AKPEVWE OYOVWIKIGHO v. THE STATE
(2019)LCN/12916(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/B/391C/2017
RATIO
CRIMINAL LAW: ARMED ROBBERY
“On the count of Armed Robbery it is trite law that to ground a conviction of armed robbery, the Onus is on the prosecution to prove the following:
1. That there was robbery or series of robberies
2. That each robbery was an armed robbery
3. That the accused was one of those who took part in the armed robbery. Rely on ADEYEMI Vs. STATE (2018) ALL FWLR (Pt.929) PG 282 @ 286 R.3; EMEKA Vs. STATE (2014) ALL FWLR (Pt.751) PG 1480 @ 1484 R.6.” PER PHILOMENA MBUA EKPE, J.C.A.
CRIMINAL LAW: TO PROVE A CRIME BEYOND REASONABLE DOUBT
“In general legal parlance, and also trite law, the observation is that whenever the commission of a crime by a person is directly in issue, it must be proved beyond reasonable doubt. See SHURUMO V. THE STATE (2010)19 NWLR (PT.1266) 73. In the instant case, the prosecution cannot simply gloss over the fact that proof of the crime against the Appellant must be beyond reasonable doubt. That duty no doubt does not shift in the course of proving all the ingredients of the offences charged. See ORJI Vs. THE STATE (2008) ALL FWLR (Pt.422) 1993 at 1107 ? 1108 para H-A.” PER PHILOMENA MBUA EKPE, J.C.A.
EVIDENCE: WHERE THE EVIDENCE IS CONTRADICTORY
“It is however not the duty of the trial Judge to explain or speculate on any contradiction in the evidence of the prosecution witness. It is the sole duty of the prosecution to do so. To begin with, a piece of evidence contradicts the other when it affirms the opposite of what that other piece of evidence has stated, not just when there is simply a minor discrepancy between them. Two pieces of evidence are said to contradict each other when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence stops short or contains a little more than what the other piece of evidence says or contains some differences in detail. See EGWUMI Vs. THE STATE (2013) LPELR (2009) SC.; GABRIEL Vs. THE STATE (1989) 5 NWLR (PT.122) 460.” PER PHILOMENA MBUA EKPE, J.C.A.
EVIDENCE: WHETHER THE COURT CAN RELY ON CIRCUMSTANTIAL EVIDENCE
“The principle of law is firmly settled that where circumstantial evidence adduced by the prosecution is so cogent, positive and direct, that it irresistibly and conclusively points to the accused as the perpetrator of the offence alleged to have been committed, a Court of law would be entitled to infer from such evidence and surrounding circumstances, that the accused committed the offence and convict him accordingly on such evidence. See NASIRU Vs. STATE (1999) 2 NWLR (Pt. 589) 87; KIM Vs. THE STATE (1991) 2 NWLR (Pt. 175) 622.” PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
AKPEVWE OYOVWIKIGHO Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the Delta State High Court sitting at Warri delivered on the 10th day of February, 2017 wherein the Appellant was convicted and sentenced to death on counts of conspiracy and Armed Robbery.
FACTS OF THE CASE:
The Appellant in a five counts information was charged in four counts with conspiracy to commit Armed Robbery, Armed Robbery and Assault, punishable under Section 1(2) (a) of the Robbery and Firearms and under Section 351 of the Criminal Code Laws Cap (2) Vol. 1 Laws of Delta State 2006. The Appellant however pleaded not guilty to the four counts charge and the matter proceeded to hearing.
The prosecution called 3 witnesses while the Appellant in his defence testified for himself and called one witness. At the close of the case, Learned Counsel filed written addresses and in a considered Judgment delivered on 16/2/2013 the trial Court convicted the Appellant for the offence of conspiracy to commit Armed Robbery, Armed Robbery and assault on counts 1, 2 and 4 respectively.
?Dissatisfied with the said decision of the lower Court, the Appellant filed a Notice of Appeal on the 16/5/2017 containing two grounds of appeal.
From the Appellant?s grounds of appeal, a sole issue for determination was raised to wit:
Whether the lower Court was right to rely solely on the evidence of PW1, in spite of the unexplained material contradictions contained in the evidence of PW1 and in convicting the Appellant for the offences of conspiracy to commit Armed Robbery, Armed Robbery and assault.
The Respondent on his own part also raised the following issue for determination:
?Whether the learned trial Judge was right in holding that the prosecution proved the charges against the Appellant beyond reasonable doubt.
