NWONU v. STATE
(2020)LCN/15318(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, June 26, 2020
CA/E/65C/2019
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
CHUKWUEBUKA NWONU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
ELEMENTS TO PROVE THE OFFENCE OF ARMED ROBBERY
The law is trite that for the prosecution to secure a conviction for an offence of armed robbery, the following elements of the offence must be proved beyond reasonable doubt:
(1) That there was a robbery or series of robberies.
(2) That the robbery was an armed robbery.
(3) That the accused was the robber or one of the robbers.
See PHILIP V. STATE (2019) 13 NWLR (PT.1690) 509 AT 542 (B-D), OPEYEMI V. STATE (2019) 17 NWLR (PT.1702) 403 AT 427 (E-F). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT IDENTIFICATION BY THE VICTIM OR EYEWITNESS IS THE BEST IDENTIFICATION
The law is settled that the best identification is identification by the victim or eyewitness of the crime. Where the accused is well known to the victim before the commission of the crime, an identification parade is unnecessary. SeeJOHN V STATE (2013) LPELR-22813 (CA) AT 33(A-B). OGU V C.O.P. (2017) LPELR-43832(SC) AT 29- 30 (A-E). PER BOLAJI-YUSUFF, J.C.A.
THE PRINCIPLE OF LAW REGARDING CONTRADICTION BETWEEN THE EXTRA-JUDICIAL STATEMENT OF A WITNESS AND HIS ORAL EVIDENCE GIVEN UNDER OATH
The general principle of law regarding contradiction between the extra judicial statement of a witness and his oral evidence given under oath before the Court on a material point in issue is that the oral evidence is to be treated as unreliable and the extra judicial statement cannot be relied on as evidence to convict the accused. In essence, both the statement and the oral evidence would be treated as unreliable and discountenanced by the Court and the witness treated as an unreliable witness. See OGOALA V. STATE (1991) LPELR-2307(SC) AT 21 (A-C). However, the position of the law is that the principle is not applicable to a contradiction or an inconsistence between the extra judicial statement of an accused and his oral testimony in Court. See AKINLOLU V. STATE (2015) LPELR- 25986 (SC) AT 23-28 (A-B). SMART V. STATE (2016) LPELR-40827 (SC) AT 40-45 (A-D). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT A TRIAL COURT CAN CONVICT ON THE EXTRA-JUDICIAL STATEMENT OF AN ACCUSED PERSON
A trial Court can convict on the extra- judicial statement of an accused which the accused not only resiles from but also contradicted in his testimony on oath before the trial Court. See ASIMI V. STATE (2016) LPELR-40436(SC) AT 11-13 (D-A). The Court below erred in law when it held that it would not act on the statement of the appellant. This Court and the Supreme Court have stated in a plethora of cases that an accused who seeks to impeach his extra judicial statement must show (i) That he did not in fact make any such statement as presented; or (ii) That he was not correctly recorded; or (iii) That he was unsettled in mind at the time he made the statement, or (iv) That he was induced to make the statement. See OSETOLA & ANOR VS THE STATE (2012) LPELR-9348 (SC) AT 31-32 (F-E). (2012) 17 NWLR (PT.1329) 251; (2012) 50 (2) NSCQR 598. ADEBAYO V STATE (2014) LPELR-22988 (SC) AT 43-44 (A-C). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THE MERE PRESENCE OF AN ACCUSED PERSON AT THE SCENE OF A CRIME WITHOUT MORE IS A CONCLUSIVE PROOF THAT HE COMMITED THE CRIME
The general principle of law is that mere presence of an accused at the scene of a crime without more is not a conclusive proof that he committed the crime or that he participated in the commission of the crime. See MBANG V. STATE (2009) LPELR- 1852 (SC) AT 11 (A-B). ORJI V STATE (2011) LPELR- 2767(SC) AT 25 (B-D). POSU & ANOR. V. THE STATE (2011) LPELR-1969 (SC) AT 16 (C-D). PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Enugu State delivered on 6/2/2019 in charge no. E/160C/2013. The prosecution’s case at the Court below was that the appellant and two other persons robbed one Sunday Nnaji at Obeagu bus