AMAECHI v. STATE
(2022)LCN/16205(CA)
In the Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/K/194C/C/2021
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
KINGSLEY AMAECHI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE DUTY OF THE PROSECUTION TO SUSTAIN THE CONVICTION OF AN ACCUSED PERSON
It is now a common verse in criminal trials that for the prosecution to secure or sustain the conviction of an accused/Appellant it must unfailingly prove conjunctively all the ingredients of the alleged offence(s) beyond reasonable doubt. OMOTOLA V. STATE (2009) ALL FWLR (Pt. 464) 1490, ANI V. STATE (2003) 11 NWLR (Pt. 830) 142. Where it fails to prove any of the ingredients, it has failed to discharge its duty and the accused/Appellant will be entitled to a discharge and acquittal. GALADIMA V. THE STATE (2017) LPELR 41909 (SC). PER WAMBAI, J.C.A.
INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
The ingredients of armed robbery which the prosecution must prove beyond reasonable doubt to succeed have been stated and restated over time to be:
(1) That there was a robbery or series of robberies.
(2) That the robbery or each robbery was an armed robbery and
(3) That the accused was one of those who took part in the robbery or series of robberies.
OGOGOVIE V. STATE (2016) 12 NWLR (Pt. 1527) 468, OSENI V. STATE (2012) 5 NWLR (Pt. 1293) 351, OLAYINKA V. STATE (2007) 9 NWLR (Pt. 1040) 561. The prosecution may prove these ingredients either by the testimonies of eye witnesses, voluntary confessional statement of the accused person or circumstantial evidence. PER WAMBAI, J.C.A.
THE POSITION OF LAW ON IDENTIFICATION EVIDENCE
Identification evidence is that evidence tending to show that the person charged with the offence is the same person seen committing the offence. Its purpose in a criminal trial is to show that the person charged with the offence is the actual person who committed the offence. See NDIDI V. STATE (2007) 5 SCNJ 274. THOMAS V. STATE (2017) 9 NWLR (Pt. 1570) 230. It consists of a whole series of facts and circumstances for which a witness associates a defendant with the commission of the offence charged. It may take the form of fingerprints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission of the offence. See STATE V. AIBANGBEE & ANOR (1988) 3 NWLR (Pt. 84) 548. PER WAMBAI, J.C.A.
WHETHER OR NOT THE QUESTION OF WHETHER AN ACCUSED PERSON IS PROPERLY IDENTIFIED AS THE ONE WHO COMMITTED THE OFFENCE OR WAS A PARTY TO THE COMMISSION OF THE OFFENCE IS A QUESTION OF FACT TO BE CONSIDERED BY THE TRIAL COURT BASED ON THE EVIDENCE PLACED BEFORE THE COURT
The question of whether an accused person is properly identified as the one who committed the offence or was a party to the commission of the offence is a question of fact to be considered by the trial Court based on the evidence placed before the Court and this depends on the facts and circumstances of each case. UDUKWU V. THE STATE (2009) NWLR (Pt. 1139) 43. So, when a trial Court is faced with identification evidence, all it needs to do is to be satisfied that the identification evidence has sufficiently established the guilt of the accused person beyond reasonable doubt. DAIRO V. STATE (2018) 7 NWLR (Pt. 1619) 399 UKPABI V. STATE (2004) 6–7 SC 27. PER WAMBAI, J.C.A.
THE POSITION OF LAW ON AN IDENTIFICATION PARADE
An identification parade as a means of identifying the culprit is conducted only where his identity is uncertain. Identification parade is not conducted for the fun of it or as a ritual or for a cosmetic purpose. It is conducted only where the identity of the perpetrator of the crime is seriously in doubt and the eye witness evidence is shaky, weak and doubtful and the accused has not confessed to the commission of the offence. In IFEDAYO V. STATE (2018) LPELR–44374. Augie, JSC stated the real situation that should call for the conduct of an identification parade in these words:
“Identification parade should never be conducted for purely cosmetic reason; it should be limited to cases of real doubt or dispute as to the identity of an Accused or his connection with the offence charged. To insist that it must be conducted as in (this) case, in which the identity is clear and corroborated by other uncontroverted evidence, and the Accused confesses to his complicity in the crime, is to make a mockery of justice”. PER WAMBAI, J.C.A.
