AGBO v. STATE
(2020)LCN/14377(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, June 18, 2020
CA/E/63C/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
NONSO AGBO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
BURDEN OF PROOF IN CRIMINAL PROCEEDINGS
The law is trite that the burden of proving the guilt of an accused person in criminal proceedings is on the prosecution and the standard of proof is beyond reasonable doubt. In order to discharge the burden, the prosecution must adduce cogent and credible evidence to establish all the ingredients of the offence charged by direct evidence of an eye witness or witnesses or by circumstantial evidence pointing irresistibly to the conclusion that the accused and no other committed the offence or by voluntary and unequivocal confession of the accused or a combination of the above. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THE COURT CAN ACT ON THE EVIDENCE OF A SINGLE WITNESS IF THAT WITNESS IS BELIEVED, GIVEN ALL THE CIRCUMSTANCES OF THE CASE
I rely on ILODIGWE V. STATE (2012) LPELR – 9342 (SC) where the Supreme Court held that where a trial Court has found the evidence of an eye witness unequivocal and true it is bound to accept and act on it irrespective that it is evidence of a lone eye witness of crime. See also LASE V. STATE (2017) LPELR – 42468 (SC) where the Supreme Court also held that a Court can and is indeed entitled to act on the evidence of one single witness if that witness is believed given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration.
This instant case is not a case where the law requires that evidence of PW1 shall be corroborated because the Robbery and Firearms (Special Provision) Act under which the charge was brought nor the Evidence Act did not provide that evidence of PW1 should be corroborated.”PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THE CREDIBLE EVIDENCE OF A WITNESS REQUIRES CORROBORATION
The law is settled that where the Court finds the evidence of a witness to be cogent and credible and the evidence is not one for which the law requires corroboration, a conviction based on such evidence should not be interfered with. Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. See OGUONZEE V. STATE (1998) LPELR – 2357 (SC) AT 33 – 36 (G-B). Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 13. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT AN UNEQUIVOCAL CONFESSION OF AN ACCUSED PERSON IS SUFFICIENT TO GRANT CONVICTION
The law is trite that a direct, positive and unequivocal confession of an accused person that he committed the crime charged is sufficient to ground conviction. See STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397. HAMZA V. STATE (2019) 16 NWLR (PT. 1699) 418. PER BOLAJI-YUSUFF, J.C.A.
PROCEDURE FOR BRINGING OUT THE CONTRADICTIONS BETWEEN THE EXTRA-JUDICIAL STATEMENT OF A WITNESS AND HIS ORAL EVIDENCE
The proper procedure for bringing out the contradictions between the extra judicial statement of a witness and his oral evidence in Court is to confront him with the portion of the extra judicial statement to which the contradiction relates. The purpose is to afford the witness the opportunity of confirming the statement or offer an explanation if he has any. The condition for contradicting a witness by a statement made by him in writing is stipulated in Section 232 of the Evidence Act which provides that:
”232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.”
See PETER V. STATE (2013) LPELR-20302 (CA) AT 18-20 (A-D). PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Enugu State delivered on 6/2/2019 in charge no. E/160C/2013. The appellant and two other persons were accused of robbing one Sunday Nnaji at Obeagu bus stop, Awkunanaw at gun point. The robbers collected a Laptop, three Nokia handsets, one black berry phone, flash drive containing N180,000:00 worth of printable recharge cards and N2,700.00 (Two Thousand Seven Hundred Naira) cash and ran into the bush. The victim knew the robbers before the incident. Therefore, he immediately reported the incident to one Chi Alom who he knew as the master of the appellant and the other robbers. Their master followed him to the scene of the incident immediately. When they arrived at the scene of the crime, they saw the robbers under a tree. Immediately the robbers cited the victim and their master, they took to their heels. Their master assured him that he would recover all the properties collected from him from the robbers which he did. All the properties except the flash drive containing recharge cards were returned to him. Chi Alom told him
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to report the incident to the police when the robbers failed to return the flash. About two weeks after the incident, he was in a tricycle when he saw one of the robbers and eventually succeeded in getting the robber arrested. The one that was arrested mentioned the appellant as one of the robbers. The appellant was arrested with a gun which was tendered and admitted as exhibit A. The police also arrested the 3rd accused. The 4th person has not been arrested. The three accused persons including the appellant were charged and tried on a one count charge of armed robbery. The charge reads:
STATEMENT OF OFFENCE
“ARMED ROBBERY, contrary to Section 1(2) of the Armed(sic) Robbery and Firearms (Special Provision) Act Cap. R11, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
NONSO AGBO, SUNDAY OKOH, CHUKWUEBUKA NWONU and others at large on or about 21st October, 2012 at Obeagu bus stop Awkunanaw, within Jurisdiction robbed one Sunday Nneji of his Laptop, three Nokia handset valued at N23,000, one blackberry phone valued at N30,000, one flash, and cash of N2,700 (Two Thousand Seven Hundred Naira).”
