OGWO v. STATE
(2020)LCN/15266(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, May 28, 2020
CA/OW/322C/2017
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Between
IFEANYI OGWO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
FACTORS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
In establishing a case of Armed Robbery, under Section 1 (2) (a) of the Robbery and Firearms Act, the prosecution has a duty to prove beyond reasonable doubt the following:
1. That there was a robbery
2. The robbers were armed and
3. The accused was one of the robbers – EWUGBA VS. THE STATE 2018 7 NWLR (PT. 1618) PG.262, BLESSING BOTU VS. THE STATE (2017) 5 – 6 SC (PT. 1) 85 AT 108. PER PEMU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
An Appellate Court is always wary of interfering with the way a trial judge exercises it discretion. A Trial Judge is endowed with unfettered discretion to justice at all times, and it must exercise such unfettered discretion not only judicially but judiciously. Oputa J.S.C in ADELUMOLA VS. STATE (1988) I N.S.C.C observed that any trial Court has the liberty and the privilege to believe one side and disbelieve the other.PER PEMU, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT
The evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity to see, hear and assess witnesses. – FRN VS. IWEKA (2013) 3 NWLR (PT. 1341) PG 285 (A). PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State Holden at Isuikwuato in Charge No: HS/&C/2013, delivered on the 21st day of December, 2015.
SYNOPSIS OF FACTS
The gravamen of this case is that on or about the 3rd day of November, 2008, the Appellant, at the erosion site along Isuikwuato/Uturu Road, robbed Mr. Emmanual Ibekwe of his handset and the sum of N2, 030. 00 (Two Thousand and Thirty Naira), and at the time of the robbery, he was armed with a gun.
At the hearing of the case, the Appellant pleaded not guilty to the charge. The prosecutor called four witnesses. The Appellant gave evidence as DW1.
Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N, O, P, Q, R and S were tendered by the prosecution, in support of their case.
At the close of the hearing, the Court found the Appellant guilty, and convicted him as charged. He was sentenced to death by hanging.
The Appellant is desirous of appealing this judgment, and pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 16th of March, 2016, with eleven (11) Grounds, of Appeal – pages 34 – 46 of the Record of Appeal. The Appellant filed his Brief of Argument on the 21st of March, 2018. It is settled by A.U.K Ngumoha Esq. He proffered four (4) issues for determination which are:
1. Whether the Trial Court was right to have held that the appellant was properly identified by the prosecution as the person who allegedly robbed the PW1.
2. Whether prosecution proved that the PW1 was actually robbed and shot by armed robbers.
3. Whether in the circumstance of this case, Exhibit “R” is capable of being stolen and/or has evident of value capable of grounding the conviction of the appellant.
4. Whether the failure of the Trial court to consider the case put forward by the appellant does not amount to breach of the appellant’s right to fair hearing as provided under Section 36 of the 1999 Constitution as amended?
The Respondent filed his Brief of Argument on the 27th of March, 2020. It is settled by AGAI IRO OGBUABIA Esq. Principal State Counsel, Ministry of Justice Umuahia, Abia State.
The Respondent proffered a sole for issue determination which is:
“Whether the Lower Court was right in convicting the Appellant to death for armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provision Act Cap R11 Vol. 14 Laws of the Federation of Nigeria 2004.”
On the 29th day of April, 2020, the Counsel for the respective parties adopted their Briefs of Argument.
ISSUE NO ONE
It is the Appellant’s submission that the prosecution failed to prove beyond reasonable doubt all the ingredients of the offence of armed robbery as required by law.
That the prosecution failed to prove that the Appellant was one of the robbers who allegedly robbed the Appellant.
Submits that in the present case, the Appellant was not arrested at the scene of crime. Therefore there is no credible evidence of identification. That the prosecution’s evidence of identification must be credible, probable and capable of grounding and/or sustaining a conviction – BENJAMIN VS. STATE (2013) LPELR 20293.
That for identification to ground conviction of an accused person, the victim must describe the features of the accused to the Police when reporting the case to the Police, or making his statement.
Urges Court to hold that the Appellant was not properly identified as required by law.
