BROWN OWOICHO INNOCENT V. THE STATE (2013)

BROWN OWOICHO INNOCENT V. THE STATE

(2013)LCN/6219(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2013

CA/MK/73C/2011

RATIO

INGREDIENTS TO ESTABLISH THE OFFENCE OF CONSPIRACY

On conspiracy, the offence is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators.
The offence of conspiracy is not specifically defined in our penal or criminal code. Consequently a direct positive evidence of the plot among the conspirators is hardly proveable. The courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned.
All the same conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See ODUNEYE vs. THE STATE (2001) 13 WRN 88. NWOSU vs. THE
STATE (2004) 15 NWLR (PT 897) 466; OBIAKOR vs. THE STATE (2002) 10 NWLR (PT 776) 612.

JUSTICES

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

Between

BROWN OWOICHO INNOCENT Appellant(s)

AND

THE STATE Respondent(s)

SAMUEL CHUKWUDUMEBI, OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Benue State, Makurdi Division, delivered by Hon. Justice Tine Tur on the 17th day of June 2010 wherein the appellant was convicted with two other persons for the offence of criminal conspiracy and Armed Robbery.
The charge against the appellant and three others as shown at page 71-73 of the record reads thus:-
HEAD ONE
“That you Owoicho Brown Innocent, Christian Igba, Solomon Gbaji Ayoosu and Kingsley Orjime who is now at large on 9/6/2006 at about 7.00pm at P2, 2nd Avenue, Federal housing estate North Bank, Makurdi within the jurisdiction of this Honourable Court conspired to do on illegal act to wit; attack and rob one Barrister Peter S. Abaagu and his family and to rape Miss Mwuese Anshase at the said address making use of guns and other dangerous weapons to prosecute the said agreement and the same was carried out pursuant to your conspiracy. You thereby committed an offence punishable under Section 5 of the Armed Robbery and Firearms (Special Provision) Act and Section 79 of Penal Code Law.
HEAD TWO
That you Owoicho Brown Innocent, Christian Igba, Solomon Gbaji Ayoosu and Kingsley Orjime who is now at large on 9/6/2006 at about 7.00pm at P2, 2nd Avenue, Federal Housing Estate North Bank, Makurdi within the jurisdiction of this Honourable Court did an illegal act to wit; attacked Barrister Abaagu and his family at gun point and other dangerous weapons and robbed him of the sum of N50,000.00 and various items including Nokia 9500, Nokia 6600, Nokia 7650 and a Philips Stereo set. You thereby committed on offence punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provision) Act.
HEAD THREE
That you Christian Igba on 9/6/2006 at about 7.00pm at P2, 2nd Avenue, Federal Housing Estate North Bank, Makurdi in the residence of Barrister Peter S. Abaagu and within the jurisdiction of this Honourable Court had sexual intercourse with Miss Mwuese Anshase against her will by coercing her to act by the use of guns and other dangerous weapons-handled by you and members of your robbery syndicate. You thereby committed an act punishable under Section 283 of the Penal Code Law of Northern Nigeria applicable to Benue State.
The facts are that one Barrister PS Abaagu (PW1) lives with his family at No B2. 2nd Avenue, Federal Housing Authority Estate, North Bank, Makurdi Benue State. On 9-6-2006, he returned home at about 7pm -8pm where he met his sister in-law and daughter in the sitting room. He proceeded to his bedroom and settled down to watch the opening ceremony of the world cup match and while doing so he heard a scream from the sitting room and as he opened his bedroom door to know what was happening, he met the appellant standing there with a pistol in his hand. Half of his face was masked with handkerchief and he was wearing a round neck polo shirt. At the sitting room there were two other men and the one with a rifle used the butt to hit him on the face as he tried to look at him and he fell down. The appellant marched him on the head and told him not to move. By then one of them (2nd accused) was busy raping his sister in-law. They then led him to his bedroom where he gave them the N50.000 he had at home. They also took his Nokia N9500 communicator, Nokia, 7650 and Nokia 6600. They also took away his Phillips Stereo DVD Player, Seiko wrist watch and a bottle of perfume. Thereafter the robbers herded him, his daughter, sister inlaw and the gateman into the bedroom before they left. He reported the matter to the police that same night. Subsequently, he was invited by the police to identify some recovered stolen items during which he identified his phones and the stereo set. While he was in the office of the commissioner of police, the appellant was brought and he immediately recognized him. The appellant also started shaking when he saw the PW1. Also, through the calls made with his phone after the robbery, the other accused persons were arrested. The appellant denied the charge at the lower court. He said he had nothing to do with the robbery at the PW1’s house. The Nokia N9500 linked to him was bought from one Kingsley for N35,000 and he paid N9000 deposit he later sold the same phone to Christian Igba (2nd accused) for (N50,000).
At the hearing which commenced in the lower court on 4-7-2007. The prosecution called three witnesses through whom exhibits were tendered and admitted in evidence. The appellant and two others charged with him testified in their own defence but called no witness.
Thereafter, both counsel for the prosecution and the defence in their address made oral submissions to the court. In the judgment delivered on 17-6-2010 the appellant with two others were convicted on counts 1 and 2 for the offence of Conspiracy and Armed Robbery. Aggrieved with the decision of the lower court, the appellant filed a notice of appeal on 5-7-2010. The said notice of appeal contains 14 grounds of appeal which shorn of their particulars reads as follows:-