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The prosecution called two witnesses, the victim of the robbery and a police officer who was a member of the team that investigated the robbery. Each of the accused persons testified in his defence and called no other witness. In its considered judgment delivered by E.N OLUEDO, J, the Court below found the accused persons guilty of armed robbery and sentenced them to death by firing squad. Being aggrieved by the judgment, the appellant filed a notice of appeal against the judgment on 24/4/19. The eleven grounds of appeal in the notice contained on pages 201 – 207 of the record are:
GROUND ONE
“The trial Court erred in law when it held that the error of the charge not disclosing the offence of armed robbery, by disclosing only the offence of Robbery simplicitar, is immaterial in the circumstance, and provided by Section 288 CPL,(sic) hence occasioning a miscarriage of justice.
GROUND TWO
The trial Court misdirected itself in law when it clearly noted that attempting to amend the charge by the prosecution by filling a new charge on the 9/7/2018 after hearing has closed and parties ordered to file final address, will occasion injustice to the
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accused persons; and yet relied on the charge which disclosed no element of armed robbery, to convict the accused person for armed robbery, hence occasioning a miscarriage of justice.
GROUND THREE
The trial Court misdirected itself when it held that “I do not therefore agree with the argument of learned 2nd accused person’s counsel, that the only near offence disclosed by the information is an offence of robbery merely because according to learned counsel, the instant charge did not disclose the offence of armed robbery as the particulars of the offence in the said information did not state that those who robbed the complainant (PW1) were armed with any dangerous weapon, which is the major ingredient of the defence. Hence occasioning a miscarriage of justice.
GROUND FOUR
The trial Court misdirected itself when it failed to evaluate and appraise the purported confessional statement of the 1st and 2nd accused persons vis-a-vis the offence they tend to admit, hence relying on them to convict thereby occasioning a miscarriage of justice.
GROUND FIVE
The trial Court erred in law when it held that: learned 2nd
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accused person’s counsel failed to raise objection to the instant charge immediately after the charge was read to the accused persons having noticed the formal defect that the particulars of offence in the charge did not state that those who robbed the complainant (PW1) were armed with any dangerous weapon.’’
GROUND SIX
The trial Court erred in law when it convicted for armed robbery when the charge/information before it, did not disclose ingredients of armed robbery.
GROUND SEVEN
The trial Court misdirected itself when it held that “I agree with the submission of the prosecuting counsel that the oral evidence of PW1 is direct and cogent” hence occasioning a miscarriage of justice.
GROUND EIGHT
The trial Court erred in law when it discountenanced the failure to call vital witnesses like the 2nd victim (wife of PW1) and the master of the accused persons (Chi Alom) who returned the dispossessed materials to the victim, and still resolved the issue of armed robbery in favour of the prosecution. Consequent upon which the Court came to a wrong conclusion which caused miscarriage of justice.
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GROUND NINE
The trial Court misdirected itself when it came to a conclusion that the evidence of PW2 is cogent and reliable, even in the face of the manifest material inconsistencies with the testimony of the PW1; hence inclining on same to give verdict against the accused, thereby occasioning a miscarriage of justice.
GROUND TEN
The trial Court misdirected itself in law when it held that the prosecution has proved their case beyond reasonable doubt in the face of all the multiple material inconsistencies in the evidence of the prosecution.
GROUND ELEVEN
The verdict is unreasonable and cannot be supported having regard to the evidence.”
The Appellant’s brief was filed on 14/11/19. The respondent’s brief was filed on 4/5/20 and deemed as properly filed and served on 5/5/20. Counsel to both parties adopted their respective briefs. The appellant presented the following issues for determination:
1. “Whether the trial Court erred in law when it held that the charge not disclosing the offence of armed robbery by disclosing only the offence of robbery simplicitar, is immaterial in the circumstance, having regards to
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Sec. 288 CPL of Enugu State 2004; after having earlier ruled that attempting to amend the charge by the prosecution after being served with the accused person’s final address, will occasion injustice to the accused person.
2. Whether the trial Court failed to adequately evaluate and appraise the purported confessional statement of the accused person, held by the accused person to be product of forgery; especially in the face of all multiple material inconsistencies and contradictions in the accompanying evidence of the prosecution witnesses 1 & 2.
3. Whether the failure to call a vital witness on the part of the prosecution is fatal to the case of the prosecution, and consequently hampers proof beyond reasonable doubt.
4. Whether the verdict is unreasonable and cannot be supported having regard to the evidence.”
The respondent presented the following issue for determination:
“Whether the trial Court was right in holding that the prosecution has proved a case of armed robbery against the appellant.”
I have considered the grounds of appeal, the issues formulated by counsel to both parties and their
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briefs of argument. I am of the firm view that the issues which call for determination in this appeal are:
“1. Whether the omission to state in the particulars of the charge that those who robbed the complainant (PW1) were armed with a dangerous weapon is a material one which misled the appellant and occasioned a miscarriage of justice.
2. “Whether the trial Court was right in holding that the prosecution proved a case of armed robbery against the appellant beyond reasonable doubt.”
