EFEREBO v. STATE (2022)

EFEREBO v. STATE

(2022)LCN/16420(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, February 16, 2022

CA/PH/12CR/2019

Before Our Lordships:

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Muhammed Lawal Abubakar Justice of the Court of Appeal

Between

OVONIZIBE EFEREBO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE COURT HAS THE DUTY TO CONSIDER ALL THE DEFENCES POSSIBLE

A trial Court has the duty to consider all the defences possible or available to an accused person or an appellant in a criminal case. The defences which the Court has the duty to consider on behalf of the accused person or an appellant are defences that appear or are contained in the evidence in the record of proceedings of the Court, even if the accused person did not, specifically, raise them. See Annabi v. State [2008] 13 NWLR (Pt. 1103) 179 at 200. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

A COURT WOULD BE WRONG TO DECIDE ON ISSUES NOT RAISED BY THE PARTIES WITHOUT GIVING THE PARTIES OPPORUNITY TO BE HEARD

IT IS THE DUTY OF THE PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT

It has also been widely accepted and applied, that it is the duty of the prosecution to prove its case beyond reasonable doubt, and a general burden torebut the presumption of innocence constitutionally guaranteed to the citizen. The burden on the prosecution is only discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. Attorney-General of Bendel State [1986] 2 NWLR (Pt. 24) 648. It is a strict rule, in law, that the verdict of guilt on a suspect can only be sustained upon evidence, which establishes beyond reasonable doubt, the guilt. Where there is the slightest doubt in the evidence so adduced as to the guilt of the suspect, that doubt must be resolved in his favour. See Shekete v. Nigerian Air Force[2000] 15 NWLR (Pt. 692) 868 at 880-881. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

THE FATALITY OF THE CONTRADICTION IN THE PROSECUTION’S CASE

A contradiction in the prosecution’s case is fatal only when it goes to the substance of the case, and not when it is of a minor nature. This is so because if every contradiction, no matter how trivial when compared to the overwhelming evidence before the Court, vitiates a trial, nearly all prosecution cases will fail. See Maiyaki v. State [2008] 15 NWLR (Pt. 1109) 173 at 206. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

THE INCONSISTENCY IN THE EVIDENCE OF PROSECUTION WITNESSES

However, the law is also settled that for inconsistency in the evidence of prosecution witnesses to be fatal to the prosecution’s case, it must beshown:
(a) that the inconsistency is material;
(b) that the trial Judge failed to advert to the inconsistency in his judgment; and
(c) that the inconsistency must be such as to amount to substantial disparagement of the witness or witnesses concerned such that reliance on such testimony would likely result in a miscarriage of justice.
It must be fundamental to the main issue before the Court. The inconsistency must be such as to cast doubt on the guilt of the defendant.
See Afuape v. State [2020] 17 NWLR (Pt. 1754) 381 at 411. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): On 31/10/2016, Mr. Matthew Ziworitin and his daughter were victims of a trio of armed robbers, who broke into their home in Yenagoa, Bayelsa State. Some of the properties of the family were stolen by the armed robbers. The same day, some policemen arrested the appellant, who was accosted in company of three other men, who escaped arrest. The appellant was arrested and later charged to Court. The information, on which the appellant rode into Court, is at pages 2-3 of the record of appeal. It states, in the two counts it pronounces:
“COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY contrary to Section 444(a) of the Bayelsa State Criminal Code Law Cap. 14, Laws of Bayelsa State, 2006.
PARTICULARS OF OFFENCE
You OVONIZIBE EFEREBO with others at large on or about the 30th day of October, 2016, at Yenagoa, within Yenagoa Judicial Division of Bayelsa State, conspired to commit a felony, namely, robbery.
COUNT 2
STATEMENT OF OFFENCE
ROBBERY contrary to Section 329(2) of the Bayelsa State Criminal Code Law Cap. 14, Laws of Bayelsa State, 2006.

PARTICULARS OF OFFENCE
You OVONIZIBE EFEREBO with others at large on the 30th day of October, 2016, at about 1020hrs, at Yenizue-gene, off Otiotio Road, Yenagoa, within Yenagoa Judicial Division of Bayelsa State, while armed with guns and other offence weapons robbed Mr. Matthew Ziworitin and other members of his family in his presence of the following items: One Infinix Hot phone, Two Techno phones, One Verizon Ipad phone, seven pairs of women earrings, One Dell laptop computer, three women necklaces, etc.”
On 31/01/2017, recorded at page 66 of the record of appeal, the appellant took his plea. At the trial, the prosecution called three witnesses.

PW 1 is Matthew Ziworitin, a retired civil servant. He testified that he was a victim of an armed robbery attack on 31/10/2016, at about 12.30 a. m., in his home. PW 2, Faith Ziworitin, is the daughter of PW 1. She was in the same building with PW 1, when the armed robbery attack took place, and was also a victim of the attack. PW 3, is a policeman, Inspector Ubong Emmanuel, described himself as a police officer attached to Special Anti-Robbery Squad (SARS). He investigated the case against the appellant. The defendant was the sole witness who presented his defence. He denied participating in the armed robbery attack on PW 1 and PW 2.