That the Appellant only relied on suspicion to implicate the Appellant. That suspicion, no matter how strong cannot sustain conviction, citing SAM VS. STATE (2015) NWLR (PT. 1483) 522 AT 556.
He submits that the evidence of the PW1 and PW2 on record is not credible as it affects the issue of identification parade, citing PATRICK IKEMSON AND 2 ORS VS. THE STATE (1989) LPELR – 1437 (SC) AT 18.
That what Police did, did not amount to identification parade, as proper identification entails lining up of some suspects who have similar features with the particular suspect whose features had already been given to the Police by the victim of the crime –AGBOOLA VS STATE (2013) 11 NWLR (PT. 1366) 619.
Urges Court to disbelieve the evidence of PW2, who gave the impression that he was present during the alleged robbery.
RESOLUTION TO ISSUE NO ONE
PW1, the victim of the Armed Robbery testified on the 25th June, 2014. He did say that on the 3rd of November, 2008, he was on his way to collect his statement of result. He was in the company of his father in his car. Along the road to ASSU, there is an erosion site. The father stopped the car and both of them alighted from the vehicle and ran into the bush. While he ran into the bush, he noticed that an object hit him on the chin forcing him to the ground. While on the ground, the Appellant approached him and collected his phone with money in it. The Appellant told him to get up from the ground which he did. He stated further thus:
“The accused then asked me to get up from the ground which he did on the standing position the accused who was with a gun shot me at the back of my left ear near the back of my head.
At that time, my father was inside the bush and I later found out that while there he has called the Police.
At that point, the accused ran away and the Police who had arrived at the scene saw the accused escaping. The Police shot at the accused at the back as he was escaping….”
He continued
“When the accused was searched by the Police a complimentary card given to me by uncle and which was inside my wallet was recovered from the accused.”
He went further
“I was invited to the Police Station where I identified the Accused as the armed robber who shot me.”
Answering questions put him in cross examination, he said inter alia:
“I described to the Police the person who shot me and said so in my statement to the Police. I told the Police that my attacker was tall, fat and black.”
When he was given his statement to the Police he then said:
“I have seen that I did not describe the features of the accused in my statement to the Police.
… I saw the accused when he shot me with a gun. I knew that it was the accused who robbed me.” Pages 31 – 32 of the Record of Appeal.
The Appellant made a statement to the Police on the 4th of November, 2008 and the 5th November, 2008 respectively.
That on the 3rd of November, 2008 at about 1800 hours, he went to his sister’s place with one Onyebuchi Okari, who took him there on his motorcycle. They waited for her in vain and then decided to go back. On their way back to Nkwonta, within the diversion/uttered road, along Ogboro Nkwonta road, they were attacked by two gun men who shot at him from the back from the bush and ran away. They observed that he fell down. Onyebuchi Okari sustained no injury or bullet wound. They at first ran away leaving Onyebuchi at the scene of the incident.
The next morning 4th November, 2008, they went back to the bush for the motorcycle but did not see it. He did not report the matter to the Police. He did not go to take treatment for the bullet wounds because he had no money. He had no money to go to the Police.
He thought he could get money from his brother Ndubuisi who worked in the Council. They got to Nkwonta at about 21.09 am that night through a pathway.
In his statement of the 5th of November, 2008, he said that on the 3rd of November, 2008, at about 8:30 pm along Nnachukwu Filling Station, he saw two boys with a man coming out from the bush and immediately one of them opened fire on him, while the other one started pursuing them. He can identify one of the boys.
When he went to L.G.A to look for his brother who works there to collect some money from him, on his way back, he stopped at one Mama Ike’s place to eat. After eating, a Police man by name Ifeanyi and other Police men came and arrested him.
He made another statement to the Police on the 10th November, 2008, he said he knows the victim, but he did not know that he was a son to Ibekwe Abah. That to the 3rd of November, 2008, in which his Landlord’s son sent him on an errand. On his way, on getting to Nkwonta bus stop, he stopped due to many vehicles parked there. They were informed that robbers were operating on the road. When the robbers finished their operation, they saw vehicles from the Campus and knew that the road was clear. A Bank vehicle whose driver saw him stopped and carried him back to Congiter’s home to see him. Congiter is a friend to the driver. Afterwards the driver took him back to Campus and dropped him.