On issue 1, the appellant’s counsel submitted that the Court below failed to take into consideration the proviso to Section 288 of the Criminal Procedure Law of Enugu State when it convicted the appellant for armed robbery when the particulars of the charge before the Court did not disclose the ingredients of the offence of armed robbery. It is the contention of the appellant’s counsel that the inalienable right of the appellant to have the full particulars of the charge was grossly violated and he and his counsel were misled into not vehemently challenging the ingredients of armed robbery introduced during trial and the tendering of the
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confessional statements of the 1st and 2nd accused persons. He referred to Section 36(6) (a) of the 1999 Constitution (as amended). TIMOTHY V. F.R.N (2008) ALL FWLR (PT. 402) 1136 AT 1153. IJOMA V. R (1962) 2 SCNLR 157. OBUMSELU V. C.O.P (1958) SCNLR 464. It is further contended that it is over reaching on the part of the prosecution and the trial Court to convict and sentence the appellant for armed robbery when he pleaded to a lesser charge of robbery and never pleaded to a charge of armed robbery and thereby denied him a fair hearing.
In response to the contention that the charge did not disclose an offence of armed robbery, respondent’s counsel submitted that the appellant having fully participated in the trial without raising objection to any defect in the charge, the tendering and admission of the gun used in the robbery and his confessional statement, he is deemed to have waived his right to object to the alleged defect on the face of the charge. He referred to TIMOTHY V. F.R.N (SUPRA), (2007) LPELR-8957 (CA) AT 19 – 21. OKPA V. STATE (2017) LPELR- 42205 (SC).
RESOLUTION:
Section 36(6) (a) of the 1999 Constitution of this
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country provides that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence. The record before this Court shows that each of the accused persons including the appellant herein entered his plea of not guilty to an offence of armed robbery on 5/5/2014. For avoidance of doubt, the record of proceedings of that day as contained on page 120 of the record is as follows:
“1st, 2nd and 3rd accused present.
N. C. Ozokolie legal officer for the prosecution. E.I. Ejeagbasi with the brief of J.O. Mba for the 2nd accused. F. G. Ani with the brief of B. N. Nebe for the 3rd accused and with the brief of I. C. Elochukwu for the 1st accused.
This matter is slated today (sic) for plea. The charge of armed robbery on the information filed on 6/11/2013 was read in English Language to each of the accused persons and was interpreted to each of them in Igbo language as the language each of them understands to the satisfaction of this Court and 1st accused pleads not guilty to the charge, 2nd accused pleads not guilty to the charge, 3rd accused
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pleads not guilty to the charge.
In the interest of justice and with consent of all counsel this matter is adjourned to 16/7/2014 for hearing.”
The charge filed on 6/11/2013 which was read to the appellant and his co-accused persons has been stated earlier in this judgment. It is settled law that the record of the Court is presumed to be correct until it is successfully impugned. See NOBIS – ELENDU V. INEC & ORS. (2015) LPELR – 25127 (SC) AT 31 (B-D). The parties and this Court are bound by the contents of the record of proceedings of the Court below duly certified as correct and true until the presumption of its correctness is rebutted. See TEXACO PANAMA INC. V. S.P.D.C. (NIG.) LTD. (2002) LPELR – 3146 (SC) AT 19 – 20 (F – B). GITTO CONSTRUCTIONI GENERALI (NIG.) LTD. V. ESSIEN (2019) LPELR – 47098 (CA) AT 9 – 11 (C – F).
There is nothing in the entire record before this Court duly certified as the true and correct record of the proceedings at the Court below to show or even suggest that the issue of a defective charge or lack of particulars was ever raised before or immediately after the
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arraignment of the appellant and the other accused persons. Section 289 of the Criminal Procedure Law of Enugu State, Cap 31, Volume 11, Revised Laws of Enugu provides that:
”Any objection to charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”
The record of proceedings wherein it is stated that the appellant was charged for armed robbery under Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria, 2004 and that he entered his plea to the charge of armed robbery has not been challenged in any way by the appellant. Therefore it is presumed to be correct. In the face of the contents of pages 3 and 120 of the record before this Court, the submission of the appellant’s counsel that the appellant entered his plea to robbery and not armed robbery has totally collapsed. The appellant and his counsel were under an obligation to raise objection to the charge immediately after it was read to him and before he entered his plea. Having failed to do so, he is presumed to have understood the charge. He
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waived his right to raise objection to the charge. The Court below was right when it held that the appellant cannot raise objection to the charge after participating fully in the trial. The issue of defect in the particulars of the charge raised at the address stage was raised too late in the day.
The other contention of the appellant in issue 1 is that the appellant and his counsel were misled by the charge. The record of proceedings wherein it is stated that the appellant was charged for armed robbery under Section 1(2) of the Robbery and Firearms (Special provisions) Act, Cap R11 Laws of the Federation of Nigeria, 2004 and that he entered his plea to the charge of armed robbery has not been challenged in any way by the appellant. Therefore it is presumed to be correct. In the face of the contents of pages 3 and 120 of the record before this Court, the submission of the appellant’s counsel that the appellant entered his plea to robbery and not armed robbery has totally collapsed. Sections 256-259,261,263-265 and 288 of the Criminal Procedure Law of Enugu State provide that:
256. Every charge shall state the offence with which the accused is
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charged and if the written law creating the offence gives it any specific name the offence may be described in the charge by that name only.
257. If the written law which creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
258. The written law and the section of the written law against which the offence is said to have been committed shall be set out in the charge.
259. The fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
261. The charge shall contain such particulars as to the time and place of the offence and the person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
263. The particulars in the charge shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms.
264. Where the nature of the offence is such
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that the particulars required by Sections 256 to 258 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the offence was committed as will be sufficient for the purpose.