Counsel for the parties filed and adopted their written addresses. The lower Court delivered its judgment on 05/11/2018. Justice L. M. Boufini signed the judgment of the Bayelsa State High Court, sitting at Yenagoa Judicial Division. The judgment lies at pages 147-169 of the record of appeal. At page 168 of the record of appeal, at the point of convicting the appellant, the lower Court stated:
“I am of the opinion that the fact that he was caught with the suspects now at large and with offensive weapons, stolen items and being a professional driver, he did not bargain with the suspects to pay him for his services, he did not just pick the suspects on the road, they called him to come and pick them, conspiracy could be inferred.
It is against this backdrop, I find the Accused Person guilty as charged.”
The lower Court, in its judgment, convicted and sentenced the appellant to life imprisonment, by the force of Section 329(2) of the Criminal Code Law, Cap. 14, Laws of Bayelsa State 2006.

The appellant was, understandably, irked by the judgment and orders made by the lower Court. As demanded by law, the appellant filed its notice of appeal on 18/01/2019, containing five (5) grounds.

HEARING THE APPEAL
This appeal was heard on 24/01/2022. The appellant was represented by M. J. Otokwala Esq. He identified the notice of appeal relied upon by the appellant, as that filed on 18/01/2019. He adopted the appellant’s brief of argument and reply brief of argument filed, respectively, on 18/01/2021 and 17/03/2021, as argument of the appeal. He urged the Court to allow the appeal and set aside the judgment of the lower Court.

T. E. Boatman Esq. (Principal State Counsel, Bayelsa State Ministry of Justice) appeared for the respondent. He adopted respondent’s brief of argument, settled by Eniekenemi Ttpaul Boatman Esq, filed on 17/02/2021, as argument of the appeal. He is convinced that the appeal should be dismissed and he told us.

ISSUES FOR DETERMINATION
In the appellant’s brief of argument, settled by M. J. Otokwala Esq., two issues were displayed for the attention of the Court, for the resolution of the appeal. The two issues are recorded thus:
“ISSUE 1
Whether the learned judge is justified in law to have convicted the appellant when the respondent failed to prove the appellant’s participation in the armed robbery?
(Distilled from Grounds 1 & 2).
ISSUE 2
Whether the judgment of the Court convicting and sentencing the appellant was borne out of a dispassionate conclusion reached upon evaluation of evidence adduced by parties.
(Distilled from Grounds 3, 4 & 5).”

On the part of the respondent, two issues were presented for the determination of the appeal. The two issues are:
“1. Whether the learned trial judgment was wrong to have convicted the appellant for the offenses of armed robbery and conspiracy having taken into consideration the evidences of the prosecution witnesses the Appellant extra-judicial statement and his evidence in Court. (Grounds 1, 2, and 3).
2. Whether the learned trial judge was wrong in admitting the extra-judicial statement of the defendant without conducting a trial within trial (ground 1).”

Evaluation of the issues thrown up by parties, for determination of the appeal, revealed that the second issue listed by the respondent has nothing to do with any of the five grounds of appeal. In addition, the respondent, clearly and inexplicably, excluded ground 5 in the notice of appeal out of issues formulated. The issues formulated by the respondent failed to mention anything about sentencing. On the basis of comparison between appellant’s issues and those from the respondent, it hereby is determined that the two issues, which emerged from the appellant’s brief of argument, are more apposite and will, consequently, form the basis of the decisions in this judgment.

APPELLANT’S ARGUMENT
On the first issue, the appellant’s counsel noted the presumption of innocence in favour of the appellant, under Section 36(5) of the 1999 Constitution. He pointed out the duty of the Prosecution to prove its case, beyond reasonable doubt, under Section 135(1) of the Evidence Act, 2011. He relied on the cases of Maitumbi v. Baraya [2017] 2 NWLR (Pt. 1530) 347 at 385; Akeem v. State [2017] 18 NWLR (Pt. 1597) 311 at 350 and Thomas v. State [2017] 9 NWLR (Pt. 1570) 230 at 255.

Learned counsel then wondered where the lower Court found justification for the conviction and sentence of the appellant to a term of life imprisonment, on account of offences of conspiracy and robbery. The Court was advised that none of the witnesses called by the prosecution indicted the appellant. The ingredients of the offence of armed robbery were enumerated and it was submitted that the prosecution failed to prove that the appellant participated in the alleged crime. He submitted that the reasons advanced by the lower Court for the conviction and sentencing of the appellants do not exist in law. They are, in the view of learned counsel, strange and unknown to law. Specific mention was made of the comments of the lower Court at pages 165-166 of the record of appeal.
He stated, at page 11 of the appellant’s brief of argument, as follows:
“i. That it is an unchallenged evidence on record that the appellant is a taxi driver and was arrested in the course of his daily business.
ii. That the victims of the crime (PW 1 and PW 2 did not identify the appellant as one of the robbers.
iii. That PW 1 and PW 2 were correct to say that they were robbed by three robbers who evidently turns out to be the three fleeing passengers in the appellant’s vehicle.
iv. That the appellant, a professional taxi driver knowing one of the robbers who incidentally is his cousin without more does not make him an accomplice in the robbery.
v. That the cutter which the appellant collected from one of the fleeing robbers is an ordinary carpentry and welding instrument and there is no law in Nigeria criminalizing being in possession of it unlike a gun. It is in evidence that the appellant asked his cousin, one of the fleeing robbers what he wanted to use the cutter for and his cousin respondent that he wanted to use it to work for his father.
vi. That the appellant hiding the said cutter in his engine to avoid police unnecessary questions cannot amount to him being a robber.”