He also narrated how he was shot at but did not go for treatment he did not go to the Police and he did not report the incident to anybody.
The items removed from his home includes the wallet, key cutter, the U.S dollar bill, five wrist watches, camera, mask cloth, kitchen knife, one of the machets, two blue eye glasses – pages 20 – 27 of the Record of Appeal.
The Appellant testified on the 19th of November, 2015.
In his evidence, he did say that on the 3rd of November, 2018, he went to visit his sister at Otampa Community Isuikwuato. Her name is Agnes Okoro. After the visit, he proceeded on a motorcycle to go home. On the way at a road diversion at Oruruala village, he noticed that a robbery operation was going on. He jumped off the motorcycle and ran into the bush. He continued to run into the bush until he arrived at the Police Headquarter Isuikwuato. He ran in there and told the police that armed robbers were operating at Oruruala along the road. That the robbers attacked him also but he managed to escape.
Himself and the motorcyclist were told by the Police to sit by the Police counter. His telephone and the sum of N5,000.00 was collected by the Police.
He now recollected that as he and the motorcyclist were escaping, the robbers shot at him. A bullet hit him at the back of his upper right hand.
His sister came to the Police Station the next morning and demanded that he be taken to the Hospital. Some days later the Police came and gave him a beating. His left index finger was broken. His face was hit with the butt of the Police riffle. Answering questions put to him in cross examination, he said that, everything he is saying to the Court are facts that he had given to the Police. That he went to see his sister at 7:30am of that day.
He did not tell the Police that he was the owner of the things removed from his home. He did not tell the Police in his statement that he went to see his Uncle at the Local Government Headquarters as he had no Uncle working there.
I have had to reproduce in essence the evidence elicited from the Appellant in Court and his various statements to the Police. Pertinent to note that the Appellant says that he knows the victim, but that he did not know that he was a son to Ibekwe Abah whom he knows well.
It is trite that were there is positive identification, identification parade becomes unnecessary.
PW1 – the victim while testifying on the 25th June, 2014, did say unequivocally that while being pursued into the bush, an object hit him on the chin forcing him to the ground. While on the ground he noticed that the Appellant approached him and collected his phone and money. That the Appellant who was armed with a gun told him to get up from the ground.
Under cross-examination he said he did not know the Appellant before the incident. But he did say that he saw the Appellant when he shot at them with a gun. That the incident took place at about 6: 45am. It was not dark.
I am of the view that the victim PW1 identified the Appellant as the person that shot at him on that faithful day. That piece of evidence was not shaken or challenged.
On the contrary, or rather conversely, it is the Appellant’s story that is full of so much contradictions and inconsistencies and incredibility.
At page 7 of the judgment of the Court below, it observed thus:
“…. The above is in addition to the fact that the PW1 had ample opportunity of viewing the accused during the robbery operation and identified him accordingly at the Police Station. Page 77 of the Record of Appeal.
The Court below also wondered why the Defence Counsel did not cross-examine the Appellant and PW2 when they testified that some days after the incident PW1 was able to identify the accused person as the robber who stole from him and shot him. Pw2 said that at the Police Station, PW1 was brought in a congregation of some boys, and PW1 was able to identify the accused as the armed robber. Pages 77 – 78 of the Record of Appeal.
I am of the view that PW1 and PW2 positively identified the Appellant at the scene of the crime as the one who perpetrated the crime.
The Court below was right to hold that the Appellant was properly identified by PW1 and PW2. This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO TWO
Learned Counsel submits that there is no evidence to show that the Appellant was actually robbed and shot by armed robbers. This is because there is no medical evidence either by Police medical professional, evidence by a medical doctor or any one for that matter showing the area of his body that was shot at. No evidence by the Police Officer who shot the Appellant. And that failure of the prosecution to prove this is fatal to the prosecution case.
That the failure of the prosecution to establish that burden of proof to the effect that the PW1 was actually robbed and shot creates doubt in the case of the prosecution. There is no proof that there was armed robbery on the 3rd of November, 2008 at ABSU erosion site
That assuming (but without conceding) that there was arm robbery on that day, there is nothing linking the Appellant the armed robbery. He submits that there was contradiction in the evidence of the PW1 and PW2.
