EGHOBAMIEN v. STATE
(2022)LCN/16445(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Monday, May 09, 2022
CA/B/283C/2019
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
LUCKY EGHOBAMIEN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
POSITION OF LAW STATEMENT THAT QUALIFIES AS A CONFESSIONAL STATEMENT
In considering whether a statement qualifies as a confessional statement, a trial Judge must examine the totality of the statement. A confessional statement should be direct and positive; and, should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged; see: Solomon Thomas Akpan vs. State (1992) 7 SCNJ 22 , per Karibi Whyte, JSC. See also: Yesufu vs. State (1976) 6 SC 167; Yaro v. State (2007) 12 MJSC 57; Haruna vs. Attorney General of Federation (2012) LPELR-7821(SC); lgiri vs. State (2012) 6-7 MJSC (PT 111) 107 at 128-129. Accordingly, where the explicit facts of the statement do not unequivocally satisfy the requirements of a confessional statement, a trial Judge will be in error in admitting such a statement as a confessional statement. It could however, if it has no other defects, be admitted as an ordinary statement and be relied upon as a basis for conviction; see Gbadamosi vs. State (1992) 11/12 SCNJ 268, per Omo, JSC It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional.” Per OTISI, JCA (Pp. 52-53, para B) See also Uweh v. State (2012) LPELR-19996 (CA), p. 23 paras A-F, Nweze v. State (2017) LPELR-42344 (SC) pp. 19—20, paras C—A. JAMES GAMBO ABUNDAGA, J.C.A.
MEANING OF CONSPIRACY
Conspiracy was thus defined in the case of Hassan v. The State (2016) LPELR – 4255 (SC):
“Section 96(1) of the Penal Code defines criminal conspiracy. It reads: “96(1) when two or more persons agree to do or cause to be done- (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.” The offence of conspiracy is complete once a concluded agreement exists. The parties must agree that a course of conduct shall be pursued which will definitely amount to or result in the commission of an offence by one or more of the parties to the agreement. There must be a criminal purpose that the parties share as their common purpose. See Adejobi & Anor. v. State (2011) 6-7 SC (Pt. 11) p. 65, (2011) 12 NWLR (Pt. 1261) 347; State v. Salawu (2001) 12 SC (Pt. IV) p. 191, (2011) 18 NWLR (Pt.1279) 580.”
Per RHODES-VIVOUR, JSC (Pp. 26-27, paras. D-A)
See also Sodiya v. State (2009) LPELR-4430 (CA), pp. 14-15, paras B-A, Ndozie v. State (2016) LPELR-26067 (SC), pp. 9-12 paras E-C, Nosike Iboji v. The State (2016) LPELR-40009 (SC), pp. 9-12 paras D-B, Osondu v. FRN (2000) LPELR-10672 (CA), pp. 25-26 para D. JAMES GAMBO ABUNDAGA, J.C.A.
INGREDIENTS OF THE OFFENCE OF CONSPIRACY
The apex Court in the case of Chibuma Martins v. The State (2019) LPELR-48889 (SC), held as follows:
“In a nutshell the ingredients of the offence of conspiracy include the followings:- (1) There must be an agreement of two or more persons (2) The persons must have plain mind to carry out an unlawful or illegal act or a crime (3) Bare agreement to commit an offence constitutes the offence (4) An agreement to carry out a civil wrong does not constitute the offence (5) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
(6). A conspiracy is complete if there are acts on the part of the accused person which led the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective. See Usman Kaza v The State (2008) LPELR 1683 (SC).”
Per SANUSI, JSC (pp. 16-17, paras. D-B). JAMES GAMBO ABUNDAGA, J.C.A.
POSITION OF LAW ON THE INCONSISTENCY IN THE STATEMENT AND TESTIMONY OF A WITNESS
It is therefore established that the extra-judicial statement of the appellant contradicts his evidence in Court in his defence. The apex Court was quite unequivocal on this when it held in the case of Oladejo v. State (1987) LPELR – 2544(SC), that:
“…the law is rather that where a witness (here an accused person) makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the Court can act. In R v. Gold (1960) 1 W.L.R.1169, 1172 Lord Parker C. J. in the English Criminal Court of Appeal stated it thus: “In the judgment of this Court when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.” JAMES GAMBO ABUNDAGA, J.C.A.