He cited the case of Duru v. State [2017] 4 NWLR (Pt. 1554) 1 at 29 to make the point that it is not in all cases that circumstantial evidence may earn conviction for the prosecution. He is of the opinion that circumstantial evidence, in this appeal, was not cogent, complete, unequivocal, compelling and irresistibly point to the appellant, as one of the robbers.

On the second issue, the appellant’s counsel insisted that the Courts have a duty to properly evaluate evidence before them. The case of Okafor v. Effiong [2017] 11 NWLR (Pt. 157) 519 at 538-539 was cited in aid of the submission. He advised us that the lower Court appropriately evaluated the evidence before it, with a lengthy quotation of the recorded version of the exercise, without beneficial reference to the appropriate page in the record of appeal. Learned counsel cross-matched the evaluation of evidence by the lower Court, with the testimony of PW 3, especially, under cross-examination. He emphasized that the appellant was arrested in a public taxi, painted in Bayelsa State colours, in the course of his work as a driver. At paragraph 3.20 of the appellant’s brief, the Court advised, thus:
“My Lords, the above testimony of the police investigation officer clearly shows the innocence of the appellant and we are inclined to further submit that the cutter which was found in the appellant’s vehicle is not a prohibited instrument like a gun.”

Learned counsel enjoined this Court, as an appellate Court, to interfere with the judgment of the lower Court, as the appellant is “a victim of circumstance”.
He submitted that the judgment of the lower Court is perverse and at variance with evidence led.

RESPONDENT’S ARGUMENT
In the respondent’s brief of argument, respondent’s counsel explained that the onus of proof in a criminal charge is not meant to be proof beyond every shadow of doubt or proof to a hilt, with the aid of the case of Adeleke v. State [2014] All FWLR (Pt. 722) 1655 at 1673. He stated that the lower Court was right when it convicted the appellant on the ground that he was participiscriminis in the offences of conspiracy and robbery. He holds the view, that the circumstances of the arrest of the appellant point to the fact that he was one of the robbers who robbed PW 1 and PW 2. He enumerated facts which justify such conclusion, as the fact that there was an armed robbery in the home of PW 1; that PW 1 and PW 2 were victims in the attack; that property belonging to PW 1 and PW 2 were recovered from the appellant; and, that the appellant was the one who personally hid the cutter in the bornet of the car. These facts were not controverted or discredited, under cross-examination. He insisted that the lower Court relied on circumstantial evidence to arrive at its holding and conclusion on circumstantial evidence. He cited the case of Adie v. The State [1980] LPELR-176(SC) on the point.

He stressed the fact that the appellant hid the cutter found on him and demanded for the reason for its being hidden, if it is actually, merely a carpentry equipment. Based on the judgment in Suberu v. State[2010] LPELR – 3120(SC) learned counsel is of the view that the prosecution proved all the ingredients of the offences charged. The fact that one of the robbers called the appellant, on phone, inviting him to come and convey him, with his vehicle; the fact that the robbers did not walk from Harbour Road to Otiotio Road in Yenezue-gene; coupled with how the robbers were able to arrive at the scene of the robbery, made learned counsel to conclude that the robbers were driven to the scene of the crime. As the appellant hid the cutter in his “bornet”, it is therefore safe to conclude that the appellant was “part”of the robbers who robbed PW 1 and PW 2. He restated his persuasion that the lower Court appropriately convicted the appellant.

As the appellant testified that he was summoned at about 11.00 pm, learned counsel argued the appellant was either available at the time appellant and other robbers went for the operation or he intentionally lied to deceive the police and the Court. Learned counsel assumed that the appellant was a stand-by driver for the other robbers, which will still make him a principal offender, who may be convicted as one. Reference was made to Section 6(1) of the Criminal Code Law, Cap. C14, Laws of Bayelsa State, 2006. On the duty of the Court to evaluate evidence before it, this Court was directed to the case of Ezeani v. FRN [2019] LPELR-46800(SC). He recalled that PW 1 and PW 2 stated in their respective extra-judicial statements and evidence in Court that the robbery took place at about 12.30 am. That fact was not contradicted at the trial. The appellant testified that he was called by his cousin Fred Ototo at about 11pm. He referred to the extra-judicial statement of “PW 4”, Inspr. Gambo Dantala, who did not testify, but listed as a witness, which is evidence that he arrested the appellant at about 2am. (Note – there was no PW 4 at the trial and this Court will not consider evidence not tendered before the lower Court). Everything point to the appellant being one of the robbers and the lower Court was right to have in evaluation of evidence and conclusion arrived at, that the appellant was “amongst” the robbers. He cited, in aid of his submission, the case of Nweke v. State [2001] LPELR-2119(SC).