GROUNDS OF APPEAL
1. “The decision of the trial High Court is unreasonable and cannot be supported having regard to the evidence before it.
2. ERROR OF LAW
The learned trial High Court erred in law when it convicted the appellant on charges of Criminal Conspiracy and Armed Robbery when the evidence of the prosecution on the charges are full of material and fundamental contradictions and thereby arrived at wrong conclusion that the prosecution proved its case beyond reasonable doubt as required by law.
3. ERROR OF LAW
The trial High court erred in law when it held in its judgment that the appellant was properly identified by PW1 both at the scene of the crime and at the office of PW4 and using the same as a major basis for convicting the appellant for the offences of Criminal Conspiracy and Armed Robbery.
4. ERROR OF LAW
The trial High Court erred in law in its judgment when it held that the prosecution proved the charge of conspiracy against the 1st accused, particularly when it held as follows:
“I am of the humble opinion that conspiracy as charged in count one has also been established by the prosecution. The three accused persons raided the house of PW1 with guns. PW1 and PW2 were emphatic the two accused had pistols while the third had an AK 47 rifle. It does not matter whether the guns were long or short. Which matters is that robbery was committed by the three accused masked young men with guns….”
5. ERROR OF LAW
The trial High Court erred in law when in its judgment convicting the appellant it held that the appellant apart from conspiring to commit the offence of Armed Robbery,committed the same and at the same time abetted the commission of the offence and thereby occasioned miscarriage of justice.
6. ERROR OF LAW
The learned trial High Court erred in law when in its judgment it shifted the burden to investigate the alibi of appellant and failure to call Kingsley Orjime on the appellant when in his statement to the police at the earliest opportunity the appellant mentioned that it was Kingsley Orjime who sold the phone to him for valuable consideration.
7. ERROR OF LAW
The trial High Court erred in law in its judgment in convicting the appellant when it concluded as follows:
“firstly, nowhere did 1st accused, Owoicho Brown Innocent say in Exhibit ‘G’ of 14/7/2006 where he was on the night of 9/6/2006 particularly between the hours of 7-9pm, when the robbery incidence is said to have occurred. Secondly, the armed robbery incident took place on 9/6/2009 hence PW1’S DVD player could not have been brought by Kingsley to 1st accused” sometime in late May 2006 it was when the robbery incident had not yet occurred. I find Exhibit ‘C’ that in the month of June 2006 that Armed Robbery occurred……..No, I hold that the 1st accused was at the scene of the Armed Robbery operation of 9/6/2006 and used a pistol on PW1″.
8. ERROR OF LAW
The trial High Court erred in law in its judgment when it deliberately set out to discredit and disbelieve the testimony of the appellant which was credible and deliberately believed and relied on the uncoordinated and contradictory evidence of the prosecution with the sole aim of convicting the appellant and thereby occasioned grave miscarriage of justice.
9. ERROR OF LAW
The trial High Court erred in law when in its judgment convicting the appellant it relied and act on the substantially hearsay evidence of PW4 and thereby occasioned miscarriage of justice.
10. ERROR OF LAW
The trial High Court erred in law when in its judgment it stated as follows:
“I find that PW1 and PW2 made their respective statement (Exhibits C and D) on 10/6/2006 when the robbery incident was fresh in their memory describing the physical features of their assailants, with PW2 vouching that whenever she had the opportunity she can identify them. The statements were tendered by the defence during the cross-examination. See Esangbedo vs. The State (1989) 7 SCNJ 10 at 15-16. Having put them as exhibits, think I can use them to resolve whatever conflicts there might arise in their oral evidence in court. See Fashanu vs Adekoya (1974) 1 All NLR WLR (Pt 1.) 35 at 41; Kinday vs Mil. Governor of Gongola State (1988) 2 NWLR (Pt 77) 445 at 473 and Q V vs Lt. Governor (1957) 2 FSC 48”.
11. ERROR OF LAW
The trial High Court erred in law when in its judgment it held as follows:
“The defence never cross examined PW1, PW2 and PW4 to show that 1st, 2nd and 3rd accused persons could not have been at the scene of crime as alleged on 09/06/2006 at 7-9pm. What I noticed is that heavy weather was made concerning the issue of identification of the 1st, 2nd and 3rd accused because they were not arrested at the scene of the crime. That may be so. But PW1 and PW2’s description of their assailants were contained in their extra judicial statements to the police Exhibits C and D of 10/06/2006. They also pointed out 1-3 accused at the police station upon their arrests, PW4 relied on information from Exhibit 1, Agnes and Adah Attah to arrest 1-3rd accused who made statements Exhibit G, H and I,respectively. Exhibits E1 and E2 were recovered from the accused persons”
12. ERROR OF LAW
The trial High Court erred in law when it held in its judgment convicting the appellant as follows:
“There is evidence from PW4 that Nokia 6600 (Exhibit B) was recovered by the police and identified by PW1 as one of the phones stolen from his house on 09/06/2006. This piece of evidence remained unchallenged and I believe PW4, 1st and 2nd accused used the phones to snap girls in the University according to PW4 which entire evidence remained unchallenged and I believe him…..”
13. ERROR OF LAW
