SANI LAWALI (DAN CHINA) V. THE STATE (2019)

Background

The appellant, Sani Lawali, was the second accused person in a criminal prosecution before the High Court of Sokoto State. He and other accused persons were charged under sections 97, 221(b) and 298(c) of the Penal Code for criminal conspiracy, culpable homicide punishable with death and armed robbery while armed with dangerous weapons. The prosecution alleged that on 7 July 2009 the accused persons, acting as a robbery gang, waylaid vehicles and passengers near Sarwa Village on the Sokoto road. The victims were dispossessed of money and personal valuables, while several persons, including mobile police officers and civilians, were killed during the operation.

One of the victims, PW6, gave direct evidence that the appellant personally collected his mobile telephones, money, recording equipment and sandals. PW6 stated that he observed the appellant at close range and later identified him at a police identification parade. PW7 also gave evidence concerning the robbery and the deaths that occurred, although his identification evidence was directed principally at the first accused. The appellant denied involvement and sought to rely on an alibi, asserting that he was elsewhere, including at the State Criminal Investigation Department. However, the statement allegedly containing the alibi was not admitted in evidence, and the appellant denied making it.

The trial court convicted the appellant and sentenced him to death in respect of culpable homicide punishable with death. His appeal to the Court of Appeal, Sokoto Division, was dismissed and the conviction and sentence were affirmed. He then appealed to the Supreme Court, arguing principally that the prosecution had failed to properly identify him and had not proved the offences beyond reasonable doubt.

Issues

1. Whether the Court of Appeal was right to affirm the trial court’s finding that the prosecution proved the offences against the appellant beyond reasonable doubt.
2. Whether the evidence identifying the appellant as one of the armed robbers was reliable and sufficient.
3. Whether the appellant’s alleged defence of alibi required investigation by the prosecution and raised a reasonable doubt.
4. Whether the concurrent findings of fact by the trial court and Court of Appeal should be disturbed by the Supreme Court.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal. The Court held that the prosecution in a criminal trial must prove the charge beyond reasonable doubt, but this standard does not mean proof beyond every conceivable or fanciful doubt. In an armed robbery charge, the prosecution must establish, among other essential matters, that the accused participated in the robbery. In a charge of culpable homicide punishable with death, it must also prove that the act of the accused caused the death and that the requisite intention or knowledge existed.

The Court found that PW6’s evidence directly connected the appellant with the robbery. The witness had more than a fleeting opportunity to observe him: the appellant collected several articles from PW6, removed the SIM cards from his phones, attempted to remove a cassette from his recording equipment and took his sandals. The relevant considerations in assessing identification evidence include the circumstances in which the witness saw the accused, the period of observation, the lighting conditions and the opportunity for close observation. Applying those factors, the Court concluded that PW6’s identification was positive, credible and free from material contradiction. The identification parade further reinforced, rather than created, the identification evidence.

On alibi, the Court held that the accused bears the initial responsibility of supplying sufficient particulars of the alleged whereabouts, such as the place, time, persons present and other information capable of investigation. Only after such particulars are provided does a corresponding duty arise on the prosecution to investigate. The appellant supplied no meaningful details and, in any event, the credible testimony of PW6 placed him at the scene of the robbery. His alleged alibi was therefore demolished by the prosecution evidence.

The Court also reaffirmed that a bare statement made by counsel from the bar has no force as legal evidence. Facts contained in pleadings, proof of evidence or counsel’s address do not constitute evidence unless established through admissible evidence. Counsel cannot use a final address or appellate brief to introduce an unproved alibi or cure a deficiency in the evidence. The Court further noted the impropriety, under rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007, of counsel attempting to act both as advocate and witness on a disputed factual matter.

Court Findings

The Supreme Court held that the concurrent findings of the High Court and Court of Appeal were supported by credible evidence and had not been shown to be perverse. An appellate court ordinarily does not interfere with concurrent findings of fact. Intervention is justified only where the findings are perverse, unsupported by evidence, based on wrong deductions or affected by a substantial miscarriage of justice. None of those circumstances existed in this case.

The Court accepted the evidence of PW6 as unchallenged and substantially corroborated by the surrounding circumstances and the identification parade. The appellant’s denial did not outweigh the prosecution’s positive evidence. The Court also agreed that the violent robbery, the recovery and production of relevant exhibits, the eyewitness testimony and the evidence concerning the deaths established the necessary elements of armed robbery and culpable homicide punishable with death.

Conclusion

The appeal was dismissed in its entirety. The judgment of the Court of Appeal affirming the appellant’s conviction and sentence by the High Court of Sokoto State was affirmed. The death sentence imposed for culpable homicide punishable with death consequently remained undisturbed.

Significance

The decision is significant for Nigerian criminal procedure because it clarifies the treatment of identification evidence, the burden associated with an alibi and the limited scope for disturbing concurrent findings of fact. It also emphasizes that counsel’s submissions, however persuasive, cannot substitute for sworn testimony or admissible documentary evidence. The case demonstrates that an eyewitness’s prolonged and close observation of an accused during the commission of an offence may be sufficient for identification, especially where the evidence remains unshaken under cross-examination and is supported by the surrounding circumstances.