ALUJUE v. FRN
(2020)LCN/14365(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/A/218C3/2014
Before Our Lordships:
Abdu Aboki Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
CHIBUKE ALUJUE APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT THE DISCHARGE AND ACQUITTAL OF AN ACCUSED SHOULD NECEESSITATE THE DISCHARGE AND ACQUITTAL OF HIS CO-ACCUSED WHO ARE JOINTLY CHARGED WITH HIM FOR THE SAME OFFENCE
In the light of the foregoing, I hold that the principle that the discharge and acquittal of an accused should necessitate the discharge and acquittal of his co-accused who were jointly charged with him for the same offence and tried on the same body of evidence, which principle is restated in Kalu v. The State (1988) 4 NWLR (Pt. 90) 503, Ebri v. The State (2005) 6 WRN @ 11 & 13, Ononuju v. The State (2013) 36 WRN 22 all cited in the appellant’s brief cannot apply to this case. PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/218C3/2016 was commenced on 27-1-2014 when the appellant herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory delivered on 29-10-2013 in criminal case No. FCT/HC/CR/69/2007 by I.U. Bello J. The notice of appeal contains 8 grounds for the appeal.
Only the appellant filed a brief in this appeal. The respondent, after being served the appellant’s brief failed to file its brief. Upon the appellant’s application by motion on notice filed on 21-1-2019, this Court ordered that this appeal be heard and determined solely on the appellant’s brief dated and filed on 3-6-2014 and deem filed and served with the leave of this Court.
The appellant adopted his brief at the hearing of this appeal.
The appellant’s brief raised the following issues for determination:
1. Whether the trial Court was right in convicting the appellant and discharging and acquitting some of his co-accused in a joint and inseparable trial based on the same or similar evidence in the absence of any additional evidence
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adduced by the prosecution incriminating the Appellant.
2. Whether the lower Court was right in relying on the identification of the Appellant in the Accused box in the Court room by the PW2, PW3 and PW4 as sufficient identification of the Appellant as to fix the Appellant at the scene of the respective robberies and to justify his conviction.
3. Whether the learned trial judge was right in relying on the testimony of the PW1, whose testimony was not tested by cross examination and which evidence he had earlier expunged from the record as being reliable and corroborative for convicting the Appellant.
4. Whether the failure of the trial Court to consider the defence raised by the Appellant and to state why he did not believe his defence in the judgment has violated the Appellant’s right to fair hearing and therefore occasioned a miscarriage of justice.
5. Whether the apparent material contradictions in the evidence of the prosecution witnesses and the failure of trial Judge to consider the effect of the inconsistency rule on the testimony of the PW4 has not occasioned a miscarriage of justice on the Appellant.
6. Whether the trial
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Judge was not functus officio on 4/11/13 when on the day of sentencing, he purported to discharge and acquit the 2nd Accused person whom he had convicted on 29/10/13 when the judgment of the Court was delivered.
7. Whether the failure of the trial judge to fully appreciate the nature and extent of the evidence led and to remember the proceedings in his Court had not occasioned a miscarriage of justice to the Appellant.
8. Whether the sentence of life imprisonment imposed on the Appellant was not excessive and a wrong exercise of discretion considering the fact that the Appellant was a first offender and had been in detention since 29th, May, 2006.
I will determine this appeal on the basis of the issues for determination raised in the appellant’s brief.
Let me start with issue No. 1 which asks “Whether the trial Court was right in convicting the appellant and discharging and acquitting some of his co-accused in a joint and inseparable trial based on the same or similar evidence in the absence of any additional evidence adduced by the prosecution incriminating the Appellant.”
Learned Counsel for the appellant argued
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that since the 2nd and 8th accused persons who were charged and tried together with the appellant and other 5 persons on the same body of evidence, were discharged and acquitted, it was wrong for the trial Court to have convicted the appellant on the same charge and evidence without any other evidence that incriminates him, that since the trial Court had discredited and rejected the evidence of the prosecution witnesses and refused to use it to convict the 2nd and 8th accused persons, it ought to have declined to use same to convict the appellant because the evidence were inextricably interwoven and inseparable.
Let me now determine the merits of the above arguments.