The trial High Court erred in law when after convicting the appellant it failed to call on appellant as convict or his counsel to plead allocutus before sentencing him to death and thus occasioned miscarriage of justice.
14. ERROR OF LAW
The trial High Court erred in law when in its judgment convicting the appellant it held that the prosecution proved all the charges beyond reasonable doubt and thereby occasioned grave miscarriage of justice.
Briefs of argument were subsequently filed and exchanged by the parties. The appellant’s brief of argument dated and filed on 27-11-2012 was settled by Chief S.O. Agbo. The respondent’s brief dated 7-12-12 and filed on 10-12-12 was settled by J.S. Tarpav. Esq.principal state counsel, Ministry of Justice, Benue State. At the hearing of the appeal on 14- 03-2013 counsel for both parties adopted their respective briefs of arguments.
In the appellants brief of argument seven issues were distilled for determination from the 14 grounds of appeal as follows:-
ISSUES FOR DETERMINATION:
3.00 The appellant contends that the following issues arise for determination in this appeal.
3.01 Whether the respondent proved its case before the lower court as required by law to warrant the decision/judgment convicting the appellant on all the counts of charges against him?
(Ground 2, 8, 12 and 14)
3.02 Whether the lower court was right when it held in its judgment that the issue of identification parade canvassed did not avail the appellant and what is the effect of failure to conduct identification parade in respect of appellant in this case? (Grounds 4 and 11).
3.03 Whether the lower court was right in its judgment when it shifted the onus/burden of proof on the appellant as to his guilt and whether the essential ingredients of conspiracy were made out against the appellant? (Grounds 4, 5, 6 and 7)
3.04 Whether the decision of the lower court was not based substantially on hearsay/inadmissible evidence and extraneous matters not evident on the record of the court? (Ground 1).
3.05 Whether the decision of the lower court can be supported having regard to the evidence before it? (Ground 1).
3.06 Whether the lower court was right when it used exhibits C and D tendered during cross-examination to impeach the credits of PW1 and PW2 to resolve conflicts in oral evidence of PW1 and PW2 in court? (Ground 10).
3.07 Whether the lower court was right to have denied the appellant the opportunity for an allocutus after his conviction for the offences of Criminal conspiracy and Armed Robbery. (Ground 13)
The respondent also willingly adopted the same 7 issues for determination as formulated by the appellant in his brief of argument.
This appeal will accordingly be considered on the basis of the issues as formulated by the appellant and adopted by the respondent.
ISSIE 1
Dwelling on this issue, Chief S.O. Agbo of counsel for the appellant submitted that the prosecution failed to prove the charges of Criminal Conspiracy and Armed Robbery proffered against the appellant before the court and as such the lower court erred in arriving at the conclusion it did in its judgment that the charges were proved beyond reasonable doubt.
He added that the prosecution called four witnesses but while PW1 and PW2 completed their testimonies and were duly cross-examined, PW3 on the other hand was disqualified from further testifying because his extra judicial statement was not included in the proof of evidence. Equally PW4 testified and was cross-examined only in the trial within trial proceedings after which on admitting the statement of the appellant and his co-accused persons the prosecution for no reason, abruptly closed its case without producing PW4 to be cross-examined on his evidence against the appellant and this renders his evidence and all the exhibits tendered through him untested by way of cross-examination. Learned counsel further submitted that the reliance placed by the lower court on the testimony of the PW4 and the exhibits tendered through him were done in error as no weight ought to have been placed on them by the court.
He contended also that failure to cross-examine a witness does not only deny the other party fair hearing in the case but also put the veracity of the witness testimony in doubt. He cited AMADI VS NWOSU (1992) 6 SCNJ 59 at 71 and section 190 of the evidence Act CAP 112 LFN 1990.
Learned counsel therefore urged this court to expunge the evidence of PW4 from the record with all the exhibits tendered through him.
On the other hand learned counsel submitted that the evidence of PW4 was substantially based on hearsay because he neither took the statement of the appellant nor was he present when it was taken. He did not also state that he personally recovered the relevant exhibits personally except for Exhibit F which has no probative value.
Dwelling on the evidence of PW1 and PW2 learned counsel submitted that there are contradictions in them and the lower court was in grave error of law to have relied on them particularly their extra judicial statements tendered under Section 209 of the Evidence Act to contradict their testimonies, in convicting the appellant instead of considering the statements for the purposes for which they were tendered. He added that the lower court gave Exhibits C and D (the extra-judicial statements of PW1 and PW2) the pride of place in the judgment by putting them to other uses than that which they were tendered for which is to contradict their evidence in court. He relied on the following authorities.
WEST AFRICAN BREWERIES VS. SAVANNAH VENTURES LTD. (2002) FWLR (PT.112) 53 at 72; ENEMUO VS. DIM (2002) FWLR (PT.126) ALL FWLR (PT.531) 1578 AT 1600 AND OMEGA BANK PLC. VS. OBC LTD. (2005) ALL FWLR (PT.249) 1964.