RESOLUTION OF ISSUE NO TWO
In establishing a case of Armed Robbery, under Section 1 (2) (a) of the Robbery and Firearms Act, the prosecution has a duty to prove beyond reasonable doubt the following:
1. That there was a robbery
2. The robbers were armed and
3. The accused was one of the robbers – EWUGBA VS. THE STATE 2018 7 NWLR (PT. 1618) PG.262, BLESSING BOTU VS. THE STATE (2017) 5 – 6 SC (PT. 1) 85 AT 108.
The Appellant, the PW1 and PW2 in their statements to the Police and testimony in Court did say that there was armed robbery on the 3rd of November, 2008. Indeed in the statement of the November 2008, the Appellant stated that there was an armed robbery incident along the site where the robbery took place.
In his evidence, PW1 said he was robbed by the Appellant while armed. More so some of PW1’s property which were robbed were recovered in the home of the Appellant. This links the Appellant unarguably to the armed robbery. This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO THREE
That the Appellant submits that the Court below was in error when it relied on Exhibit “R” alleged to have been found in the Appellant’s home. That Exhibit “R” is a complimentary card belonging to one Eke Onyeforo, a Police Officer. That failure of the prosecution to call Eke Onyeforo was fatal to the prosecution. That PW1 never said his wallet was stolen during the armed robbery or that Exhibit “R” was in his wallet.
Submits that Exhibit “R” by its nature, is not “goods”, and cannot necessitate invocation of presumption of recent possession.
RESOLUTION OF ISSUE NO THREE
In paragraph 4.4 of the Respondent’s Brief of Argument, he posited that the law is settled that in criminal trial, proof of commission of a crime by an accused person can be established in any of the following ways or methods namely:
a. Through the testimony of an eye witness or witnesses who witnessed the act of the commission of the offence, by the Accused person; or
b. By the confessional statement made voluntarily by the person accused of the commission of the offence, or
c. By circumstantial evidence.
Decidedly, in taking into consideration the evidence plead before the Court, the Court is left with no doubt that the offence was committed by the accused person, the burden of proof beyond reasonable doubt is discharged. Given evidence in Court on the 25th June, 2014, PW1 had this to say inter alia:
“I recall 3/11/2008. On that day, I was going from Akana junction to ABSU. I was going to collect my statement of result. I was in the company of my father in my father’s car. Along the road to ABSU there is a known erosion site. At the place, we noticed that the road was barricaded with weed. My father stopped his car and both of us alighted and ran into the bush. While I was running, I noticed that an object hit me on the chin forcing me to fall to the ground. While there I notices that the accused approached me and collected my phone and wallet with money inside it. The accused then asked me to get up from the ground which I did on the standing position, the accused who was with a gun shot me at the back of my left ear near the back of my head…..” Page 31 of the Record of Appeal.
He testified further thus:
“When the accused was searched by the Police, a complimentary card given to me by my uncle and which was inside my wallet was recovered from the accused. I was invited to the Police Station where I identified the accused as the armed robber who shot me. Page 32 of the Record of Appeal
According to PW3, the investigating Police Officer did testify that one of the items recovered in the Appellants home is Exhibit “R”.
PW1 testified that Exhibit “R” is a complimentary card given to him by his uncle and which was inside his wallet. Exhibit “R” was recovered from the Appellants home by the Police.
The submission that Exhibit “R” is not capable of being stolen is misconceived. In paragraph 5.1.9 of the Appellant’s Brief, he said that Exhibit “R” cannot fall into the category of the provisions of Section 167 (a) of the Evidence Act 2011
The Court below was right to have believed that Exhibit “R” was stolen by the Appellant which was in PW1’s wallet at the time of the incident. The Court had to say inter alia:
“Many items of interest to the Police were recovered. One of these was the Exhibit “R” which is a complimentary card. The PW1 was able to identify the Exhibit “R” as his uncle’s complimentary card which was inside the PW1’s wallet that was stolen by the robbers during the robbery incident. If the accused was not the robber who robbed the PW1 on 3/11/2008 how come that a complimentary card inside the PW1’s wallet that was stolen during the robbery incident on 3/11/2008 was found or located right inside the home of the accused?