Learned counsel insisted that the lower Court was right when it convicted the appellant for the offence of conspiracy, as the evidence of all prosecution witnesses and the circumstances of the appellant’s arrest, point to the fact of conspiracy and that the offenders were more than one person. He directed the attention of the Court to the cases of Abiodun v. State [2012] 7 NWLR (Pt. 1299) 412 and Adeleke v. State [2013] LPELR-20971(SC). He referred to the testimony of PW 1 and PW 2, the reasoning of the trial Court at pages 167-168 of the record of appeal, and in particular, exhibit H and appellant’s evidence at pages 142-144 of the record of appeal, as justification for his submission. As this Court has the power to re-evaluate evidence, we were also reminded that the appellant is bound by decisions and findings of the lower Court against which no grounds of appeal was raised. He supported his position with the cases of Nze v. Aribe [2015] LPELR-40617(CA) and Alaribe v. Okwuonu [2016] 1 NWLR (Pt. 1492) 41 at 66. He requested the Court to discountenance the submissions of the appellant, dismiss the appeal and uphold the verdict and sentence imposed by the lower Court.

APPELLANT’S REPLY ARGUMENT
The appellant’s reply brief of argument merely sought to elucidate on what was already presented to the Court in the appellant’s brief of argument.

RESOLUTION OF THE APPEAL
The Plea
A trial Court has the duty to consider all the defences possible or available to an accused person or an appellant in a criminal case. The defences which the Court has the duty to consider on behalf of the accused person or an appellant are defences that appear or are contained in the evidence in the record of proceedings of the Court, even if the accused person did not, specifically, raise them. See Annabi v. State [2008] 13 NWLR (Pt. 1103) 179 at 200.

It is important to open this part of the judgment with the fact that in the case of Omokuwajo v. F.R.N.(2013) 9 NWLR (Pt. 1359) 300 at 327, the Supreme Court stated that, generally, a Court would be wrong to decide on issues not raised by the parties without giving the parties the opportunity to be heard. However, it would not be necessary to afford the parties a hearing, when:
(a) the Court raises an issue suomotu or on its own motion if the issue relates to the Court’s own jurisdiction;
(b) if both parties are or were not aware of or ignored an enactment or subsidiary legislation the Court can take judicial notice of under the Evidence Act; or
(c) if on the face of the record, serious questions of the fairness of the proceedings is evident.
See also S. C. C. Ltd. v. Kingston [2016] 4 NWLR (Pt. 1501) 172 at 189 (per Joseph Shagbaor Ikyegh, JCA) and Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511.

Before this appeal will be determined, I consider it apposite that a jurisdiction-defining comment should be made regarding the plea taken and recorded by the lower Court, at the trial before it. While it is a fact that the lower Court convicted the appellant in respect of two offences charged in the information before it, from the record of the Court, the lower Court’s conclusion was arrived at, in very grave error. Though this is not an issue which parties raised and canvassed, it is evident from the record of appeal that the appellant is recorded as having pleaded to only one of the two counts in the charge filed against him. The appellant is recorded as having pleaded ONLY to the first count alleging conspiracy. At page 66 of the record of appeal, the appellant took his plea, which the lower Court recorded, thus:
“Charge is read to the accused in English Language who appears perfectly to understand same.
COUNT 1
Plea: Not Guilty
Accused to be remanded in Prison custody.
Adjourned to the 21st of February 2017 for hearing.”

There is nowhere in the record of proceedings where the lower Court recorded the fact that the appellant pleaded to the second count in the charge. The Court is bound by the record before it. See Bashir v. Audu [1999] 5 NWLR (Pt. 603) 433. Where noparty has raised the issue of the incorrectness of the record of Court, a Court will be bound to assume its correctness. See Mang v. Ibe [2000] 14 NWLR (Pt. 688) 591. In Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 AT 737, Oputa JSC stated in his concurring judgment, thus:
“It is good practice for trial Courts to specifically record that “the charge was read and fully explained to the accused to the satisfaction of the Court” before then recording his plea thereto.”
It is the duty of the trial Court to take the plea of an accused on his arraignment for the offence he is charged with. See Adebesin v. State (2014) 10 NWLR (Pt. 1413) 609. As there is no record that the appellant took a plea, regarding the second count of robbery, there is evidence or lack of it (as the case may be), in the record of appeal, to predicate a declaration or holding by this Court that the conviction and sentence of the appellant by the lower Court, in respect of the appellant, was a nullity. Plea taking at the commencement of a trial is so fundamental that it cannot be waived by the parties. Whenever a criminal trial proceeds without the arraignment of the accused person, who should plead immediately after the charge is read to him, the trial will result in a nullity. The law does not require that the charge be read within, or after the commencement of a trial. The plea should be taken before the commencement of trial. See Barmo v. State [2000] 1 NWLR (Pt. 641) 424 at 437-438; Dike v. State (1996) 5 NWLR (Pt.450) 553; Eyorokoromo v. State (1979) 6-9 S.C. 3; Kajubo v. State (1988) 1 NWLR (Pt. 73) 721 and Josiah v. State (1985) 1 NWLR (Pt. 1) 125.
The conviction and sentence of the appellant in respect of the second count in the charge is hereby set aside or quashed. Instead, the appellant is, therefore, discharged on the second count in the information filed against him.