THE POSITION OF LAW ON WHERE AN OBJECTION IS TAKEN TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT ON THE GROUND THAT THE ACCUSED PERSON DID NOT MAKE IT
In any case, the law is clear and settled that where as in the case at hand an objection is taken to the admissibility of a confessional statement on the ground that the accused person did not make it, sign it, or the signature on it is not that of the accused or is irregular, the proper action is for the Court to admit the statement and consider at the end of trial in the light of the other pieces of evidence on record, whether the accused indeed made the statement or not and the appropriate weight to ascribe to the statement. See HASSAN V. STATE (2017) 5 NWLR (Pt. 1657) 1. OSUAGWU V. STATE (2013) 1–2 SC (Pt. 1) 37. It would have been different if as in the case of the 1st and 4th accused persons the Appellant had challenged the voluntariness of exhibits 6 and 10 in which case it would have been necessary to conduct a trial within trial. Having only denied making exhibits 6 and 10 the only question is the weight to be attached to them. PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): At the Kaduna State High Court in charge No.KDH/KAD/121C/2016 the Appellant as the 3rd of the four accused persons was charged for conspiracy and robbery punishable under Sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act CAP R11 Laws of the Federation of Nigeria (LFN) 2004.
In the three count charge the Appellant was alleged in count one to have on or about the 18th day of February 2016 agreed with Stephen Adeola Femi, Emmanuel Onyeabuchi and Macaulay to commit the offence of armed robbery by robbing Mr. and Mrs. Ifeanyi Chukwu of their Toyota Camry Registration No. ABUJA – CF 781 RBC AA and Toyota S Registration No. Kaduna KAF 156 AA with their phones, electronics while, and in Court 2 of robbing the said Mr. and Mrs. Ifeanyi Chukwu of the said items while being armed with guns.
The Appellant as well as the co-accused persons pleaded not guilty.
In proof of the case, the prosecution called four witnesses and tendered 13 exhibits. The Appellant testified in his defence and also tendered 5 exhibits marked as exhibits D1 – 5. The co-accused (the 1st, 2nd and 4th accused persons) also testified in their defence respectively.
At the end of trial, written addresses were filed by Counsel on all sides. Upon the review of the evidence, the lower Court found that the prosecution proved counts 1 and 2 beyond reasonable doubt against the Appellant as well as 1st and the 2nd accused persons, and accordingly convicted and sentenced the Appellant and the 1st and 2nd accused each to death by hanging, but discharged and acquitted the 4th accused person.
Dissatisfied with his conviction and sentence the Appellant filed a Notice of appeal on 6/01/2021 challenging the decision on Nine (9) grounds.
From the grounds, A.C. Ameachi Esq who settled the Appellant’s brief of argument filed and deemed on the 26th January, 2022 raised four (4) issues for determination to wit:-
1. Whether the trial Court was right in convicting and sentencing the Appellant to death by hanging relying on exhibits 6 and 10 and the evidence of PW1 and PW4 (Grounds 1, 2, 3, 4, 5 and 6).
2. Whether the trial Court was right in holding that the prosecution proved all the ingredients of armed robbery against the Appellant (Ground 7).
3. Was the learned trial Judge right in holding that the prosecution proved that the Appellant conspired to commit the offence of armed robbery as charged? (Ground 9).
4. In the light of exhibits D1, D2, D3, D4 and D5 tendered by the Appellant in his defence, was the trial Judge right in holding that the evidence of the Appellant was an afterthought? (Ground 8).
The Respondent did not file any brief of argument nor was the Counsel Suwan Stephen Esq or any Counsel from the Hon. Attorney General’s Chambers, Ministry of Justice Kaduna State, present in Court when the appeal was heard on 20th June, 2022 though the Counsel was said to have been served Hearing Notice on the 14/06/2022.
Learned Counsel for the Appellant who adopted his brief of argument urged us to allow the appeal and set aside the conviction and sentence of the Appellant.
Let me reiterate the law that though by his failure to file a brief of argument the Respondent is deemed to admit the truth of the verifiable facts stated in the Appellant’s brief, see UNITY BANK PLC V. BOUARI (2008) 7 NWLR (Pt. 1086) 372, the success of the appeal depends not on the absence of the Respondent’s brief of argument but on the strength of the Appellant’s case. The appeal succeeds or fails on its own merit. See ECHERE V. EZIRIKE (2006) 12 NWLR (Pt. 994) 386 (SC), ONYENAWULI V. ONYENAWULI & ANOR (2017) LPELR–42621, OGBU V. STATE (2007) ALL FWLR (Pt. 361) 1651 at 1675 (SC).
ISSUES FOR DETERMINATION
A solitary issue encapsulating the Appellant’s issues, will in my candid opinion determine this appeal. The issue as crafted below is;
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN RELYING ON EXHIBITS 6 AND 10, AND THE EVIDENCE OF PW1 AND PW4 IN HOLDING THAT THE PROSECUTION PROVED ITS CASE AGAINST THE APPELLANT AND IN REJECTING THE APPELLANT’S EVIDENCE IN COURT AS AN AFTERTHOUGHT.
