Anthony Isibor v. The State

 I have read in advance the reasons given by my learned brother Uwaifo JSC for dismissing this appeal on 29th November, 2001. I agree with his reasons which I adopt as mine. It is for the same reasons that I, too, dismissed the appeal on 29th November 2001, I have nothing more to add. 

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I read before now the judgment of my learned brother Uwaifo, JSC just delivered. I agree with his reasoning and conclusion.

This appeal was heard on the 29th November 2001. After hearing the oral arguments of counsel who appeared for the parties in this appeal, I decided to dismiss the appeal and reserved my reasons for dismissing the appeal till today. The facts that led to the arrest and prosecution of the appellant that resulted in his conviction for the offence of armed robbery contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No.47 of 1970, as amended by the Robbery and Firearms (Special Provisions) Amendments (No.8) Decree of 1974, may be stated briefly as follows:
On or about the 5th day of April 1980, one Alhaji T. A. Afolabi who gave evidence at the trial as the 4th P.W., was the driver of his Peugeot 504 saloon car. With him in the said car was one Mrs. Adegbola, who also gave evidence as the 5th p.w They were on the expressway facing the direction of Ife and just before getting to the end of the expressway in that direction, they turned into an untarred road. Shortly after entering the untarred road they saw from the lights of their car that the road in front of them had been barricaded by a taxicab. 4th p.w stopped the car but had the headlamps of the car fully on. They observed three men immediately alight from the taxicab. Two were fairly tall and one was short. One of the tall men was carrying a gun and 4th p.w also observed that he wore a small beard. 4th p.w said he was ordered out of the car and the appellant whom he said was the one carrying the gun and pointing the same at him ordered him to surrender the ignition key of the car and he complied immediately.

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At that stage 5th p.w came out of the car. One of the robbers demanded to know how much money they had on them and they immediately answered that there was money in the lady’s handbag on the back seat of the car. 5th p.w observed then that the appellant was pointing a gun at the 4th p.w. The robbers then got inside 4th p.w’s peugeot car, turned the car back and drove it into the expressway towards the direction of Lagos. The robbers having abandoned the taxicab with which they blocked the path of 4th P.w.’s car, 4th p.w then peeped inside the abandoned taxicab; in the taxicab he saw the ignition key and removed it. Thereafter, the 4th p.w and 5th p.w reported the robbery incident at the expressway tollgate police station. There 4th p.w was given an escort of ten armed policemen back to the scene of crime.
Futile searches for the stolen car were made and the police eventually drove the abandoned taxicab back to the Iyaganku police station. While the car was thus in the custody of the police following the announcement on the television about the car, the 6th p.w Basiru Popoola came forward to identify the taxicab as that which was stolen from him when four persons attacked him on 4th of April 1980 as he was driving the taxicab No. OY 6898 A. He then reported the incident at the Agodi police station. Now, the 1st p.w Corporal Yussuf Raji from the Benin Police Command testified as to how on the 6th of April 1980, whilst in company of other police officers at about 1.30 a.m, the appellant was arrested at a police check point in Benin whilst driving the peugeot 504 saloon No OYB 2118 A towards the direction of Benin from the direction of Lagos.

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The appellant was alone in the car. When he was stopped, he was ordered to come down from the car. After he came down from the car, the car was searched. Inside the car were found some female properties such as bra, panties and other undies and a woman’s bag on the passenger seat in the front. In the glove compartment were found a driving licence bearing the passport photograph and name of a woman. When the appellant was ordered to open the boot of the car a bunch of keys that looked like those of a hotel was found. When asked how he came about the properties, the appellant said that the car belonged to his boss. And when further interrogated, he said that his boss permitted him to drive the car to Benin to visit his sick father. As the appellant, whose account of his movements and how he came by the car was not satisfactory, the police detained him in Benin. He was eventually brought to Ibadan where he made a statement to the police and was identified by the 4th p.w and 5th p.w at an identification parade. At his trial, the appellant gave evidence in his own defence. After the learned trial Judge had carefully considered his evidence and that of the prosecution; he reached the conclusion that the prosecution had by the evidence led against him established beyond reasonable doubt the guilt of the appellant and he was convicted accordingly. Upon his conviction, the appellant appealed to the court below which dismissed his appeal. In dismissing his appeal, the court below, per Onalaja JCA, who read the leading judgment and in upholding the findings of the trial court said inter alia, thus: –
“To sustain the offence of robbery the respondent must prove not only that robbery was committed by the accused person, but also that the accused was armed with firearms or offensive weapons at the time of the incident and that weapon or firearms comes within the meaning of section 9 of the said Act so decided in the case of Nwomukoro v The State (1995) 1 NWLR (Pt.372) page 435.