I have looked at both issues as couched and I think the sole issue raised and couched by the Respondent is more appropriate.
On this issue learned counsel for the Appellant submitted that the prosecution as Respondent in this appeal has a static duty to prove all ingredients of the offence charged beyond reasonable doubt against the Appellant. He cited the case of ORJI V. THE STATE (2008) ALL FWLR (Pt.422) 1093 @ 1107-1108 para H-A.
Counsel also stated that upon perusal of the Judgment of the lower Court, it is clear that the decision reached by the lower Court was based clearly and solely on the evidence of PW1 who testified that he lived at No. 10, Digbori Street while the Appellant also lived at No. 9, of the same street in Warri, Delta State. That he however knew the person of the 1st Accused even before the Armed Robbery incident occurred on the 28/11/2013.
Learned Appellant?s Counsel referred to pages 124 -125 of the record as follows:
Under cross examination by Learned defence Counsel the PW1 said the following:
The incident happened about 6.30 am it is correct to say I knew the 1st Accused person the day I was robbed ?.five persons robbed me on the date in question. I only knew the 1st Accused amongst the five. Two phones were taken from me. The other phone was a Nokia touch light. I deny the suggestion that I did not see 1st Accused on the date in question?
From the foregoing through(sic) clumsily put that the PW1 knew the 1st Accused on the day of the robbery the sum total of the purport of the evidence of the PW1 is that he knew the 1st Accused before the date of the robbery.?
Learned Counsel then opined that from the foregoing, PW1 got to know the accused person only on the day of the robbery and that the contradictions on when exactly PW1 got to know the accused person leaves room for doubt as to the guilt of the Appellant. He then referred to the case of IKARIA V. STATE (2013) ALL FWLR (PART 671) PAGE 1463 at PAGE 1479-1480, PARAGRAPHS G-A, PER MUNTAKA-COOMASSIE JSC held as follows:
I have carefully analysed the submissions of both counsel and same are considered along with the facts of the case.
It is my view that the only issue for determination in this case is whether the Appellant has been properly identified as one of the armed robbers that committed the offence of armed robbery or that he participated in the commission of the crime.
In a case of this nature, where an accused has not been properly identified as a participant in the commission of a crime, the Judge has no option than to return a verdict of not guilty. This Court in the case of CHUKWU V. STATE (1996) 7 NWLR (Pt. 463) 686 at 702 states the position of the law as follows: where the quality of identification evidence is poor the judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of identification?.?
He then urged the Court to resolve the sole issue in favour of the Appellant.
In reply, learned counsel for the Respondent submitted that the best identification of an accused person is by the victim of the crime or a witness to the crime. He cited the case of OKOSI V. THE STATE (1989) 1 ACCR 281 Ratio 1. and argued that PW1 was not shaken under cross examination as to the identification of the Appellant as one of the armed robbers. That his evidence in Court was neither debunked nor controverted and thus becomes good and credible evidence to be relied on by the trial Judge. He also cited the case of STATE V. OLADOTUN (2011) Vol. 199. LRCN 6 @ 67 Ratio 1.
Learned counsel further referred to the Judgment of the lower Court at page 125 lines 15-19 wherein the trial Judge thus stated:
The PW1 has given evidence that he knew the Accused before the day of the armed robbery. He has also given evidence that he was able to recognize the present 1st Accused from among the five boys who attacked him on the date of the robbery 28/11/2013. I did not find the evidence of the PW1 on the identification of the PW1 dislodged in any way during cross examination.?
Learned counsel further stated that PW2, the Zonal Chairman Delta State Vigilantes Community policing corroborated the evidence of PW1 and was not shaken under cross examination.
He further submitted that it is trite law that the trial Court can draw inferences from the established evidence before it and is at liberty to rely on or make references to any testimony led before her. He cited the case of OLAYODE V. THE STATE (2028) ALL FWLR (Pt. 941) 260 @ 293 ? 294 para E-A.
He further stated that in the instant case, the Court below is entitled to draw reasonable inferences from evidence before her. That in the instant case, the trial Judge is at liberty to make necessary inferences from the testimonies of PW1 and PW2 and also that of the Appellant. He opined that there is no contradiction in the evidence of PW1 as to his knowledge or identification of the Appellant. He then concluded that it was not a case of mistaken identity but that of recognition and knowledge of the Appellant already known to PW1 before the date of the robbery. Counsel further concluded that the prosecution having proved the charges of conspiracy and Armed Robbery against the Appellant beyond reasonable doubt found the evidence of the prosecuting witnesses PW1 and PW2 cogent and compelling. He then urged the Court to resolve the sole issue in favour of the Respondent and dismiss the appeal.