265. (1) In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively in the written law creating offence.
(2) Figures and abbreviations may be used for expressing anything which is commonly expressed thereby.
288. No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any state of the case as material unless the accused was in fact misled by such error or omission.” See also Sections 151, 152, 166, 167 and 168 of the Criminal Procedure Act, Cap C41 VOLUME 4 Laws of the Federation of Nigeria and Sections 283 – 293 of the Enugu State Administration of Criminal Justice Law, 2015. The Court below considered the above provisions of the Criminal Procedure Law of Enugu State, Criminal
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Procedure Act and the entire facts and circumstances of this case. The Court held at pages 181 – 182 of the record that:
“There is therefore no evidence before this honourable Court by the accused persons particularly the 2nd accused person that they were misled by the error or omission of the prosecution in not including in the particulars of the offence in the instant charge that the accused persons were armed with gun therefore the said error or omission is regarded as immaterial in the circumstance and as provided by Section 288 CPL.
I do not therefore agree with the argument of learned 2nd accused person’s counsel that the only near offence disclosed by the information is an offence of robbery merely because according to learned counsel the instant charge did not disclose the offence of armed robbery as the particulars of the offence in the said information did not state that those who robbed the complainant (PW1) were armed with any dangerous weapon which is the major ingredient of the offence.
Further Section 289 of the CPL 2004 provides:
“Any objection to a charge for any formal defect on the face therefore
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shall be taken immediately after the charge has been read over to the accused and not later.”
Learned 2nd accused person’s counsel failed to raise objection to the instant charge immediately after the charge was read to the accused persons having noticed the formal defect that the particulars of offence in the charge did not state that those who robbed the complainant (PW1) were armed with any dangerous weapon. In accordance with Section 289 CPL he cannot now at this stage raise the said objection after participating fully in the trial.
I also rely on the case of OKPA V. STATE (2017) LPELR – 422005 (SC) where the Supreme Court of Nigeria referred to Sections 166 and 160 of the Criminal Procedure Law of Nigeria which are akin to the Sections 288 and 289 of the CPL Enugu State 2004 and held that the Appellant has not shown that the alleged error on the face of the charge has in fact misled him and/or has caused a miscarriage of justice to him and that failure of the Appellant to timeously object to the defect on the face of the charge amounts to waiver by virtue of Section 161 of the CPL.
I therefore hold that it is
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immaterial that the particulars of offence in the instant charge did not state that those who robbed the complainant were armed with dangerous weapon. The evidence led at the trial is evidence of armed robbery without objection from defence.”
The finding of the Court below cannot be faulted. It is firmly supported by the evidence on record and the law. The provisions of the Criminal Procedure Law and the Administration of Criminal Justice Act, 2015 of Enugu State are very clear and unambiguous that no error in stating the offence or particulars required to be stated in the charge and no omission to state the offence or the particulars required shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. See IBRAHIM V. STATE (2015) LPELR – 40833 (SC) AT 13 – 16 (E-A). ABIDOYE V. FRN (2013) LPELR – 21899 (SC) AT 17 (B-C). The law distinguishes an omission or error which is not material and will not vitiate a trial and those which are material and will vitiate the trial. An error in stating the statute or the section of the statute under which the information or charge is laid
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will not be regarded as material unless the accused is misled by such omission or error. However, where the omission or error is such that misleads the accused in his defence of the charge, such omission or error is material and will vitiate the trial. In OGBOMOR V. STATE (1985) LPELR- 2286 (SC) AT 19 (A-F) the Supreme Court held that where the information refers to a repealed enactment and there is no similar offence known to the law, the error would be regarded as material and fundamental, and will undoubtedly mislead the accused person. In the instant case, the charge refers to the extant law and correctly stated the section of the law under which the appellant was charged and tried. Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004 under which the appellant was charged and tried provides that:
”1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If-
(a) any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or
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is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.”
As rightly observed by the Court below, the appellant was represented by counsel who had knowledge of the law under which the appellant was charged and did not raise objection immediately after the charge of armed robbery was read and explained to the appellant and other accused persons. Counsel had another opportunity to raise objection when the prosecution sought to tender the gun used in committing the offence of armed robbery but did not do so. As stated earlier, the charge of armed robbery was read and explained to the appellant and other accused persons. He understood the charge and entered his plea appropriately. The submission of the appellant’s counsel that the defence counsel was misled into not raising objection to the confessional statement of the appellant because they felt it goes to no issue and does not support the charge before the Court is
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ridiculous. The charge before the Court was clearly a charge of armed robbery and the appellant’s statement is a clear and unequivocal confession to an offence of armed robbery. The appellant knew that he was facing a charge of armed robbery, a fact also clearly known to his counsel. Since the appellant was charged under Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004, the omission to state that the robbers were armed with a dangerous weapon or state the specific type of weapon used in committing the offence of armed robbery is not a material one which vitiates the trial more so when the charge clearly fulfilled the requirements stipulated in Sections 256 – 258, 261 and 263 of the Criminal Procedure Law by stating the specific name of the offence with which the appellant was charged, the law and the section of the law against which the offence is said to have been committed, the particulars as to the time and place of the offence and the person against whom it was committed which reasonably and sufficiently gave the appellant notice of the matter and nature of the offence with
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which he was charged. A charge which fulfils the above requirements cannot mislead an accused. See IDI V STATE (2019)15 NWLR (PT.1696) 448 AT 478-479(H-A) where the Supreme Court stated the purpose of a charge as follows:
“The main purpose of a charge is to give the accused person notice of the case against him. Once the charge discloses an offence with the necessary particulars that should be brought to the notice of the accused person in order to save him from being prejudiced or embarrassed, such a charge will be good in law. A charge is not synonymous with evidence and therefore cannot contain common intention that is a product of evidence adduced in the course of trial. Proof of the ingredients of an offence is not the same thing as filing a competent charge.”