APPELLANT’S SUBMISSION
Arguing his issue one, learned Counsel submitted that the Appellant raised an alibi in exhibit 10, one of the two statements credited to him the other being exhibit 6, which was favourable to the Appellant but the learned trial Judge relied only on the unfavourable part ignoring to consider the favourable alibi properly raised and available to the Appellant. He cited the case of AKINRINLOLA V. STATE (2016) 7 MJSC (Pt. 11) 121 at 138 D–F, to argue that where a confessional statement is capable of double interpretation the Court should adapt the favourable part in favour of the Appellant.
On the evidence of PW1 relied upon by the Court, it was submitted that the evidence is shaky that Mr G was the Appellant in that the witness said that he was blind folded, dizzy, frightened and that Mr G was hiding and did not stand in front of them, but the PW1 without providing any basis or the features of the Mr G which resemble that of the Appellant, simply stated that the Mr. G was the Appellant. Citing the case of EGBUFOR V. STATE (2018) WI. 12 (Pt. 11) MJSC 41 at 62–63, 69, 70–71.
Worst still, he argued, PW3 did not testify that he arrested the Mr. G or that Mr. G was the robber.
On the evidence of PW4 which he contended the Court also relied upon in convicting the Appellant he submitted that the PW4 lied when he testified that exhibit 11 was signed by a landlady and that he (PW4) recovered exhibits 1–4 (the guns, cartridge and ammunition) from the Appellant’s house while PW3 stated that they were recovered from the hotel. That exhibit D4 (the Newspaper publication) shows that the exhibits had earlier been attributed to other suspects.
It was further contended that there was no identification of the Appellant as one of the robbers nor was the Appellant’s phone in the possession of the Police allegedly used in calling the robbers inside the house of PW1 before he entered the house, tended nor did PW4 say that the car (exhibit 12) and the jewelleries were recovered from the Appellant, urging us to set aside the findings of the lower Court based on the said exhibits 6 and 10 and the evidence of PW1, PW3 and PW4.
On his issue 2, he listed the ingredients of the offence and submitted that the prosecution failed to prove same against the Appellant. That while the charge stated that Mr. and Mrs. Ifeanyi were robbed, there is no evidence to that effect as Mr. and Mrs. Ifeanyi Chukwu is not a juristic person or entity with legal right and capacity, LION AFRICA IN. CO. LTD. V. E.S. AN (1991) 8 NWLR (Pt. 614) 167 at 201 A, nor did PW1 testify that Ifeanyi Okafor Chukwu in the charge is the same person as Mr and Mrs Ifeanyi or that his wife was also robbed in the house, contending that PW1 needed to offer an explanation but failed to do so, citing the cases of MOHAMMED V. STATE (2010) LPELR–9019 (CA) and ESENOWO V. UKPONG (1999) 6 NWLR (Pt. 608) 611 in urging us to hold that the prosecution failed to prove the 1st ingredient of the offence or that there was a victim of the alleged offence.
On the 2nd ingredient of the offence, it was submitted that PW1 did not link the Mr G who entered his house to rob him with the Appellant and that the difficulty encountered by the PW1 hindered his proper identification of the Mr. G and that the weakness in the identification be resolved in favour of Appellant, ISIEKWE V. STATE (1999) NWLR (Pt. 617) 43, 67. He reiterated that PW3 did not testify that he arrested the Mr. G worse still that the Mr. G is the Appellant which facts he argued, entitle the appellant to an acquittal.
On the 3rd ingredient Counsel argued that it was submitted that the evidence of PW1 of Mr. G who became the Appellant did not form part of Exhibit 13 made to the police on the date of the incidence nor supported by the evidence of PW3 & PW4 but was only an addition created by PW1 to involve the Appellant in the crime to make up the numbers.
On his issue No. 3, learned Counsel contended that the only evidence of conspiracy relied upon on exhibits 6 & 10 is that the Appellant communicated with the robbers on 17/02/2016 and on 18/02/2016 at the scene of crime and also for using his mobile phone to call one of the co-accused to return the vehicle he ran away with. The said pieces of evidence, he argued, are not admissible in evidence as the phone, being a document, was not tendered in evidence nor did any witness check the phone to see the calls nor was the phone of the receiver tendered in order to prove that such a call was made and received, citing Section 167 (d) Evidence Act, 2011 as the reason for such failure, insisting that the elements of conspiracy were not proved.
On issue No. 4 contending that contrary to the view held by the lower Court, the Appellant’s defence was not an afterthought. That the Appellant put the Respondent on notice to produce his (Appellant’s) Police identity card containing his signature to show that the signature on exhibits 6 & 10 are not of the Appellant and when Respondent failed to produce the identity card the Appellant tendered his specimen signature on exhibits D series to show that the signature on extents 6 & 10 are not his. To further fortify the fact, PW4, he argued, agreed in cross-examination that he wrote all the dates beside the disputed signatures thus the contents of exhibits 6 & 10 is doubtful.