The first count
It has become settled in law that the guilt of an accused person may be proved by:
a. confessional statement; or
b. circumstantial evidence; or
c. evidence of eye witnesses.
See Emeka v. The State [2001] 14 NWLR (Pt. 734) 666 at 683.

It has also been widely accepted and applied, that it is the duty of the prosecution to prove its case beyond reasonable doubt, and a general burden tore but the presumption of innocence constitutionally guaranteed to the citizen. The burden on the prosecution is only discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. Attorney-General of Bendel State [1986] 2 NWLR (Pt. 24) 648. It is a strict rule, in law, that the verdict of guilt on a suspect can only be sustained upon evidence, which establishes beyond reasonable doubt, the guilt. Where there is the slightest doubt in the evidence so adduced as to the guilt of the suspect, that doubt must be resolved in his favour. See Shekete v. Nigerian Air Force[2000] 15 NWLR (Pt. 692) 868 at 880-881.

I have read and given consideration to the arguments exchanged by parties in this appeal, regarding the issues raised for determination of this appeal. I have also undertaken a thorough audit of the record of appeal, whose content none of the parties challenged for inaccuracy. The appellant, through the two issues for determination, demand that it should be determined that the lower Court was not justified in convicting him based on evidence before the lower Court.

The second count, in the charge, was predicated on the offence of conspiracy to commit a felony. Conspiracy is accepted as an agreement of two or more persons to do an act, which is an offence to agree to do. Evidence of the plot between the conspirators is hardly capable of proof. The Courts establish the offence of conspiracy, as a matter of inference, to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence, and the meeting of the minds need not be physical. The offence of conspiracy can be inferred. The offence of conspiracy is complete when two or more persons agree to do an unlawful act or do an lawful act by unlawful means. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. See Adejobi v. State [2011] 12 NWLR (Pt. 1261) 347. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. See Obiakor v. State[2002] 10 NWLR (Pt. 776) 612 at 628.

As recounted above, the prosecution called three witnesses to prove its case. The evidence of PW 1 and PW 2 established that they were robbed and some of their properties were stolen by three robbers, who were armed, with guns. The evidence of the three witnesses called by the prosecution, also, proved that some of the properties stolen in the home of PW 1 and PW 2 were found in the vehicle being driven by the appellant, when he was arrested, while three other persons, he claimed were passengers, including appellant’s cousin, escaped from the scene of arrest. The appellant was arrested with a “cutter”, which he hid in the engine compartment of his vehicle. It is instructive to note that there was no evidence adduced by the prosecution to prove what is meant by “cutter” or what it does or can be made to do, since it is not a term or word of general understanding to the generality of the populace or, most importantly, this Court. Physical examination of the object does not easily lend itself to knowledge of those details.