The argument of Learned Counsel for the appellant that the trial Court in its judgment discredited and rejected the evidence of the prosecution witnesses and refused to use it to convict the 2nd and 8th accused persons is as incompetent as it is baseless because it is not supported by the record of this appeal. There is nothing in the judgment of the trial Court that suggested that it discredited and rejected the evidence of the prosecution witnesses and for that reason discharged and
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acquitted the 2nd and 8 accused persons. What is obvious from the express terms of the judgment is that the trial Court found as a fact that the evidence of PW2, PW3 and PW4 had no contradictions or inconsistencies in them, that the trial Court believed their testimonies, found them to be witnesses of truth and found the testimonies to be of high probative value. The trial Court also found that the said witnesses mentioned and identified four of the 12 accused as being amongst the members of the robbery gang that robbed them. The four identified accused are 1st, 5th, 6th and 7th accused. The 6th accused is the appellant. The trial Court discharged and acquitted the 2nd, 3rd, 4th, 7th and 8th accused because they were not identified or mentioned by any of the prosecution witnesses. The exact text of that part of the judgment that contains the above stated findings reads thusly- “However, I found as facts the following within the evidence led by PW2, PW3 and PW4.
1. That there were robberies
2. That the Accused were armed with guns and other offensive weapons during the course of the robbery.
3. That the accused persons took part in the
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said armed robbery. What the foregoing means is that the testimony of PW2 had identified the 1st Accused person, John Alfred as part of those that invaded the house, armed and robbed the occupants of the house, exhibits 1 – 9 before the Court represents not only items recovered in terms of jewelry but equally important some of the offensive weapons used during the robbery. Indeed PW2 identified his red cap as recovered and being one of the items stolen from his residence. This fact had been corroborated by the PW3, wife to the PW2 who equally identified 1st Accused and the 5th Accused as part of the members of the robbery that robbed her and her husband while armed with offensive weapons, in fact she clearly corroborated the fact that a gun was pointed at her husband during the course of the robbery. I believe these two witnesses as witnesses of truth and I accept their statements as being of high probative value. I do not see any contradiction or inconsistencies as raised by the defence in their written submissions and I discountenanced same. Further to that is the testimony of PW4, Mr. Mbanefor whose house was equally invaded and was equally robbed of
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his valuables at gun point, this witness clearly identifies 2nd, 5th and 6th Accused persons in the manner he described in his evidence in chief before the Court.
I have examined the position of the defence regarding the evidence of this witness and like in the testimony of both PW2 and PW3, I found no contradiction or inconsistencies with testimony of the PW4, and believe the said PW4 as witness of truth. With the foregoing analysis on the evidence, it is my candid view that the prosecution has not been able to link 3rd, 4th, 7th and 8th Accused persons to either the charge on conspiracy, belonging to gang of thieves, robbery or receiving stolen property as there exists no iota or scintilla of evidence showing possession of either of the recovered items in any of these other Accused persons to warrant a conviction either for conspiracy, belonging to gang of thieves, robbery armed or otherwise as well as receiving of stolen property. In that regard, the 1st Accused 5th and the 6th and 7th Accused persons against whom, the prosecution has proved beyond reasonable doubts, the count 1, 2, 3, 4, and 5 for belonging to gang of thieves and that they have
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conspired to rob and did commit robbery as shown under count 2, 3, 4, and contrary to 97 (1) of the Penal Code while for belonging to gang of thieves under Section 306 of the Penal Code. Accordingly the said 1st, 5th, 6th and 7th Accused persons are hereby convicted for the offences charged and for which I have referred to herein as having been proven beyond reasonable doubts by the prosecution while for counts 6, 7, 8, 9, and 10, the 2nd, 3rd, 4th, 8th and 9th Accused persons are hereby discharged and acquitted.”
So the 2nd, 3rd, 4th, 8th and 9th accused persons were not discharged and acquitted because the trial Court discredited and rejected the evidence of the prosecution witnesses. They were discharged and acquitted because they were not mentioned and identified as part of the robbery gang that carried out the alleged robberies.
In the light of the foregoing, I hold that the principle that the discharge and acquittal of an accused should necessitate the discharge and acquittal of his co-accused who were jointly charged with him for the same offence and tried on the same body of evidence, which principle is restated in Kalu v. The State
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(1988) 4 NWLR (Pt. 90) 503, Ebri v. The State (2005) 6 WRN @ 11 & 13, Ononuju v. The State (2013) 36 WRN 22 all cited in the appellant’s brief cannot apply to this case.
Issue No. 1 is therefore resolved in favour of the respondent.
