ACHI v. IGP
(2022)LCN/15982(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, January 13, 2022
CA/A/177C/2016
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
FELIX NGOZI ACHI APPELANT(S)
And
INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION NOT DERIVED FROM THE GROUNDS OF APPEAL IS DEEMED ABANDONED
The general rule in appellate practice and procedure is that a ground of appeal upon which no issue is distilled is deemed abandoned. The point to underscore however is that the law on waiver of right involving an issue of jurisdiction is not watertight. Whilst there are species of jurisdictional issues that can be waived (such as non-service of statutory pre-action notice before commencing an action. See MOBIL v LASEPA [2003] 1 MJSC 172 at 128, 130 and KATSINA LOCAL GOVERNMENT AUTHORITY v MAKUDAWA [1971] 7 NSCC 779 at 123-124), issues bordering on especially subject matter or territorial jurisdiction can neither be waived, abandoned or acquiesced in by the parties owing to their fundamental and intrinsic nature in the schema of legal proceedings. See TUKUR v GOVERNOR OF GONGOLA STATE supra. In this regard, rather than espouse a blanket principle of law applicable across board in all cases affecting or relating to jurisdiction, the Court adopts the cautious approach of taking each case on its own merit. See F & F FARMS (NIG) LTD v. NNPC [2009] 12 NWLR (PT. 1155) 387 at 402-403 – per Niki Tobi, JSC. Crucially, such non-waivable jurisdictional issues can be raised suo motu by the Court (whether at nisi prius or on appeal) without any charge of bias by any of the parties. See SAMSON OWIE v SOLOMON IGHIWI [2005] 3 MJSC 82 at 112 – per Niki Tobi, JSC, OLORIODE v OYEBI (1984) 1 SCNLR 390, OBIKOYA v. THE REGISTRAR OF COMPANIES (1975) 4 SC 31 at 35, NNPC v ORHIOWASELE & ORS (2013) LPELR-20341 (SC), NDAEYO v OGUNAYA (1977) 1 SC 71 and ELABANJO v DAWODU [2006] 15 NWLR (PT. 1007) 76. PER AFFEN, J.C.A.
WHETHER OR NOT THE COURT CAN RAISE ISSUES SUO MOTU ON BEHALF OF PARTIES BEFORE IT
The general proposition of law, which is steeped in justice and good sense, is that the Court is not at liberty to raise an issue suo motu and resolve same without affording the parties the opportunity to be heard on the issue so raised. See OMINIYI v ALABI [2015] 6 NWLR (PT. 1456) 572 at 592-573, ALIMS LTD v UBA [2013] 1 MJSC (PT. 1) 156 at 170, ACB PLC v LOSADA (NIG) LTD [1995] 7 NWLR (PT. 405) 26 and OYEWOLE v AKANDE [2009] 15 NWLR (PT. 1163) 119. The rationale is to prevent the Court from being seen or perceived to have descended into the arena of conflict and thereby abdicate its exalted position as an impartial arbiter. See KUTI v BALOGUN (1978) 1 SC 53 at 60 and OBAWOLE v WILLIAMS [1996] 10 NWLR (PT. 477) 146. It would seem however that raising an issue of jurisdiction suo motu and resolving it without necessarily hearing the parties constitutes a preeminent exception to the above general proposition. As the Supreme Court (per Tabai JSC) insightfully observed in EFFIOM v C.R.O.S.I.E.C. [2010] 14 NWLR (PT. 1213) 106 at 133-134: “…[T]his principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur v. Government of Gongola State (1989) 4 NWLR (PT 117) 517 is instructive on this point. PER AFFEN, J.C.A.
WHETHER OR NOT THE COURTS HAVE THE RIGHT TO DECLINE THE EXERCISE OF JURISDICTION WHICH IS GIVEN THAN TO USURP THAT WHICH IS NOT GIVEN AS THE ONE OR THE OTHER WOULD BE TREASON OF THE CONSTITUTION
Honourable Judges of the High Court of the Federal Capital Territory, Abuja to be wary of being inveigled into assuming jurisdiction in matters which occurred outside the territorial jurisdiction of their Court, which admonition was reiterated by Ejembi Eko, JSC in MAILANTARKI v TONGO [2018] 6 NWLR (Pt. 1614) 69 at 86 to the effect that “their Lordships of the High Court of the Federal Capital ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in [the] Capital Territory” over matters that occurred elsewhere as the Constitution never intended the Court to be “a High Court at large with jurisdiction over matters outside its territory”. See also the case of RIVERS STATE GOVT. v SPECIALIST KONSULT [2005] 7 NWLR (PT. 923) 145 which reaffirms the proposition that a Court in one State of the Nigerian Federation [including the FCT] is destitute of jurisdiction to hear and determine a matter which falls within the exclusive jurisdiction of another State. Although the cases referred to above are civil matters, the admonition therein applies with equal force in criminal matters such as the present. The lower Court was completely bereft of requisite territorial jurisdiction to entertain the charge brought under the Robbery and Firearms (Special Provisions) Act which specifically provides for offences to be tried in the State concerned, and the inevitable conclusion to which I must come is that the Appellant’s trial, conviction and sentence constitutes a nullity liable to be set aside. It has been held that “the Courts have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given as the one or the other would be treason of the Constitution”. See COHEN v VIRGINIA (1821) 19 US 264 at 404 – per John Marshal, CJ. PER AFFEN, J.C.A.
THE POSITION OF LAW ON THE FINDING OF FACT BY A TRIAL COURT
Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence [see WACHUKWU v OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v AJEH [2011] 10 NWLR (PT 1256) 574] and an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment positively answers the following queries: (i) Did the prosecution prove the essential elements of the offence; (ii) Was the case proved beyond reasonable doubt; and (iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done. See OSUAGWU v STATE [2013] 5 NWLR (PT 1347) 360. An appellate Court will intervene only if the answer is in the negative. The relevant enquiry therefore is as to whether or not the above queries were answered positively in the judgment appealed against. PER AFFEN, J.C.A.