Learned counsel further emphasized that Exhibit C and D were tendered only to contradict PW1 and PW2 and for no other purpose and as such the lower court had no duty to examine them in chambers and rely on them to convict the appellant.
In his response, J.S. Tavpav, Principal State Counsel for the Respondent submitted that the Respondent proved her case beyond reasonable doubt which phrase does not mean beyond every shadow of doubt. He added that the prosecution at the trial built her case on a sequence of events with a history line linking the appellant with the crimes alleged without the chain of events being broken.
Learned counsel referred to pages 6 – 11 and 137 to 138 of the record (particularly lines 5, 6, 7, 8 and 9 of page 138 and argued that the description of the appellant at the scene of crime is corroborated by the testimony of the PW2 and PW4 who to an expert witness and whose testimony was not challenged by the defence.
On the issue of non cross-examination of PW4 (who is a Commissioner of police) by the defence, learned counsel contended that he was cross-examined during trial within trial and was available for cross-examination but the defence counsel could not cross-examine him on 22-10-02 knowing fully well that PW4 came from outside the state purposely for the trial.
On the issue of conspiring learned counsel submitted that it is not in doubt that but the appellant conspired with the other accused persons and others at large to rob PW1 and PW2. He added that the only doubt related to Christian Igba who during the trial was revealed not to have taken part in the said robbery of 9/6/06 but received/bought one of the stolen phones from the Appellant in which case the said Christian Igba should be excluded from the charges of conspiracy and armed robbery. But as regards the Appellant, he says, the issue of conspiracy has been proved against him that he conspired with others at large to rob the PW1.
It was the contention of learned counsel that the appellant having claimed that it was one Kingsley Orjime that sold Exhibit 2 (Nokia 9500) to him with a Sim Card in it and that it was one Adah his (appellant’s)friend that brought the said Kingsley to sell the phone to him. It behoves the appellant to call the said Kingsley and Adah as witnesses but this he failed to do and he is therefore caught by the provisions of Section 140 and 167 (d) of the Evidence Act 2011.
ISSUE 2
Dwelling on this issue, learned counsel for the appellant submitted that the lower court was in grave error of law when it proceeded to convict the appellant using the evidence of PW1 and PW2 on the grounds that their evidence physically fixed the appellant to the scene of crime and also identified him at the police station in which case there was no need to conduct identification parade.
On the contrary he says, the PW1 and PW2 in their statement did not indicate that they knew or identified the appellant but only PW1 and PW2 stated that she could identify him if seen but no opportunity for that was given by way of identification parade. He added that the evidence of PW1 and PW2 was that the robbers were masked and they told PW1 to lie face down and this was in the night.
Learned counsel then submitted that in the circumstance there is a high probability of mistaken identity hence the need for a proper identification parade in line with the admonition in IKEMSON vs THE STATE Supra. He also cited ASAKITIKPE vs THE STATE (1993) 6 SCNJ 201 AND BOZIN vs THE STATE (1985) 2 NWLR (PT. 8) 455.
Responding on the said issue 2, learned counsel for the Respondent submitted that the identity of the appellant was not in doubt because PW1 described him in his extra-judicial statement (Exhibit C) and (Exhibit D). He also pointed out the appellant at the Police Headquarters in the Office of the Commissioner of Police. The items robbed from the house of PW1 were also recovered from him and his girl-friend which facts were not denied by the appellant.
ISSUE 3
Herein, learned counsel or the appellant submitted that the lower court erred in law when in its judgment it held that it was not the duty of the Police to investigate whether Kingsley Orjime was appellant’s friend and that the appellant ought to have called him as a witness to prove that he sold the phone to him and this thus amounts to shifting the burden of investigation on the appellant. He added that the appellant at the earliest opportunity stated in his statement to the Police that he purchased the Nokia N9500 from Kingsley Orjime for valuable consideration and none of the investigating Police Officers bothered to investigate the claim even when the appellant told them that he knows the house of the said Kingsley Orjime who incidentally did not give receipt for the purchase of the Nokia N9500 Phone.
Learned Counsel further contended that the view of the lower court was that the failure of the appellant to state his whereabouts in his statement at the time of the robbery confirmed his involvement as unconstitutional and must be set aside.
He added that in cases of Alibi, the initial burned to state with particulars where the appellant was at the time of the offence lies with him but that his extra-judicial statement (Exhibit G) should be discountenanced because it was tendered through a witness who was not cross-examined.
On conspiracy learned counsel submitted that the lower court did not ascertain as best at it could, the evidence of complicity of the appellant in the offence of armed robbery at the house of PW1 on 9-3-06.
He referred to the case of NJOVENS VS THE STATE (1973) NWLR at 96 -97.
In his response on this issue learned counsel for the Respondent submitted that although the onus of proving the guilt of the accused person lies with the prosecution but where certain facts are within the peculiar knowledge of the accused or if the accused alleges same, the burden of proving same shifts to him as is the present case.