Let me now determine issue No. 2 which asks “Whether the lower Court was right in relying on the identification of the Appellant in the Accused box in the Court room by the PW2, PW3 and PW4 as sufficient identification of the Appellant as to fix the Appellant at the scene of the respective robberies and to justify his conviction.”
I have carefully read and considered the arguments of Learned Counsel for the appellant on this issue.
Learned Counsel argued that the trial Court was wrong to have relied on the identification of the appellant in the dock as sufficient identification that fixed him at the scene of crime, as there is no basis for this conclusion, that the appellant who was the 6th accused at the trial was never at the scene of the alleged robberies in the houses of PW2, PW3 and PW4 on the days of the respective robberies, that no evidence was given by any prosecution witness
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showing that he was present at the scene of each of the robberies, that there was no proper identification of the appellant as one of the persons or gang of robbers that carried out all or any of the robberies, that the identification of the appellant by PW4 first time in the dock as one of the persons that robbed his house is not a valid identification, that there was no explanation for the belated identification and the trial Court did not warn or caution himself on the danger of relying on such identification before relying on same.
Let me now determine the merits of the above arguments.
The evidence that the appellant was at the scene of the robberies and participated in the robberies came from PW4 (MW4M).
PW4 testified in examination in chief that-
“I noticed that the light outside was switched off and I moved towards the door and ask who was there because I saw flash of torch – light, suddenly the door to my house gave way and someone ordered me to lie down and a voice said tie him and another said, I will rape you today referring to my wife who was then pregnant, on hearing that I stood up and made an offer of 6 million
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Naira which I claimed was in the best of my vehicle faces of two of those holding me hostage. They brought me outside the house while one of them broke the side mirror of the vehicle and ordered me to open the boot. I told them that the keys were with the security guard to my house. They told me that they have already killed the guard but I told them that I could still get the keys from his pocket. At this point one of them suggested that I should be shot dead so that they could also take away the car with the money there. On hearing that I snatched the gun and escaped. One of the Accused I was able to identify is the 6th Accused standing in the dock wearing white shirt, then 5th Accused – David Ude and the 2nd Accused. I was able to clearly see their faces and this led to their arrest.“
Under cross examination, he testified that-
“I did not state in my first statement to the police that I could recognize any of the Accused persons through facial description. Neither did I state so in any of the other two statements. I remember I was invited for identification parade before I made the statement but I told the police that there was
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one with one eye amongst the suspects. I stated as my 1st statement that 5 men robbed me, while in the 3rd statement I stated that it four persons meaning that 4 came into my parlor while I saw another one standing outside. Nevertheless my traumatic condition could not have allowed me to know with certainty how many they were. The money I kept in bulk was N208,000, that was taken and after inventory taking, I discovered that there other amount taken away which brought same to N180,000.00 part of the money was found somewhere as the accused were trying to escape. It is not an afterthought that I said one of the Accused said he would rape my pregnant wife. It is true my statement to the police did not contain that, the side view mirror of my vehicle was broken by one of the Accused.”
The only admitted evidence that identified the appellant as having been seen participating in any of the robberies is that of PW4 who testified in examination in chief that one of the robbers whose face he saw clearly when they were robbing him is the appellant (6th accused at the trial). The exact text of his said testimony reads thusly-
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“One of the Accused I was able to identify is the 6th Accused standing in the dock wearing white shirt, then 5th Accused – David Ude and the 2nd Accused. I was able to clearly see their faces and this led to their arrest.“
The trial Court found and held concerning this evidence thusly- “Further to that is the testimony of PW4, Mr. Mbanefor whose house was equally invaded and was equally robbed of his valuables at gun point, this witness clearly identifies 2nd, 5th and 6th Accused persons in the manner he described in his evidence in chief before the Court.
I have examined the position of the defence regarding the evidence of this witness and like in the testimony of both PW2 and PW3, I found no contradiction or inconsistencies with testimony of the PW4, and believe the said PW4 as witness of truth.”
There is no ground of this appeal complaining against the trial Court’s belief of the truth of the above quoted testimony of PW4 stating that he clearly saw the face of the appellant among the robbers that invaded his home and robbed him that night. By not appealing against that belief of PW4’s testimony by the trial Court, the
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appellant has accepted it as correct, conclusive and binding on it. See Iyoho v. Effiong (2007) and Dabup v. Kolo (1993) 12 SCNJ.