stop, Awkunanaw at gun point and ran into the bush. The robbers collected a Laptop, three Nokia handsets, one black berry phone, flash drive containing N180,000.00 worth of printable recharge cards and N2,700.00 (Two Thousand Seven Hundred Naira) cash. The victim knew the robbers before the incident. Therefore, he immediately reported the incident to one Chi Alom who he knew as the master of the appellant and the other robbers. Their master followed him to the scene of the incident immediately. When they arrived at the scene of the crime, they saw the robbers under a tree. Immediately the robbers cited the victim and their master, they took to their heels. One of them called Chijioke was caught. Their master assured him that he would recover all the properties collected from him from the robbers. Chijioke was released by Chy Alom on the assurance that all the stolen items would be returned to the victim. All the properties except the flash drive containing recharge cards were returned to him. Chi Alom told him to report the incident to the police when the robbers failed to return the flash. About two weeks after the incident, he was in a tricycle when he saw one of the robbers, Sunday Okoh (2nd accused) and he succeeded in getting him arrested. Sunday Okoh (2nd accused) mentioned the 1st accused, Nonso Agbo as one of the robbers. Nonso Agbo was arrested with a gun which was tendered and admitted as Exhibit A. The 3rd accused was arrested later. The 4th person, Chijioke has not been rearrested. He is on the run. The three accused persons including the appellant were charged and tried on a one count charge of armed robbery. The charge reads:
STATEMENT OF OFFENCE
“ARMED ROBBERY, contrary to Section 1(2) of the Armed(sic) Robbery and Firearms (Special Provision) Act Cap. RII, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
NONSO AGBO, SUNDAY OKOH, CHUKWUEBUKA NWONU and others at large on or about 21st October, 2012 at Obeagu bus stop Awkunanaw, within Jurisdiction robbed one Sunday Nneji(sic) of his Laptop, three Nokia handset valued at N23,000, one blackberry phone valued at N30,000, one flash, and cash of N2,700 (Two Thousand Seven Hundred Naira).”
The prosecution called two witnesses, the victim of the robbery and a police officer who was a member of the team that investigated the robbery. Each of the accused persons testified in his defence and called no other witness. In its considered judgment delivered by E.N OLUEDO, J., the Court below found all the accused persons guilty of armed robbery and sentenced them to death by firing squad. Being aggrieved by the judgment, the appellant filed a notice of appeal against the judgment on 26/4/19. The four grounds of appeal in the notice contained on pages 201 – 204 of the record of appeal without their particulars are:
GROUND ONE
“The learned trial judge erred in law occasioning serious miscarriage of justice when he failed to consider the defence of Alibi raised by 3rd accused/appellant at the earliest opportunity and proceeded to convict the 3rd accused/appellant upon the offence charged.
GROUND TWO
The learned trial judge erred in law by holding that the prosecution proved its case beyond reasonable doubt when the doubts created by the evidence of PW1 were not resolved against the 3rd accused/appellant.
GROUND THREE
The learned trial judge erred in law when he relied on the evidence of PW1 and PW2 to convict the 3rd accused/appellant when there were no positive, direct and cogent evidence pointing to the guilt of the 3rd accused/appellant.
GROUND FOUR
The learned trial judge erred in law when he relied on the evidence of PW1 and PW2 to convict the 3rd accused/appellant when there were material contradictions in the evidence of the said witnesses.”
The appellant’s brief of argument was filed on 13/12/2019 and deemed as properly filed and served on 4/5/2020. The respondent’s brief of argument was filed on 4/5/2020. Appellant’s reply brief was filed on 13/5/2020. Counsel to both parties adopted their respective briefs as their arguments in this appeal.