At pages 164-166 of the record of appeal, the lower Court reviewed evidence and concluded, thus:
“PW 3 Inspector Ubong Emmanuel testified that on 31/10/16 while he was on duty, one Inspector Dambo Danta and his team brought the Accused Person and reported that while they were on patrol at Amarata, they caught a vehicle with Registration N: BYS004/DR with 4 occupants, three of the occupants escaped and they searched the vehicle and recovered 2 pistols, 3 phones, 1 Del Laptop and 7 pairs of jewelry.
That upon receipt of the items, he put on one of the phones and a lady, PW 2 called to say she was robbed, he told her to come to SARS office the following day and she was able to identify some of the items and same were released to them. That he visited the crime scene and 2 cartridges, one big cutter and a bag containing 3 locally made pistols were also recovered from the Accused Person in the vehicle at Okaka Junction after the robbery.
From the above evidence, it is not in dispute that there was a robbery and that the robbery was an armed one, however, the issue is whether the accused person participated in the robbery. For this, it is on record that three persons robbed the house of PW 1 but he did not identify anyone, PW 2 also did not identify anyone in her evidence, however, the police caught the accused person in company of the suspects now at large and offensive weapons were found in the accused person’s vehicle and the stolen items were also recovered in his vehicle. The accused person’s testimony that he is a professional driver and at about 11pm, his cousin, one Fred Ototo, called him to Stopover car wash to carry him, on getting there, he met his cousin with two of his friends and when they gave him the cutter, he asked what the cutter was for and his cousin told him, he wanted to use it to work for his father, however, in the Accused person’s extra judicial statement, he told the police that he hid the cutter in his car engine because it was late and he was afraid of the police, though he denied saying so under cross-examination…
I am of the view that it can be inferred from the circumstances of the case that the Accused Person is linked with the robbery. First, he knew one of the robbers who called him to come and carry him, he was aware that offensive weapons were part of the luggage to carry and he even volunteered to put the cutter in the car bonnet to avoid police arrest. It would have been a different ball game if he had said the robbers met him on the road and asked him to carry them for an agreed fare.
Moreso, Section 329(2) of the Bayelsa State Criminal Code Law Cap. C14, Laws of Bayelsa State, 2006 is to the effect that “if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person(s), or of, at or immediately before or immediately after the time of the assault, he wounds or uses any other personal violence to any person …” by virtue of this section, being in company of persons who committed the armed robbery or immediately after the armed robbery makes him equally guilty.
It is for these reasons that I hold that the prosecution has established the offence of armed robbery. From the facts of this case and the findings of this Court is it is not in doubt that: (1) There was a robbery on the 30/10/16; (2) The said robbery was an armed one; (3) The Accused Person and three others now at large participated in the robbery. Having established all the elements of armed robbery against the Accused Person, I therefore hold that the prosecution has been able to prove the guilt of the Accused Person beyond reasonable doubt and accordingly, I will not hesitate to find the Accused Person guilty of the offence of armed robbery contrary to Section 329(2) of the Bayelsa State Criminal Code Law, Cap. 14, Laws of Bayelsa State, 2006.”

At pages 167-168, the lower Court wrote:
“DW 1 testified to the effect that he is a driver, on 31/10/16, his cousin brother, Fred Ototo called him to carry him at stopover, when he got to stopover, he met his cousin with two boys, one was holding a luggage and another a cutter, he asked why the cousin was holding a cutter and he told him his father sent him, they asked him to take them to Harbour Road, he hid the cutter inside the bonnet and on their way, police stopped them, they ran, police recovered those items admitted as exhibit in this Court, he was arrested and he told the police it is his cousin brother that he was carrying.
In his extra judicial statement, he said he hid the cutter in his car engine because he was afraid of the police, though he denied this undercross-examination. I am of the opinion that the fact that he was caught with the suspects now at large and with offensive weapons, stolen items and being a professional driver, he did not bargain with the suspects to pay him for his services, he did not just pick the suspects on the road, they called him to come pick them, conspiracy could be inferred.” (Bold font for emphasis).

1. A correction should be attempted at this point. From the records, the appellant did not testify that he ran or attempted to escape arrest. There was no such evidence before the lower Court.
The lower Court was wrong to have stated so, as finding, in its judgment. At page 125 of the record of appeal, the questioning and evidence of PW 3 is recorded, as follows:
“Q: In line with your statement before this Court, you confirmed that the accused stopped on the order of the police?
A: Yes.
Q: In the same vein, you agree that he did not escape as the others did?
A: He did not.
Q: And he did not make any attempt to escape?
A: Yes.”

2. In addition to the above and as it may be confirmed above, the lower Court did not state whether it believed or disbelieved the defence of the appellant to the effect that he did not know anything about the armed robbery committed, but that he was only a driver who gave a ride to his named cousin, who escaped from the scene of arrest, along with two other persons who were appellant’s passengers. That question was not answered by the lower Court, with due respect. This is because the presumption reserved under Section 167(a) of the Evidence Act, 2011 is capable of being negatived, evidentially. Since the lower Court did not make a positive finding of disbelieving the defence or evidence of the appellant, it is implicit in that abstinence, that the presumption was negatived at the trial.
The presumption under Section 167(a) of the Evidence Act, 2011 is that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen, unless he can account for his possession. This is known as the doctrine of recent possession. The elements of doctrine of recent possession, under Section 167(a) of the Evidence Act, 2011, are:
(a) it must be established that the goodswere stolen;
(b) the accused must have been found in possession;
(c) the possession must have been soon after the theft;
(d) the accused is unable to account for his possession.
See the case of Bogobiri v. State [2017] 18 NWLR (Pt. 1597) 247 at 276.

In this appeal, from the record of appeal, the appellant was able to, reasonably and believably, account for his possession of the stolen items, soon after they were stolen. The extra-judicial statement of the appellant (exhibit H), written upon his arrest, materially and substantially, tallied with his evidence at the trial. Appellant’s evidence was not controverted by the prosecution, who had the duty to prove its case beyond reasonable doubt. That fact should not have escaped the attention of the lower Court, with due respect.
3. Also, as part of its case, the prosecution called PW 3. PW 3 is the person who investigated the allegation of offence against the appellant. This witness made a very profound admission, under trial, while he was under cross-examination, which the lower Court should have acted on. The admission or evidence of PW 3, who was called by the prosecution,was against the interest of case of the respondent, the prosecution, who called him to testify in Court. His evidence is recorded at pages 123-126 of the record of appeal. On page 126, PW 3, famously, stated, when asked, as follows:
“Q: So, all exhibits are properties belonging to the suspects?
A: Yes. He was arrested because the exhibits were found in his vehicle.
Q: So, the only ground for arrest is based on mainly suspicion?
A: Yes.
Q: Your investigation confirmed that he did not participate in the act.
A: He did not.”