Furthermore, he submitted, the Appellant testified unchallenged, that he was not at the commissioner of police office on 18/2/2016 but was added to the vehicle with the suspects on 19/2/16 and paraded before the media. He concluded that the decision of the learned trial Judge that the Appellant’s defence is an afterthought is wrong. We were argued to allow the appeal, set aside the judgment of the lower Court together with the conviction and sentence, enter a verdict of not guilty and discharge and acquit the appellant.
RESOLUTION OF APPEAL
The thrust of the grudge of the Appellant’s Counsel against the decision of the lower Court is that the evidence of PW1 and PW4 relied upon by the lower Court did not prove the identity of the Appellant nor link the Appellant to the commission of the crime nor did the prosecution prove that the confessional statements, exhibits 10 & 6 credited to the Appellant were made by him.
It is now a common verse in criminal trials that for the prosecution to secure or sustain the conviction of an accused/Appellant it must unfailingly prove conjunctively all the ingredients of the alleged offence(s) beyond reasonable doubt. OMOTOLA V. STATE (2009) ALL FWLR (Pt. 464) 1490, ANI V. STATE (2003) 11 NWLR (Pt. 830) 142. Where it fails to prove any of the ingredients, it has failed to discharge its duty and the accused/Appellant will be entitled to a discharge and acquittal. GALADIMA V. THE STATE (2017) LPELR 41909 (SC).
The ingredients of armed robbery which the prosecution must prove beyond reasonable doubt to succeed have been stated and restated over time to be:
(1) That there was a robbery or series of robberies.
(2) That the robbery or each robbery was an armed robbery and
(3) That the accused was one of those who took part in the robbery or series of robberies.
OGOGOVIE V. STATE (2016) 12 NWLR (Pt. 1527) 468, OSENI V. STATE (2012) 5 NWLR (Pt. 1293) 351, OLAYINKA V. STATE (2007) 9 NWLR (Pt. 1040) 561. The prosecution may prove these ingredients either by the testimonies of eye witnesses, voluntary confessional statement of the accused person or circumstantial evidence.
On the first ingredient that there was a robbery, PW1 testified as an eye witness to the robbery event. Learned Counsel however canvassed what seems to be a preliminary argument on the eligibility of PW 1 to testify.
He submitted that the name “Mr & Mrs Ifeanyi Chukwu” is not a juristic person or entity with legal capacity and that as PW1 stated his name to be Ifeanyi “Okafor” Chukwu there was a failure to prove the ingredient.
I find this argument incredible. Indeed, it beats my imagination that such an argument can be canvassed with all seriousness. The argument that “Mr & Mrs Ifeanyi Chukwu” as a husband and wife both of whom are victims of the robbery incident are not juristic persons one or both of whom is eligible to testify is like saying that a natural person is not a human being or conversely that a human being either as an individual or in a class or group of named individuals is not natural person. To accept that argument is to allow the law to be turned on its head. If Mr. & or Mrs Ifeanyi Chukwu as victims of the crime committed is or are not competent witnesses or eligible to testify, then who else will be eligible to testify in the matter?
On the middle name “Okafor” added by PW1 to his name as the victim of the crime on the charge sheet “Mr & Mrs Ifeanyi Chukwu” we agree with the learned trial Judge that the addition does not change the identity of the victim. Either as Mr. “Ifeanyi Chukwu” in the charge or “Mr Ifeanyi Okafor Chukwu” as stated in evidence, PW1 as a victim of the crime remains the same. His identity as the victim of the crime remains unchallenged. Mr. Ifeanyi Chukwu mentioned in the charge is one and the same person as PW1 who testified as the victim and an eye witness to the commission of the crime to the facts as stated in the charge.
Additionally, neither the Appellant nor his defence Counsel was misled throughout the trial as to the identity of the victim or that PW1 was not a victim of the crime or that his evidence did not relate to the facts on the charge. The learned trial Judge at pages 118-19 of the record roundly considered the argument and correctly rejected same. I too find no substance in this argument and same is discountenanced. Accordingly, the evidence of PW1 as the evidence of a victim of an alleged robbery that took place on or about 18/2/2016 will be considered alongside the evidence on record for both the Respondent and the Appellant.
Now, in order to determine the 1st ingredient that there was a robbery which I shall consider together with the 2nd, that it was an armed robbery in that the robbers were armed with dangerous weapons, the starting point is the evidence of PW1 who is the eye witness to the robbery. I shall take the pains to reproduce a good part of his evidence.