POSITION OF LAW ON THE INCONSISTENCY IN THE STATEMENT AND TESTIMONY OF A WITNESS
This case was followed by this Court in Queen v. Ukpong (1961) 1 All N.L.R. 26 per Taylor El.; Jizurumba v. The State (1976) 3 S.C. 89 per Idigbe J.S.C. Williams v. The State (1975) 9/11 S.C. 139. In the recent case of Stephen v. State (1986) 5 N.W.L.R. (pt. 46) 978 at 100 Karibi-Whyte, J.S.C. reiterated the same principle. In such cases, the trial Court would be entitled to reject the inconsistent defences and rely on the evidence adduced by the prosecution. It would seem to me that the reliance which the learned trial Judge placed on R v. Harris was wrong, as that case has certainly been overtaken by the more recent case of R v. Golder. In the face of the law as it stands, it would not be open to the trial Court to accept the statement of the accused person and then go on to take portions of his testimony in Court. To the extent that the Court of Appeal supported this, it seems to me they were in error.”
Per NNAMANI, JSC(Pp. 16-17, paras. D-E)
See also Ukpong v. Queen (1961) LPELR-25080 (SC), p. 3 paras B-E, Attah & Ors. v. State (2009) LPELR-8802 (CA) pp. 31-32, paras D- A. JAMES GAMBO ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The appellant was charged before the High Court of Edo State holden at Benin City, presided over by Hon. Justice J. U. Oyomire, J on an information containing a two count charge of conspiracy to commit armed robbery, and armed robbery.
The charges were subsequently amended to read as follows:
“COUNT I
That you, Lucky Eghobame and others now at large on or about the 9th day of September, 2008 at Akugbe Street Junction, Off Siluko Road, Benin City, in the Benin Judicial Division, conspired amongst yourselves to commit a felony to wit: Robbery and thereby committed an offence contrary to Section 6(b) and punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap, R 11 Laws of the Federation of Nigeria, 2004.
COUNT II
That you, Lucky Eghobame on or about the 9th day of September, 2008 at Akugbe Street Junction, Off Siluko Road, Benin City, in the Benin Judicial Division, robbed one Nokia handset with MTN sim card number 08037378029 and cash sum of N56,000.00 (Fifty Six thousand Naira), property of one Ihika Francis and at the time of the robbery, you used actual violence and thereby committed an offence punishable under Section 1(1) of the Robbery and Firearms (Special Provision) Act Cap, R 11, Laws of the Federation Of Nigeria, 2004.”
The appellant pleaded not guilty. In the bid to prove its case, the prosecution called two witnesses and tendered the extra-judicial statement of the accused person which was admitted in evidence as exhibit “A” after trial within trial. On the close of the prosecution’s case, the accused person testified in his defence and closed his case. Sequel to that, counsel filed final written addresses which were subsequently adopted. In his judgment, the learned trial Judge found that the two charges were proved, proceeded to convict the appellant on each of the counts and sentenced him accordingly
The instant appeal is therefore a result of the appellant’s dissatisfaction with the judgment which was delivered on 9th April, 2014. The notice of appeal was filed on 18th May, 2018, the appellant having obtained an order of this Court for extension of time to appeal out of time. The notice of appeal contains two grounds of appeal.
The two grounds of appeal without their particulars are as follows:
“GROUND ONE
The learned trial Judge erred in law when he convicted the appellant for the offence of conspiracy when the said offence was not proved beyond reasonable doubt against the appellant.
GROUND TWO
The learned trial Judge misdirected itself in law when he convicted the appellant for conspiracy to rob.”
The record of appeal was compiled and transmitted on 15th May, 2019, and deemed properly compiled and transmitted on 25th November 2021.
The appellant’s brief of argument settled by Stephen Okoror, was filed on 30/5/19, and deemed properly filed and served on 25th November, 2021. Served with the appellant’s brief, the respondent filed its brief of argument on 19/6/20, and deemed properly filed and served on 25/11/2021.
It was settled by Mrs. V. U. Adeleye, (Director) Ministry of Justice, Benin City, Edo State.
The briefs were adopted on 10/2/22 when the appeal was argued. At the hearing S. I. Okoro with D. E. Ikpehai represented the appellant, while the respondent was represented by V. U. Adeieye, Director, Ministry of Justice, Benin City, Edo State.