He added that it was the appellant who raised the defence that Exhibit 2, the Nokia N9500 which was stolen from the PW1 the day he was robbed was sold to him by Kingsley Orjime yet he refused to call him as a witness in which case the doctrine of recent possession caught up with him. See ANTHONY ISIBOR VS. THE STATE (2002) 94 LRCN 279 at 281.
Learned counsel also drew the attention of the court to the constant repetitive submissions on the issue of conspiracy by the appellant’s counsel in all the issues so far addressed. I do agree with him and add that it is indeed not a healthy or proper manner in brief writing.
ISSIE 4
Dwelling on the issue, learned counsel for the appellant submitted that it was wrong for the lower court to rely on the evidence of PW4 and the exhibits tendered through him in reaching its conclusion when the evidence was substantially based on hearsay and not tested under cross-examination in which case it ought not to be relied upon in arriving at its decision. He then urged this court to expunge or discountenance the evidence of PW4 as well as the exhibits tendered through him and were heavily relied upon by the lower court to support the conviction of the appellant.
For the Respondent, it was submitted that the appellant’s contention is erroneous because in OLADEJO vs THE STATE (1994) 6 NWLR (PT 348) 101 at 113 this court held that-
“The evidence of an investigating Police Officer of facts he personally saw or discovered in the cause of his investigation is not hearsay evidence to render such facts inadmissible.”
He added that the lower court properly assessed and evaluated the evidence before it and has made findings of fact to justify the conviction.
ISSUE 5
Herein, learned counsel for the appellant submitted that the lower court arrived at its decision using the evidence of PW1, PW2 and PW4 with exhibits tendered, but that the evidence of PW1 and PW2 have been heavily discredited having regarded to their extra-judicial statement in (Exhibits C and D) before the lower court in which case their evidence ought to be discountenanced together with their statement.
As regards the PW4, learned counsel argued that his evidence was based on hearsay and was not also subjected to cross-examination and this leads to denial of fair hearing apart from the opportunity to test its veracity.
Responding in this issue, learned counsel for the Respondent cited the case of ISIBOR vs. THE STATE Supra to contend that the lower court considered point by point the defence of the accused/appellant and all the issues raised by the prosecution before arriving at an informed decisions and having properly evaluated the evidence and made finding of facts, it cannot be faulted.
ISSUE 6
Dwelling on this issue, learned counsel for the appellant repeated his submission made in issue 5 and added that Exhibits C and D were tendered to impeach the evidence of PW1, and PW2 but the court relied on them to convict the appellant and this amounts to investigations by the court as the documents were tendered for the specific purpose of impeaching the credit of PW1 and PW2. He also adopted in support his submissions on issue land the authorities cited in support therein.
For the Respondent it was submitted that the lower court was right to have used Exhibits C and D tendered during the cross-examination to resolve the conflict in the oral cross-examination to resolve the conflict in the oral evidence of PW1 and PW2. Thus, whether tendered during examination in chief or during cross-examination, the documents became or formed part of the evidence before the court which by elementary principle of law, the court is obliged to make use of because the primary duty of the court is to assess and evaluate evidence before it and make necessary findings of fact.
ISSUE 7
That is whether the lower court was right to have denied the appellant the opportunity for an allocutus after his conviction for the offence of Criminal Conspiracy and Armed Robbery.
Herein, the learned counsel for the appellant submitted that the lower court erred in law when it did not afford the appellant or counsel the opportunity for an allocutus but rather relied on TANKO vs. THE STATE (2009) 2 SCNJ 1 at 12 to hold that death sentence is mandatory and it was needless to afford the appellant or counsel opportunity for an allocutus after conviction.
He added that even in a death sentence that court has a legal duty to take an allocutus with a view to making appropriate recommendations to the appropriate authorities for a possible review of the sentence.
Responding, learned counsel for the Respondent submitted that allocutus is not a legal right but only allowed or granted at the discretion of the sentencing court and it thus ought not to be a ground of appeal. He then urged that the appeal be dismissed.
Now in criminal trials the burden of proof is on the prosecution who has the onus to establish the guilt of the accused person beyond reasonable doubt and it never shifts. See OKAFOR vs. STATE (2006) 4 NWLR (PT.969) 1; ANI vs.THE STATE (2003) 11 NWLR (PT 830) 142: IGABELE vs. THE STATE (2006) 6 NWLR (PT 975) 100: KIM vs. THE STATE (1992) 4 NWLR (PT 233) 17.
Thus for the prosecution to succeed in proof of the offence of armed robbery there ought to be proof beyond reasonable doubt:-
(a)That there was a robbery or series of robberies.
(b) That the robbery was an armed robbery that is to say that the accused person was armed during the robbery
(c) That the accused was one of those who took part in the armed robbery.
See BOZIN vs. THE STATE (1985) 2 NWLR (PT.8) 465; ANI vs. STATE (2003) 11 NWLR (PT.830) 142; AFOLALU vs. STATE (2010) 43 NSCQR 227; OGUDU vs. STATE (2011) 45 NSCQR (PT 1) 278 and NWACHUKWU vs. STATE (1985) 1 NWLR (PT.11) 218

