DANIEL OKON UTUK V. THE STATE
(2010)LCN/3778(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of May, 2010
CA/C/46/2005
RATIO
CRIMINAL LAW: ELEMENTS OF PROVING THE OFFENCE OF ARMED ROBBERY
To secure a conviction for Armed Robbery the prosecution must prove each of the following three elements of the offence.
1. That there was Armed Robbery
2. That the accused was armed
3. That the accused while with the others armed participated in the robbery.
See Olayinka v. State (2007) 9 NWLR (Pt.1040) 516 (SC) Martins v. State (1997) 1 NWLR (Pt.481) 355 (CA). PER NWALI SYLVESTER NGWUTA, J.C.A.
CRIMINAL LAW: OFFENCE OF ARMED ROBBERY; WHETHER AN ACCUSED NOT ARMED CAN BE CONVICTED OF ARMED ROBBERY
Though not armed the accused may be convicted of armed robbery if he participated in an armed robbery with any one armed to his knowledge or is deemed to have known that his accomplice was armed. It is immaterial who did what in the prosecution of the crime or actualization of their pre-conceived common purpose. See Nwankoroala v. State (2006) 4 NWLR (Pt.1000) 663 (SC), Oyakhire v. State (2006) 15 NWLR (Pt.1001) 157 (SC), Alarape v. State (2001) 5 NWLR (Pt.705) 79 (SC). PER NWALI SYLVESTER NGWUTA, J.C.A.
EVIDENCE: WHAT IS THE BURDEN OF PROOF IN CRIMINAL TRIALS
In criminal trials, more particularly in death-penalty cases, the trial Court has to examine critically the evidence the prosecution offers and proof of each element of the offence charged. It is the proof beyond reasonable doubt of each element of the offence charged that culminates in the proof beyond reasonable doubt for the offence charged.
If one element of the offence charged is not proved beyond reasonable doubt then the prosecution cannot be said to have proved its case against the accused beyond reasonable doubt even if each of the other elements was proved beyond all shadow of doubt. The Prosecution is bound to attain the same standard of proof of each element constituting the offence charged. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
DANIEL OKON UTUK – Appellant(s)
AND
THE STATE – Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Cross River State, Calabar Judicial Division presided over by Ita. J. The judgment in charge No HC/50c/2004 was delivered on the 25th October 2004.
The Appellant and “others now at large” were originally arraigned, on a two count charge of conspiracy to commit armed robbery contrary to 516 of the Criminal Code Cap 31 volume 2 Laws of Cross River State of Nigeria 1983 and armed robbery contrary to section 1 (2) (a) of the Robbery and Firearms (special provision) Act Cap. 398 vol xx11 Laws of the Federal of Nigeria 1990 on 23/6/04. Appellant pleaded not guilty to each of the two counts on 28/6/2004.
On 2/8/04 on the application of the prosecuting counsel the trial Court struck out count 1 of the charge. The particulars in Court 11 were amended to read plot 130 and not 61 as stated in the original information. The amendment did not affect the “others now at large” in the original information. Appellant pleaded not guilty to count 2 as amended and the state opened its case the same day 2/8/04.
Three witnesses testified for the state. Appellant testified on his behalf but called no other witness.
Learned Counsel for the parties addressed the trial Court. After a review of the evidence adduced in the case the learned trial Judge held:
“I have no alternative than to find the accused person guilty as charged (sic) and he is accordingly convicted. PW2 who said he is being detained over this incident, against whom no charge is pending in any Court and who has been in that detention since 2003 is hereby released from prison custody.”
See page 51 of the records. The Court accordingly sentenced the Appellant to death.
Appellant was aggrieved by the judgment and a notice of appeal containing seven grounds of appeal was signed by Learned Counsel for the Appellant and filed on his behalf on 19/11/04.
In view of the defect in the notice and grounds of appeal and lapse of time Learned Counsel acting on behalf of the Appellant sought for leave to appeal against the judgment on 7 grounds. The motion on notice was filed on 9/7/09. It cannot be ascertained from the records what became of this motion but on 22/7/09 a similar motion for leave to appeal on 7 grounds was filed. There’s however no indication as to when the motion was taken or if it was taken at all.
