VICTOR NKEREUWEM EDET v. THE STATE
(2019)LCN/13861(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/266C/2016
RATIO
CRIMINAL LAW: DIFFERENT WAYS BY WHICH AN ACCUSED PERSON CAN BE PROVEN GUILTY OR CONVICTED
Generally, the guilt of an accused person can be proven or conviction derived by the prosecution either by the evidence of eye witness, confessional statement or by circumstantial evidence. See DURU V STATE (2017) 4 NWLR (pt 1554)1, ADEKOYA V THE STATE (2012)9 NWLR (pt 1306) 537 and THE STATE V ISAH (2012) 16 NWLR (pt 1327) 613. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
ARMED ROBBERY: HOW TO SECURE THE CONVICTION OF AN ACCUSED ON A CHARGE ARMED ROBBERY
To secure conviction on a charge of armed robbery, the prosecution must necessarily prove the followings:-
(a) There must be robbery or series of robberies,
(b) That the robbery or each robbery was an armed robbery, and
(c) That the accused was one of those who took part in the armed robbery.
See IKEMSON V STATE (Supra) and F.R.N. V BARMINAS (2017)15 NWLR (pt 1588) 177 at 210. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CRIMINAL LAW AND PROCEDURE: WITNESS EVIDENCE: REQUIREMENTS FOR A WITNESS EVIDENCE TO BE ABLE TO SUPPORT AND SUSTAIN CONVICTION OF AN ACCUSED PERSON
For a witness evidence to support and sustain the conviction of an accused person, it must be credible, reliable and point irresistibly to no one else but the accused. Therefore, a conviction must be founded on evidence establishing the guilt of the accused beyond reasonable doubt. Put differently, only such circumstances that make complete and unbroken chain constituting sufficient proof that an accused person committed the offence for which he is charged; that would sustain a conviction. See IGBIKIS V STATE (2017) 11 NWLR (pt 1515)126. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WHETHER EVIDENCE OF AN INVESTIGATING POLICE OFFICER IS HEARSAY EVIDENCE.
Generally, the evidence of an investigating police officer of what the officer actually saw or witnessed, or discovered, or was told in the course of his work as an investigator is not hearsay evidence. See ANYASODOR V STATE (2018) 8 NWLR (pt 1620) 125. In OLAOYE V STATE (2018) 8 NWLR (pt 1621) 281 at 301 the Supreme Court has held that an investigation public officer narrates to the Court the outcome of his investigation or enquiries, or what he recovered, and in the course of his duty he must have discovered or recovered some pieces of evidence vital to the commission of the crime, which trial Courts normally consider in arriving at a just decision one way or the other. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
EVIDENCE: HEARSAY EVIDENCE: WHETHER EVIDENCE IS HEARSAY IF IT IS MADE BY A PERSON WHO IS NOT CALLED AS A WITNESS
It is also trite that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. On the other hand, it is not hearsay and is admissible when it proposed to establish by evidence not the truth of the statement, but the fact that it was made. See ONUOHA V STATE (Supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WHEN EXTRA JUDICIAL STATEMENT WILL RIGHTLY LEAD TO A CONVICTION
The next germane issue is whether the trial Court rightly convicted the appellant based on his extra-judicial statement, exhibit ?F?. It is pertinent to state at this juncture that Exhibit ?F? was admitted after trial within trial conducted by the trial Court. The appellant who testified as DW3 at pages 159 ? 160 of the record of appeal resiled or retracted his statement in Exhibit ?F?, which is the additional statement. There is no gainsaying the fact that the appellant in the said additional statement confessed to the commission of the crime at pages 55 ? 56 of the record of appeal thus:-
“?Actually sometime in December, 2010 I called Etimbuk and told him that my sister, Esther by name, who is the complainant to this case has money that we should find a way to steal the money from her. So on 18/12/2010 Etimbuk went to steal the money from my sister, Esther pretending to be an okada man. I actually planned the robbery but had not participated in it. However, when my sister, Esther came and shouted in the village that Etimbuk has stolen her N125,000.00 on the way to AKTC park some of our village boys like Anana, Bassey and Hitler and one other tall guy whose name I do not know but can be identified if seen, these people saw Etimbuk at Ifa Ikot Okon. I did not get share of the money at all. So the money is with the people mentioned above including Hitler? PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CONFESSION: WHEN IT WILL LEAD TO CONVICTION IN A CRIMINAL CASE
A confession by an accused to the commission of an offence plays a vital role in the determination of his guilt. Thus, a trial Court is empowered to convict even on the confessional statement alone once it is convinced that the confession was voluntary. In other words, a free and voluntary confession of guilt alone by an accused person provided it is direct, and positive and duly made voluntarily, is sufficient to ground a conviction. See ALABI V STATE (1993) 7 NWLR (pt 307) 511, FABIYI V STATE (2015) 18 NWLR (pt 1490) 80 NWACHUKWU V STATE (2002) 2 NWLR (pt 75) 336, DOGO V STATE (2013) 10 NWLR (pt 1361) 160 and KAMILA V STATE (2018) 8 NWLR (pt 1621) 252 at 268. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CONFESSIONAL STATEMENT: THE PROCEDURE OF ADMITTING OR DISCREDITING IT IN A COURT OF LAW
The position of the law is that an accused person must admit making the confessional statement before he could raise the circumstances in which the confessional statement was made by him. See LASISI V STATE (2013) 9 NWLR (pt 1358) 74.