THE MEANING OF “PROOF BEYOND REASONABLE DOUBT”
However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1999] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 722. In the words of the venerable Lord Denning in the case of MILLER v MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 at 373: “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is [established] beyond reasonable doubt, but nothing short of that will suffice”. See also AKALEZI v THE STATE [1993] 2 NWLR (PT. 273) 1 and EBEINWE v STATE [2011] 1 MJSC 27. What must always be borne in mind is that absolute certainty is impossible in any human adventure, including the administration of justice. Thus, once the prosecution proves that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See BABARINDE v STATE [2014] 3 NWLR (PT 1395) 568 and ADELEKE v STATE [2013] 16 NWLR (PT 1381) 556. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction
A robbery took place at St. Michael’s Catholic Church, Garaku Lafia, Nasarawa State on 25/10/12 at about midnight. It was said to be an armed robbery. The victim was one Rev. Father Paul Onah. The robbers made away with his blue-coloured Honda CRV Jeep (SUV) with Reg. No. BWR 22 AG and other valuables: blackberry cell phone, laptop, wristwatches, footwear, travelling bag, and some money. The Honda CRV was subsequently recovered in the process of being registered by a third party who purchased it from one Ahmed Ibrahim (a barber) contracted by the Appellant to dispose of it. The Appellant was arraigned along with two others before the High Court of the Federal Capital Territory, Abuja (“the lower Court”) in Charge No. FCT/HC/CR/53/2013: Inspector General of Police v Felix Ngozi Achi & 2 Ors on a 3-count charge of conspiracy to commit armed robbery and armed robbery. The specifics of the charge dated 5/11/13 are as follows:
“COUNT I
That you, Felix Ngozi Achi Okechukwu Oghanwa ‘m’ Nancy Okpoh ‘f’ and others now at large on the 25th of October at Saint Michael’s Catholic Church, Garaku Lafia in the Lafia Judicial Division triable in the Maitama Judicial Division of the Federal Capital Territory Abuja, conspired among yourselves to commit a felony to wit: Armed Robbery and thereby committed an offence punishable under Section on 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004.
COUNT II
That you, Felix Ngozi Achi Okechukwu Oghanwa ‘m’ Nancy Okpoh ‘f’ and others now at large on the same date and place in the aforesaid Judicial Division but triable in the Maitama Judicial Division of the Federal Capital Territory Abuja, robbed one Rev. Father Paul Onah of his Honda CRV with Reg. No. BWR 22 AG value yet unknown, the sum of N2,700.00 cash, one blackberry phone value yet unknown while armed with guns and other dangerous weapons and thereby committed on (sic) offence punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Vol 14 Laws of the Federation of Nigeria 2004.
COUNT III
That you, Felix Ngozi Achi Okechukwu Oghanwa ‘m’ Nancy Okpoh ‘f’ and others now at large on the same date, time and in the aforesaid Judicial Division and triable in the Maitama Judicial Division of the Federal Capital Territory Abuja, robbed one Rev. Father Simon Chia Aweli in the sum of N180,000.00 cash, HP Laptop valued at N30,000.00, Sony Tape Recorder value N10,000.00 and other items while armed with guns and thereby committed an offence punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Vol 14 Laws of the Federation of Nigeria 2004.” (underlining supplied)
In a considered judgment delivered on 16/6/15, the Appellant and the 2nd Defendant were found guilty on counts 1 and 2 of the charge, and accordingly sentenced to death. Dissatisfied with the judgment, the Appellant obtained the leave of this Court to appeal out of time and filed a notice of appeal dated 13/3/17. The judgment and notice of appeal lie at pp. 193 – 241 and 242 – 255 respectively of the record of appeal, which was transmitted on 8/11/17 but deemed on 29/10/18. Briefs of arguments were filed and duly exchanged, and the appeal was heard on … The Appellant’s Brief dated 28/12/18 was deemed properly filed on 29/4/20; the Respondent’s Brief dated 10/6/20 was deemed properly filed on 18/10/20 whilst the Appellant’s Reply Brief filed 20/10/20 9/4/20 was deemed properly filed on 18/10/21.
Issues for determination
From the eighteen grounds of appeal raised by the Appellant in the notice of appeal, the following seven issues for determination are distilled in the Appellant’s brief:
“ISSUE ONE
Whether the learned trial Judge was right in rejecting the evidence of the Appellant at the trial as extra judicial statements of the Appellant admitted as Exhibits 3, 3(a), 3(b) and 3(c) on the ground that the said exhibits are inconsistent with the Appellant’s evidence before the trial Court and whether the exclusion of the said Appellant’s evidence Exhibits 3, 3(a), 3(b) and 3(c) occasioned miscarriage of justice.
ISSUE TWO
Whether the learned trial Judge rightly found that Exhibit 6 was found in the possession of the Appellant.
ISSUE THREE
Whether the trial Court properly and correctly relied on the doctrine of recent possession pursuant to Section 167 (a) of the Evidence Act 2011 to find the appellant guilty of the offences of conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the trial Court.
ISSUE FOUR
Whether the learned trial Judge properly, fairly and dispassionately evaluated the evidence adduced at the trial Court before coming to the conclusion that the prosecution had established the case of conspiracy to commit armed robbery and armed robbery in Counts One and Two against the Appellant.
ISSUE FIVE
Whether the learned trial Judge was right in relying on the contents of Exhibits 3 and 3c as well as the testimony of the Appellant of the offences of conspiracy to commit armed robbery and armed robbery after the learned trial Judge had rejected exhibits 3 and 3c as well as the oral evidence of the appellant as unreliable.
ISSUE SIX
Whether the learned trial Judge was right in classifying the appellant as an evasive witness and a blatant liar whose evidence should not be believed by any trial Court and consequently finding the Appellant guilty of the offences of conspiracy to commit armed robbery and armed robbery.
ISSUE SEVEN
Was the learned trial Judge right in law by holding that the prosecution had established the offences of conspiracy to commit armed robbery and armed robbery against the Appellant as contained in Counts 1 and 2 of the charge by credible and cogent evidence either direct or circumstantial having regard to the totality of the evidence before the trial Court.”
On Respondent’s part, a sole issue for determination is distilled in the Respondent’s Brief as follows:
“Whether having regard to the totality of the evidence of the prosecution witnesses the learned trial judge was right to have convicted the Appellant and the 2nd Accused on the offences of conspiracy to commit armed robbery and armed Robbery in Counts 1 and 2 of the charge against the Appellant and two others.”
Upon careful and insightful consideration of the issues distilled by the parties, it seems to me that the Respondent’s sole issue is all encompassing and subsumes the Appellant’s seven issues. I will however take all the Appellant’s issues and the Respondent’s sole issue together. See SDC CEMENTATION (NIG) LTD & ANOR v NAGEL & COMPANY LTD & ANOR (2003) LPELR-9167(CA).