RESOLUTION
The gravamen of this appeal revolves around the evidence, contradictory or otherwise of PW1.
The charges against the Appellant are as follows:
1. Conspiracy to commit armed robbery
2. Armed Robbery
3. Assault on one Pius Idama.
The Appellant, no doubt, denied the charge and so the prosecution was faced with the bounden duty to prove the case against him beyond reasonable doubt. In an attempt to prove same against the Appellant, the prosecution called 4 witnesses including the Police corporal attached to the area command, Warri and the investigating police officer. In the course of the prosecution Exhibits A, B, C & D were tendered through various witnesses. The gravamen of the Respondent?s case is that the lower Court was in error when it relied solely on the evidence of PW1 in spite of the material contradictions surrounding it. The Appellant argued that the Respondent failed woefully to prove their case against him beyond reasonable doubt. To buttress this fact Section 135(1) of the Evidence Act 2011 was referred to.
In general legal parlance, and also trite law, the observation is that whenever the commission of a crime by a person is directly in issue, it must be proved beyond reasonable doubt. See SHURUMO V. THE STATE (2010)19 NWLR (PT.1266) 73. In the instant case, the prosecution cannot simply gloss over the fact that proof of the crime against the Appellant must be beyond reasonable doubt. That duty no doubt does not shift in the course of proving all the ingredients of the offences charged. See ORJI Vs. THE STATE (2008) ALL FWLR (Pt.422) 1993 at 1107 ? 1108 para H-A.
It is however on record that at the time of the commission of the crime both the Appellant and PW1 the victim of the crime were said to be living on the same street which is Digbori Street, Essi Layout, Warri.
In the case at hand, PW1, the victim of the crime gave his address as No.10 Digbori Street, Essi layout, Warri. The Appellant also at the witness box gave his address as No. 9, Digbori Street, Warri. Learned counsel for the Appellant in his brief stated that PW1, that is, the victim of the crime expressly admitted in his evidence in chief that he knew the Appellant before the alleged robbery on the 28/11/2013. His grouse now at the Appellate Court is that PW1 did not state how he knew the Appellant.
The lower Court in an attempt to connect the Appellant with the crime charged referred to and relied on the fact that both PW1 and the Appellant lived on the same street named Digbori Street in Essi layout: the former at No. 8 while the latter lived at No. 9 of the same street.
Hear him at pages 124 to 125 of the record which the Learned trial Judge referred to as follows:
Under cross examination by Learned defence counsel the PW1 said the following:
The incident happened about 6.30am. It is correct to say I knew the 1st Accused person the day I was robbed. I do not know the 2nd Accused and I have never met him in my life. Five persons robbed me on the date in question. I only knew the 1st Accused amongst the five. Two phones were taken from me. The other phone was a Nokia touch light. I deny the suggestion that I did not see 1st Accused on the date in question.?
The more lucid translation of the above statement of PW1 is that he could only recognize and in fact knew the Appellant as one of the five persons that robbed and assaulted him on that fateful day.
Learned Counsel for the Appellant has translated the foregoing piece of evidence to mean that PW1 saw the Appellant for the first time only on the day he was robbed and assaulted. I?m afraid my view is at variance with that expressed by learned counsel for the Appellant. In my humble view, the dictionary meaning of the expression ?I knew the 1st Accused the day I was robbed? simply means that he recognized the Appellant on that fateful day as a person he had earlier known. It is also worthy of note at this juncture that both PW1 and the Appellant lived on the same street, Digbori Street, at Essi layout, Warri. It should therefore not be far fetched if the lower Court presumed that the parties must have known and recognized each other as neighbours living on the same street before the incident in question. It is however not the duty of the trial Judge to explain or speculate on any contradiction in the evidence of the prosecution witness. It is the sole duty of the prosecution to do so.
To begin with, a piece of evidence contradicts the other when it affirms the opposite of what that other piece of evidence has stated, not just when there is simply a minor discrepancy between them. Two pieces of evidence are said to contradict each other when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence stops short or contains a little more than what the other piece of evidence says or contains some differences in detail. See EGWUMI Vs. THE STATE (2013) LPELR (2009) SC.; GABRIEL Vs. THE STATE (1989) 5 NWLR (PT.122) 460.