In the respondent’s brief of argument, learned counsel incorporated a preliminary objection which seeks to have issue two in the appellant’s brief of argument struck out because it is not distilled from any ground of appeal, However, he has nothing against issue one and ground one from which the said issue one was formulated. This therefore calls to question whether it is appropriate to have filed a preliminary objection. This question no doubt returns a nay answer for, it is settled law that a notice of preliminary objection is to be employed by a respondent who seeks to terminate the appeal in limine, and not where a ground of appeal or issue is alleged to be incompetent, which if sustained, the appeal still remains alive. See Raji v. Minister, Federal Ministry of Education & Ors (2021) LPELR-55728 (CA), pp. 10-11, paras B-E, KLM Dutch Airlines v. Jamilat Aloma (2017) LPELR-42588 (SC) pp. 6-7 paras. D-B, Tongo v. Mailantarki & Ors. (2015) LPELR-25749 (CA) pp. 12-13, para E, Dauda v. Aliyu (2016) LPELR-41293 (CA) pp. 24-35, para E, Umar & Ors. v. Managing Director, FHA, Abuja & Anor (2018) LPELR-44703 (CA) pp. 9-10 paras B-C.
On these authorities, the preliminary objection embedded in the respondent’s brief of argument is either liable to be struck out or to be discountenanced.
Looking at the said issue two vis-a-vis ground two, there are serious issue(s) of law which calls for consideration and which the respondent purportedly addressed in the preliminary objection. This is a case in which the Court should advisedly look and consider the message and not the messenger.
In another parlance, it is said that the baby should not be thrown away with the bath water. I will speak further on this at the appropriate stage in the course of this judgment.
In the appellant’s brief of argument, two issues were formulated for determination. The two issues are:
“(1) Whether in the circumstance of this case, the trial Judge was right in law to convict the appellant for conspiracy to commit robbery in respect of count 1 in the charge.
(2) Whether the prosecution was able to prove the offence of robbery beyond reasonable doubt.”
On the part of the respondent, one issue was distilled for determination, and the issue is:
“Whether the prosecution proved the offence of conspiracy to commit robbery against the appellant beyond reasonable doubt to have warranted his conviction.”
The respondent’s counsel chose to narrow down his issue for determination from his argument in his preliminary objection that issue two of the appellant’s issue is incompetent in view of the fact that there is no ground of appeal from which it was formulated. I have commented earlier that the preliminary objection was misplaced and gave my reasons for that view. However, my view that the preliminary objection is misplaced does not deter the Court from considering that submission, being one of law, and in its nature one that the Court cannot close its eyes to because the Court cannot possibly determine an issue in an appeal that does not flow from any of the grounds of appeal. Therefore, whether or not the issue does not arise from any of the grounds will be considered at the appropriate stage. This is why I am inclined to determine this appeal based on the two issues formulated by the appellant.
In so doing I will start with the second issue, which for avoidance of doubt is; whether the prosecution was able to prove the offence of robbery beyond reasonable doubt. This choice is dictated by law, which as postulated by the apex Court is that the proper and appropriate approach to an indictment containing conspiracy charge and substantive charge is to deal with the substantive charge first and then proceed to see how conspiracy count has been made out. See the case of Chukwuemeka Agugua v. The State (2017) LPELR-42021 (SC) p. 13 paras A-E. See also the following:
Lateef & Ors v. FRN (2010) LPELR-9144 (CA) pp. 22-23, paras. D-A, Posu & Anor. v. State (2010) LPELR-4863 (CA), p. 10, para F, Osetola & Anor. v. The State (2012) LPELR-9348 (SC) pp. 27-28 paras E-B, Alufohai v. State (2014) LPELR-24215 (SC) p. 20 paras C-E.
Recall that while considering the preliminary objection of the respondent’s counsel, I did say that even though the preliminary objection was inappropriately raised, what is important is to deal with the message and not the messenger. This is where I intend to consider the message. In other words, whether the submissions of the respondent’s counsel that issue 2 which deals with the conviction of the appellant for robbery has any merit. It was counsel’s argument that the issue did not emanate from any of the grounds of appeal.
Issue two distilled from ground one of the grounds of appeal. The said ground one states:
“The learned trial Judge erred in law when he convicted the appellant of the offence of conspiracy when the said offence was not proved beyond reasonable doubt against the appellant.”