Jurisdiction of the lower Court. At the threshold of this appeal lies a fundamental jurisdictional issue, which the parties have neatly sidestepped for reasons that are not immediately obvious to me. It is alleged in ground one of the notice of appeal that: “The learned trial Judge erred in law in assuming jurisdiction over the (sic) Charge No. FCT/HC/CR/53/73 to wit: Inspector General of Police vs Felix Ngozi Achi referred against the appellant and two others, when the trial Court lacks jurisdiction to entertain the charge and try the 1st Accused/Appellant when the offences the 1st accused/Appellant was charged with were allegedly committed in Nasarawa State, a place outside the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja”, yet no issue has been formulated thereon. The general rule in appellate practice and procedure is that a ground of appeal upon which no issue is distilled is deemed abandoned. The point to underscore however is that the law on waiver of right involving an issue of jurisdiction is not watertight. Whilst there are species of jurisdictional issues that can be waived (such as non-service of statutory pre-action notice before commencing an action. See MOBIL v LASEPA [2003] 1 MJSC 172 at 128, 130 and KATSINA LOCAL GOVERNMENT AUTHORITY v MAKUDAWA [1971] 7 NSCC 779 at 123-124), issues bordering on especially subject matter or territorial jurisdiction can neither be waived, abandoned or acquiesced in by the parties owing to their fundamental and intrinsic nature in the schema of legal proceedings. See TUKUR v GOVERNOR OF GONGOLA STATE supra. In this regard, rather than espouse a blanket principle of law applicable across board in all cases affecting or relating to jurisdiction, the Court adopts the cautious approach of taking each case on its own merit. See F & F FARMS (NIG) LTD v. NNPC [2009] 12 NWLR (PT. 1155) 387 at 402-403 – per Niki Tobi, JSC. Crucially, such non-waivable jurisdictional issues can be raised suo motu by the Court (whether at nisi prius or on appeal) without any charge of bias by any of the parties. See SAMSON OWIE v SOLOMON IGHIWI [2005] 3 MJSC 82 at 112 – per Niki Tobi, JSC, OLORIODE v OYEBI (1984) 1 SCNLR 390, OBIKOYA v. THE REGISTRAR OF COMPANIES (1975) 4 SC 31 at 35, NNPC v ORHIOWASELE & ORS (2013) LPELR-20341 (SC), NDAEYO v OGUNAYA (1977) 1 SC 71 and ELABANJO v DAWODU [2006] 15 NWLR (PT. 1007) 76.
The general proposition of law, which is steeped in justice and good sense, is that the Court is not at liberty to raise an issue suo motu and resolve same without affording the parties the opportunity to be heard on the issue so raised. See OMINIYI v ALABI [2015] 6 NWLR (PT. 1456) 572 at 592-573, ALIMS LTD v UBA [2013] 1 MJSC (PT. 1) 156 at 170, ACB PLC v LOSADA (NIG) LTD [1995] 7 NWLR (PT. 405) 26 and OYEWOLE v AKANDE [2009] 15 NWLR (PT. 1163) 119. The rationale is to prevent the Court from being seen or perceived to have descended into the arena of conflict and thereby abdicate its exalted position as an impartial arbiter. See KUTI v BALOGUN (1978) 1 SC 53 at 60 and OBAWOLE v WILLIAMS [1996] 10 NWLR (PT. 477) 146. It would seem however that raising an issue of jurisdiction suo motu and resolving it without necessarily hearing the parties constitutes a preeminent exception to the above general proposition. As the Supreme Court (per Tabai JSC) insightfully observed in EFFIOM v C.R.O.S.I.E.C. [2010] 14 NWLR (PT. 1213) 106 at 133-134: “…[T]his principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur v. Government of Gongola State (1989) 4 NWLR (PT 117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction, was taken by the Court”. See also COMPTOIR COMM. & IND. S. P. R. LTD v OGSWC (2002) LPELR-8891 at 12 and the concurring judgment of Rhodes- Vivour JSC in OMOKUWAJO v F.R.N. [2013] 9 NWLR (PT. 1359) 300 at 332, (2013) LPELR-20184(SC) 1 at 37-38 to the effect that the necessity of affording the parties a hearing when a judge raises an issue suo motu does not arise if: “(a) the issue relates to the Court’s own jurisdiction; (b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say, whereby virtue of statutory provision the judge is expected to take judicial notice. See Section 73 of the Evidence Act; (c) when on the face of the Record serious questions of the fairness of the proceedings is evident”. By Order 4 Rule 4 of the Court of Appeal Rules 2021, the powers of this Court “may be exercised notwithstanding that no Notice of Appeal or Respondent’s Notice has been given in respect of any particular part of the decision of the lower Court, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties”. On the strength of the above authorities, I take the considered view therefore that notwithstanding that no issue is distilled from ground one relating to the jurisdiction of the lower Court, and the issue was not raised at the hearing to enable the parties proffer arguments pro and con, this Court is not constrained in any way from raising the issue in this judgment and resolving it one way or the other, bearing in mind that jurisdiction is extrinsic to the adjudication on the merits and the proceedings, however well conducted, constitute a nullity if the Court was bereft of jurisdiction, whether territorial or substantive, and sometimes even procedural. See the oft-cited dictum of Bairamian, FJ in MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 587 at 595 and TUKUR v GOVERNMENT OF GONGOLA STATE supra.
Now, the amended 3-count charge upon which the lower Court tried, convicted and sentenced the Appellant is set out hereinbefore. The allegation in the charge is that the Appellant and his co-accused persons conspired with others now at large to commit armed robbery and did commit the offence of armed robbery at St. Michael’s Catholic Church, Garaku Lafia in Nasarawa State “in the Lafia Judicial Division but triable in the Maitama Judicial Division of the High Court of the Federal Capital Territory, Abuja”. Judging by the couching or phraseology of the charge, the conspiracy as well as the substantive offence of armed robbery occurred at Garaku Lafia in Nasarawa State. Notably, the Appellant and his co-accused persons were not charged under the Penal Code, but under the Robbery and Firearms (Special Provisions) Act, Cap R11 LFN 2004 which provides in Section 9 thereof that: “Offences under the Act shall be triable in the High Court of the State concerned”. To my mind, this provision unequivocally confers jurisdiction on the High Court of the State where the offences alleged in the charge occurred, in this case the High Court of Nasarawa State. Not the High Court of Federal Capital Territory, Abuja whose jurisdiction is confined to actions or inactions that occur within the geo-territory of the Federal Capital Territory as outlined and delineated in Part II of the 1st Schedule to the Constitution of the Federal Republic of Nigeria 1999. Especially is this so as it was not alleged that any of the ingredients of the offences charged occurred in the Federal Capital Territory, Abuja. See NNACHI EPHRAIM v FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-22363(CA). It hardly bears mention that the tentacles of the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja are not long enough to extend as far as Nasarawa State which is outside the boundaries of the Federal Capital Territory. It is therefore difficult in the extreme to appreciate the basis upon which the lower Court assumed jurisdiction to try offences allegedly committed outside the boundaries of the Federal Capital Territory.