I totally agree with the Court below that the appellant failed to show that the omission to state in the particulars of the charge that those who robbed PW1 were armed with a dangerous weapon in fact misled him and his counsel and thereby occasioned a miscarriage of justice. Issue 1 is resolved against the appellant.
On issue 2, the appellant’s counsel carried out a
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detailed analysis of the entire evidence adduced by both parties, he submitted that there were contradictions in the evidence of PW1, the victim of the robbery and his statement to the police upon reporting 12 days after the incident. He attacked the confessional statement of the appellant for several reasons and submitted that the statement was fraudulently generated, forged and did not pass the test laid down for veracity of a confessional statement. He referred to OKOH V. THE STATE (2016) SC 40656 (20). ALI DOGO V. THE STATE (2013) LPELR-20175 (SC). Counsel argued that though the law is settled that it is not necessary for the prosecution to call all available evidence to prove its case, it is incumbent on the prosecution to call a particular witness whose evidence is material for the resolution of a vital point in issue. He referred to ARCHIBONG V. THE STATE (2004) 1 NWLR (PT. 853) 488 (8). OGUONZEE V. THE STATE (1998) 5 NWLR (PT. 551) 521. He submitted that failure to call Edith Ngwu, the wife of the victim, Chi Alom, Ajie, the police that recovered the gun and the police that arrested the appellant left a lot of issues unaddressed and the doubt created
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ought to have been resolved in favour of the appellant. He finally urged the Court to set aside the judgment of the Court below as the burden is on the prosecution to prove the guilt of the appellant beyond reasonable doubt and not for the appellant to prove his innocence.
The respondent’s counsel argued per contra. He submitted that the evidence of PW1 and PW2 corroborated the appellant’s confessional statement, exhibit C which was tendered without objection. On the failure to call those persons mentioned by the appellant’s counsel as witnesses, counsel submitted that there is no obligation on the prosecution to call a host of witnesses as the law is concerned with the quality of the evidence from the witness or witnesses called and not how many witnesses. He further submitted that it is trite law that the Court is bound to act on the evidence of a lone eye witness which is unequivocal and true. He referred toILODIGWE V. STATE (2012) LPELR – 9342 (SC). OLAYINKA V. STATE (2007) LPELR – 2580 (SC). ALABI V. STATE (1993) 7 NWLR (PT. 307) 511 AT 526 – 527. OKONOFUA V. STATE (1981) 6 – 7 (SC) AT 18. ADAJE V. STATE
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(1979) 6 – 9 (SC) 18 AT 28. He urged the Court to hold that the prosecution proved the charge of armed robbery against the appellant based on the entire evidence on record.
RESOLUTION:
The law is trite that the burden of proving the guilt of an accused person in criminal proceedings is on the prosecution and the standard of proof is beyond reasonable doubt. In order to discharge the burden, the prosecution must adduce cogent and credible evidence to establish all the ingredients of the offence charged by direct evidence of an eye witness or witnesses or by circumstantial evidence pointing irresistibly to the conclusion that the accused and no other committed the offence or by voluntary and unequivocal confession of the accused or a combination of the above. In the instant case, the prosecution relied on direct eye witness evidence of the victim and the confession of the appellant.
PW1, the victim of the robbery narrated vividly how he and his wife were robbed at gun point at a bus stop, how he recognised the robbers and reported them to their master, Chi Alom, how he returned to the scene of the crime with Chi Alom and how the robbers took
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to their heels on citing them. The said Chi Alom later recovered the items taken from PW1 except the flash drive. PW1 reported the matter to the police when the robbers failed to return the flash drive which contained printable recharge cards. He narrated how the accused persons were arrested. The appellant in his defence before the Court denied the armed robbery incident. He said he was forced to sign the statement tendered as his confessional statement. The Court below considered the direct eye witness account of PW1 and held at pages 186 – 187 of the record that:
“The above evidence which was not discredited during cross-examination of PW1 is cogent and is clear evidence to this Honourable Court that PW1 knew the accused persons before the incident, indeed during cross examination PW1 testified that he saw all the accused persons, and that he knew all the accused persons prior to the incident. From his evidence PW1 was not in doubt of who the accused persons who attacked and robbed him of his belongings were and I believe his evidence that he was able to recognise them with the vehicle light since his evidence is that he just alighted from
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the vehicle when they attacked him and it was just getting dark.
That the wife of the PW1 and the boss of the accused Chi did not testify to corroborate PW1 as argued by learned defence counsel in my view is not fatal to the prosecution’s case owing to the evidence of PW1 which is cogent and believed by this Honourable Court. The evidence of an eye witness i.e direct evidence like the evidence of PW1 in the instant case is one of the ways the prosecution can establish or prove the charge beyond reasonable doubt as I earlier stated in this judgment.