Another notice of appeal containing 6 grounds of appeal was filed by the Appellant on 22/10/09 with leave of Court.
Learned Counsel for the Appellant distilled two issues for determination in his brief of argument. The two issues are:
C1. whether in the circumstances of this case the prosecution has successfully proved beyond reasonable doubt the charge of Armed Robbery against the Appellant to warrant his conviction.
C2. Whether the statements of PW2 that the Accused/Appellant seen in the midst of the persons now at large conspiring against the complaint//pw1 was proved by evidence led in the case to warrant conviction and even if that was so
C3. whether accused can on that basis alone be linked to the alleged Armed Robbery that took place in the complainant’s home.
In his brief of argument Learned Counsel for the Respondent presented the following lone issue for determination:
C4. Whether in the circumstances of the case the prosecution has successfully proved beyond reasonable doubt the charge of Armed Robbery against the Appellant to warrant his conviction”. Issue one in the Appellant’s brief, adopted by the Respondents encompasses issue two in the Appellant’s brief”. I will therefore determine the appeal on issue one in the Appellant’s brief.
In dealing with the issue in his brief Learned Counsel for the Appellant relied on Shade v. State (2005) AFWLR (PT 279) 1342 at 1357 – 1357-1358 para A-B wherein the Supreme Court traced the origin and import of:
“Proof beyond all reasonable doubt”
Counsel relied on S. 138 (1) of the Evidence Act for the duty on the prosecution to prove the guilt of an accused person beyond all reasonable doubt and S.36(5) of the Constitution of the Federal Republic of Nigeria 1999 on the presumption of innocence of an accused person on trial.
He contended that the prosecution failed to attain the standard of proof required by law in Criminal Cases. He relied on Alake v. State (1991) 7 NWLR (Pt 205) 567 and Chukwu v. State (2007) All FWLR 1224 at 1262 (Para A).
He said that the statement of PW2 cannot link the Appellant to the crime of Armed Robbery more so when the statement was not corroborated. Counsel argued that even if Armed Robbery was proved there is no credible proof that the Appellant was involved in the Robbery. He referred to Isibor v. State (2001) pt 78 (Sic) P.1077 at 1100 paras E-H for the elements of the offence of Armed Robbery and submitted that in order to secure a conviction all the ingredients of the offence must be established. He argued that the testimony of the PW1 the victim of the alleged crime – was not enough to link the Appellant with the crime of Armed Robbery.
He said that the trial leading to the conviction of the Appellant was based on suspicions and no matter its strength cannot be the basis of conviction. He relied on Igabale v. State (2005) AFWLR (PT 285) 568 at 588.
Learned Counsel referred to Sunday Amala v. State (2004) AFWLR 219 at 1102 at 1135 and submitted that the circumstantial evidence accepted and relied on by the trial Court fell short of the standard required by Law to found a conviction on circumstantial evidence.
He said that the totality of the evidence of PW1 and PW2 did not prove the case against the Appellant. He urged the Court to allow the appeal and discharge and acquit the Appellant.
In his brief of argument Learned Counsel for the Respondent referred to Dibie v. State (2007) 29 NSCQR (Pt.2) 1431 ration 10 and Fatai Olayinka v. State (2007) 30 NSCQR (Pt.1) 149 ration 7 for the elements of Armed Robbery and contended that the prosecution discharged the burden under S.138 of the Evidence Act. He referred to the evidence of PW1 and PW2 as proof that the Appellant took part in the Armed Robbery for which he is tried. Learned Counsel invoked Ihuebeka v. The State (2007) 77 LRCN 1055 at 1084D and urged the Court to infer, in absence of direct testimony of an eye witness the existence of other facts that may logically tend to prove the guilt of the accused from facts proved.