….the finding of the complimentary card clearly proves that the accused was the robber who robbed the PW1 on 3/11/2008” – pages 76 – 77 of the Record of Appeal.
The issue of Exhibit “R” not being capable of being stolen is of no moment. This is because Exhibit “R” according to the PW1 was in his wallet which was stolen by the Appellant at the time of the armed robbery.
It is trite that a Trial Court can convict on the testimony of a sole witness, which is credible and unchallenged. – IGBO VS. STATE (1975) 9 – 11 S.C. There Obaseki J.S.C (as he then was) observed that:
“If the evidence of a single witness sufficiently proves that case against an accused person and the Trial Court accepts the evidence, there is no rule of law or practice dissuading the Court from convicting on the evidence.”
In his evidence, the Appellant gave the impression that he was also a victim of the armed robbery, which he admitted took place on that date. This was a blatant lie. But he is entitled to lie.
This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO FOUR
The Appellant submits that the Court below failed in its duty to consider the case of the Appellant, evaluate and resolve all issues placed before it for consideration before arriving at a decision. And that where it fails to do that, it constitutes miscarriage of justice and a breach of fair hearing citing OVUNWO VS. WOKO (2011) 17 NWLR (PT. 1272) PG. 522.
He submits that the Court below failed to resolve the Respondents main issue for determination in its judgment which issue is “Whether or not the prosecution proved its case beyond reasonable doubt given the evidence before the Court.”
RESOLUTION OF ISSUE NO FOUR
The sole issue referred to by the Appellant was that which he submitted for determination in his Written Address – page 15 – 54 of the Record of Appeal.
Let me quickly say here that, that issue as couched is an encapsulation of the entire case as reflected by the facts available before the Court, evidence elicited but oral and documentary. The question can safely be asked whether in view of all these, prosecution proved it case beyond reasonable doubt.
The Court below, in evaluating the evidence based on the facts before the Court, in my view amply touched on all the issues in arriving at its conclusion.
An Appellate Court is always wary of interfering with the way a trial judge exercises it discretion. A Trial Judge is endowed with unfettered discretion to justice at all times, and it must exercise such unfettered discretion not only judicially but judiciously.
Oputa J.S.C in ADELUMOLA VS. STATE (1988) I N.S.C.C observed that any trial Court has the liberty and the privilege to believe one side and disbelieve the other.
The evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity to see, hear and assess witnesses. – FRN VS. IWEKA (2013) 3 NWLR (PT. 1341) PG 285 (A).
Failure of the Trial Court to refer to an issue in writing its judgment and resolving same is not in my view detrimental to a case, and cannot constitute miscarriage of justice. Failure to do so may amount to irregularity, but as long as it does not go to the root of the case, it suffices. The Lower Court on the whole believed the evidence of the prosecution both oral and documentary and came to the conclusion that the Appellant is guilty of the offence charged. This Court cannot disturb that. In my view, the positive identification by the victim of the Appellant, which is undisturbed as well as the recovery of Exhibit “R” in his home pins him to the offence charged.
This issue is resolved in favour the Respondent and against the Appellant.
The Appeal fails and same is dismissed. The judgment of the High Court of Abia State delivered on the 24th day of December convicting and sentencing the Appellant is hereby affirmed.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity to read in draft, the lead Judgment of my learned Brother R. N PEMU, JCA.
I agree with her reasoning and conclusion. This appeal is unmeritorious and is hereby dismissed. The Judgment of the Trial Court is affirmed, same as the conviction and sentence.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance, a copy of the lead Judgment just delivered by my learned Brother, RITA N. PEMU, JCA, dismissing this appeal. I agree with and adopt as mine the reasoning and conclusions.
The appeal is without merit. I also dismiss this appeal and abide by the orders in the lead Judgment.
Appearances:
A.U.K Ngumoha, Esq. For Appellant(s)
Agai Iro Ogbuabia, Esq. For Respondent(s)