The respondent’s counsel adopted the sole issue formulated by the appellant’s counsel for the determination of this appeal. The issue is:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Whether having regard to the evidence adduced by prosecution the offence of armed robbery was proved against accused/appellant beyond reasonable doubt.”
The appellant’s counsel submitted that the standard of proof beyond reasonable doubt in criminal cases is not a matter that should be trivialized as it has a constitutional connotation. He referred to Section 135(1) of the Evidence Act. USUFU V. STATE (1987) 3 S.C.I AT 32. It is the contention of the appellant’s counsel that PW1’s evidence was not sufficient to sustain the charge against the appellant since the evidence contradicted the evidence of PW2 in many respects particularly on the issue of the recovery of the stolen items. It is the further contention of the appellant that if the evidence of PW1 that he was robbed is true, Chi Alom who PW1 said returned the stolen items to him would have been called to testify. He urged the Court to invoke the provisions of Section 167(d) of the Evidence Act, 2011 against the respondent especially when none of the items recovered was rendered in evidence. Counsel submitted that the evidence of PW2 that the items collected from PW1 during the robbery could not be recovered because they had been disposed off by the accused persons which contradicted PW1’s evidence that the items were recovered and returned to him by the accused person’s master raised a serious doubt in the prosecution’s case and thus failed to discharge the burden of proof required to convict the appellant.
In response, counsel for the respondent conceded that the burden of proving the guilt of the appellant was on the prosecution by virtue of Sections 131 and 135(1) of the Evidence Act, 2011. It is the contention of the respondent’s counsel that the totality of the evidence of PW1 on how he was robbed, how he identified the robbers by the vehicle light, the recovery of the gun used in committing the robbery and the confessional statements of the 1st and 2nd accused persons proved that PW1 and his wife were robbed, that the robbers were armed with a gun and the appellant was one of the robbers.
On the contradiction between the evidence of PW1 and PW2 on the recovery of stolen items, counsel submitted that the contradiction does not go to the root of the elements of the offence.
He referred to BASSEY V. STATE (2012) 12 NWLR (PT.1314) 209. OSETOLA V. STATE (2012) 17 NWLR (PT.1329) 251. He also submitted that failure to call Chi Alom, the master of the accused persons who recovered the stolen items and returned same to PW1 is not fatal to the prosecution’s case in view of the confessional statements of the 1st and 2nd accused persons. He referred to ADAMU V. STATE (2017) LPELR- 41436. He urged the Court to dismiss the appeal as the evidence of PW1 as an eye witness does not require corroboration.
In reply, the appellant’s counsel urged the Court to disregard the argument of the respondent as the prosecution did not prove its case against the appellant beyond reasonable doubt.
RESOLUTION:
The law is trite that for the prosecution to secure a conviction for an offence of armed robbery, the following elements of the offence must be proved beyond reasonable doubt:
(1) That there was a robbery or series of robberies.
(2) That the robbery was an armed robbery.
(3) That the accused was the robber or one of the robbers.
See PHILIP V. STATE (2019) 13 NWLR (PT.1690) 509 AT 542 (B-D), OPEYEMI V. STATE (2019) 17 NWLR (PT.1702) 403 AT 427 (E-F).