PW1 testified inter- alia:
My name is Ifeanyi Okafor Chukwu. I live at 35 Sarki Road Bayan Dutse Narayi, Chikun Local Government Area. I am a legal Practitioner. I know the accused persons. On 18/2/2016 at about 7:30am having returned from road work, there was a knock on my gate. When I opened the gate, behold, I saw the 1st and 2nd accused. When I enquired what they wanted, the 2nd accused pointed at the notice we placed for sale of broilers and said they wanted to buy broilers. I told them that the broilers were not due for sale. Then the 1st accused said they were interested in having a look at how mature the broilers were. At that stage, I opened the gate very wide and the 2nd accused followed me while the 1st accused shut the gate. I protested because at that stage, it occurred to me that I admitted unwanted visitors. When we got to the end of the house where the poultry was built, they had a look and said the broilers were not what they wanted. Thereafter, the 2nd accused headed to the gate while the 1st accused held me back and told me that actually their mission was to assassinate me and that on unnamed Engineer sent them on that mission. Then he pulled his polo up and showed me a pistol that he had to prove what he was saying. He then asked after my wife and I told him that my wife was getting ready to go to work. He then asked after our children and I informed him that all our children were out and I was only staying with my wife. While this was going on, the 2nd accused was at the main gate, and the wall of our house is like prison because what is happening inside nobody knows from outside. The 1st accused then said I was cooperating and I was a good man and if I give them money, he would show me the picture of the person that sent them on the mission. I replied that I had no money. I(sic) then asked after ATM cards. My reply was that I don’t come home with them but leave them in the office. He then asked after my cheque books and I replied that I always kept my cheque books in the office.
While this was going on, he was pointing a pistol at me under threat. He then ordered me to move into the house so that we continued the discussion. I told him that we should discuss whatever they wanted outside. He raised his voice and pointed the pistol at me and I obeyed. When we entered the house he ordered me to sit down and to call my wife. I told my wife that we had some visitors and my wife came with her wrapper tied on her chest having just finished taking her bath.
They asked my wife to bring all her jewelleries, having told her their mission. She told them that she had no jewelleries because she sold all during the training of her children.
At this stage, the 1st accused gave the 2nd accused signal and the 2nd accused moved into my room that I share with my wife. While this was going on, the 2nd accused had a bigger gun that looked like a locally made revolver. The 2nd accused came out with one of my wife’s wrapper. Under threat, I was asked to put my two hands behind me. The 2nd accused now tied my two hands behind me and also tied my feet while the 1st accused was still pointing his pistol at me. The 2nd accused went back to the master bedroom and brought another cloth and tied my two eyes but unknown to him, the cloth was transparent. When I started gasping for air, they released the one they tied on my face for me to breathe. So I was now seeing very clearly. The 1st and 2nd accused did not wear any mask or cover their faces. I kept thinking whether I had seen these two faces earlier in my life and whether they were living in the neighbourhood. I couldn’t remember seeing their faces earlier in my life.
The 1st accused then asked for the original papers of our two cars – Toyota Corolla S, 2005 model with Reg. No. KAF 156 AA blue colour belonging to my wife and Camry V6 with Reg. No. Abuja CF 781 RBC that I was using being a gift from my co-inlaw, late Anaele Ikejuba, which we couldn’t find immediately.
My wife was allowed to go and bring the bag where she kept the documents and the 2nd accused ransacked the house but could not find any of the papers of any of the two vehicles.
At that stage, the 2nd accused went back to the master bedroom and ransacked the whole place. In all these, the 1st accused was pointing his pistol at me and that they were six of them on the mission but two of them came in while others were around, so I should not try to be funny.
As the 2nd accused was ransacking our room and bringing out items including the black shoes I am wearing now, electronics, my wife’s wedding and engagement ring, toilet soap and perfumes. While this was going on the 1st accused’s phone rang and the 1st accused answered the phone. It was at this point that he ordered me and my wife to get up and head for the room. I staggered to the room. From the room, he led us to the toilet and ordered us to sit. At that stage, he asked a certain Mr. G when the phone rang again, to come through the main gate of my house. When Mr. G entered the house, he directed him to the door through which we entered the house with him. I started feeling dizzy, having just been discharged from St. Gerald’s Hospital two weeks earlier.
The 1st accused then told me that they were aware I was admitted at St Gerald Hospital. While this was happening, the cloth they used in tying my face, being transparent, I was able to see the third person called Mr. G. He was the 3rd accused and he was also armed. I observed that the 3rd accused kept hiding even when he was holding a gun. He stayed by the door and was hiding. I kept wondering why he was hiding while others were very bold.