Having accepted as correct the decision of the trial Court that the testimony of PW4 is true, I do not think that the appellant can complain against the trial Court’s reliance on such evidence to convict the appellant of the offences in counts 4 and 5 of the charge. As held by the Supreme Court in Ochiba v. The State (2011) LPELR – 8245 (SC) Per Adekeye JSC “If the evidence of a lone witness is believed his identification of an accused person can sustain a conviction even on a charge of murder”. So the complain in ground 2 of this appeal and issue No. 2 in the appellant’s brief that PW4’s identification of the appellant for the first time in the dock in open Court during his testimony in examination in chief is not sufficient identification of the appellant, without the holding of an identification parade and that the trial Court was wrong to have relied on that identification to convict the appellant cannot be sustained and is invalid, having accepted as correct the trial Court’s
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belief of the testimony of PW4 identifying the appellant as one of the robbers that robbed him as true. The arguments that the PW4 did not identify the appellant or any of the robbers that robbed him in his extrajudicial statements, that he identified the appellant for the first time in the dock in open Court during trial, that the identification is an afterthought and that such an identification is not sufficient, identification without an identification parade cannot be validly made since the appellant has accepted as correct the decision of the trial Court that the PW4’s testimony identifying the appellant as one of the robbers that robbed is true.
In the light of the foregoing, issue No. 2 is resolved in favour of the respondent.
Let me now consider issue No. 3 which asks ”Whether the learned trial judge was right in relying on the testimony of the PW1, whose testimony was not tested by cross examination and which evidence he had earlier expunged from the record, as being reliable and corroborative for convicting the Appellant.“
I have carefully read and considered all the arguments on this issue.
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As the judgment of the trial Court reproduced above shows, the trial Court did not rely on the testimony of PW1 to convict the appellant of committing any of the offences with which he was charged at the trial. It relied only on the testimony of PW4. So ground 3 of this appeal and issue No. 3 in the appellant’s brief that proceed on the assumption that the trial Court relied on the testimony of PW1 to convict the appellant have no basis.
Let me consider the submission of Learned Counsel for the appellant that ASP Sam David who was the first witness for the prosecution described in the record of proceedings as MW1M was not cross examined by the defence. It is obvious from the state of the records of this appeal that it is this witness that is described as PW1 in the argument of Learned Counsel for appellant. The record of the proceedings of the trial Court show that on 27-2-2008, during the testimony of the said first prosecution witness, when the extrajudicial statements of the accused persons were tendered for admission as evidence, the defence objected to their admission as evidence on the ground that they were not made voluntarily. The trial Court ordered trial
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within trial of their voluntariness and deferred the cross examination of the witness till after the trial within trial and continued receiving the evidence of other prosecution witnesses in examination and cross examination. The trial Court then conducted the trial within trial. Upon conclusion of the trial within trial on 6-7-2009, it adjourned the case for defence. The defence witnesses did not cross examine the PW1.
The defence did not remind the Court that they were yet to cross examine PW1 and did not request to be given the opportunity to do so. The matter was simply adjourned for defence. Since the accused were represented by counsel, the trial Court was not bound to remind them that they had not cross examined the PW1. Even though it appeared that the accused waived their right to cross examine the PW1 and proceeded to elicit their evidence in defence, the trial Court held that “the testimony of PW1 not having been so subjected to cross examination is lacking in probative value and so is duly expunged as argued by the defence. It is a failure on the part of the prosecution which is fatal to the testimony of PW1.” There is no ground
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of this appeal complaining against this decision of the trial Court. By not appealing against it, the parties herein have accepted it as correct, conclusive and binding.
The trial Court, after expunging the testimony of PW1 did not rely on it as it held that- “However, I found as facts the following within the evidence led by PW2, PW3 and PW4.
1. That there were robberies
2. That the Accused were armed with guns and other offensive weapons during the course of the robbery.
3. That the accused persons took part in the said armed robbery.”
PW1 had testified that some items were recovered during police investigation, he produced them for admission as evidence. The nine items were admitted as exhibit 3. Having expunged the testimony of PW1, the items tendered by him for admission as evidence during his testimony and which items were admitted in evidence as exhibit 3 equally should have been expunged as part of the expunged testimony.
However, since the trial Court did not rely on the testimony of PW1 to convict the appellant, issue No. 3 is resolved in favour of the respondent.