In DALHATU v TURAKI [2003] 42 WRN 15 at 33, the Supreme Court (per Ogundare, JSC) admonished Honourable Judges of the High Court of the Federal Capital Territory, Abuja to be wary of being inveigled into assuming jurisdiction in matters which occurred outside the territorial jurisdiction of their Court, which admonition was reiterated by Ejembi Eko, JSC in MAILANTARKI v TONGO [2018] 6 NWLR (Pt. 1614) 69 at 86 to the effect that “their Lordships of the High Court of the Federal Capital ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in [the] Capital Territory” over matters that occurred elsewhere as the Constitution never intended the Court to be “a High Court at large with jurisdiction over matters outside its territory”. See also the case of RIVERS STATE GOVT. v SPECIALIST KONSULT [2005] 7 NWLR (PT. 923) 145 which reaffirms the proposition that a Court in one State of the Nigerian Federation [including the FCT] is destitute of jurisdiction to hear and determine a matter which falls within the exclusive jurisdiction of another State. Although the cases referred to above are civil matters, the admonition therein applies with equal force in criminal matters such as the present. The lower Court was completely bereft of requisite territorial jurisdiction to entertain the charge brought under the Robbery and Firearms (Special Provisions) Act which specifically provides for offences to be tried in the State concerned, and the inevitable conclusion to which I must come is that the Appellant’s trial, conviction and sentence constitutes a nullity liable to be set aside. It has been held that “the Courts have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given as the one or the other would be treason of the Constitution”. See COHEN v VIRGINIA (1821) 19 US 264 at 404 – per John Marshal, CJ.
I should at this stage terminate this appeal by striking out the case before the lower Court for want of territorial jurisdiction. But being an intermediate Court that does not have the luxury of restricting itself only to issues that may dispose of the matter, but bound to consider and pronounce on all issues properly placed before it. [See OJIKUTU v OJIKUTU (1971) LPELR-2375(SC), OJOGBUE NNUBIA (7972) 8 SC 227, XTOUDOS SERVICES NIG. LTD v TAISEI W. A. LTD [2006] 15 NWLR (PT. 1003) 533, OSAREREN v FRN (2018) LPELR-43839(SC), KATTO v CENTRAL BANK OF NIGERIA [1991] 9 NWLR (PT. 214) 126 at 149, OKONJI v NJOKANMA [1991] 7 NWLR (PT. 202) 131 at 150, 151-152, TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 529 and EDEM v CANON BALLS LTD [2005] 12 NWLR (PT. 938) 27], let us proceed presently to consider the substance of this appeal on the basis of the issues distilled by the parties which are reproduced hereinbefore.
Appellant’s submission
It is contended in the Appellant’s brief that the lower Court erred in discarding the Appellant’s extrajudicial statements tendered in evidence by the Prosecution as Exhibits 3, 3(a), 3(b) and 3(c) as well as his testimonial evidence based on an erroneous application of the Inconsistency Rule and thereby eroded the substratum of his defence, insisting that the applicability of the Inconsistency Rule in criminal proceedings is restricted to witnesses and does not extend to previous statements of an accused person and his testimonial evidence.
The cases of ABIODUN v THE STATE (2016) LPELR-41399(CA), OSENI v THE STATE (2010) LPELR- 4033(CA), IKENNE v STATE (2018) LPELR-44695(SC) and AYINDE v THE STATE [2018] 17 NWLR (PT. 1647) 140 are cited. The Appellant maintained that the eventual decision would have been different if the lower Court had given due consideration to his extra-judicial statements and testimonial evidence, insisting their exclusion occasioned a miscarriage of justice that warrants reversal of the judgment appealed against, placing reliance on SUNDAY ODOGWU v THE STATE (2013) LPELR-22039(CA), THE STATE v OGBUBUNJO & ANOR (2001) LPELR-3223(SC), EGBONNA v STATE (2073), BONYEWU v STATE (2017), AKPAN v STATE [1994) 9 NWLR (PT. 368) 347 at 367 and ITU v STATE (2016) LPELR-26063(SC), GBADAMOSI v DAIRO [2007] NWLR (PT. 1021) 282 at 306 and ONAGORUWA v THE STATE [1993] 7 NWLR (PT 303) 49. On issues two and three, the Appellant argued that the lower Court’s finding that the Honda CRV [Exhibit 6) stolen from PW4 by robbers was found in his possession is not supported by the evidence on record, which is to the effect that it was at the point the person who bought Exhibit 6 sought to register it at the Vehicle Licencing Office at Mabushi, Abuja that PW4 was alerted and the vehicle was eventually recovered: thus, Exhibit 6 was found with the person to whom it had been sold but not in his possession, calling in aid Section 167 (a) of the Evidence Act 2011 and the cases of EHIMIYEIN v THE STATE (2016) LPELR-4084(SC) EVARIST EZE v. THE STATE (1985) LPELR- 1189(SC), EWUGBA v STATE (2017) LPELR-43833(SC), OMOGODO v STATE (1981) LPELR-24879(SC) and PEOPLE OF LAGOS STATE v UMARU (2014) LPELR-22466(SC); and that the doctrine of recent possession was inappropriately invoked to convict the Appellant based on a finding that is perverse in its entirety for being patently at variance with the evidence on the printed record, citing IWUOHA & ANOR v NIPOST & ANOR [2003] 8 NWLR (PT. 822) 308, EFE v STATE (2013) LPELR- 20308(CA) and ABDULLAHI v STATE [2005] ALL FWLR (PT. 263) 698 at 775.