I rely on ILODIGWE V. STATE (2012) LPELR – 9342 (SC) where the Supreme Court held that where a trial Court has found the evidence of an eye witness unequivocal and true it is bound to accept and act on it irrespective that it is evidence of a lone eye witness of crime. See also LASE V. STATE (2017) LPELR – 42468 (SC) where the Supreme Court also held that a Court can and is indeed entitled to act on the evidence of one single witness if that witness is believed given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the
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law requires corroboration.
This instant case is not a case where the law requires that evidence of PW1 shall be corroborated because the Robbery and Firearms (Special Provision) Act under which the charge was brought nor the Evidence Act did not provide that evidence of PW1 should be corroborated.”
All that the evidence of PW1’S wife, Edith Ngwu and the evidence of Chi Alom could have achieved was to corroborate PW1’S evidence that he was robbed at gun point and that the items taken from him by the robbers were recovered and returned to him. Even if PW1’S evidence requires corroboration, the confessional statement of the appellant which was tendered and admitted without objection provided the corroboration. Their evidence would have proved beyond all shadows of doubt that the items taken from PW1 were recovered from the accused persons. However, the law is trite that the standard of proof in criminal cases is beyond reasonable doubt not beyond all shadows of doubt. See STATE V. EKANEM (2016) LPELR- 41304 (SC) AT 27-28(C-B). IDI V. STATE (SUPRA) AT 468(F-G). The law is settled that where the Court finds the evidence of a
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witness to be cogent and credible and the evidence is not one for which the law requires corroboration, a conviction based on such evidence should not be interfered with. Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. See OGUONZEE V. STATE (1998) LPELR – 2357 (SC) AT 33 – 36 (G-B). Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 13. In the instant case, there was sufficient, clear, cogent and credible evidence from PW1 that he was robbed at gun point, that he knew the robbers and that the person he reported the incident to recovered the items taken from him except the flash drive. PW2’s evidence, exhibits B and C confirmed the recovery of the gun used from the appellant’s house. The law imposes no obligation on the prosecution to call a host of witnesses. All that the prosecution has to do is to call enough material and vital witnesses in order to prove his case beyond reasonable doubt. A vital witness is one whose evidence may determine the case one way or the other. If on the entire evidence adduced before a
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trial Court, that Court is left with no doubt that the offence was committed by the accused person, the burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is based on credible evidence of a single witness. See AFOLALU V.STATE (2010) LPELR-197 (SC) AT 14(A-C). By virtue of Section 135 (3) of the Evidence Act, 2011, If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant. The prosecution having discharged the burden to prove its case against the appellant beyond reasonable doubt, the burden of proving reasonable doubt shifted on to the appellant which burden was not discharged.
The Court below considered the submissions of the appellant’s counsel on the failure to call the investigating police officers and held at pages 189 – 190 that:
“It is therefore true from the evidence of PW2 that they investigated this matter as a team his evidence as submitted by learned 2nd accused person is not hearsay evidence since PW2 took part in the investigation of the matter and he testified
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of all they did during the investigation. That the matter was transferred from Awkunanaw Police Station as testified by PW2 was not discredited during cross-examination; the defence did not raise objection when prosecution applied to tender the exhibits which PW2 testified were transferred to his station SARS Enugu from Awkunanaw Police Division.
The evidence of PW2 that the matter was transferred to SARS Enugu from Awkunanaw Police Division is cogent, reliable and is believed by the Honourable Court so the submission of learned 1st and 2nd accused persons’ counsel that the failure of the prosecution to call any of the Officers from Awkunanaw Police Division is fatal to the prosecution’s case is not tenable and is discountenanced. The case file containing Exhibits A, B, C, C1, D, D1 and E, preliminary report and the minutes directing that the matter be transferred were transferred by Woman Police Constable Chineye Udeafor as testified by PW2. Further the evidence of ill health of Sgt Ojerahi Chukwuka which was not discredited during cross examination is believed by this Court such incapacitation of Sgt Ojerahi is taken as a reason that will
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not enable him attend Court to testify. It is also on record in the proceeding of this Court in this matter on 6/2/2019 that P.C Chineye Udeafor, the Police Officer at Awkunanaw Police Station who PW2 testified transferred this matter to SARS Enugu as the IPO is dead as reported by prosecuting counsel with no objection raised by all defence counsel. Therefore it is impossible that Chineye Udeafor who has died will testify in this matter. The argument of defence counsel that prosecution failed to call the said police officer as witness is discountenanced.”
The position of the Court below is fortified by the provisions of Sections 49 of the Evidence Act which provides that:
49.“Notwithstanding anything contained in this Act or any other law but subject to this section, where in the course of any criminal trial, the Court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the Court if-
(a) The defence does not object to the statement being admitted; and
(b) the Court consents to the
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admission of the statement.” In SANMI V. STATE (2019) 13 NWLR (PT.1690) 55I AT 582 (C-E) the Supreme Court was emphatic that in criminal proceedings, failure to call the initial police investigating officer as a witness is not fatal to the prosecution’s case because the Nigerian Police is an institution, where any of its officers can take over investigation of a case from another officer and indeed produce documents that were executed by the previous officers and tender them in Court for the purpose of proving the prosecution’s case. It was impossible for the prosecution to call the initial police investigating officer who is dead. The contention of the appellant’s counsel that failure of the prosecution to call those witnesses listed by the appellant’s counsel is fatal to its case was rightly rejected by the Court below.