In discharging the burden of proof beyond reasonable doubt, the prosecution may rely on direct evidence of an eye witness, circumstantial evidence and/or confessional statement of the accused person. See TOPE V. STATE (2019) 15 NWLR (PT.1695) 289 AT 300-301 (G-A). In the instant case, the prosecution relied on direct eye witness account of PW1. The evidence of PW1 was clear, positive and unequivocal that he was robbed at gun point around 7:30pm on 21/10/2012 at Obeagu Bus Stop, Awkunanaw, Enugu and a Laptop, three Nokia handsets, one blackberry phone , one flash drive and cash of N2,700 (Two Thousand Seven Hundred Naira) were collected from him. Thus the 1st and 2nd ingredients of armed robbery were established. The confessional statements of the 1st and 2nd accused persons and the recovery of the gun used to commit the robbery also confirmed that the robbery was an armed robbery. The main issue in contention is whether the appellant was one of the armed robbers. In IKEMSON V THE STATE (1989) LPELR-1473 (SC) AT 41-42 (F-B) the Supreme Court Per OPUTA, J.S.C held that:
“In criminal cases, the crucial issue is not ordinarily whether or not the offence was committed. Usually, the controversy rages over the identification of the person or persons accused as the actual perpetrators of the offence charged. Identification evidence is thus evidence tending to show that the person charged is the same as the person who was seen committing the offence. In identification evidence, the witnesses testify that the accused is the person they saw committing the offence, that they either knew him before or that they saw him for the first time during the commission of the offence and now recognise him as the person they saw at the scene, at the time of the commission of the offence and who was actually committing it.”
PW1 said he knew all the persons who robbed him before the incident and that the appellant was one of them. The law is settled that the best identification is identification by the victim or eyewitness of the crime. Where the accused is well known to the victim before the commission of the crime, an identification parade is unnecessary. SeeJOHN V STATE (2013) LPELR-22813 (CA) AT 33(A-B). OGU V C.O.P. (2017) LPELR-43832(SC) AT 29- 30 (A-E). The appellant confirmed in his statement to the police, Exhibit E that PW1 knew him and he also knew the appellant before the robbery incident. He however denied participating in the robbery. In Exhibit E he stated that there is no way he could take part in robbing PW1 because PW1 knew him too well. However, in the same Exhibit E, he confirmed his presence at the scene of the crime. Here is what he stated in Exhibit E:
“I know Chijioke, Sunday Okoh and Agbo Nonso we are all friends from same Obiagu Village. It happened that on the 21/10/2012 at 08PM, I was with Chijioke at along Obiagu road, and my friend Chijioke was holding matchet which we used in clearing our land that night. Then all of a sudden I saw one Sunday ‘M’ of Amochi chasing a cyclist then the cyclist fell and we rushed to him, then he Sunday told us that one Sunday Nnamani ‘M’ of Obeagu and others robbed him alongside his wife on gun point, then we assisted him in searching for those armed robbers, then unknowingly(sic) to us that the said victim has called our youth leader named Chigozie Mba and he came to the scence immediately. So as the said Chigozie was coming and Chijioke thought they were police men and we decided to run away and my friend Chijioke was apprehended while I escaped. I did not take part in the robbery act, the reason while I ran away was to avert police arrest. I have not been involved in any armed robbery case, the only thing is that I am an Indian hemp smoker. As at the time of that robbery incident I was smoking indaian hemp with my friend Chijioke that very 21/10/2012. I don’t know the reason why the complainant included me among the people that robbed him to the best of my knowledge. I have not engaged with him in any trouble. The very day I was arrested by the police, I was inside keke-napep although I tried to escape but I was subdued by the police with the effort of the complainant and other concerned individuals. There is no way I could take part in robbing the complainant because he knows me too well.”
The appellant confirmed the fact that he was with Chijioke, who PW1 mentioned as one of the robbers and who was arrested while trying to run from the scene of the crime and who from the entire evidence on record was allowed to go because he and their master, Chi Alom assured PW1 that the items collected from him would be returned. He also confirmed that Chijioke was holding matchet which according to him was used to clear their land that night. He did not state what land they were clearing. In another breadth, he said he and Chijioke were smoking Indian hemp at the time of the robbery. He also confirmed that PW1 called the youth leader. PW1’s evidence is that Chi Alom who was the master of the robbers and some other people followed him to the scene of the crime immediately after the incident. The appellant further confirmed PW1’s evidence that the robbers took to their heels on citing their master. The appellant stated that they thought the people who came to the scene were police. He confirmed the arrest of Chijioke at the scene of the crime. In essence the statement of the appellant to the police confirmed the evidence of PW1 and the case of the prosecution. There is therefore no doubt that PW1 truly recognd isethe appellant at the scene of the crime. The explanation of the appellant that the matchet held by Chijioke was used to clear their land that evening is ridiculous and unbelievable. The statement of the appellant is a clear confirmation of PW1’s evidence of armed robbery and participation of the appellant in the robbery and that PW1’s recognition of the appellant was not a mistake. The appellant said he had no problem with PW1 before the incident, there was therefore no cause or motive for PW1 to include the appellant among the robbers who robbed him if he did not participate in the robbery.