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In the instant case respondent established by cogent, conclusive evidence beyond reasonable doubt that appellant
(1) stole the Peugeot 504 saloon car OYB 2118 A from 4th p.w the owner of the said vehicle
(2) that at the time of stealing the car appellant used actual violence when he pointed a gun at the 4th p.w and 5th p.w who surrendered the ignition key of 4th p.w’s car to appellant and
(3) that appellant used the type of threat or violence by actually armed with a short gun. The totality of evidence of the 4th, 5th and 1st p.w and evidence adduced by the prosecution were so strong, cogent and compelling that the trial court had no alternative than the conviction of appellant accordingly.”
The appellant has now appealed further to this court. Pursuant thereto, two grounds of appeal were filed. They read thus:-
“GROUND ONE
The judgment of the lower court is unreasonable, unwarranted and cannot be supported by the weight and quality of the direct evidence adduced.
GROUND TWO
The lower court erred in law for evaluating the evidence obtained in Benin City which was outside the locus criminis at Ibadan as part of the direct evidence establishing the appellant’s guilt.”
In this court the learned counsel for the appellant filed in accordance with the rules, an appellant’s brief and also a reply brief, after he was duly served with the respondent’s brief. In the said appellant’s brief, two issues were identified for the determination of this appeal. They are:
(1) Whether or not the weight and quality of evidence adduced at the trial and upheld by the lower court can sustain a sentence of death passed on the appellant.

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(2) Whether or not the lower court was right in evaluating the evidence obtained in Benin City which was outside the locus criminis at Ibadan as part of the direct evidence establishing the appellant’s guilt.
It is, I think desirable to comment briefly upon the issues framed for the appellant before the submissions made thereon are considered. It seems to me after a careful perusal of the issues, that in framing them, that care should have been taken to remember that in an appeal against conviction for a crime, the focus has always been whether the guilt of the appellant was established beyond reasonable doubt. This is because it is settled law that the burden lies on the prosecution to establish the guilt of the appellant as stated above. For that reason, the prosecution has a right to call evidence that relate to and connect the accused with the offence for which he stands charged. The evidence does not have to emanate only from what was referred to as the locus criminis in the second of the grounds of appeal and in the brief filed for the appellant. Be that as it may, it would appear from the grounds of appeal and the issues set out above that the real complaint of the appellant is that his conviction was not established beyond reasonable doubt, and that the court below was wrong to have adverted in its consideration of the evidence led against the appellant the evidence of what took place at Benin when he was arrested. In this regard, it is pertinent to refer to the issues framed in the respondent’s brief. They are:-
“(1) Whether or not there was sufficient evidence before the trial court to sustain the appellant’s conviction on a charge of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No.47 of 1970.
(3) Whether it was right for the lower court to rely on the doctrine of recent possession under section 149(a) of the Evidence Act as part of the prosecution case to affirm the judgment of the trial court. ”

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Now what was canvassed for the appellant in the appellant’s brief with regard to the nature of the evidence adduced by the prosecution and upon which the appellant was convicted falls into three principal parts. The first part of the complaint of the appellant is the contention that the court below should not have upheld the finding of the trial court that the 4th p.w and 5th p.w gave credible evidence with regard to how the vehicle, peugeot 504 saloon car Reg. No. OYB 2118 A, belonging to the 4th p.w and in which they were travelling, was stopped and stolen at gunpoint by the appellant and his confederates. In support of that contention references were made to the contradictions in the evidence of these two witnesses, with regard to who demanded money from them and who also pointed a gun at 4th p.w before the appellant and his confederates robbed him of his vehicle. It is clear from a perusal of the written record that this argument is similar to that which was advanced before the court below. That argument was rejected by the court below. In rejecting that argument, the court below rightly took the view that the alleged contradictions referred to by the appellant’s counsel did not show that the conclusion reached by the learned Judge on the evidence of the 4th p.w and 5th p.w was perverse as the pieces of evidence given by them did not establish the fact that the appellant was not one of those who robbed the 4th p.w of his vehicle. It must be borne in mind that an appellate court will not ordinarily reverse the findings of a trial court unless there was no evidence to support such finding or conclusion of the trial court. An appellate court may also reverse the verdict of the trial court if it considers that it is unreasonable in the light of its knowledge both of the primary facts found by the trial court and of the inferences which the trial court drew from the primary facts. See R. v. Olagunju. (1961) All N.L.R. 21; Efe v The State (1976) 11 S.C. 75.