He argued that the positive identification of the Appellant by PW1 and PW2 was enough to ground conviction for the offence changed. He argued that the occurrence of the Robbery within 24 hours of the plot mentioned by PW2 was enough corroboration of the evidence of pw1 if corroboration was needed. Learned Counsel said that the trial Court found additional corroboration of the evidence against the appellant in the Appellant’s admission that he smokes Indian hemp. He referred to Mustapha Mohammed v. State (2007) 30 NSCQR 364 at 329-380 and said proof beyond reasonable doubt can be attained on basis of circumstantial evidence. He referred to S. 138 (3) of the Evidence Act and Dibie v. State (2007) 29 NSLQR (Pt.2) 1431 at 1462 in support of his contention that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. He urged the Court to dismiss the appeal and affirm the judgment of the Court below.
To secure a conviction for Armed Robbery the prosecution must prove each of the following three elements of the offence.
1. That there was Armed Robbery
2. That the accused was armed
3. That the accused while with the others armed participated in the robbery.
See Olayinka v. State (2007) 9 NWLR (Pt.1040) 516 (SC) Martins v. State (1997) 1 NWLR (Pt.481) 355 (CA).
Though not armed the accused may be convicted of armed robbery if he participated in an armed robbery with any one armed to his knowledge or is deemed to have known that his accomplice was armed. It is immaterial who did what in the prosecution of the crime or actualization of their pre-conceived common purpose. See Nwankoroala v. State (2006) 4 NWLR (Pt.1000) 663 (SC), Oyakhire v. State (2006) 15 NWLR (Pt.1001) 157 (SC), Alarape v. State (2001) 5 NWLR (Pt.705) 79 (SC).
In criminal trials, more particularly in death-penalty cases, the trial Court has to examine critically the evidence the prosecution offers and proof of each element of the offence charged. It is the proof beyond reasonable doubt of each element of the offence charged that culminates in the proof beyond reasonable doubt for the offence charged.
If one element of the offence charged is not proved beyond reasonable doubt then the prosecution cannot be said to have proved its case against the accused beyond reasonable doubt even if each of the other elements was proved beyond all shadow of doubt. The Prosecution is bound to attain the same standard of proof of each element constituting the offence charged.
With the above in mind, was it proved beyond reasonable doubt that there was armed robbery incident in the home of the PW1 either on 19th September 2003 at 3 a.m. as charged or on 9th September 2004 at 3 a.m. as stated by the PW1 at page 20 of the records. There was no attempt to reconcile the two dates and the Court cannot choose which of the two conflicting evidence to credit and which to discredit. See Onubugu v. state (1974) SC 1.
PW1 said he shared the fence which the intruders broke and entered his premises with the Airport and this can only mean the Margaret Ekpo International Airport, Calabar and the invaders could only have come through the Airport Side of the fence. There is no evidence that only the PW1, his wife and children lived on the premises either or 9/9/03 or 9/9/04. There is only one witness account of the incident, the evidence of PW1. Even if the noise of the breaking of the fence and the wall of the home of the PW1 did not attract anyone from either side of the fence the PW1’s wife or any of the children could have given an account of the incident from where they were locked in the guest room.
The operation lasted from the time the PW1 collapsed and passed out until he regained consciousness. From the time the PW1’s wife was locked in the guest room until power outage brought the operation to abrupt end. the PW1’s wife could have called the police on her GSM set rather than later. PW1 said a photographer took shots of him while he was at the hospital for treatment of the injury inflicted on him. The photographer or another one could have taken shots of the broken airport fence and the broken wall of the PW1’s house.
The Learned trial Judge posed the question:
“Was there a robbery?”
His lordship’s answering in the positive said:
“PW1 said he was robbed. He tendered Exhibit A, B and B1 to show how he came out of it. Completely battered and knocked out unconscious later recovered. The robbers gained entrance by digging holes through the concrete perimeter fence and concrete wall of his house’
See page 44 of the records.
The decision of the trial Court that there was armed robbery is based exclusively on the ipse dixit of the PW1 and in the circumstances a conclusion based on PW1’s evidence is a far cry from proof beyond reasonable doubt.
The trial Court assumed the existence of facts not in evidence. Neither the PW1 nor any other witness described the fence and/or walls of his house as made of concrete. There is no description of the boundary fence or wall in the records. Any determination that there was armed robbery based on facts not in the records is not only perverse but cannot found a proof beyond reasonable doubt of any element of the offence charged.