The lower Court did not refer to the portion of the evidence of PW 3 highlighted above, in its judgment. In the portion of the evidence of PW 3, quoted above, the witness accepted that the appellant was arrested on suspicion. A person cannot be convicted of a criminal offence based on mere suspicion. However, where suspicion is corroborated by consistent evidence of guilt, on the part of the prosecution, the suspicion will provide convictable evidence and the trial Judge will be entitled to convict. Per Tobi, J.C.A. in the case of Alake v. State [1991] 7 NWLR (Pt. 205) [1991] 567 at 594.
4. PW 3 positively and voluntarily asserted that the appellant did not commit the offence he was accused of committing. The evidence of PW 3, highlighted above, was a fatal blow to the heart of the case of the prosecution because the investigator simply absolved the appellant, of guilt, on oath!! PW 3’s evidence was momentous and should have created an irreversible doubt in the mind of the lower Court. PW 3’s evidence was unchallenged and constitutes evidence, which was not contradicted and the lower Court was bound to act on the evidence of PW 3, without flinching or delay, to aid or favour the case of the appellant.

A contradiction in the prosecution’s case is fatal only when it goes to the substance of the case, and not when it is of a minor nature. This is so because if every contradiction, no matter how trivial when compared to the overwhelming evidence before the Court, vitiates a trial, nearly all prosecution cases will fail. See Maiyaki v. State [2008] 15 NWLR (Pt. 1109) 173 at 206.

However, the law is also settled that for inconsistency in the evidence of prosecution witnesses to be fatal to the prosecution’s case, it must be shown:
(a) that the inconsistency is material;
(b) that the trial Judge failed to advert to the inconsistency in his judgment; and
(c) that the inconsistency must be such as to amount to substantial disparagement of the witness or witnesses concerned such that reliance on such testimony would likely result in a miscarriage of justice.
It must be fundamental to the main issue before the Court. The inconsistency must be such as to cast doubt on the guilt of the defendant.
See Afuape v. State [2020] 17 NWLR (Pt. 1754) 381 at 411.

The admission of PW 3, quoted above, ticks all the boxes demonstrated in the cases cited, immediately above, in its indelible contradiction of the case of the respondent. When the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent is entitled to take advantage of the evidence to strengthen his case. That will be an admission against the interest of the party that called the witness and the admission is relevant and admissible evidence. See Onisaodu v. Elewuju [2006] 13 NWLR (Pt. 998) 517 at 529-530.

5. In litigation, the evidence of an Investigation Police Officer is highly regarded, depending on the cogency and relevance it brings. In Olaoye v. The State [2018] 8 NWLR (Pt. 1621) 281 at 301, the Supreme Court stated, regarding the evidence of such a witness:
“Also on the quality of the testimony of PW3 who is the Investigation Police Officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay because an IPO narrates to the Court the outcome of his investigation or enquiries or what he recovered and in the course of his duty he must have discovered or recovered some pieces of evidence vital to the commission of the crime, which trial Courts normally consider in arriving at just decisions one way or the other. The lower Court was therefore right in refusing to discountenance the evidence adduced or given by PW3.
The age long principle of law, is that in criminal cases an accused person is constitutionally presumed innocent until the contrary is proved by the prosecution. The onus of proof incriminal cases does not shift as the burden throughout lies on the prosecution in criminal trial, which must prove the guilt of the accused. See Bello v. State (2007) 10 NWLR (Pt. l043) 564; Igabele v. State (2006) 6 NWLR (Pt. 975) 100.
However, any doubt in the prosecution’s case must be resolved in favour of the accused person.”

6. Tobi J.S.C. on the value of self induced – but case negating – evidence explained in the case of Odi v Iyala [2004] 8 NWLR (Pt 875) 283 at 310 that:
“I cannot see better evidence against a party than one from a witness called by him, who gives evidence contrary to the case of that party. This is because the party is calling the witness to testify in favour of his case as pleaded in the pleadings. If the party knows that the witness will not give evidence in his favour, he will never call him, as in the present case, as relates to the evidence of PW 3 and PW 4. The Evidence Act anticipated this type of situation and made provision in the Act for a party to treat his own witness as hostile in relevant cases. I had earlier made the point. In my view, the appellants had all the opportunity to take advantage of the provisions of the Evidence Act, they cannot repair the damage done at the trial in this Court. This Court has not the mechanical tools to effect any repairs.”
With the evidence of PW 3, the lower Court was duty bound to resolve the doubt, thereby, created in favour of the appellant. The person who investigated a case came to Court and testified that the person he investigated did not commit the act or offence alleged. There is nothing else for a Court of law trying a criminal matter to do, other than to discharge and acquit the accused person before it, except the prosecution succeeds in treating such a witness as a hostile witness, which did not occur in the case on appeal before us.