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In the instant appeal, having read the evidence on the printed record and the findings made thereon by the trial court, I have no reason to depart from the conclusion reached by the trial court and affirmed by the appellate court that the 4th p.w and 5th p.w are credible witnesses. Another argument put forward for the appellant is that the identification parade conducted by the police in which the appellant was identified by the 4th p.w and 5th p.w was not properly conducted. It was contended for the appellant that the parade was stage managed. The thrust of the argument of learned counsel in this respect appears to be that the witnesses had an opportunity of seeing or identifying the appellant before he was put on the identification parade. As the allegations so made by the learned counsel for the appellant have not been supported by concrete facts, the contention that the identification parade was stage managed must be rejected. In this context, it must be remembered that when the robbery incident occurred, the witnesses had very full and clear opportunity of identifying the appellant and the other persons who attacked them. This is because the evidence on record and which remained unchallenged is that when the appellant and his confederates alighted from the taxicab with which they had blocked the road on which the 4th p.w was driving his car at that time of the night, he trained the full head lights of the car on them. With the aid of the full headlights of the car and the light of the moon in evidence, the witnesses had every opportunity of identifying the appellant and his confederates. Indeed the witnesses gave a clear description of each of them in relation to one another. It is therefore my view that without showing that the witnesses were assisted in any manner to identify the appellant in the identification parade, or it was otherwise irregular, this contention that the identification parade was not properly conducted must be rejected. See Bozin v. State (1985) 2 NWLR (Pt.8) 465; Ikemson v. State (1989) 3 NWLR (Pt.110) 455.

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The appellant in his brief has also argued that the court below was wrong to have applied the law of recent possession to affirm the conviction of the appellant. The facts disclosed on record no doubt established that the appellant was stopped as he was driving the stolen car into Benin on the day following its robbery from the 4th p.w. It is no doubt the law that if a person is found in possession of property, which was property reported to have been recently stolen, with or without violence from another person, it is open for a trial court to convict that person of the theft. See R v Loughlim 35 CR App. P.69; See s.149 (a) of the Evidence Act Laws of the Federation of Nigeria 1990; Isiaka Ayinde Oseni v The State (1984) 11 SC 44 and In Re. Karimu Atanda. v the State (1983) 6 SC 1.However, it must be pointed out that resort is usually made by the prosecution to the doctrine of recent possession where there was no direct evidence available to establish the guilt of the person charged with a criminal offence such as that disclosed in this case. But in the instant appeal, there was no dearth of evidence to establish beyond reasonable doubt the guilt of the appellant. That evidence had been properly considered and evaluated by the trial court before the appellant was found guilty. The court below has also approved the appraisal of the evidence led at the trial. The evidence with regard to the arrest of the appellant in Benin, no doubt, formed part of the pieces of evidence, which led to the conviction of the appellant. In my humble view it is not necessary in the circumstances to import the doctrine of recent possession to uphold the guilt of the appellant. To that extent, the submission of the learned counsel for the appellant is right.

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However, that cannot be of any avail for the appellant as I am of the firm view that the guilt of the appellant was established beyond reasonable doubt upon the evidence led at his trial. The appeal was therefore dismissed by me for the reasons given above.
Before concluding this judgment, it is necessary to refer to the information given to the court during the hearing of this appeal that the appellant had been discharged from prison custody. The learned Attorney General of Oyo State, Mr. A. A. Lawal who appeared for the respondent confirmed this fact. He then showed the court a letter dated 16th January 2001, reference No. PHAB.282/VIII/072 addressed by the Assistant Controller of Prisons Welfare for the Controller of Prisons, Ogun State Command to the Director of Public Prosecutions, Ministry of Justice, Ibadan. The relevant portion of the letter reads:
“I am directed to refer to your reference number 4495/275/18 dated 20th December, 2000 on the above subject matter and to inform you that Anthony Isibor was among the prisoners granted Amnesty/Release of 646 inmates from detention by the Head of State Commander-In-Chief of the Armed Forces-General Abdulsalam Abubakar on the 5th May, 1999. Attached herewith is the radio message relayed to Controller of Prisons, Ogun State in respect of the affected inmates, please.”
It is clear that the appellant from the above, has been made a free man by the fiat of the Head of State Commander-In-Chief of the Armed Forces-General Abdulsalam Abubakar on the 5th May 1999. However, having regard to the verdict of this court in this appeal, it does now appear that the appellant cannot be punished as provided by law in respect of the offence for which he stands convicted. It is hoped that deliberate effort would be made in the future to avoid situations of this kind when exercises of this nature are carried out.

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I have had the privilege of reading in draft the reasons for judgment dismissing this appeal given by Uwaifo, JSC. I entirely agree with the reasons he gives and I adopt them as reasons for my judgment dismissing the appeal on 29th November, 2001. Appeal dismissed.

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