Apart from the direct eye witness account of PW1, the appellant made a statement to the police, exhibit C wherein he confessed to the commission of the crime. The law is trite that a direct, positive and unequivocal confession of an accused person that he committed the crime charged is sufficient to ground
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conviction. See STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397. HAMZA V. STATE (2019) 16 NWLR (PT. 1699) 418. The confession of the appellant to the crime was clear and unequivocal. In the statement signed by the appellant, he mentioned the bus stop where the armed robbery took place, the fact that PW1 was robbed along with his wife and the items taken from PW1. He confirmed the fact that the items taken from PW1 were handed over to Chi Alom because PW1 recognised his partner and reported him. Exhibit B confirmed the fact that the police went to his house and recovered the locally made pistol used to commit the robbery. The Court below subjected the appellant’s confessional statement to the tests laid down by the law to ascertain its veracity. This is what the Court said at pages 194 – 195 of the record:
“In Exhibits C and D, DW1 and DW2 stated that they are from Obeagu. In Exhibits D, DW2 stated that he knows PW1 and that PW1 knows him and that the reason they robbed PW1 is that PW1 abandoned their sister Nikiru for another girl. Persons (sic) and their counsel raised no objection whatsoever to the admissibility of the said exhibits. I
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therefore agree with the submission of learned prosecuting counsel that the accused persons owned their statements. Therefore the evidence of DW1 and DW2 that they were tortured to sign exhibits C and D is not believed by this Honourable Court and is discountenanced since they did not raise the issue when prosecuting counsel sought to tender exhibits C and D in evidence.
On the guideline whether DW1 and DW2 were people who had opportunity to commit the offence and that their confession are possible from their statements in Exhibits C and D at about the same time PW1 testified that he was robbed, DW1 and DW2 were at the scene of the robbery incident as they stated in exhibits C and D and in exhibit D, DW2 stated that the reason why they robbed PW1 of his belongings was because he abandoned their sister Nkiru for another girl. I therefore hold that DW1 and Dw2 were people that had opportunity to commit the offence and that their confessions are possible.
Exhibits C1 and D1 the attestation forms to the confessional statements of DW1 and DW21 i.e Exhibits C and D gave a boost to exhibits C and D since DW1 and DW2 were taken to a superior police officer
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who attested or confirmed that DW1 and DW2 made exhibits C and D freely and voluntarily. This Court is therefore not in doubt that exhibits C and D are confessional statements made to the police by DW1 and Dw2 freely and voluntarily.
Upon my findings supra I arrive at the conclusion that exhibits C and D passed the six tests or guidelines as enunciated in the case referred to above and that this Court can safely convict the 1st, 2nd accused persons for the offence of armed robbery based on exhibits C and D. DW1 and DW2 did not only admit the essential ingredients of the offence of armed robbery in exhibits C and D, but Exhibits C and D show unequivocally direct and positive involvement of DW1 and DW2 in the crime alleged.”
As rightly stated by the Court, when the prosecution sought to tender exhibit C, there was no objection whatsoever by the appellant’s counsel. The allegation that exhibit C was fraudulently generated and forged is outrageous and an afterthought. In OGHENEOVU V. F.R.N (2019) 13 NWLR (PT. 1689) 335 AT 270 (B – D) the Supreme Court held that it is unlawful for counsel in the guise of advocacy to lead evidence from
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the bar or concoct facts in the final address or brief of argument. The law is settled that the appropriate time to raise the admission of an extra-judicial statement is at the time it is sought to be tendered at the trial. See OGHENEOVU V. F.R.N. (SUPRA) AT 255 (E – G). BASSEY V. STATE (2019) 18 NWLR (PT.1703) 126 AT 147(F-H). All the issues raised in the appellant’s brief are issues which ought to have been raised when the prosecution sought to tender the statement as an exhibit. The complaint that the appellant’s statement ought to have been tendered through him is misconceived. The established procedure for tendering an extra-judicial statement made to the police in the course of investigating a crime is to tender the statement through the police to who the accused person volunteered his statement. The procedure affords the accused person the opportunity to raise objection to the admission of the statement on any ground that is deemed necessary or challenge the voluntariness or otherwise of the statement so that a trial within trial can be conducted to determine whether or not the statement was made by the accused person voluntarily
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or under duress. The tendering of exhibit C through PW2 presented the appellant and his counsel the needed opportunity to challenge the voluntariness and authenticity of the statement and prove the alleged forgery of the appellant’s signature. The appellant and his counsel did not confront PW2 with any of the serious allegations now being raked up in the appellants brief. In any case, the statement was already an exhibit before the Court when the appellant testified in his own defence as DW1. His evidence is that he was beaten and forced to sign the statement. He never said that his signature on the statement was forged.