At that point, they locked the door leading from the bedroom to the living room and started packing what they stole-Handsets, electronics, household items, the two keys to the cars which were on the centre table. They went to start the cars. When the cars couldn’t start, the 1st accused came back with threat that we should show them were the security was. Having told them, they tried but the cars couldn’t start and he came back the 1st accused took my wife out to show them where the security of the Toyota Corolla was. He later brought her back and locked the door. He started the Corolla S and drove off. When they started the Camry, I rushed to the window of the room adjacent to the master bedroom and peeped and I saw the 1st accused starting the Toyota Camry and drove off. After they left, I now went out and the gate was open. My neighbour now took me to Barnawa Police Station where I made a complaint and they followed me to the house and saw what happened. During the process, we picked one of the sim cards from the handsets they stole, from the living room. We put the sim card in another phone.
At about 3pm of the same date, we received a call from Police Headquarters that they recovered a Camry – Abuja and they saw some documents inside that bore my name and phone number and that I should come to Police Headquarters immediately. On getting to Police Headquarters, the same three armed robbers that raided us were there and I identified them to the Police. The C.O.P. asked the DPO Kakuri to take us back to their Station since they were the people that arrested the accused and recovered the car.
So we went to Kakuri Police Station. At Kakuri Police Station they gave the phone number of the person they sold the Toyota Corolla to, to the Police Investigation, Insp. Ababa, who kept phoning the 4th accused that they gave him stolen vehicle. It was the Toyota Camry V.6 with registration number that I have given that was recovered. It is now in my possession and we have been using it with my wife. They said they gave the second car to 4th accused but the car has not been recovered.
It is clear from the evidence of PW1 reproduced above that there was a robbery at No. 35 Sarki Road Bayan Dutse Narayi Chikun Local Govt. Area of which PW1 and his wife were the victims. It is also crystal that the robbery was an armed robbery, the robbers being armed with guns, and a gun being pointed at PW1 throughout the period of the robbery. His hands were tied. He was threatened and warned not to be funny as they were six in number. All the robbers were armed with guns. Several items including two vehicles, a Toyota Corolla S 2005 and Camry as described, electronics, jewelleries, phones and shoes were stolen and taken away by the robbers.
This evidence was not challenged or controverted by the defence. Also, apart from his argument on the non-juristic personality of Mr. and Mrs Ifeanyi and their non-illegibility to testify, learned counsel did not canvass any argument denying those two ingredients. His argument centres on the 3rd ingredient which shall be considered anon.
The 3rd ingredient and which is the most crucial is that the Appellant was one of the robbers. The Appellant’s Counsel vehemently contends that PW1 could not under the conditions, have properly identified the Appellant and how a Mr. G became the Appellant nor was an identification parade conducted to properly identify the Appellant.
Identification evidence is that evidence tending to show that the person charged with the offence is the same person seen committing the offence. Its purpose in a criminal trial is to show that the person charged with the offence is the actual person who committed the offence. See NDIDI V. STATE (2007) 5 SCNJ 274. THOMAS V. STATE (2017) 9 NWLR (Pt. 1570) 230. It consists of a whole series of facts and circumstances for which a witness associates a defendant with the commission of the offence charged. It may take the form of fingerprints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission of the offence. See STATE V. AIBANGBEE & ANOR (1988) 3 NWLR (Pt. 84) 548.
The question of whether an accused person is properly identified as the one who committed the offence or was a party to the commission of the offence is a question of fact to be considered by the trial Court based on the evidence placed before the Court and this depends on the facts and circumstances of each case. UDUKWU V. THE STATE (2009) NWLR (Pt. 1139) 43. So, when a trial Court is faced with identification evidence, all it needs to do is to be satisfied that the identification evidence has sufficiently established the guilt of the accused person beyond reasonable doubt. DAIRO V. STATE (2018) 7 NWLR (Pt. 1619) 399 UKPABI V. STATE (2004) 6–7 SC 27.
An identification parade as a means of identifying the culprit is conducted only where his identity is uncertain. Identification parade is not conducted for the fun of it or as a ritual or for a cosmetic purpose. It is conducted only where the identity of the perpetrator of the crime is seriously in doubt and the eye witness evidence is shaky, weak and doubtful and the accused has not confessed to the commission of the offence. In IFEDAYO V. STATE (2018) LPELR–44374. Augie, JSC stated the real situation that should call for the conduct of an identification parade in these words:
“Identification parade should never be conducted for purely cosmetic reason; it should be limited to cases of real doubt or dispute as to the identity of an Accused or his connection with the offence charged. To insist that it must be conducted as in (this) case, in which the identity is clear and corroborated by other uncontroverted evidence, and the Accused confesses to his complicity in the crime, is to make a mockery of justice”.
In the instant case, PW 1 testified that he was able to see the Mr. G who called the 1st accused on the phone and who the 1st accused had asked to come to the house through the main gate. That he was able to see the Mr. G because the cloth used in tying his face was transparent. PW1 also observed that the said Mr. G stayed by the door and was hiding.
The argument of the Appellant’s Counsel is that under those conditions including the facts that PW1 said he was dizzy and frightened he could not have been able to identify the MR. G, having not stated the features of the MR. G.