It is also trite that the conspirators need not know themselves and need not have agreed to commit the offence at the same time. But conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See NWOSU vs. STATE (Supra): DABOH vs. STATE (1977) 5 5C 197 and AITUMA vs. STATE 2006 10 NWLR (PT 989) 452.
Now a careful and thorough perusal and study of the issues and submissions presented in the appellants brief of argument which I have taken pains to summarize in this judgment despite inordinate repetitions therein reveals that the attack against the judgment of the lower court hinges mainly on the status of Exhibits C and D tendered in evidence during cross-examination of PW1 and PW2. Incidentally it was raised as issue 6 in the appellant’s brief of argument.
The second recurring decimal in the appellant’s briefs is the evidence of PW4 which is deemed to be hearsay and which the court ought to discountenance because the defence was not given the opportunity to cross-examine the PW4 during his evidence in chief. This also is raised as issue No 4 in the appellant’s brief. Having gone through all the issues raised by the appellant I find that issue 4 is germane and indispensible in determining which ever direction the other issues will swing. I am therefore inclined to resolve it first.
The contention of the appellant is that the reliance placed by the lower court on the testimony of the PW4 and the exhibits tendered through him were done in error. He added that failure to cross-examine a witness does not only deny the other party fair hearing in the case but also put the veracity of the witness testimony in doubt. For the respondent, the PW4 who is a Commissioner of Police, gave evidence and was also cross-examined during trial within trial and was available for cross-examination in the main trial but the defence counsel could not do so on 20-10-08 knowing fully well that he came for the trial from outside the state.
Now the record of proceedings at page 180 show that the PW4 (Ibezimako Aghanya) (commissioner of police) entered the witness box in the lower court to give evidence in this case on 22-10-2008.
His evidence in chief was quite an extensive one and most of the exhibits including the items robbed from the house of PW1 were tendered in evidence through him. However, when the prosecution sought to tender the extra-judicial statement of the three accused persons through him, the defence objected on the ground that they were confessional statements and not made voluntarily. They requested for a trial within trial. The prosecution opposed it on the ground that the statements were not confessional. The Trial Judge in a considered ruling upheld the request for a trial within trial. The said trial within trial was subsequently conducted in which the PW4 also testified for the prosecution and was cross-examined. The same goes for the accused persons. The hearing in the trial within trial lingered on from the said 22-10-08 till 25-3-2010 when the parties addressed the court and it was adjourned to 1-4-2010 for ruling. On the 19-4-2010 the tower court delivered the ruling wherein it upheld the argument of the prosecuting counsel that there was no basis for a trial within trial.
The statements of the 3 accused persons were then admitted as EXHIBITS G, H and I respectively.
The proceedings of the lower court on the said 19-4-2010 went as follows: – see page 213 of record.
RULING  –  Delivered in open court.
COURT   –  The statement of Brown Owicho Innocent Exhibit ‘G’ the statement of Christian
Igba -Exhibit ‘H’ and that of Solomon Yoosu Gbaji Exhibit ‘I’
KPOJIME   – We want a short date to conclude our evidence. The substantive counsel is away.
I do not have the case diary.
AJEBE   –   No objection
IGYEVER –  No objection
COURT  –   20th April 2010 for continuation. Accused to remain in custody.
At the resumed sitting on the 20th April 2010 the proceeding went thus:-
20-4-2010
1st accused – present, speaks English.
2nd accused – present, speaks English
3rd accused – present, speaks English.
J. S. Tarpav – for the State.
Chief S.O. Agbo -for: the 1st accused.
Chief S. O. Agbo and lgyever M. M. for the 2nd accused.
F.T. Ajebe and Richard Akpaghalilo for the 3rd accused.
– Tarpav – I close my case.
Chief Agbo – We are ready to open our defence.
Ajebe – I am ready.
Tarpav – I am ready.
DEFENCE
All the accused persons subsequently entered then defence at the conclusion of which counsel for the parties addressed the court and thereafter judgment was delivered on 17-6-2010.
I took time to go through and reproduce the history of the case at the lower court from the 22-.10-08 when PW4 gave evidence down through almost two years of conducting trial within trial till the prosecution suddenly closed its case on 20-4-2010 without much ado in making PW4 available for cross-examination and defence opened immediately. My conclusion in this regard is that serious blunder was committed by both the prosecution the defence and even the tower court. It is rather strange that none of them adverted their mind to the fact that the PW4 has not concluded his evidence in the sense that until he is duly cross-examined by or on behalf of the three accused persons his evidence before the court is incomplete. We are talking here about a vital witness whose activities led to the arrest of the accused persons as well as recovery of the items allegedly stolen from the house of the PW1. The normal procedure is that at the end of evidence in chief by a witness be it the prosecution or defence witness, the court asks the question whether the adverse party wants to cross-examine such witness. In other words an opportunity must as a matter of compulsion be given to a party or his counsel to cross-examine a witness called by the adverse party. Failure to comply with that procedure is a fundamental vice and a breach of constitutional right of fair hearing especially in criminal cases, moreso in a trial involving a capital offence.