In the circumstances the Appellant is entitled to the benefit of S. 149 (d) of the Evidence Act for the prosecution deliberately withheld the evidence in proof of the crime charged. The evidence withheld would have been fatal to the case of prosecution.
Above all and in addition to the unresolved conflict between the charge and the evidence relating to the date of the offence it is not stated in the evidence where the incident took place. The charge mentioned plot 130 Mekenge layout IBB way Calabar.
However none of the three witnesses for the prosecution, not even the PW1, the alleged victim or the PW3 who allegedly investigated the case named the place if any, where the incident took place.
A portion of the evidence in chief of PW1 is hereunder reproduced:
“About 3 a.m. night of the 9th day of September 2004 (Underlining mine) I heard a heavy digging on my fence. I asked who it was and somebody replied “it is you we are looking for since you say you want to know the thieves who have been robbing your house”
See page 20 of the records.
Under cross-examination PW1 state:
“The statement attached to the information is correct. The original statement I made is with the police. In my statement I said that two people who confronted me inside my house were not faces known to me” (underlining mine) See P. 24 of the records he continued
“I know the accused person that is brought today from prison custody. Accused person by my own assessment is one of the persons who attacked me”(underlining mine)
See P. 24 of records.
From the evidence of the PW1 the information given to him by Uwem related to those who had in the past stolen from the premises of the PW1. Nothing was said of the armed robbery which allegedly took place within 24 hours of the information of past thefts in the premises or the attack on PW1 on the 9th September 2004 according to the evidence in chief. The first attempt to link the Appellant with the alleged armed robbery was made by the PW1 who said in cross-examination.” Accused person by my assessment is one of the persons who attacked me”
In his Judgment the Learned Trial Judge held at page 49 of the records:
“I would also have found another independent corroboration in the fact that pw1 said that by his assessment the accused person was one of the persons who attacked him in the night of 9th day of September 2003 at his house.”
Both the charge and the Court stated night of 9th September 2003 as the date of the offence but the alleged victim stated the date as night of 9th September 2004. If there was an error in the date there was no attempt to correct it even though it is material.
The Court relied on the assessment made by PW1 who said in his evidence that those who attacked him were faces unknown to him to find as a fact that the Appellant was one of the armed robbers who robbed PW1.
The word “assessment” in this con means “evaluation, estimation”. See Chamber’s 21st Century Dictionary, Revised Edition, P.77. Evaluation of evidence and estimation of its probative value belong in the realm of the trial judge and not the witness. With respect the trial Judge erred when he abdicated his legal duty and relied on assessment of the PW1 in his finding that the accused was one of those who robbed PW1. The finding is perverse and Appellant is not linked to the alleged crime up to this point.
PW2 gave his name as Uwem Sunday Ekpenyong of 8 Ekong Eta Street, Calabar, a builder.
However the PW1 gave the name of his informant as Uwem Sunday. He did not state his address or occupation. PW2 swore that about 10 p.m. on 8/9/03 he woke up and sat on his bed and saw 5 boys at his frontage, among whom are Oqua and Philip. He said he heard:
“Oqua told accused they should look for something as things were hard. Philip asked where can we go. They agreed to go to PW1’s house.”
(See page 26 of the records)
PW2 continued:
“Early in the morning I went to inform PW1 to get police protection that I heard some information about him. I left, returned to advise him that he should not allow Oqua my Landlord’s son to pluck coconut from his compound any more.”
(See page 26 of the records)
PW1 said PW2 came to give him the names of those who had been stealing from his premises. On the other hand PW2 said he told PW1 to secure police protection because of what he heard about him. He did not tell the PW1 what he heard about him.
PW1’s evidence as to the mission of the PW2 to his house is conflict with the evidence of PW2 on the purpose of his visit to PW1. There was no attempt to resolve the conflict and the Court cannot choose which one to credit and which to discredit. See Onubugu v. State (Supra).
In this crucial part of their evidence neither the PW1 nor the
PW2 made mention of armed robbery and so none of them could have linked the Appellant with the armed robbery that was not mentioned.