Issue two cannot by any stretch of imagination be said to have been distilled from ground one.
The settled position of the law is that an issue not formulated from any ground of appeal is incompetent, and is liable to be struck out. See Mato v. Hember & Ors. (2017) LPELR-42765 (SC), p. 15, paras D-F, Kadzi Int’l Ltd. v. Kano Tannery Co. Ltd & Ors (2003) LPELR-5782 (CA), p. 11, paras C-F, Akinbinu v. Oseni & Anor. (1992) LPELR-341 (SC), p. 18, paras B-D.
Issue two is therefore fated to be struck out. Accordingly, I have no hesitation in striking out issue two.
The unequivocal consequence of the foregoing is that the appellant’s conviction for the offence of robbery stands unchallenged. What the law says, loud and clear is that any finding of Court not challenged on appeal is deemed accepted and binds the Court and the parties — Awote & Ors. v. Owodunni & Anor. (1986) LPELR-660 (SC), p. 7 paras D-E, Dabup v. Kolo (1993) LPELR-905 (SC) p. 14 para A, Okudo v. IGP & Ors. (1997) LPELR-6325 (CA) pp. 7- 8 paras D-A, Oshodi & Ors. v. Eyifunmi & Anor (2000) LPELR-2805 (SC), p. 40 paras C-D.
There being no appeal against the appellant’s conviction for the offence of robbery, the jurisdiction of the Court has not been activated to determine the correctness or otherwise of the trial Court’s conviction for the offence of robbery.
ISSUE ONE
Learned counsel for the appellant submitted that conspiracy can only be proved from admissible evidence. He argued that from the analysis of the retracted confessional statement which the Court heavily relied upon in convicting the appellant, no inference of conspiracy to rob can be deduced from it. Counsel submitted that the extra judicial statement of the appellant (exhibit “A”) is not a confessional statement because the appellant did not confess to conspiracy to rob, but admitted assaulting him. Counsel relies on Daniel Kekong v. The State (2017) EJSC 165 at 188 paras A-C, and Silas v. The State (2009) 7 LRNCC 1 at 27.
It was further argued that the trial Court in its ruling in the trial within trial held that the appellant admitted the offence of assault but in its judgment turned round to convict him for robbery. He refers to the ruling on pages 22—29 of the record of appeal. Further submitted that the evidence adduced by the prosecution is at variance with count 1, and coupled with what counsel described as double findings of the trial Court regarding exhibit “A” has occasioned miscarriage of justice to the appellant in that the offence of assault is different from the offence of robbery. Refers to the case of Gwonto v. The State (1983) 1 SCNLR 142. On this submission, the Court is urged to resolve issue one in favour of the appellant.
For the respondent, it is submitted that the prosecution proved the charge for conspiracy beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011. He stated the ingredients of the offence of conspiracy and what conspiracy means relying on the case of Gbadamosi v. State (1991) 6 NWLR (Pt. 196) (CA) and Nwankwo v. FRN (2003) 4 NWLR (Pt. 309) 1.
Learned counsel refers the Court to the evidence of the victim who testified as PW 1. It also referred to the extra judicial statement of the appellant (exhibit “A”) which he refers to as confessional and impresses upon the Court to find that conspiracy established against the appellant.
In reply to the submission of the appellant’s counsel that no inference of conspiracy to rob the PW 1 can be deduced from the retracted confessional statement, but rather, that the appellant confessed to assaulting the victim, the respondent’s counsel disagrees with him and contended that a reading of exhibit “A” shows a clear intention to beat, harass and rob PW 1 of his belongings. He went on to submit that the fact that the appellant claimed in exhibit “A” that it was not a case of robbery attack does not make It so if the ingredients of the offence of conspiracy to rob are found in the actions of the appellant and his co-conspirators. It is further submitted that the offence of conspiracy can be inferred from certain criminal acts or inactions of an accused, and relies on Busari v. The State (2015) LPELR-24279. Counsel sharply disagreed with appellant’s counsel in his submission that the learned trial Judge in his ruling in the trial within trial stated that the appellant confessed to assaulting the victim, and turned round in the judgment to hold that the appellant in his statement confessed to robbery. Submitted that the ruling of the learned trial Judge was misquoted because what the learned trial Judge did was only relating the contents of exhibit “A” and not confirming the contents of the said exhibit “A”
The respondent’s counsel reply to the argument of the appellant’s counsel in which faulted the non-calling of the health care provider who treated the victim and the girl (Mercy) over whom the appellant alleged he and the victim fought about was that it is the prerogative of the prosecution to call only witnesses relevant to the prosecution. That the law imposes no obligation on the prosecution to call every person that was linked to the scene of crime. Refers and relies onEze v. the State (2018) LPELR-44928, and Section 200 of the Evidence Act, 2011.