On issues five and six, the Appellant drew attention to pp. 233-234 of the records and argued that having adjudged his testimonial evidence and extrajudicial statements [Exhibits 3, 3(a), 3(b) and 3(c)] as unreliable and rejected them, the lower Court gravely erred in law in relying on the same rejected evidence and exhibits to find the Appellant guilty of conspiracy, insisting that the law frowns upon a Court approbating and reprobating in a matter before it, placing reliance on IKA v STATE (2009)LPELR-8262(CA), that it was ill-founded to the classifying the Applicant as an evasive witness and a liar when his attention was not drawn to the inconsistency between his testimonial evidence and extrajudicial statements to enable him offer necessary explanation, and that merely giving an incorrect answer alone does not make a witness a liar as he could have given a false answer due to [an honest] mistake on his part; and even if the Appellant were an evasive witness and a liar, that would not justify being convicted for conspiracy and armed robbery, citing the cases of UKPE v STATE (2012) LPELR-19715(CA), OKPERE v THE STATE (1971) LPELR- 2519(CA), OMOGODO v STATE supra and AJAEGBO v STATE (2018) LPELR-44531(CA) on the proposition that the fact that an accused person has told lies in no proof of guilt. On issues four and seven, it is contended that the lower Court failed to properly evaluate the evidence adduced and wrongly convicted the Appellant of conspiracy to commit armed robbery and armed robbery, placing reliance on USMAN v IBE (2017) LPELR- 43303(CA) and NZE NATHANIEL DIKE v ATTORNEY-GENERAL, IMO STATE (2012) LPELR-15383(CA), that it is clear from the records that the trial Court failed to consider the exculpatory testimonial evidence of the Appellant, DW2 and DW3 showing that the Appellant purchased Exhibit 6 from Abdulazeez after negotiations and effected payment before he resold it, which is inconsistent with armed robbery and was not punctured by the prosecution, insisting that evaluation of evidence that did not take relevant evidence into consideration cannot be said to be proper, fair and dispassionate, and this Court ought to interfere. The Appellant’s further contention is that the lower Court was wrong in holding that the Prosecution had established conspiracy to commit armed robbery and armed robbery beyond reasonable doubt, citing JOSEPH v STATE [2011] 16 NWLR (PT. 1273) 226 on the meaning and connotation of the phrase ‘proof beyond reasonable doubt’; that mere probability is insufficient, and even where the evidence adduced is consistent with both the innocence and guilt of the accused, the prosecution cannot be said to have established the case beyond reasonable doubt, calling in aid the case of BAJULAIYE v STATE (2012) LPELR-7995(CA), that it is only by adducing cogent, credible and compelling evidence beyond reasonable doubt that the charge of conspiracy as alleged in the charge can be established, which was lacking in the instant case citing NDOZIE v STATE (2016) 8 NWLR (PT. 1513)14, ODUNEYE v STATE [2001] 2 NWLR (PT. 697) 311 at 329, OMOTOLA v STATE [2008] 2 FWLR (PT. 418) 2167 at 2304, IKEMSON v STATE [1989] 3 NWLR(110) 455 and SHODIYA v STATE [1992] 3 NWLR (PT. 320) 457 at 472, EMEKA v STATE [1998] 7 NWLR (PT. 559) 556 at 583 and IKWUNNE v STATE [2000] 5 NWLR (PT. 658) 550 at 561. The Court was urged to allow the appeal, set aside the judgment of the lower Court and accordingly discharge and acquit the Appellant.
Respondent’s submission
As stated hereinbefore, the Respondent identified a sole issue for determination which subsumes the Appellant’s issues. Arguing the said sole issue, the Respondent maintained that the Prosecution led ample evidence through PW1, PW2, PW3 and PW4), as well as tendered the Honda CRV (Exhibit 6) and the extra-judicial statements of both the Appellant and the 2nd accused to ground their conviction for conspiracy to commit armed robbery and armed robbery. The Respondent reiterated the ingredients of armed robbery required to be proved by the prosecution as stated in FOLORUNSHO ALUFOHAI v THE STATE [2015] 3 NWLR (PT. 7445) 172 at 190 and insisted that the testimonial evidence of PW4 (excerpts of which are reproduced in paras. 5.4 and 5.9 of the Respondent’s brief) clearly established that there was an armed robbery at his residence on 25/10/12 and that the Appellant’s failure to cross-examine PW4 signals acceptance of his testimony that there was an armed robbery, that the Honda CRV (Exhibit 6) stolen by the gang of armed robbers was the same vehicle found in Appellant’s possession immediately after the robbery, which he, which was indeed sold to Oliver Nwachukwu through Ibrahim Ahmed and the proceeds of sale sent to the Appellant through the account of the 3rd accused. The cases of JAMES SIMON v STATE [2017] 8 NWLR (PT. 1566) 119 and PATRICK OFORLETE v STATE (2000) LPELR-2270(SC) at 24-25 (on the effect of failure to cross-examine a witness on an issue) are relied upon. The Respondent maintained that the testimony of PW3 shows that the Honda CRV came into the Appellant’s possession on the same 25/10/12, which was confirmed by the Appellant’s evidence, that the extrajudicial statement of the 2nd accused dated 4/8/13 makes it obvious that the Appellant and the 2nd accused were aware of the robbery, and the Appellant’s assertion that he bought a vehicle between 2 am and 3 am sounds ludicrous as reasonable people do not conduct the business buying a vehicle at 3:00 am without receipt, plate number and particulars, that the different versions given by the Appellant in his extrajudicial statements of 3/6/13, 31/5/13 and 4/8/13 on how he gained possession of Exhibit 6 is conclusive of the fact that the vehicle was the subject of the robbery at the Plaintiff’s residence, and that the testimonial evidence Prosecution witnesses point to one direction that the Appellant conspired with the gang that robbed PW4 on 25/10/12 and the lower Court was right to have convicted the Appellant and the 2nd accused on Counts 1 and 2, citing IRENE NGUMA (ALIAS IRENE OKOLI) v ATTORNEY- GENERAL, IMO STATE [2014] 7 NWLR (PT. 1405) 119 at 150, SUNDAY IYARO v. THE STATE (1988) LPELR-1575(SC) and MUSA ZUBAIRU v THE STATE (2015) LPELR-40835(SC) and urging this Court to sustain the lower Court’s finding “that the 1st and 2nd accused persons, Mr. Bash, Abdulkareem, Abdulazeez and two others … are a gang of armed Robbers that invaded the residence of PW4 on (sic) the early hours of 25th October 2012…” as well as the Courts’ Finding [at pp 233 – 234] on the Appellant’s recent possession of Exhibit 6 soon after the robbery incident, placing reliance on MUFTAU AREMU v THE STATE [1991] LPELR-545(SC) 1 at 29-31 – per Nnaemeka-Agu JSC, SUNDAY EHIMIYEIN v. THE STATE (2016) LPELR-40841 -per Muhammad JSC, FREEBORN OKIEMUTE v THE STATE (2016) LPELR-40839(SC) – per Okoro JSC, and OKUNADE KOLAWOLE v THE STATE (2015) LPELR-24400(SC) at 23-24 -per Peter-Odili JSC. This Court was urged to dismiss the appeal and affirm the Appellant’s conviction and sentence.
Appellant’s reply
In his reply brief, the Appellant contended that it was not necessary to cross-examine PW4 in respect of that portion of his testimonial evidence that was not in controversy between him and the Respondent, citing SIMON v STATE (2017) LPELR-41988(SC), that there is nothing in the evidence led from which to infer that the sale of Exhibit 6 by Abdulazeez to the Appellant took place on the same night of the robbery (i.e. 25/10/12) and not a later date, and the submission of Respondent’s counsel amounts to embellishment of the facts, which was condemned in ABACHA v STATE LPELR-16(SC), that counsel’s address must be based on evidence on record, calling in aid the cases of IBIKUNLE v STATE (2007) LPELR-8068(SC), EZEANI v F.R.N. (2019) LPELR- 46800(SC) AGUGUA v STATE (2017) LPELR-42021 (SC) and AGU & ORS v BUHARI & ORS (2019) LPELR-48433(SC), that IRENE NGUMA (ALIAS IRENE OKOLO v ATTORNEY-GENERAL, IMO STATE supra upon which the Respondent has relied is most unhelpful in the instant appeal as the facts are clearly distinguishable from the evidence on record in the instant appeal, citing ACHEBE v MBANEFO & ANOR (2017) LPELR-47886(CA) and ADEGOKE MOTORS v ADESANYA [1989] 3 NWLR (PT. 109) 250 at 265 (on the proposition that cases are to be read and applied in the light of their peculiar facts and circumstances); that the cases cited in support of the doctrine of recent possession are equally distinguishable, and the evidence available to the Court is that the vehicle was from one Oliver Nwachukwu around 30/11/21, which is well over one month after the same was taken from PW4. The Court was urged to resolve all the issues in favour of the Appellant.