The appellant’s counsel attacked the evidence of PW1 on the ground that his oral evidence in Court contradicts his statement to the police. No statement made by PW1 to the police was tendered before the Court below. All references and comparisons of PW1’s evidence with his alleged statement to the police are not helpful to the appellant. No Court can rely on any document that is not properly and formally tendered and admitted as an exhibit before the Court. See ORANIKA V. STATE (2018) LPELR – 45481 (CA) AT 21
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– 27 (F). OKORIE V. STATE (2014) LPELR – 23775 (CA) AT 51 – 52 (F – D). The proper procedure for bringing out the contradictions between the extra judicial statement of a witness and his oral evidence in Court is to confront him with the portion of the extra judicial statement to which the contradiction relates. The purpose is to afford the witness the opportunity of confirming the statement or offer an explanation if he has any. The condition for contradicting a witness by a statement made by him in writing is stipulated in Section 232 of the Evidence Act which provides that:
”232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent
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for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.”
See PETER V. STATE (2013) LPELR-20302 (CA) AT 18-20 (A-D). PW1 was cross-examined as to his statements to the police without showing the statements to him and the statement was not tendered in evidence. It is a well settled principle of law that an extra judicial statement not tendered and admitted as an exhibit during proceedings cannot be relied on as evidence by the Court however credible it may appear. See STATE V. OGBUBUNJO & ANOR. (2001)LPELR-3223(SC) AT 38 (B-D).
The law is settled that where there is a contradiction in the prosecution’s case, once the accused voluntarily and unequivocally confessed to committing the crime, the contradiction becomes irrelevant. See LALAPU V.C.O.P. (2019) 16 NWLR (PT. 1699) 476 AT 495-496(H-B). Even if there are contradictions between PW1’s evidence in Court and his statement to the police and the statement had been tendered and admitted as an exhibit, the contradictions have been rendered irrelevant by
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the unequivocal confession of the appellant that he committed the crime for which he was tried and convicted.
The appellant’s counsel submitted that every reasonable man would after listening to the evidence of PW1 conclude that he was pursuing a mission of vendetta and further oppression of the appellant’s family after promising to marry their sister, used and dumped her for another girl. On the contrary, no Court would believe a story concocted in the appellant’s brief and not supported by any scintilla of evidence. The alleged mission of vendetta by PW1 was not part of the appellant’s defence before the Court below. Nothing like that was stated by the appellant either in his statement when the incident was still very fresh or in his testimony before the Court. The law is trite that an address no matter how brilliant does not take the place of evidence and legal proof. PW1 was never confronted with that story throughout his testimony before the Court. If there is any iota of truth in that story PW1 would have been confronted with it.
See PIUS V. STATE (2016) LPELR-40657 (SC) AT 38 (A-E).
Failure to confront a witness with a
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serious allegation against him when he testifies before the Court renders such allegation useless, unworthy of the Court’s consideration and not capable of being believed by the Court. In his statement, the appellant confessed to providing the gun with which the robbery was carried out and his participation in it. His testimony before the Court was a complete denial of his involvement in the crime. He insisted that he does not know PW1 and that he was arrested at the venue of a burial he attended while he was packing chairs and some people were fighting nearby. How can a person he did not know be on a mission of vendetta against him? It is settled law that where an accused person gives evidence that is inconsistent with his earlier statement to the police, his oral evidence in Court should be taken with a pinch of salt if not disregarded as unreliable. See ISONG V. STATE (2016) LPELR-40609(SC) AT 14-15 (E-A).
In conclusion, I agree with the Court below that from the eye witness account of PW1, the appellant’s confessional statement, exhibit C, the gun recovered from his house, exhibit A and the corroborative confessional statement of the 2nd
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accused person, exhibit D which led to the appellant’s arrest, the prosecution proved beyond reasonable doubt that there was a robbery, that the robbery was an armed robbery and that the appellant participated in the robbery. This appeal fails. It is hereby dismissed. The judgement of the High Court of Enugu State delivered in charge no. E/160C/2013 on 6/2/2019 is hereby affirmed. The conviction and sentence passed on the appellant are also affirmed.
IGNATIUS IGWE AGUBE, J.C.A.: The lead Judgment of my learned brother M. O. BOLAJI-YUSUFF, JCA was made available to me before now and I had the advantage of reading same. I have nothing to add to the well reasoned and articulate Judgment which I hereby adopt as mine in also concluding that the learned trial Judge was right to have held that the Prosecution proved its case beyond reasonable doubt. I also endorse the reasoning and conclusion of my learned brother that the Appeal lacks merit and same is accordingly dismissed.
The conviction and sentence imposed on the Appellant is hereby affirmed.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have the privilege of reading in draft the judgment just
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delivered by my learned brother HON. JUSTICE M. O. BOLAJI YUSUFF, JCA and I agree with the reasoning and conclusion therein contained, that the appeal is devoid of merit and same is also dismissed by me.
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Appearances:
Chief O. A. U Onyema with him, Chikaodili Ezeenduka (Mrs), G. C Nwoye (Miss), O. S. Nwinyinya and E. V. Nwaosor (Mrs) For Appellant(s)
A. Ngene, Deputy Director, (Legal) with him, Dr. Anayo Edeh, Chief Legal Officer, U. B. Neboh, Principal Legal Officer and K. K. Odugu, Legal Officer all of Ministry of Justice, Enugu State For Respondent(s)