Let me now consider issue No. 4 which
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asks “Whether the failure of the trial Court to consider the defence raised by the Appellant and to state why he did not believe his defence in the judgment has violated the Appellant’s right to fair hearing and therefore occasioned a miscarriage of justice.“
I have carefully read and considered the arguments of both sides on this issue.
The appellant testified as DW7, the sole witness in his own defence. His testimony in examination in chief in defence reads thusly- “I did not rob anybody either alone or with the co-accused. In my life, have never robbed. I first met the co-accused at the Court premises at Zone 5, Abuja under cross examination he testified that “I did not say that I also went for robbery at Chief Duru House”.
It was the testimony of PW4 that mentioned that he was seen amongst the robbers that robbed PW4’s house at No. 14 Makeri Street, Zone 6, Wuse Abuja on 13-5-2006. The judgment already reproduced at pages 5-7 of this judgment expressly states that the trial Court considered the defence of the appellant to the testimony of PW4 and believed the testimony of PW4 as true.
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The only reason the trial Court gave for believing the testimony of PW4 as true is that it found no contradictions or inconsistencies in the testimony. I agree with the submission of Learned Counsel for the appellant that the trial Court did not state why it did not believe the defence put up by the appellant. I think that this is an issue of improper evaluation of the appellant’s evidence to determine if it cast reasonable doubt on the evidence of PW4 that he clearly saw the faces of the robbers who robbed him and was able to identify the appellant.
But the appellant’s acceptance of the trial Court’s belief of the testimony of PW4 as true renders this issue No. 4 and the arguments thereunder unsustainable.
Be that as it is, the improper evaluation of the appellant’s evidence in defence would not automatically vitiate the judgment of the trial Court but would rather open the gate for this Court to do what the trial Court failed to do by properly evaluating that evidence to find out if it cast reasonable doubt on the testimony of PW4. A careful consideration and evaluation of the appellant’s evidence in defence shows that it did
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not answer and therefore did not contradict the testimony of PW4 that he was present in PW4’s house at No. 14 Makeri Street, Zone 6, Wuse Abuja at 2:30am at the time PW4’s house was robbed.
His testimony did not answer and contradict PW4’s testimony that 5th accused was present at the same address at the time of the robbery. His evidence only contradicted PW4’s testimony that 2nd accused was with the appellant that night because he said that he first met 2nd accused at the Court premises at Zone 5 Abuja. By not answering or denying the evidence that he was present at PW4’s house at the time of the robbery and that PW4 saw him, the appellant admitted the evidence as true, rendering his testimony that he did not rob anybody unbelievable. As it is, the appellant’s evidence in defence failed to cast any doubt on the testimony of PW4 that he and 5th accused were present in PW4’s house at the time of the robbery.
The trial Court’s belief of the PW4’s testimony as true is reasonable and not perverse as it is supported by the evidence before it.
In the light of the foregoing, issue No. 4 is resolved
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in favour of the respondent.
Let me consider issue No. 5 which asks “Whether the apparent material contradictions in the evidence of the prosecution witnesses and the failure of trial Judge to consider the effect of the inconsistency rule on the testimony of the PW4 has not occasioned a miscarriage of justice on the Appellant.“
The arguments of Learned Counsel for the appellant that there are contradictions in the evidence of PW2 and PW3 is not relevant to this appeal against the conviction of the appellant because the conviction of the appellant is based only on the testimony of PW4.
Learned Counsel for the appellant argued that the extrajudicial statements of PW4 in exhibit D1 are in conflict with his testimony in open Court, that in exhibit 1 he did not state that he recognised or identified any of the robbers that robbed him, in his testimony in Court he identified the appellant, 2nd and 5th accused as the robbers whose face he recognised in his house during the robbery, that in his extrajudicial statement of 16-6-2006, he stated they were 4 and in his testimony in open Court he identified 2nd, 5th and 6th accused that-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“He never mentioned any attempt to rape his wife in Exhibit D1 but this was one of the hallmarks of his examination-in-Chief in Court. He stated in Court that he snatched a gun from one of the robbers and he escaped with it. This was not stated in Exhibit D1. Moreover, he never mentioned anything relating to his security guard or N6 Million being in the boot of his vehicle. Even the money he mentioned in Dollars and Naira in Court are different from that contained in Exhibit D1. He never mentioned that part of the stolen money was found “somewhere” as the accused were trying to escape.“
The differences between PW4’s extra judicial statements in exhibit D1 and his testimony in open Court cannot be regarded as conflicts between exhibit D1 and his testimony in open Court. This is because the differences between them are in respect of facts not mentioned in the extra judicial statements but mentioned in his testimony in open Court. A conflict can exist only where the same facts are contained in exhibit D1 and stated differently in the testimony in open Court.