The case before us is simply the grammatical conception or explanation of a piece of evidence before the lower Court. PW1 gave evidence that he knew the Appellant before the day of the robbery. He has also explained that he was able to recognize the Appellant from among the 5 boys who attacked him on that day of the robbery on 28/11/2013
Like the learned trial Judge, I have not found the evidence of PW1, the victim of the robbery and the star witness to the crime, was dislodged in any way during cross examination. The evidence against the Appellant was direct and overwhelming. On the count of Armed Robbery it is trite law that to ground a conviction of armed robbery, the Onus is on the prosecution to prove the following:
1. That there was robbery or series of robberies
2. That each robbery was an armed robbery
3. That the accused was one of those who took part in the armed robbery. Rely on ADEYEMI Vs. STATE (2018) ALL FWLR (Pt.929) PG 282 @ 286 R.3; EMEKA Vs. STATE (2014) ALL FWLR (Pt.751) PG 1480 @ 1484 R.6.
In proving that all the ingredients of the offence were proved by the prosecution at the trial Court, I shall refer specifically to the evidence of PW1 at page 110 of the record of appeal where he described in graphic detail what the Appellant and his cohorts did:
On 28/11/2013 in the morning I was attacked by the 1st accused (Appellant) and his group and I was stabbed with a knife.
My telephone hand phone a Tecno D5 was taken from me. The incident took place at Digbori Street. I reported the case to the Civil Defence Chairman and later made statement to the police.
PW2 was also not shaken under cross-examination when he thus stated:
1st accused (Appellant) was born in my street so I know him very well, PW1 told me 1st accused robbed him.?
The principle of law is firmly settled that where circumstantial evidence adduced by the prosecution is so cogent, positive and direct, that it irresistibly and conclusively points to the accused as the perpetrator of the offence alleged to have been committed, a Court of law would be entitled to infer from such evidence and surrounding circumstances, that the accused committed the offence and convict him accordingly on such evidence. See NASIRU Vs. STATE (1999) 2 NWLR (Pt. 589) 87; KIM Vs. THE STATE (1991) 2 NWLR (Pt. 175) 622.
The trial Judge was then at liberty to rely on and thereby made necessary inferences from the testimonies of PW1 and PW2.
From the totality of all of the above, I have failed to find any contradiction in the evidence of PW1 read to the knowledge or identification of the Appellant.
I am however not unmindful of the fact that the Appellant was 18 years old at the time of the commission of the offence. The Robbery incident took place on the 28th January 2013 and the Appellant was arrested on the 10th January 2014, statements of the convict were recorded on the 10th January 2014 and additional statements recorded on 28th January 2014 and 29th January 2014 respectively.
Judgment in this case was finally delivered on the 5th day of November 2015 whereby the Appellant was convicted and sentenced to death.
I have also taken into consideration the fact that the Appellant committed the offence at the tender age of 18 years. At this point in time the Law allows a Judge to convict for a lesser offence but not when the accused had already been found guilty of an offence that carries capital punishment as in the case before us. See YUSUF V. STATE (2013) LPELR 22038.
In sum, it is my humble but ardent view that the trial Court was right in holding that the prosecution had proved the charges of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt having found the evidence of the prosecution witness cogent and compelling.
The sole issue herein is hereby resolved against the Appellant and in favour of the Respondent.
Accordingly, this appeal is adjudged unmeritorious. It fails and is hereby dismissed. Consequently, the Judgment of the trial Court delivered on the 16th day of February 2017 in Suit No. W/199C/2014 is affirmed.
Appeal Dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother PHILOMENA MBUA EKPE JCA, I agree with the reasoning and conclusion that the appeal has no merit and should be dismissed. There is no doubt in my mind after reading the evidence of P.W.1, the victim, that he recognized the Appellant who was his neighbor as one of the armed robbers who robbed him. The issue of proper identification of the Appellant did not arise. The evidence of the witness was direct testimony of what he saw on the day of the incident. I dismiss the appeal and affirm the conviction and sentence of the trial Court delivered on 16/2/17 in suit W/199C/2014.
Appeal Dismissed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother P.M. EKPE, JCA. The reasoning and conclusions arrived thereat are quite apt and I adopt same as mine. I have nothing further to add.
I hold that the appeal lacks merit and it is hereby dismissed.
I abide by the consequential order made in the lead judgment.
Appearances:
Sir. Victor E. Akpoguma with him, E.A. Akpoguma and O.M. EsievodgeFor Appellant(s)
O.F. Enenmo with him, E.E. ErebeFor Respondent(s)