Learned counsel did not also agree with the contention of appellant’s counsel that there are contradictions in the prosecution’s case especially, in the testimony of PW 1. Submitted that in law only grave and material contradictions that goes to the root of the case matters, that mere slant in the evidence of witnesses cannot be termed as contradictions,
Counsel further contended that an accused person can be convicted solely on his confessional statement, and relies onAkpa v. State (2008) 7 MJSC 77 at page 77.
The Court is in the premise of these submissions urged to dismiss the appeal.
I shall commence the resolution of this issue (first issue) with the treatment of exhibit “A” as a confessional statement. I have painstakingly read the said exhibit The relevant portion of the said exhibit “A” reads.-
“I know the complainant of this case in person of FRANCIS. I know him some years ago. On the 9th day of September, 2008, myself, OZ, Vincent, Evans and two others I do not know their names were all standing at Akugbe junction waiting for a vehicle that would convey us to watch a football match at Plymouth road, suddenly we saw the complainant passing and Vincent then challenged him whether he was too small to be greeted and the complainant started abusing us because we have been disturbing each other before over a girl named Mercy. Evans and OZ then griped him and started beating him, it was not a robbery attack. We were not armed with weapon. Some of the items that fell from him was picked by Evans. I was initially a member of “ElYE” confraternity but presently, I have denounced from such act since 3 years ago.”
The appellant did not in this statement admit conspiring with the others to rob. He confessed to assaulting the victim with the others. He was emphatic that it was not a robbery attack. As submitted by the appellant’s counsel, he admitted assaulting the victim but not to robbery. Speaking of the nature of a statement that will constitute confessional statement, the Court in the case of Sunday Oshim v. The State (2014) LPELR – 234 (CA), held:
“What constitutes a confessional statement is always a matter of fact; and not a matter of law. A confessional statement must be clear, precise and unequivocal. In considering whether a statement qualifies as a confessional statement, a trial Judge must examine the totality of the statement. A confessional statement should be direct and positive; and, should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged; see: Solomon Thomas Akpan vs. State (1992) 7 SCNJ 22 , per Karibi Whyte, JSC. See also: Yesufu vs. State (1976) 6 SC 167; Yaro v. State (2007) 12 MJSC 57; Haruna vs. Attorney General of Federation (2012) LPELR-7821(SC); lgiri vs. State (2012) 6-7 MJSC (PT 111) 107 at 128-129. Accordingly, where the explicit facts of the statement do not unequivocally satisfy the requirements of a confessional statement, a trial Judge will be in error in admitting such a statement as a confessional statement. It could however, if it has no other defects, be admitted as an ordinary statement and be relied upon as a basis for conviction; see Gbadamosi vs. State (1992) 11/12 SCNJ 268, per Omo, JSC It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional.” Per OTISI, JCA (Pp. 52-53, para B) See also Uweh v. State (2012) LPELR-19996 (CA), p. 23 paras A-F, Nweze v. State (2017) LPELR-42344 (SC) pp. 19—20, paras C—A.
I do not mince words. Exhibit “A” is not a confessional statement, but an admission therein that the appellant and the co-conspirators named therein assaulted the victim and also went away with unnamed items of the victim, in circumstances that suggests theft. However, the learned trial Judge in his ruling in the trial within trial did not accept the contention of the appellant’s counsel that the appellant confessed to assaulting the victim.
The appellant clearly misconceived what the learned trial Judge said in the ruling. What the learned trial Judge said is that whereas the appellant was charged with robbery, a statement credited to him in which he claimed robbery could not have been forced out of him because it is favourable to him. If the statement was forced out of him through torture or promise or indictment it will be expected that it would be an unequivocal confession that the appellant and his co-conspirators robbed the victim (PW 1 herein).
The question that necessarily follows, having held that exhibit “A” is not a confessional statement is, whether the conviction of the appellant for robbery can still be sustained?
