness by witness; others issue by issue with the link of each witness with the issues, and then arrive at the conclusion. Whichever style a judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. The mere fact that he first evaluated the evidence of the prosecution before adverting to that of the defence is not evidence of bias or wrong evaluation. All the trial judge did in this case was to evaluate all the evidence before him; to my mind that is precisely what the law requires.
The Lagos State Criminal Code (Amendment No. 1) law 1980 merely brought the offence of robbery under the Criminal Code Law of Lagos State under 5.402 thereof. New sections 402A and B were introduced; and those new sections are re-enactment of S.1 and S.2 of Robbery and Firearms (Special Provisions) Decree 1970 (as amended). The submission that they were tried for an offence not existing is untenable. Before it was repealed in 1980 the offence at the time of commission in 1978 was under the 1970 law. By 1980 the tribunal no longer existed and the jurisdiction became vested in Lagos State High Court. There was no way any of the accused person was prejudiced or was there any miscarriage of justice.
It is for the foregoing reasons that I dismissed this appeal on 18th day of April, 1991 and affirmed the decision of the Court of Appeal which upheld the judgment of Desalu, J. of Lagos High Court
OBASEKI, J.S.C.:- I have had the advantage of reading in draft the Reasons for judgment just delivered by my learned brother, Belgore, J.S.C. The appeal was dismissed on the 18th day of April, 1991 and the Reasons for the judgment reserved till today.
I find the opinions of my learned brother, Belgore, J.S.C. on all the issues for determination in the appeal in accord with mine and I hereby adopted them as my own.
It was for those reasons so ably set out by my learned brother, Belgore, J.S.C. that I dismissed the appeal and affirmed the decision of the Court of Appeal.
KARIBI-WHYTE, J.S.C.: After hearing counsel in support of the argument on their briefs on the 18th April, 1991, I summarily dismissed this appeal and indicated that I will give my reason for so doing today.
I have read the judgment of my learned brother Belgore, J.S.C. and the reasons he has given for dismissing the appeal. The reasons so completely coincide with mine that I consider it unnecessary m add to them. I therefore accordingly adopt the reasons of my learned brother S.M.A. Belgore, J.S.C.
KAWU, J.S.C.: This appeal was dismissed summarily by this Court on 18th day of April, 1991. On that date we indicated that we would, today, give our reasons for doing so.
I have had the advantage of reading in draft, the Reasons For Judgment just delivered by my learned brother, Belgore, J.S.C. I agree with those reasons and will adopt them as my reasons for dismissing the appeal) and affirming the decision of the Court of Appeal.
NNAEMEKA-AGU, J.S.C.: On the IN of April, 1991, I dismissed this appeal after reading the records and considering the briefs of argument filed by counsel on both sides and listening to their oral submissions in the appeal. I thereafter reserved the reasons for my judgment till today. I now give my reasons.
I have had a preview of the lead reasons for judgment just read by my learned brother, Belgore, J.S.C. and agree entirely with his views expressed therein.
I agree that a formal identification parade was unnecessary in the circumstances of this case. The appellants were so clearly linked with the offences of which they were convicted that their conviction cannot be faulted. There is no doubt from accepted evidence that Exh. “A” was the car of P.W.3 which got snatched from him at gun point during the robbery. The various dealings of each appellant with the car within four days of its being snatched from its ‘owner (P.W3) heavily implicated each appellant with the offences charged. The 1st appellant paid for the bills of repairs by the mechanic (P.W.1) and, with the 2nd appellant, he visited P.W. 1 and P.W.2 several times during the course of repairs. 1st and 2nd appellants were negotiating for the sale of the car. 3rd appellant called on P.W.1 along with one Uche, who died before the trial, to remove some empty coke bottles from the car in question during the repairs. The 4th appellant claimed the car as that of his father. Furthermore P.W.3, the victim of the robbery at Badagry Police Station, easily picked out the 3rd, 4th and 5th appellants and Uche as among the persons who snatched his car at gun point at Oworonshoki that night and with whom he spent a good part of the night after the incident, sometimes under the glare of the inside light of their minibus. As other overwhelming evidence is available and, as in this case, heavily implicates the accused persons, it would be idle to think as learned counsel on their behalf appeared to have thought, that evidence of identification can be rightly taken in isolation or that a formal identification parade was imperative. Such evidence must be considered along with otter pieces of evidence on record. From the above facts, on the possession of the recently snatched car, it will be seen that the learned trial judge was right to have applied the presumption under section 148 (d) of the Evidence Act in this case and to have held that each appellant was either a robber or a receiver. When that presumption is applied and considered along with other facts proved in this case, it will be seen that each appellant was rightly convicted on both counts.
The contention on behalf of the appellant that he was convicted under a non-existent law is, in my view, based on a serious misapprehension. The offence was committed on the 13th of October, 1978. Undoubtedly the relevant law in force at the time of the commission of the offence was the Robbery and firearms (Special Provisions) Decree NoA7 of 1970. In Lagos State that Decree was made inapplicable by Law, i.e. the Criminal Code (Amendment) Law, 1980, with effect froth 29th September, 1980. The trial of the appellants commenced on the 17th of May, 1982 and was concluded on the 29th of May, 1994. On these facts, learned counsel for the appellants contends that they were tried and convicted under a law that was no longer in existence in the State.
In my view, learned counsel clearly missed the point For the problem raised by this point in the appeal must be resolved on the basis of the law in farce at the time when the offences were committed. This is, in fact, the intendment of section 6 (1) of the Interpretation Act 1964, which provides as follows:
“The repeal of an enactment shall not
(a) affect anything not in force or existing at die time when the repeal takes place;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment
(d) affect any penalty, for feature or punishment incurred in respect of any offence committed under the enactment;
(e) affect any investigation, legal proceeding or remedy in respect of any such right privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed”.
These provisions and principles encapsulated in them have been interpreted and applied in several decided cases including: Chief Andna Are v. Attorney-General, Western Region (1960) 5 F.S.C. 111, at P.112; (1960) SCNLR 224; Kpema v. State (1986) 1N.W.L.R. (Pt.17) 396; and Johnson v. State (1981) 2 S.C. 29, P.37. Relevantly, the above provisions and the cases decided on them come to this: that apart from purely procedural matters, provisions of statutes cannot be taken as applying retrospectively, but prospectively, except by very clear wards. The practical application of this to the situation which has arisen in this case is of course that the guilt or otherwise of the appellants must have to be decided with reference to the law in force at the time the offence was committed and not the one which had come into force on the date proceedings were commenced. The amending statute was not capable of affecting the guilt, penalty, forfeiture or punishment, if any, that had been incurred in respect of the act done before the amending statutes. So, the appellants were rightly tried and convicted under the Robbery And Firearms (Special provisions) Decree 1970.
For the above reasons and the fuller reasons contained in the lead reasons just delivered by my learned brother, Belgore J.S.C., I dismissed the appeal of each appellant and confirmed the sentence imposed on each of them.