It is pertinent to state that the incident happened in the morning around 7:30 a.m. and not at night. It was also obvious from the narration of the evidence that the robbers spent ample time during the operation. This in turn afforded the witness the opportunity of interaction with and close observation of the robbers who were unmasked including the Mr. G who PW1 was able to see through the transparent cloth. In cross-examination, he maintained that he was able to identify the MR. G because he was in his full senses and that the MR. G stayed by the door and was hiding. A few hours after the incident, at about 3:00 p.m., PW1 received a call from the police Headquarters that the Camry vehicle and some documents bearing his name have been recovered and that he should come to the Police Headquarters. On reaching there, he saw the three robbers and spontaneously he immediately identified them to the police.
Furthermore, the Appellant along with the 1st and 2nd accused persons were arrested by a team of policemen on patrol led by PW4 who met the Appellant together with the 1st and 2nd accused persons at one Hotel called Turaki Guest Inn and on being suspicious of them ordered his men to search them. He discovered they had many handsets, women jewelleries and car key. It was during the search that the stolen items were seen with the trio including the Toyota Camry. When PW4 asked what they were doing with all the items, the Appellant who was the 3rd defendant at the trial, showed his ID card that he was a policeman, but PW4 was still not comfortable with the items recovered from them.
He collected the car key from the 1st defendant, Stephen Adeola, used the remote control and the Toyota Camry security system raised alarm. On searching the vehicle, they discovered some complimentary cards, First Bank Cheque booklet and jotter belonging to one Barrister Ifeanyi Chukwu. PW4 questioned them about the items and it was then that they opened up that a house was robbed and they got two cars from the house and one of the cars had been taken to the receiver and it was the same person that they were waiting for in the hotel. The witness continued further
“After the confession of the 3rd Defendant (Appellant) he took us to his house at Unguwan Maigero where we conducted a search and recovered one locally made long gun, one logically made pistol, a set of “Deni” uniform …”. The 3rd defendant gave me the number of the receiver from his own phone and I called the receiver. He said he was driving to Jos. So I could not apprehended him …”
The evidence of PW4 further revealed the identity of the Appellant as one of the three robbers who robbed PW1. The Appellant was not only found in company of the 1st and 2nd accused persons and in possession of some of the stolen items soon after the robbery, but also the Appellant it was who gave to the Police the telephone number of the receiver of one of the stolen cars. Guns and ammunition among other things were recovered from the Appellant’s house during the search conducted in the house by the Police.
Furthermore, exhibits P6 and P10 were tendered as confessional statements purportedly made by the Appellant in which the Appellant allegedly confessed to be one of the robbers. Learned Counsel has however argued that both statements were wrongly relied upon as confessional statements. That while there is no portion of exhibit 6 where the Appellant stated that he was one of the persons who robbed Ifeanyi Okafor Chukwu (PW1), in exhibit 10 the Appellant raised an alibi which was not considered.
On exhibit 10, learned Counsel apparently is speaking from both sides of his mouth approbating and reprobating. At trial, they denied authorship of exhibit 10 that the irregular signature therein is not his. At the same time Counsel contends that the Appellant raised alibi in the statement that the Appellant did not make. What a fallacy!
In any case, the law is clear and settled that where as in the case at hand an objection is taken to the admissibility of a confessional statement on the ground that the accused person did not make it, sign it, or the signature on it is not that of the accused or is irregular, the proper action is for the Court to admit the statement and consider at the end of trial in the light of the other pieces of evidence on record, whether the accused indeed made the statement or not and the appropriate weight to ascribe to the statement. See HASSAN V. STATE (2017) 5 NWLR (Pt. 1657) 1. OSUAGWU V. STATE (2013) 1–2 SC (Pt. 1) 37. It would have been different if as in the case of the 1st and 4th accused persons the Appellant had challenged the voluntariness of exhibits 6 and 10 in which case it would have been necessary to conduct a trial within trial. Having only denied making exhibits 6 and 10 the only question is the weight to be attached to them.
In his judgment the learned trial Judge assessed, appraised and evaluated the evidence and came to the conclusion in the light of other pieces of evidence on record that Appellant made exhibits 6 and 10. The Judge considered among others the evidence of PW4 that the Appellant was arrested together with the 1st and 2nd accused persons at Turaki Hotel; that exhibits 2 and 3A (locally fabricated pistol, two rounds of live cartridges and one round of live ammunitions) among other items were recovered in the house of the Appellant, these pieces of evidence being unchallenged and uncontroverted. That Appellant stated in exhibit 10 that he was hiding because he lives around the area and may be known.