Conspiracy was thus defined in the case of Hassan v. The State (2016) LPELR – 4255 (SC):
“Section 96(1) of the Penal Code defines criminal conspiracy. It reads: “96(1) when two or more persons agree to do or cause to be done- (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.” The offence of conspiracy is complete once a concluded agreement exists. The parties must agree that a course of conduct shall be pursued which will definitely amount to or result in the commission of an offence by one or more of the parties to the agreement. There must be a criminal purpose that the parties share as their common purpose. See Adejobi & Anor. v. State (2011) 6-7 SC (Pt. 11) p. 65, (2011) 12 NWLR (Pt. 1261) 347; State v. Salawu (2001) 12 SC (Pt. IV) p. 191, (2011) 18 NWLR (Pt.1279) 580.”
Per RHODES-VIVOUR, JSC (Pp. 26-27, paras. D-A)
See also Sodiya v. State (2009) LPELR-4430 (CA), pp. 14-15, paras B-A, Ndozie v. State (2016) LPELR-26067 (SC), pp. 9-12 paras E-C, Nosike Iboji v. The State (2016) LPELR-40009 (SC), pp. 9-12 paras D-B, Osondu v. FRN (2000) LPELR-10672 (CA), pp. 25-26 para D.
The apex Court in the case of Chibuma Martins v. The State (2019) LPELR-48889 (SC), held as follows:
“In a nutshell the ingredients of the offence of conspiracy include the followings:- (1) There must be an agreement of two or more persons (2) The persons must have plain mind to carry out an unlawful or illegal act or a crime (3) Bare agreement to commit an offence constitutes the offence (4) An agreement to carry out a civil wrong does not constitute the offence (5) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
(6). A conspiracy is complete if there are acts on the part of the accused person which led the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective. See Usman Kaza v The State (2008) LPELR 1683 (SC).”
Per SANUSI, JSC (pp. 16-17, paras. D-B)
The evidence of PW 1 (Francis Ihika is on pages 11— 13 of the record of appeal). The evidence of this witness is substantially in accord with the extra-judicial statement of the appellant (exhibit “A”). The differences between the evidence of PW 1 and exhibit “A” only lies in the disputation as to whether the appellant only assaulted the victim (PW 1) or he and his co-conspirators robbed him.
The evidence of PW 1 leaves me in no doubt that the appellant and his co-conspirators were in conspiracy to rob him. In his evidence after beating him, they searched him, took all the money he had on him plus his Nokia handset. He was also asked to take the sum of N20,000.00 to them on Monday, otherwise he would be killed. That statement, PW 1 said was made by the 2nd accused (He was not arrested and brought to trial). This was reported to the police, Under the surveillance of the police, the appellant was asked to meet PW 1 at a given spot to collect the N20,000.00. That it was in the process of trying to collect the money that the police nabbed him. PW 1 further testified that when the appellant was on bail, he went to PW 1 to threaten him because he had caused him to be arrested and detained. Once again, he reported this incident to the police.
From the record of appeal, the PW 1 was cross-examined on his evidence. He remained consistent in his evidence in chief. As to the differences in the amount stolen from him, he told the Court that at the time of the robbery, he did not know the exact amount of his sales for that day but gave the amount to be between N56,000.00 and N60,000.00. I am of the view that under the circumstance, the witness cannot be faulted for the minor difference in the exact amount given in his statement to the police when he reported the matter and at the time of his testimony. The evidence of PW 1 lends credence to the evidence of PW 1 as to how the appellant was arrested. The chain of events as testified to by PW 1 and PW2 do not leave me in any doubt that the appellant and his co-conspirators conspired to rob the PW 1 on the day of the incident.