In his evidence before the Court, the appellant gave a completely different story. He said he was not living in Enugu at the time of the robbery. He had been living in Aba for seven (7) years before the armed robbery incident and he was arrested when he came to Enugu from Aba to assist his master in the preparation for the conferment of chieftaincy title on him during Ofala festival. He said PW1 did not see him at the scene of the crime. The Court below rejected both the appellant’s extra judicial statement and his evidence in Court. This is what the Court said at pages 191-192 of the record:
“I have gone through Exhibit E the statement made by 3rd accused person to the police and I found that the 3rd accused stated therein that he has not been involved in any armed robbery case and did not take part in the robbery, that the only thing is that he is an Indian hemp smoker, that as the time of that robbery incident he was smoking Indian hemp with his friends Chijioke that very 21/10/2012. That there is no way he could take part in the robbing the complaint because complaint knows him well which to me is reason that Exhibit E is not a confessional statement.
The evidence of 3rd accused i.e. DW3 in Court is that he was returning from Aba to his masters’ residence at Meniru Street Enugu and was arrested in a taxi by policeman on the allegation that the said taxi was used for robbery at Roban Stores and that he was tortured by the policemen to sign his statement he signed the statement.(sic) This evidence is entirely different from the statement 3rd accused i.e. DW3 made to the police in Exhibit E.
When Exhibit E was sought to be tendered in evidence during trial, DW3 admitted Exhibited E as statement he made voluntarily to the police and Exhibit E which I have gone through is not a confessional statement. DW3 now in his evidence in Court turns round to give evidence that is so inconsistent with his statement in Exhibit E, therefore this Court treats DW3 as unreliable witness and treats the evidence adduced by PW1 and PW2 against DW3 as cogent and reliable as this Court will not act on Exhibit E and on the evidence of DW3 in Court.”
The general principle of law regarding contradiction between the extra judicial statement of a witness and his oral evidence given under oath before the Court on a material point in issue is that the oral evidence is to be treated as unreliable and the extra judicial statement cannot be relied on as evidence to convict the accused. In essence, both the statement and the oral evidence would be treated as unreliable and discountenanced by the Court and the witness treated as an unreliable witness. See OGOALA V. STATE (1991) LPELR-2307(SC) AT 21 (A-C). However, the position of the law is that the principle is not applicable to a contradiction or an inconsistence between the extra judicial statement of an accused and his oral testimony in Court. See AKINLOLU V. STATE (2015) LPELR- 25986 (SC) AT 23-28 (A-B). SMART V. STATE (2016) LPELR-40827 (SC) AT 40-45 (A-D). The inconsistency rule applies to an ordinary witness, it does not apply to an accused that testifies in his own defence and gives oral testimony which contradicts his extra judicial statement made when the incident was fresh and thereby resiling or retracting from his extra judicial statement. A trial Court can convict on the extra- judicial statement of an accused which the accused not only resiles from but also contradicted in his testimony on oath before the trial Court. See ASIMI V. STATE (2016) LPELR-40436(SC) AT 11-13 (D-A). The Court below erred in law when it held that it would not act on the statement of the appellant. This Court and the Supreme Court have stated in a plethora of cases that an accused who seeks to impeach his extra judicial statement must show (i) That he did not in fact make any such statement as presented; or (ii) That he was not correctly recorded; or (iii) That he was unsettled in mind at the time he made the statement, or (iv) That he was induced to make the statement. See OSETOLA & ANOR VS THE STATE (2012) LPELR-9348 (SC) AT 31-32 (F-E). (2012) 17 NWLR (PT.1329) 251; (2012) 50 (2) NSCQR 598. ADEBAYO V STATE (2014) LPELR-22988 (SC) AT 43-44 (A-C). As rightly stated by the Court below, Exhibit E was tendered without any objection. The Appellant did not raise or establish any of these situations in her evidence before the Court below. All that the appellant did in his testimony was to give evidence inconsistent with the contents of the statement. In exhibit E, the appellant denied his participation in the armed robbery but he admitted some salient facts which unequivocally confirmed his presence and participation in the commission of the crime. The law is that in a situation such as the instant case, the oral evidence should be treated as unreliable and rejected and the contents of the statement upheld.