For example, if the PW4 had stated in his extra judicial
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statements that he was unable to identify the persons who robbed him at his residence that night, but later testified in Court that he was able to identify 2nd, 5th and 6th accused as the persons that robbed, then a contradiction on whether he was able to identify the persons who robbed him exists between the extrajudicial statement and his testimony in Court. The omission or failure to say anything concerning whether he identified the persons who robbed him or not in the extrajudicial statement, does not make it inconsistent with his later testimony in Court that he identified the persons who robbed him.
He has simply stated in open Court what he did not state earlier in his extra judicial statement. While such a later statement may be regarded as an afterthought depending on the circumstances of the case and may affect the weight to be attached to its veracity. In this case the trial Court believed it as true and the appellant has not complained against that belief in this appeal, and thereby accepted it as correct.
In the light of the foregoing, I resolve issue No. 5 in favour of the respondent.
Let me consider issue No. 6 which asks
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“Whether the trial Judge was not functus officio on 4/11/13 when on the day of sentencing, he purported to discharge and acquit the 2nd Accused person whom he had convicted on 29/10/13 when the judgment of the Court was delivered.“
This issue is obviously not related to this appeal against the conviction of the appellant. The issue complains against the conviction of the 2nd accused. The appellant here was the 6th accused. The issue is therefore incompetent. The issue and the arguments there under are hereby struck out.
Let me now consider issue No. 7 which asks “Whether the failure of the trial judge to fully appreciate the nature and extent of the evidence led and to remember the proceedings in his Court had not occasioned a miscarriage of justice to the Appellant.“
The argument of Learned Counsel for the appellant challenging the decision of the trial Court discharging and acquitting the 2nd, 4th and 9th accused and convicting the 7th accused is not relevant to this appeal against the conviction of the appellant for the commission of the offences in counts 1, 4 and 5 of the charge. His arguments that are relevant to
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this appeal are that there exist no nexus between the appellant and the other accused to warrant his conviction for the commission of the offence of conspiracy, that his commission of the offences in counts 1, 4 and 5 was not proved, that the convictions for those offences were hinged on the PW4’s identification from the witness box, that none of the accused persons was arrested at the scene of crime, that no identification parade was conducted by the police, that no explanation was given for the belated evidence in Court identifying the appellant and co-accused persons.
Let me now determine the merit of the above arguments.
Having accepted as correct and conclusive the decision of the trial Court believing as true, the testimony of PW4 identifying the appellant and other persons that robbed him, the appellant’s argument that the conviction of the appellant should not have been hinged only on the PW4’s identification of the appellant from the witness box is invalid and incompetent because he cannot argue against the decision he has not appealed against and thereby accepted as correct, conclusive and binding upon him. See
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Dabup v. Kolo (supra).
The testimony of PW4 which the trial Court believed identified the appellant, the 2nd and 5th accused persons as among the robbers who robbed him in his house. This evidence shows that the appellant carried out the robbery as part of a robbery gang and therefore in concert with them. This clearly establishes his commission of the offence of conspiracy in count 2 of the charge. The said testimony of PW1 which the trial Court believed to be true, establish that the robbers were armed during the robbery and proved his commission of the offences in counts 4 and 5 of the charge.
In the light of the foregoing, I resolve issue No. 7 in favour of the respondent.
Let me now determine issue No. 8 which asks “Whether the sentence of life imprisonment imposed on the Appellant was not excessive and a wrong exercise of discretion considering the fact that the Appellant was a first offender and had been in detention since 29th, May, 2006.“
Learned counsel for the appellant argued that the sentence of life the trial Court imposed on the appellant was excessive and is a wrongful exercise of discretion as the Court failed to
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consider any mitigating factors.
Let me determine the merit of the above arguments.
The decision of the trial Court sentencing the appellant reads thusly- “I have considered the submission by the prosecution that there is no previous record of conviction on the convicts meaning, they are first offenders.
The Defence Counsel: Mr. Agbonlahor had made series of submissions in order to elicit sympathy or leniency for the convicts. Indeed I have considered the fact that they are young and that they have learnt some trade while in the detention awaiting trial and, the hope they nurse for leading a better and reformed life once outside the corridors of the prisons walls.