The next witness is PW3 with reference to whom the Appellant stated on oath:
“The first time I met PW1 was when PW3 brought me from my cell and told PW1:
“This is the person who robbed you”
“This took place at the cell gate”
(See page 33 of the records)
The Appellant was not Cross-examined on the issue that has to do with his identification by the PW1.
With profound respect PW3 is a sorry excuse for an investigating police officer. She said: “Continuing my investigation I invited PW1 to SCID who came and identified the accused person as one of those who robbed him. Accused refused to take us to where he was living so we could meet his relations.”
See page 30 of the records.
PW3 had the Appellant’s address written in his statement to the police. In any case did the PW3 need the Appellant to escort her to meet his relations as in the case of a proposed wife? PW3 already met the parents of the appellants. See page 33 of the records for the Appellant’s testimony that:
“PW3 was given N10,000 by my father to release me on bail.”
This testimony went unchallenged. PW1 said he heard a heavy digging on his fence and within minutes the robbers made a hole through the wall, and went into his wife’s bedroom. A police investigator properly so called would have ascertained what the fence and the wall of the PW1’s wife’s bedroom were made of. It is possible the fence and the wall made of straw for both to be breached within minutes. It was a dereliction of duty and a conspiracy between the PW3 and PW1 to railroad the Appellant to the gallows on a charge of armed robbery the PW3 could not investigate much less prove PW1 was frank when he told the Court he did not know who robbed him. If the PW3 ever heard of identification parade she must have dismissed it with a wave of the hand as unnecessary burden.
There is no shred of evidence to link the Appellant with the crime of armed robbery be it on 9th September, 2003 or 9th September 2004 not to talk of credible evidence. The learned trial Judge took pains to list portions of the testimony of the prosecution witnesses wherein he could find corroboration for the evidence against the Appellant. With due respect to his Lordships there cannot be corroboration of evidence that does not exist or if it exists is completely devoid of credibility. One cannot corroborate what is not in existence much the same way as one cannot add, improve and/or take away from nothing. See MACFOY v. U.A.C. (1962) AC 152. Smoking cannabis sativa or Indian hemp per se has no relation to armed robbery.
It is a matter of concern that a member of the legal profession testifying in a death penalty would turn around from his testimony that those who attacked him were unknown faces to tell a blatant lie that in his assessment the Appellant was one of those who robbed him. He lacked the courage to disclose that he could not identify the Appellant but was goaded by PW3 to implicate the Appellant in the crime.
Above all, learned counsel for the accused in the lower court performed woefully beyond expectation. There is no credible evidence linking the Appellant to the crime charged and this should have been apparent from Cross-examination.
The trial court should have viewed the testimony of the PW2 in the light of the fact that the witness was arrested and detained since 2003 over the armed robbery. He was neither charged to Court nor released, even on bail. Neither the prosecutor nor the police reacted in any manner when the trial court orders the witness’s release from the prison custody, even though the PW3 recommend that he the witness be charged with armed robbery. From the above it seems to me that the PW2 was detained without a formal charge since 2003 for the purpose of using his testimony to convict the Appellant. He had to say what he had to say to secure this freedom and his evidence should have been examined critically by the trial Court.
The appeal has merit and it is allowed. I hereby set aside the judgment of the trial court including the order convicting the appellant Daniel Okon Utuk and sentencing him to death on the charge of armed robbery. Consequently it is hereby ordered that the Appellant’s name be struck off the death now and he be released from prison custody forth with.
K. B. AKAAHS, J.C.A.: I read the draft of the judgment of my learned brother, Ngwuta, J.C.A and I am in total agreement that the appeal has merit and consequently should be allowed. The conviction and sentence are hereby set aside and a verdict of acquittal is entered in favour of the appellant.
JAAFARU MIKA’ILU, J.C.A.: I agree with my learned brother N.S. Ngwuta, J.C.A that the appeal has merit and it is allowed. The judgment of the trial court is set aside including the order of conviction. The appellant is ordered to be released.
Appearances
F.E. Esu Esq; (with him, K.U. Ogbeche Miss; AND E.A. OchetuFor Appellant
AND
John U. Ogbar SSCI MOJ CalabarFor Respondent