Resolution of substantive appeal
The 3-count charge preferred against the Appellant and his co- accused persons is set out hereinbefore. The grounds of appeal and issues distilled by the parties constitute an attack on evaluation of evidence, which is ordinarily the forte of a Court of trial. Perception of evidence and evaluation of evidence are two crucial duties of a trial Court: perception entails receiving all relevant evidence into the records, whilst evaluation imports weighing the evidence received in the context of surrounding circumstances. Indeed, the major preoccupation of a trial Court is to evaluate evidence adduced by the parties, ascribe probative value thereto and ultimately reach a decision. Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence [see WACHUKWU v OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v AJEH [2011] 10 NWLR (PT 1256) 574] and an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment positively answers the following queries: (i) Did the prosecution prove the essential elements of the offence; (ii) Was the case proved beyond reasonable doubt; and (iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done. See OSUAGWU v STATE [2013] 5 NWLR (PT 1347) 360. An appellate Court will intervene only if the answer is in the negative. The relevant enquiry therefore is as to whether or not the above queries were answered positively in the judgment appealed against.
Our criminal justice system is adversarial in nature and substance, and every person charged with a criminal offence is presumed innocent until he is proved guilty. See Section 36(5) CFRN 1999. A necessary corollary of the presumption of innocence is that in a criminal trial (such as the present), the burden is always on the prosecution to establish the guilt of the accused person on the threshold of proof beyond reasonable doubt. Quite unlike civil proceedings, this burden is static in a manner akin to the fabled constancy of the ‘Northern Star’ and never shifts to the accused. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden of establishing that reasonable doubt exists shifts to the accused. See Ss. 135 and 137 of the Evidence Act, 2011. The prosecution has the onus of proving all the essential ingredients of the offence(s) charged beyond reasonable doubt. See STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails to do so, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced the Court were left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2007] 18 WRN 84 at 105.
However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1999] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 722. In the words of the venerable Lord Denning in the case of MILLER v MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 at 373: “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is [established] beyond reasonable doubt, but nothing short of that will suffice”. See also AKALEZI v THE STATE [1993] 2 NWLR (PT. 273) 1 and EBEINWE v STATE [2011] 1 MJSC 27. What must always be borne in mind is that absolute certainty is impossible in any human adventure, including the administration of justice. Thus, once the prosecution proves that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See BABARINDE v STATE [2014] 3 NWLR (PT 1395) 568 and ADELEKE v STATE [2013] 16 NWLR (PT 1381) 556.
The three modes of evidential proof in a criminal trial such as the present are: (a) direct evidence of witnesses; (b) circumstantial evidence; and (c) the confessional statement voluntarily made by a criminal defendant. See OKUDO v THE STATE [2011] 3 NWLR (PT. 1234) 209 at 236, ADIO v THE STATE (1986) 5 S.C. 194 at 219-220, EMEKA v THE STATE [2002] 14 NWLR (PT. 734) 666 at 683 and OLABODE ABIRIFON v THE STATE [2013] 13 NWLR (PT. 1372) 587 at 596.
Now, it is common ground that in order to secure conviction for armed robbery, the prosecution is obligated to demonstrate that (i) there was a robbery or series of robberies; (ii) the defendant(s) participated in the robbery or series of robberies; and (iii) at the material time the offence was being committed, the defendant(s) was armed with a firearm or offensive weapon or in the company of those so armed. See EMMANUEL EYO v THE STATE (2016) LPELR-48154(SC) at 17-18, OLAYINKA v STATE [2007] 9 NWLR (PT. 1040) 561, NWACHUKWU v STATE [1985] 3 NWLR (PT. 11) 218, SUBERU v STATE [2010] 8 NWLR (PT. 1197) 586, BOZIN v THE STATE [1985] 2 NWLR (PT. 8) 465, ANI v THE STATE [2003] 11 NWLR (PT. 830) 145, ATTAH v THE STATE [2010] 10 NWLR (PT. 1201) 190 at 244, OGUDU v STATE [2012] ALL FWLR (PT. 629) 1011 and FOLORUNSHO ALUFOHAI v THE STATE supra amongst a host of other cases. The three modes of evidential proof by which the prosecution may establish the guilt of a criminal defendant are set out hereinbefore. The Prosecution did not adduce any direct evidence linking the Appellant and his co-accused to the armed robbery. The victim of the robbery (PW4) testified that he could not identify those who broke into his room at midnight on 25/10/12 and made way with his Honda CRV (Exhibit 6) because it was dark. In convicting the Appellant of armed robbery, the lower Court held that “the evidence of PW4 that a gang of armed robbers invaded his residence and carted away with (sic) valuable items including Exhibit 6 was never challenged or tested under cross-examination by the defence” and invoked the presumption in Section 167 (a) of the Evidence Act 2011 that Exhibit 6 “was found in possession of the 1st accused who could not explain to the satisfaction of this Court how he came about Exhibit 6” (see p. 234 – 235 of the records). Bearing in mind that the Appellant was charged with and convicted of conspiracy to commit armed robbery and armed robbery (as opposed to robbery simpliciter or receiving stolen property), it occurs to me that the Prosecution must first lead credible evidence showing that there was in fact an armed robbery before any presumption can arise or inference drawn from the fact of recent possession of items said to have been stolen in the course of the armed robbery. In different words, recent possession of stolen items per se does not constitute proof that the items are booty from an armed robbery. Our recourse therefore is to the testimonial evidence adduced by PW4 on 26/3/14 (at p. 165 of the records) as follows:
“On the 25th October at midnight which was a Thursday, some persons I could not identify broke into my room at that hour. They were armed, it was dark and they flashed their touch lights on me and asked me to lie down. The persons asked for the keys to my car as that was the 1st thing they requested. The car is a blue Honda CRV with registration number BWR 22 AG, Abuja number. They also took from my room my phones, a desk laptop and took wrist watches and foot bear. They also took my traveling bag which I did not see. Then at about 1:30 am they left with the vehicle and the items. The persons also took from the pocket of my trousers N2,700.00 only.”