From the entire evidence on record particularly the appellant’s statement, there is no doubt that PW1 correctly recognized the appellant. The general principle of law is that mere presence of an accused at the scene of a crime without more is not a conclusive proof that he committed the crime or that he participated in the commission of the crime. See MBANG V. STATE (2009) LPELR- 1852 (SC) AT 11 (A-B). ORJI V STATE (2011) LPELR- 2767(SC) AT 25 (B-D). POSU & ANOR. V. THE STATE (2011) LPELR-1969 (SC) AT 16 (C-D). However, where an accused is present at the scene of the crime not as a mere on looker but in furtherance of an agreement to commit a crime or with the aim of aiding or assisting the commission of the crime, his presence amounts to participation in the crime. See SALAWU V. STATE (2014) LPELR-24218 (SC) AT 13 (A-C) where the Supreme Court per AKA’AHS, JSC held that:
“In a charge for an offence which is linked with conspiracy,the actual presence of the accused where the offence is committed together with prior abetment means participation in the offence. See Buje v State (1991) 4 NWLR (Pt. 185) 287 at 298. When any person aids the commission of an offence by being present at the scene not as a mere onlooker but with the purpose of aiding and assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal. SeeNyam v State (1964) 1 All NLR 361.”
Section 1(1) and (2) (a) of Robbery and Firearms (Special Provisions) Act provides that:
“1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(2) If-
(a) any offender mentioned in Subsection (1) of this Section is armed with any firearms or any offensive weapon or is in company with any person so armed.”
Where an accused was present at the scene of armed robbery as a member of the gang of armed robbers that carried out the robbery even without him being armed, he is guilty of the same offence as those who are armed. See ONYENYE V. STATE (2012) LPELR-7866 (SC) AT 27 (A-D). The entire evidence in the instant case clearly established beyond reasonable doubt that the appellant was not at the scene by accident or coincidence. He was there in furtherance of a conspiracy to commit armed robbery. The presence of an accused at the scene of armed robbery even without being armed or even doing anything amount to participation in the armed robbery. The combination of the evidence of PW1 and Exhibit E established beyond reasonable doubt that there was a robbery, the robbery was an armed robbery and the appellant participated in the robbery. The appeal is dismissed. The conviction and sentence passed on the appellant for armed robbery is hereby affirmed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I hereby dismiss it.
I equally adopt the consequential orders in the lead judgment as mine.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the benefit of reading in draft the Judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUF, JCA, just delivered.
I agree entirely with the reasoning and conclusion reached. There is no merit in the appeal. Accordingly, it is hereby dismissed.
I abide by the consequential orders therein.
Appearances:
Emeka Awkadigwe For Appellant(s)
A. Ngene, Deputy Director (Legal) with him, S. A. Madu, C. L. O. and Dr. Anayo Edeh, C. L. O. Min. of Justice, Enugu State For Respondent(s)