I had earlier analyzed exhibit “H” and held that it does not amount to an admission by the appellant. I also found that the appellant and the other co-conspirators conspired to rob, even though the appellant admitted that they only assaulted PW 1. If they did only assault him, what is the justification? None. To me, exhibit “A’ is the appellant’s desperate effort to escape the consequences of being tried and convicted for armed robbery. The inconsistency between the account given in the said exhibit “A” and his evidence in his defence attest to that. In his defence, the story changed from an admission that they assaulted PW 1 to the narrative that he had loaned the sum of N85,000.00 to PW 1, who was his friend. That it was when he went to PW 1 for the payment of the loaned sum that an argument ensued between them. He further testified that subsequently after PW 1’s neighbour brokered peace between them, under the pretext of going to bring his money, PW 1 went and brought a police man to arrest him. That he was arrested and taken to the police station where he narrated to the police what the problem was between him and PW 1. That he was tortured by the police to make a confession. Recall that exhibit “A’ was admitted after trial within trial as a statement the appellant volunteered to the police. There is no appeal against that ruling, the effect of which is that he accepted it as correct, and it thus binds him and the Court – See The State v. The Customary Court, Owerri Urban & Ors. (2016) LPELR-40969 (CA) p. 26 paras A-C, Awote & Ors. v. Owodunni & Anor. (1986) LPELR-660 (SC), p. 7 paras D-E, ACB Plc v. Nbisike (1995) LPELR-14214 (CA), p. 19 paras C-F.
It is therefore established that the extra-judicial statement of the appellant contradicts his evidence in Court in his defence. The direction of the law in such a situation is that both the extra-judicial statement and his evidence in Court should be treated as unreliable, and do not constitute evidence upon which the Court can act, The apex Court was quite unequivocal on this when it held in the case of Oladejo v. State (1987) LPELR – 2544(SC), that:
“…the law is rather that where a witness (here an accused person) makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the Court can act. In R v. Gold (1960) 1 W.L.R.1169, 1172 Lord Parker C. J. in the English Criminal Court of Appeal stated it thus: “In the judgment of this Court when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.” This case was followed by this Court in Queen v. Ukpong (1961) 1 All N.L.R. 26 per Taylor El.; Jizurumba v. The State (1976) 3 S.C. 89 per Idigbe J.S.C. Williams v. The State (1975) 9/11 S.C. 139. In the recent case of Stephen v. State (1986) 5 N.W.L.R. (pt. 46) 978 at 100 Karibi-Whyte, J.S.C. reiterated the same principle. In such cases, the trial Court would be entitled to reject the inconsistent defences and rely on the evidence adduced by the prosecution. It would seem to me that the reliance which the learned trial Judge placed on R v. Harris was wrong, as that case has certainly been overtaken by the more recent case of R v. Golder. In the face of the law as it stands, it would not be open to the trial Court to accept the statement of the accused person and then go on to take portions of his testimony in Court. To the extent that the Court of Appeal supported this, it seems to me they were in error.”
Per NNAMANI, JSC(Pp. 16-17, paras. D-E)
See also Ukpong v. Queen (1961) LPELR-25080 (SC), p. 3 paras B-E, Attah & Ors. v. State (2009) LPELR-8802 (CA) pp. 31-32, paras D- A.
Arising from this clear position of the law, the extra-judicial statement of the appellant and his evidence in Court must be consigned to the dustbin of unreliability. They are not worthy of credit and of any probative value.
In the circumstances, the evidence adduced by PW1 and PW2 must be preferred. When this is considered along with the appellant’s conviction for robbery which is valid, subsisting and binding having not been challenged an appeal, the Court is left with no other option than hold in affirmation of the finding of the learned trial Judge in which he found the appellant guilty of robbery and convicted him accordingly.
Therefore, issue one is resolved against the appellant.
Both issues having been resolved against the appellant, this appeal is utterly without merit.
In consequence, the judgment of the trial Court delivered on 9th April, 2014 is hereby affirmed.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now, the draft of the judgment just delivered by my learned brother JAMES GAMBO ABUNDAGA, JCA.
My lord has succinctly analysed the issues in this appeal and has perfectly resolved them against the Appellant and in favour of the Respondent; I have nothing more to add than to say that the appeal lacks merit. I agree with his reasons for dismissing the appeal; I too dismiss same.
I affirm the judgment of the High Court of Edo State delivered on 9th April, 2014 by J. U. Oyomire, J. in Charge No. B/36C/2009.
ADEMOLA SAMUEL BOLA, J.C.A.: I have the privilege to have read in draft, the judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion. I adopt as mine.
I abide by the decision. I equally hold that the appeal lacks merit. It is accordingly dismissed. The judgment of the lower Court is affirmed.
Appearances:
S. I. Okoror with him, D. E. Ikpehai For Appellant(s)
V. U. Adeleye (Director, Ministry of Justice, Benin City, Edo State) For Respondent(s)