In a letter of complaint dated 13/12/12 addressed to the Inspector General of Police, which was tendered in evidence by the Prosecution as Exhibit 1, PW4 wrote thus: “In the early hours of Thursday, 25th October, 2012, a gang of armed robbers invaded my house here in Garaku and neighbouring houses and carted away my valuables including my ID card and my vehicle among many other valuables”. On the basis of Exhibit 1 and the testimonial evidence of PW1 who was described as the “principal witness for the prosecution in this case”, the lower Court harped on the failure or neglect of the defence to cross-examine him, and held that the Prosecution had “established by credible evidence that there was an armed robbery incident and that the robbery was an armed robbery” (see pp. 218 – 221 of the records). However, it does not seem to me that the Prosecution succeeded in establishing that the robbery incident at St. Michael’s Catholic Church, Garaku Lafia, Nasarawa State on 25/10/12 was an armed robbery on the basis of the testimonial evidence of PW4. His evidence may have shown that a robbery took place as alleged, but certainly not that it was an armed robbery. This is so because in a charge of armed robbery (such as the present), In addition to proving the factual reality of the occurrence of a robbery which the accused participated in, the prosecution must equally lead credible evidence to show that the accused was either armed with firearm or offensive weapon (as defined in the Act), or that he was in the company of a person(s) so armed. This latter ingredient (which is what distinguishes an ordinary robbery from armed robbery), is not proved merely by stating (as PW4 did) that those who broke into his room “were armed” without more. The question tugging vigorously at the back of my mind is: Armed with what? The evidence adduced by the Prosecution did not provide any answer. The law enjoins the Prosecution to lead credible evidence to show that a firearm or offensive weapon was used during the robbery operation before the robbers can be said to be “armed” and the incident characterised as an armed robbery. In this regard, the Robbery and Firearms (Special Provisions) Act defines “firearms” in Section 11 as including “any canon, gun, rifle, carbine, machine-gun, cap-gun, flint-lock gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces; whilst “offensive weapon” means “any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, marcher, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon”. It is quite understandable that a traumatised victim of robbery may not be in any position to describe the fine details of the firearm or offensive weapon wielded by his assailants, yet his evidence should at the very least leave no room for conjecture that a firearm (e.g. gun) or weapon (e.g. matchet, cudgel, etc.) was involved. To merely say that the robbers were armed without more will not suffice.
It seems to me therefore that the prosecution failed to prove an essential ingredient of the offence of ‘armed’ robbery, and it is of no moment that PW4 was not cross-examined by the defence. Whilst it is correct that failure to cross-examine a witness on an issue constitutes acceptance of the truth of the evidence of that witness in respect of that issue. [See NJIOKWUEMENI v OCHEI [2004] 15 NWLR (PT. 859) 196 at 226 – 227, ABADOM v THE STATE [1997] 1 NWLR (PT. 479) 1 at 20, R v HART (7932) 23 C. A. R. 202 and NITEL LTD v IKPI [2007] 8 NWLR (PT. 1035) 109, JAMES SIMON v STATE supra and PATRICK OFORLETE v STATE supra], the Appellant lost nothing in not cross-examining PW4. Absolutely nothing. Indeed, not cross-examining him could well be a well-hatched strategy!
Taking cognisance of the fact that the Appellant was not charged with robbery simpliciter or receiving stolen property, I take the considered view that it is if, and only if, the Prosecution had succeeded in proving that the robbers were armed within the meaning and intendment of the Robbery and Firearms (Special Provisions) Act that the lower Court could validly invoke the presumption in Section 167 (a) of the Evidence Act 2011 [to the effect that “a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession” in reaching the conclusion that the accused was the armed robber. But since the Prosecution did not prove an essential component of the offence of armed robbery with which the Appellant and others were charged as demonstrated above, the basis for invoking the presumption arising from the Appellant’s unexplained possession of Exhibit 6 did not exist, and the lower Court was in error to have convicted the Appellant of armed robbery on that score.
As it relates to the offence of conspiracy as alleged in count 1, the lower Court held that “from the statements of the and 2nd accused persons and their oral evidence in open Court and evidence under cross-examination, the 1st and 2nd accused persons, Abdulkareem, Abdulazeez and two boys including one Mr. Bash have been having several discussions, planning and eventually met with the purpose and intention of carrying out armed robbery”. The Court specifically referred to and relied on Exhibits 3 and 3(c), being the Appellant’s extrajudicial statements, and concluded that upon “a careful perusal of their statements, oral testimonies and phone calls by various participants in the saga, it could easily be inferred that the 1st and 2nd accused persons and others at large were planning the robbery of PW4’s car, Exhibit 6” (see pp. 238 – 239 of the records). Fundamentally however, the lower Court had earlier examined with the finery of a toothcomb the very same extrajudicial statements of the Appellant as well as his testimonial evidence, and came to the conclusion [at p. 231 of the records] that it had “no option than to hold that the testimonies of the 1st accused and his extrajudicial statement is hereby rejected due to their inconsistency and therefore unreliable and I so hold”. And that is where the snag lies.
The inchoate offence of conspiracy consists not merely in the intention of two or more, but in the agreement of two (not being a husband and wife) or more persons to do an unlawful act or to do a lawful act by an unlawful means. See ISHOLA v THE STATE (1972) 10 SC 63. So long as design rests in intention alone, it is not indictable but when two or more persons agree to carry their design into effect, the very plot is an act in itself punishable if it is for a criminal object or for the use of criminal means. See MAJEKODUNMI v R (1952) 14 WACA 64. The gravamen of the offence of conspiracy lies not in the doing of the act or effectuating the purpose for which the conspiracy is conceived, but in the forming of the scheme or agreement between the parties. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Owing to its very nature, the offence of conspiracy is seldom proved by direct evidence but by circumstantial evidence and inference deducible from certain proved acts. See OBIAKOR v STATE (2002) 6 SC (PT 11) 33 at 40; EGUNJOBI v FRN [2001] 53 WRN 20 at 54 and STATE v OSOBA [2004] 27 WRN 113. Since the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inferences drawn from the surrounding circumstances. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence, not of the fact in issue but of other facts from which the fact in issue can be inferred, which evidence must be of such quality that leads compellingly to an inference of guilt of the accused. See ODUNEYE v STATE (2001) 1 SC (PT 1) 1 at 7. The point to underscore here is that conspiracy is an offence of itself, quite distinct and separate from the substantive offence. See STATE v SALAWU (2011) LPELR-8252 (SC). Indeed, in a trial for conspiracy and a substantive offence, it is not unusual for a Court to discharge an accused for the substantive offence but convict him for conspiracy. This is so because the ingredients for the offences are different and the actual commission of the substantive offence is not necessary to ground a conviction for conspiracy. See OBIAKOR v STATE supra at 39 and ATANO v A-G BENDEL STATE [1988] 2 NWLR (PT 75) 201 at 226 – 227.