Now, on the alleged alibi raised in Exhibit 10, The Appellant stated inter alia that:
On 17/2/2016, my friend Femi now called me on phone that they are in Kaduna that they don’t know anywhere to lodge. I asked them, where are they, and he told me that they are at Turaki Hotel in Trikania. From there I told him that they should take keke – Napep down to Narayi by NAFDAC. When two of them Femi and Emma came, then I took them to NICON hotel to lodge. Later I left them in the hotel in the morning around 6:30am Femi called me that I should came and help them to take them somewhere. When I met them in the hotel, Femi told me that they want to go and carry one car. Later a call enter his phone and he gave me the phone that I should talk to the person. The person now told me on phone that we should come to Church Road by water board junction. Myself, Femi and Emma went and meet three people there, two people came down from the car and one of them brought out one kit bag from the booth of the car. (Golf 3) red in colour. From there the Golf now moved. It was gun that was inside. Two local guns. The rest people entered the compound with the gun while I was at the gate watching because I live around the area, and the people may know me. After we finished the operation, I then told Femi that I don’t know the rest boys so I will not release the two guns to them until they come back to settle us. Emma was driving the Corolla and while Femi was driving the Toyota Camry, down to my house where I kept the guns.
I hasten to say that the above portion of Exhibit 10 does not amount to alibi because while the crime in question was committed around 7:30 a.m. the Appellant stated that it was around 6:30 a.m. that he went to meet Femi and Emma (1st and 2nd accused persons) and it was then that someone told him on phone that they should come to Church Road by Water Board Junction. The timings are different and most importantly, the earlier event preceded the time of the commission of the offence in question. The Appellant did not state that the Church Road by Water Board Junction area is different from the general area of the house of PW1 where he (Appellant) stated that the 1st and 2nd accused and himself committed the robbery. This is clear when he stated that “I live around the area and people may know me”. The learned trial Judge was therefore right in not relying on the “purported alibi”. Moreover, it is the law that where an accused person is properly fixed at the scene of a crime, his alibi must fail. See SANNI V. STATE (2019) LPELR – 47418 (SC).
Similarly, in the demonstrated scenario, as stated earlier in this judgment, given to the evidence on record an identification parade ceases to be necessary. The identity of the Appellant was corroborated by other uncontroverted evidence. The confession of the Appellant tallies with the identification evidence of PW1 and the evidence of PW4. Therefore, having regards to the evidence on record, I agree with the learned trial Judge that the Appellant’s defence in Court was an afterthought. PW4 was not challenged when he testified that he arrested the Appellant together with the 1st and 2nd accused persons at Turaki Hotel and that some of the stolen items were recovered from them in addition to the items recovered in the house of the Appellant. The witness was also not taken up on the evidence that the Appellant showed his ID card as a policeman and also that they opened up to PW4 that they committed robbery. The prosecution therefore proved that ingredient of the offence, as well.
On the charge of conspiracy, conspiracy is simply an agreement between two or more persons to commit an illegal act or a legal act by illegal means. As conspiracy is often hatched in an incubator of secrecy, direct evidence of it is seldom available. Proof of conspiracy or the agreement is generally a matter of plausible inference deduced from certain criminal acts of the accused persons done in pursuance of a criminal purpose common between the conspirators. It is rarely proved by direct evidence and understandably so, because of the secrecy by which it is planned and executed to the exclusion of every other person who is a stranger to the scheme. It is therefore difficult to have direct witnesses to prove the offence. Consequently, the Courts have held that conspiracy can be proved either by leading direct evidence in proof of common criminal design or by inference deduced from the commission of the offence; EGUNJOBI V. F.R.N (2001) 53 W.L.R.N 20 at 54; LAWSON V. STATE (1975) 4 SC 115 AT 123. NWOSU V. THE STATE (2004) 15 NWLR (Pt. 897) 466.
The agreement can be inferred from what each person does or does not do, in furtherance of the common purpose and it is immaterial that the persons have not met each other. JIMOH V. STATE (2014) 10 NWLR (Pt. 1414) 105. Once there is evidence to commit the substantive offence, it does not matter what any of the conspirators did or who did what; SULE V. STATE (2009) 17 NWLR (Pt. 1169) 33.
In the instant case, the lower Court rightly held that the fact that the 1st, 2nd, 3rd defendants (Appellant was the 3rd defendant) went together and robbed the PW1 and his wife is a clear circumstance from which to infer that they agreed to commit armed robbery. I endorse that conclusion. Having therefore reached this conclusion, the sole issue has to be and is resolved against the Appellant. In the circumstance, I find no merit in the appeal. It is hereby dismissed and the judgment of the lower Court delivered by Hon. Justice G.I. Kurada in charge No.KDH/KAD/121C/2016 on 30/10/2020 is hereby affirmed.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Amina Audi Wambai, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
A.C. Ameachi, Esq, For Appellant(s)
Suwan Stephen, Esq, For Respondent(s)