7. The fact that the appellant hid the cutter in the engine compartment of his vehicle, in order to avoid trouble from the police, cannot, without more, make him guilty of the offence alleged against him. In the case of Ogidi v. State [2005] 5 NWLR (Pt. 918) 286 at 318, the Court stated that although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he is guilty or not. It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with him, nor does the fact that an accused person told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubt. See also Haruna v. Police (1967) NMLR 145. The prosecution, at all times, had the duty to prove criminal intent on the part of the appellant.

8. It is the duty of the prosecution to identify the offence with which an offender should be charged and arraigned for and not that of the Court, except where the law, specifically, prescribes that the Court may choose. With respect to the second count, note should be taken of the fact that the prosecution, specifically, charged the appellant with robbery and not armed robbery. The distinction in the, deliberately, chosen direction of the prosecution is apparent in Section 329 of the Criminal Code Law, Cap. 14, Laws of Bayelsa State, which formed the basis of the second count in the charge. Sections 328 and 329 of the said statute provide:
“328. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is said to be guilty of robbery.
329.(1) Any person who commits the offence of robbery shall upon conviction be sentenced to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other persons, or if, at or immediately before or immediately after the time of the robbery, he wounds or uses any other personal violence to any person, he is liable to imprisonment for life.”

An examination of the second count and its comparison with the findings of the lower Court, highlighted above, instructs forcefully, that the lower Court tried and convicted the appellant for armed robbery, whereas, the respondent, the owner of the case, intended to and actually, arraigned the appellant for the offence of robbery AND NOT armed robbery. The punishment for robbery is 14 years imprisonment, while life imprisonment is prescribed for the offence of armed robbery. The lower Court, without giving any reason why it did not follow the statutory prescription, regarding sentence for the offence charged, sentenced the appellant (wrongfully) to life imprisonment, whereas, the statute provides for 14 years imprisonment. The admonition of the law is that a Court should not make a case for a party, which is different from that which it brought to Court. See Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130. The lower Court, apart from trying and convicting the appellant for the offence of armed robbery, which is not the case brought to Court by the respondent, went further to punish the appellant for an offence, in respect of which the appellant was not arraigned and which the appellant did not plead to, at the trial. The oddity in the lower Court’s handling of the case, with due respect, is signposted by the fact that, strangely, the appellant was punished for a higher offence, other than that charged, without inviting parties to address it about the detour, embarked upon. It is the contrary, which the law permits. A Court may punish for a lesser offence than that charged, in appropriate cases, if conditions are met. See Saliu v. State [2018] 10 NWLR (Pt. 1627) 251.

In all, the law we know is that where a trial Court gave reasons for making the findings it made, an appellate Court will be fully in order, if it proceeds to look at those reasons. If the reasons are not satisfactory, as in the case on appeal, the appellate Court will come to the conclusion that any advantage enjoyed by the trial Court, by reason of having seen and heard the witnesses, was not and could not be sufficient to explain or/and justify the trial Court’s conclusions. An appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial judge. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at page 319 (per Oputa, JSC) and Lawal Buraimoh Fatoyinbo v. S.A. Williams (1956) 1 F.S.C. 87 at 89. The decision of the lower Court occasioned grave miscarriage of justice against the interest of the appellant.

It is hereby determined that there was no cogent, believable and relevant evidence before the Court, with which the lower Court could have convicted the appellant or found the appellant guilty, because PW 3 put fire to the prosecution’s case, irreversibly, and the appellant was entitled to benefit from the confusion, conflict in evidence or contradiction engendered, thereby. This Court hereby reverses the conviction and sentence of the appellant for the offence of conspiracy to commit a felony in the first count in the information filed against the appellant. Instead, the appellant is discharged and acquitted in respect of the first count.

Having discharged and acquitted the appellant in respect of the first count and having discharged the appellant in respect of the second count, the judgment of the lower Court dated 05/11/2018, signed by Justice L. M. Boufini, in charge no. YHC/1/2017, of the Bayelsa State High Court is hereby reversed in terms of the conviction and sentence of the appellant to life imprisonment. The appellant shall be released, immediately, from the current place of his detention.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, the Honourable O. A. Adegbehingbe, JCA had graciously obliged me with a draft of the leading Judgment in this appeal in which the appeal was upheld.
I do not have any useful additions to make to the said Judgment which I also adopt as mine, and I abide with the consequential orders made therein directing that the Appellant be released forthwith.
Appeal is allowed.

MUHAMMED LAWAL ABUBAKAR, J.C.A.: I agree with the lead judgment just delivered by my learned brother, Olabode .A. Adegbehingbe J.C.A. The appeal has merit and the judgment of the lower Court is set aside.

Appearances:

W. J. Orokwala Esq. For Appellant(s)

T. E. Boatman Esq. (Principal State Counsel, Bayelsa State Ministry of Justice). For Respondent(s)