As stated hereinbefore, the lower Court inferred conspiracy from the extrajudicial statements and testimonial evidence of the Appellant which it had earlier rejected as unreliable “due to their inconsistency”. Aside from the doubtful propriety of extending the inconsistency rule to extrajudicial statements and testimonial evidence of an accused person [see AYINDE v THE STATE supra at 166 wherein M. D. Muhammad JSC stated that the inconsistency rule “applies in civil matters and is, in criminal cases, limited to witnesses other than the accused person(s) … it is not meant to resolve inconsistency between the oral evidence of an accused and his extra-judicial statement”], the lower Court had no liberty so to do as it runs against the current of established principles of evaluation of evidence. Clarity and consistency are crucial hallmarks of judicial decision-making, and a Court of law is not permitted to approbate and reprobate on the same piece(s) of evidence, by deploying the very same extrajudicial statements and testimonial evidence already rejected for being unreliable to support conviction. As stated by Eko JCA (now JSC) in AMADI v AMADI [2011] 15 NWLR PT. 1271 437 at 463: “If a piece of evidence is rejected as unreliable in the proceeding, it cannot be raked up and used for another purpose in the same proceeding without some purification rituals”. The Appellant’s conviction for conspiracy ought not to be allowed to stand. I so hold.
Conclusion
A judgment which imposes the capital punishment must be arrived at based on analytical reasoning that attracts confidence; it must not be an inconsistent judgment or one that is devoid of any coherent pattern or incapable of synthesised analysis. See NDIDI v THE STATE [2007] ALL FWLR (PT 381) 1617 at 1650-1651-per Muhammad JSC, EBRI v THE STATE [2004] 11 NWLR (PT 885) 589 at 605 and AFOLABI v THE STATE (2021) LPELR-53501 (CA) -per Ogakwu JCA As his Lordship, Aniagolu JSC admonished in FELIX NWOSU v THE STATE [1986] 4 NWLR (PT 35) 348 at 359:
“A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly more so in capital offences.”
The judgment appealed against, as it seems to me, was not arrived at based on analytical reasoning that attracts confidence. It is not founded upon credible admissible evidence leading irresistibly to the inference that the Appellant is guilt of the offences with which he was charged along with others. The consideration which ought to affect the mind of a trial Court when weighing the effect of evidence in a charge attracting capital punishment did not receive adequate attention in the case at hand, and it is appropriate to highlight the following passage in Best on Evidence (10th ed.) referred to in EGBE v THE KING (1950) 13 WACA 705 and quoted with approval by Aniagolu, JSC in FELIX NWOSU v THE STATE supra at 360:
“The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.”
The persuasion of guilt from the evidence adduced in this matter did not amount to a moral certainty. The timeless admonition of Blackstone’s Ratio (as expressed by William Blackstone in his Commentaries on the Laws of England, published in the 1760s) is that: “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape than that one innocent suffer”. That is to say, it is preferrable to acquit the guilty than to convict an innocent man. See SHEHU v THE STATE (2010) LPELR (3041) 1 at 10 and UKORAH v THE STATE (1977) 4 SC 167 at 177.
The duty of an appellate Court is to look carefully at the whole evidence and make up its mind whether the finding of the trial Court is sound, and to set it aside if unsound. See FELIX NWOSU v STATE supra. An appellate Court is enjoined to interfere and set aside decisions that are perverse or a travesty of justice. A decision is said to be perverse where it is based on inadmissible evidence, or it is speculative and not based on any evidence, or the Court either ignored the obvious or took into account extraneous matter. See IGBIKIS v STATE [2017] 11 NWLR (PT. 1575) 126 at 153 (SC). As Lord Denning put it in WARD v JAMES (1966) 1 Q.B. 273: “The Court of Appeal will interfere if it can see that the Judge has given no weight (or no sufficient weight) to those considerations which ought to have weighed with him”. Aside from the threshold issue of the lower Court’s palpable want of territorial jurisdiction to try offences that occurred at Lafia Garaku in Nasarawa State, the evidence on record did not establish the offences charge on the criminal threshold of proof beyond reasonable doubt, and the Appellant deserves the full benefit of doubt. See OMOPUPA v THE STATE (2007) LPELR (8571) 1 at 45.
This appeal succeeds, and that part of the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CR/53/13 delivered on 16th June, 2015 embodying the Appellant’s conviction and sentence for conspiracy to commit armed robbery and armed robbery will be and is hereby set aside. In its place, I substitute a verdict of not guilty and hereby order the discharge and acquittal of the Appellant, FELIX NGOZI ACHI on the counts of conspiracy to commit armed robbery and armed robbery punishable under Ss. 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of Nigeria, 2004.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Peter Oyinkenimiemi Affen JCA, where the facts and issues in contention have been set out.
I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, P. O. Affen, JCA. I entirely agree with the reasoning and conclusion reached to the effect that there is merit in the appeal and ought to be allowed.
However, Jurisdiction is the nerve centre of adjudication, it is the blood that gives life to the survival of an action in a Court of law, in the same way blood gives life to the human being and the animal race. Jurisdiction is in other words a very fundamental issue that robs on the competence of a Court to hear and decide a matter. And competence has a wide meaning. It relates to the composition of the Court, the territorial Jurisdiction of the Court and the substantive Jurisdiction of the Court.
Therefore, on no account should a Court close its eyes and entertain a matter where it is obvious that it lacks jurisdiction. See Ibadan South East & 17 Ors. v. Hon. Adeolu Adeleke & 3 Ors (2007) 1 SCNJ; Forestry Research Institute of Nigeria v. Mr. I. A. Enaitoghe Gold (2007) 5 SCNJ 302; Hon. Don Egbue v. Hon. E. O. Araka (1988) 7 SC (Pt. 111) 98.
In this instant case the charge sheet shows clearly that the alleged offence took place in Nasarawa State. As such the High Court of the Federal Capital Territory does not have the territorial Jurisdiction to hear and determine the case. The Court cannot expand its jurisdiction hence it is confined to the boundaries of the Federal Capital Territory. A trial without Jurisdiction is a nullity. See Texaco Overseas (Nig.) v. Pedmar (Nig.) Ltd (2002) 12 SCM. The Appellant and his co-accused having been charged under the Robbery and Firearms (Special Provisions) Act, Cap R11 LFN 2004, Jurisdiction to try them is absolutely conferred on the High Court of Nasarawa State by Section 9 of the said Act, which provides that: “Offences under the Act shall be triable in the High Court of the state concerned”. It is for the forgoing and the more detailed reasons contained in the lead judgment, that I too allow the appeal. I abide by the consequential orders in the lead judgment.
Appearances:
Olalekan Ojo, SAN, with him, Chidera Mgbe, Esq. For Appellant(s)
E. C. Ikeji, Esq., with him, Kelechi Animba, Esq. For Respondent(s)