It is absolutely erroneous to assume that the proceedings in a trial within trial will suffice for the purposes of the substantive trial. A trial within trial is a separate and distinct trial of its own. Where an accused person contends that he did not voluntarily make the statement credited to him such allegation usually necessitates the holding of a trial within trial in order to determine the voluntariness of such statement and consequently its admissibility in evidence in the main trial. Hence evidence is led separately by both parties after which they will address the court on it and thereafter a Ruling is delivered by the court. Se AUTA VS. STATE (1975) 4 SC 125; EFFIONG VS. STATE (1998) NWLR (PT.562) 362 and NSOFOR VS. STATE (2004) 18 NWLR (PT.905) 92 see also ADELARIN LATEEF VS. FEDERAL REPUBLIC OF NIGERIA (2010) 37 WRN 85 at 107 where this court per Alagoa JCA provided an elucidation on the concept of trial within trial thus:-
“It thus happens sometimes that on accused person facing a criminal trial in court protests to the admission of a confessional statement allegedly made by him to the Police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person. It becomes at this state necessary for the court to temporarily halt the main trial upon which the accused person is facing trial and conduct a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the Police was voluntarily made or not. It takes the form of a normal trial as witnesses are called to give evidence and are subject to cross-examination by the other side. The court to write a ruling either admitting the statement of the accused or rejecting same after which the normal trial temporarily suspended continues”.. (Underlining for emphasis).
See also DARE JIMOH VS THE STATE (unreported judgment of this court delivered on 30-3-2011 in Appeal No. CA/I/64/2005.
It follows therefore that whichever prosecution witness in the main trial that is in the witness box when a trial within trial is ordered and conducted cannot be assumed to have concluded his evidence after the ruling on a trial within trial. The defence must be given the opportunity to cross-examine such prosecution witness as per the main trial and where necessary re-examined before his evidence can be deemed valid and the rule of fair hearing duly observed.
This unfortunately was not the case here and such an omission or failure to allow the defence cross-examine the PW4 to all intents and purposes caused a failure of justice. See DIU TULU VS BAUCHI NATIVE AUTHORITY (1965) NLR 345.
To put it clearly, it is a breach of the constitutional right of an accused person if not given the opportunity to cross-examine a witness or witnesses called by the prosecution. Section 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999 is very clear on that and it reads:
5.36(6) “Every person who is charged with a criminal offence shall be entitled to:
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same condition as those applying to the witnesses called by the prosecution.”
Failure to abide by the said provision of Section 36(6)(d) of the Constitution in the proceedings of the lower court during the trial of the appellant by not giving him the opportunity to cross-examine the PW4 who incidentally was a vital witness whose evidence was heavily relied upon in the decision reached therein constitutes a breach of his constitutional right to a fair hearing. See SHEHU SEGUN VS THE STATE (unreported judgment of this court delivered on 10/12/2012 in Appeal No. CA/J/71C/2009 where His Lordship A.G. Mshelia JCA stated thus:-
“It is trite that the adherence to the doctrine of fair hearing lies in the procedure adopted by the trial court which procedure must follow all laid down statutory rules. The Apex COURT IN EGEUAFO EKPETO & 2 ORS. VS IKONA IVANOGHO & 4 ORS. (2004) 18 NWLR (PT. 905) 394 AT 414 PARAS. D-E had thus to say:- “No doubt the right to fair hearing is a fundamental and constitutional right of a party to dispute to be afforded an opportunity to present its case to the adjudicating authority. It was in the procedure to be followed in the determination of the case not in the correctness of the decision of the case. See UNITED BANK FOR AFRICA LTD & ANOR. (SIC) (1990) 6 NWLR (PT.156) 254.”
See also OLOWOOKERE VS STATE (2012) 12 WRN 89 at 117 wherein this court per Nweze JCA held that:-
“Instructively the touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether opportunity of hearing was offered to the parties to be heard, in this case the appellant, thus in order to be “fair hearing” or opportunity to be heard”. It must inter alia encompass a party’s right to cross-examine a witness.”
In effect, a breach of the right to fair hearing strikes deeply at the very roots of a trial and renders the whole trial a nullity. See CHIME VS ONYIA (2009) 2 NWLR (PT 11124) 1 AT 77 and ADIGUN VS A.G. OYO STATE (NO.2) (1997) 12 NWLR (PT 56) 1975. MIKA’ILU VS STATE (2001) 8 NWLR (PT.315- 469.
It follows therefore that failure to afford the appellant the constitutionally guaranteed right to cross-examine the PW4 whose evidence was fundamental in reaching a verdict of guilt against the appellant is fatal to the prosecutions case and renders the whole trial a nullity.
This issue 4 is accordingly resolved in favour of the appellant. The consideration of the said issue 4 has to my mind disposed of the whole appeal. Therefore to proceed to the consideration of the other issues raised will definitely not serve any useful purpose and will thus constitute a mere academic exercise having declared the trial a nullity.
On the whole, this appeal is hereby allowed and the judgment of the High Court of Justice Benue State in charge No MHC/106C/2006 delivered on 17-6-2010 convicting and sentencing the Appellant to death is hereby set aside for being a nullity.
Accordingly the Appellant Brown Owoicho Innocent is hereby discharged.