The appellant in this case has retracted making the additional statement while giving oral evidence in the lower Court. A denial of a confession by itself is no reason for rejecting the statement. The confession where voluntary is admissible. See IKEMSON V STATE also reported in (1989) 6 SC (pt 1) 114 at 131. But where there is retraction by an accused on the statement accredited to him, the Court is expected to test its trustfulness and veracity by examining the said statement in the light of other credible available evidence. The Court will do this by looking into whether:-
(a) There is anything outside it to show that it is true;
(b) It is corroborated,
(c) The facts stated in it are true as far as can be tested,
(d) The accused person had opportunity of committing the offence.
(e) An accused person?s confession is possible,
(f) The confession is consistent with other facts as contained and proved at the trial Court.
See AKPAN V STATE (2001) 15 NWLR (pt 737) 745, KAREEM V F.R.N. (2002) 8 NWLR (pt 770) 664 and OKANLAWON V STATE (Supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WITNESSES: THE NUMBER OF WITNESSES THAT PROSECUTION CAN CALL IN A CASE
Finally on the failure of the prosecution to call the Divisional I.P.O, it is no doubt the prerogative of the prosecution to decide on number of witnesses in prove of its case. The defence is not to decide for the prosecution who to call as witness. See IJIOFFOR V STATE (2001) 9 NWLR (pt 718) 371 and KAMILA V STATE (Supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.
Before Their Lordships
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
VICTOR NKEREUWEM EDET Appellant(s)
AND
THE STATE Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant and one Etimbuk Israel Okon were charged and tried before the High Court of Akwa Ibom State sitting at Uyo for robbing one Mrs. Esther Akaninyene while armed with dangerous weapons to wit knife.
At the trial, the prosecution called two witnesses and tendered six exhibits including the appellant?s extra-judicial statements. The appellant and his co-accused also testified in their defence and called one other witness who is the mother of the co-accused. At the conclusion of the trial, the appellant and his co-accused were found guilty of conspiracy and armed robbery. They were accordingly sentenced to death.
Dissatisfied, the appellant approached this Court through a notice of appeal filed on 29/01/2016 but deemed amended on 5/12/16. The said amended notice of appeal contains four grounds of appeal.
In accordance with the rules of this Court, briefs were filed and exchanged. Appellant formulated the following three issues for the determination of this appeal:-
1. Whether in view of the evidence adduced at the trial Court prosecution has successfully proved the allegation of Armed Robbery preferred against the Appellant beyond reasonable doubt. (Distilled from ground 2).
2. Whether the trial Court was right in convicting the Appellant for the offence of conspiracy to commit Armed Robbery (Distilled from ground 3).
3. Whether the trial Court was right to rely on the Exhibit ?F? (the additional statement) to link the appellant to the crime. (Distilled from ground 4).
The respondent on its part formulated a lone issue thus: –
Whether the trial Court was right to admit and rely on Exhibit ?F? after trial within trial and whether the prosecution had successfully proved the two count charge of conspiracy and armed robbery against the appellant.
Proffering argument on issue No.1, learned counsel for the appellant, B. Olusegun Esq. contended that the extra-judicial statements made by the co-accused against the appellant should not be acted upon by the trial Court because the statements are only admissible against the maker. He referred to OYAKHIRE V STATE (2007) 2. NCC 15 at 22 and USEN V STATE (2016) 9 NWLR (pt 1515) 530 in submitting that none of the prosecution witnesses linked the appellant with the commission of the alleged offences but the trial Court relied on the statements of his co-accused Etimbuk Israel Okon to convict him albeit wrongly.
Still in argument, learned counsel submitted that the evidence of the police investigating office (pw2) was hearsay and such an evidence cannot form the basis of any judgment irrespective of whether the said evidence was objected to or not by the appellant. He referred to OMISORE V STATE (2008) 3 NCC 60 at 90 and ONUOHA V STATE (1995) 3 NWLR (pt 385) 59 at 598.
He further submitted that the appellant had timeously raised an alibi to the effect he was at home with one Bassey at the date and time of the alleged offence and that it was one Anana who informed him about the incident. The prosecution neither investigate the alibi nor deem it necessary to obtain the statements of these two people. In eff