There is no doubts Section 298 of the Penal Code under which the charge was brought, has not tied my hands, it has afforded the discretionary powers to impose imprisonment terms less than death sentence or life imprisonment for the offence of armed robbery.
However, it is a common knowledge that robbery and indeed armed robbery as in this case is very rampant in our society and in fact, I can venture to say, it is near, a universal problem which nations are frantically
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trying to address. In majority of cases, young men who have defied admonitions, counselling and proper advice through parental religious institutions, are the actors in this nasty field of armed robbery, sometimes perpetrated under hard drugs with no respects for human feelings, privacy and well-being of the victims of such acts. The arm of the law is very long, it is a matter of time, and it certainly will catch up with those who are not law-abiding as with the convicts.
I find it difficult to convince myself along the line of the submission by defence counsel who appears enticing in his advocacy for lenience on behalf of the convicts. The use of arms in robbery usually attracts aggravated punishment so as to serve as deterrence on like- minds. It is unlikely that imprisonment less than life sentence could be visited on the convict although looking at their age group, I will recommend them for prerogative of mercy committee for consideration. For now I hereby impose five year sentence on each of the four convicts for the offence of conspiracy to commit an offence while for the offence of armed robbery each of the convicts is hereby sentenced to life
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imprisonment under Section 298 of the Penal Code.
At opportune moment, the convicts may be presented to the prerogative of mercy committee per the recommendation by this Court. May the lord have mercy on them.
Signed: 4/11/2013
7th Accused (convict) be arrested to serve his terms along with the other convicts while 2nd Accused wrongly held is discharged and acquitted.“
Learned Counsel for the appellant has correctly argued that S.298(c) of the Penal Code Law gives the trial Court the discretion to impose a maximum sentence of life imprisonment or a lesser term and fine. It is glaring from the part of the judgment sentencing the appellant, that the trial Court did exercise its discretion and considered the nature of the crime and its prevalence in the society in imposing the maximum sentence of life imprisonment prescribed in S.298(c) of the Penal Code.
In an appeal against the exercise of sentencing discretion, the appellant must show that the exercise of discretion is wrong or perverse or irrational or unreasonable. Learned Counsel has submitted that a trial Court in sentencing a convict, is bound to consider many factors such
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as the seriousness or otherwise of the offence, the prevalence of the offence, the remorse shown by the convict, whether he is a first offender and the prevailing attitude of the populace to the offence committed by him. The appellant has not argued that the trial Court did not consider some or all these factors. Rather, Learned Counsel for the appellant argued that even though the trial Court found out that the appellant was a first offender as there was no record of previous conviction, that the trial Court imposed the maximum punishment of life imprisonment on the appellant and that this was a wrong exercise of discretion as the severity of the punishment was not dictated by the antecedents of the appellant or the seriousness of the offence in view of the evidence adduced on record. This argument is not correct. The offence by its nature is a serious offence because it was committed by persons armed with dangerous or offensive weapon. The fact is common knowledge in our country that such robberies are committed with violence or threat to violence and killing or grievous bodily hurt or threat to kill or injure the person and in most cases the persons robbed
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are killed. As the trial Court held, the offence is very rampant in our society with pervasive insecurity of lives and properties. In such a situation, it is reasonable to impose a punishment for the purpose of deterring the convict and other persons from further committing such offence. This is what the trial Court has done here. Learned counsel for the appellant has not shown the existence of any circumstance that mitigate against the imposition of the maximum punishment or that make the imposition of such punishment unreasonable.
In the light of the foregoing issue No. 8 is resolved in favour of the respondent.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed.
ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother EMMANUEL AKOMAYE AGIM, JCA.
My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. These findings and conclusions flowed from the evidence adduced at the trial.
It is for this reason and the more detailed reasons given by my Learned Brother EMMANUEL AKOMAYE AGIM, JCA that I
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also find that this appeal is unmeritorious and ought to be dismissed. It is hereby dismissed by me.
I also abide by the consequential order contained in the lead judgment.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA. I agree with his reasoning and resolution arrived at in the Judgment. I do not have anything more to add except to adopt the concise and succinct Judgment as mine. I also abide by the orders made therein.
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Appearances:
Anthony Agbonlahor, Esq. – for AppellantFor Appellant(s)
…For Respondent(s)
Appearances:
Anthony Agbonlahor, Esq. – for Appellant For Appellant(s)
…For Respondent(s)