JA’AFARU MIKA’ILU J.C.A.: I have read in draft the lead judgment of my learned brother Oseji JCA. I therefore allow the appeal and the judgment of High Court of Justice Benue State in charge No: MHC/106/2006 delivered on 17/06/2010 convicting and sentencing the appellant to death is hereby set aside as a nullity. Consequently the appellant Brown Owoicho Innocent is hereby discharged.

MOHAMMED A. DANJUMA, J.C.A.: I have read before now the lead Judgment of my learned brother Samuel C. Oseji, JCA just rendered and subscribe to the decision quashing the conviction and allowing the Appeal. The star prosecution witness, through whom the alleged confessional statement of the Accused/Appellant was tendered and so also some exhibits, was not cross-examined even after his testimony in the trial within trial that led to the admission in evidence of the statements of Appellant and his co-accused that stood trial with him.
This fact of non-cross examination was a breach of the right of fair hearing as enshrined in S. 35(6)(d) of the 1999 constitution.
The courts have a duty to subject every fact for and against an accused in a criminal trial to merciless scrutiny.
The trial court never had the opportunity of so scrutinizing PW4’s evidence which was in-choate.
As I stated in Appeal No. CA/MK/73B/2011 just decided, I join Oseji, JCA in allowing the appeal. I also abide with all the consequential order made in the lead Judgment in this appeal.
Appeal allowed. Conviction quashed and Appellant discharged forthwith.

Appearances

E.N. Tionsha (Miss)For Appellant

AND

J.S. Tarpav PSC (MOJ) BenueFor Respondent