EMARAH v. STATE
(2020)LCN/14547(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, August 28, 2020
CA/AS/177CA/2015
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
GODWIN EMARAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
I will begin the resolution of the issue formulated for the determination of the instant appeal as couched by me, by stating that the position of the law in respect of the elements or ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence as enunciated by the Supreme Court from time immemorial as it were, till present time are: (i) that there was a robbery or series of robberies; (ii) that the robbery or each of the robberies was an armed robbery; and (iii) that each of the accused persons was part of or had taken part in the armed robbery or robberies. See in this regard the cases of IKEMSON V. STATE (1989) 3 NWLR (Pt. 110) 455 and AJUMOBI V. STATE (2018) LPELR-43854(SC), amongst many others. PER LOKULO-SODIPE, J.C.A.
WAYS BY WHICH THE PROSECUTION CAN PROVE ITS CASE BEYOND REASONABLE DOUBT
Similarly, the position of the law in respect of how the prosecution can successfully prove its case beyond reasonable doubt against an accused person, has been enunciated in relatively old decisions of the Supreme Court as well as new decisions of the said Court. The ways by which the prosecution might do this are: (i) by direct evidence of witnesses; (ii) by circumstantial evidence; and (iii) by reliance on the voluntary confessional statement of the accused. See ONITILO V. STATE (2017) LPELR-42576(SC) and STEPHEN V. THE STATE (2013) VOL. 223 LRCN (Pt. 2) 215 amongst many others. It is also clear as crystal having regard to numerous decided cases, that any one of these methods or a combination of one or two or even all of them can be employed by the prosecution. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT TEH OFFENCE OF “ROBBERY” IS A LESSER OFFENCE VIS-A-VIS THE OFFENCE OF ARMED ROBBERY
It would also appear to be an incontrovertible position of the law that the offence of “robbery” is not only a lesser offence vis-a-vis the offence of armed robbery but that a Court can eminently convict an accused person charged with the offence of armed robbery with the said lesser offence of robbery or any other lesser offence created by the Robbery and Firearms (Special Provisions) Act (hereafter to be simply referred to as “Robbery Act”). One of such lesser offences, is that of receiving created or punishable under Section 5 of the said Act. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT THE CONVICTION OF AN ACCUSED PERSON CAN STAND WHERE THE OTHER ACCUSED PERSON WAS DISCHARGED AND ACQUITTED, WHERE JOINTLY TRIED
The position of the law would appear to be very settled that where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was discharged and acquitted. See the cases of in AKPA V. STATE (2008) 14 NWLR (Pt. 1106) 72 and ALO V. STATE (2015) LPELR-24404(SC).
However, it has to be noted that it is not in every case where an accused is tried jointly with another that the discharge of one must lead to the discharge of the other. This is because it is equally the law that when the evidence against one accused is different from that against the other, a different conclusion will certainly arise at which one may be discharged and the other convicted. Each case is considered on its own merits. Therefore, where there are some extenuating circumstances which inured to the advantage of an accused person, the accused person in question cannot be so considered as his circumstances make a distinct peculiar presentation. See the case of YUSUF V. FRN (2017) LPELR-43830(SC). PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT CONSPIRACY IS A DISTINCT AND SEPERATE OFFENCE
The position of the law is settled as to what conspiracy is even though conspiracy is a distinct and separate offence. It is to the effect that conspiracy means an agreement of two or more persons to do an act which is an offence or to agree to do it. The very plot or concert or agreement is an offence in itself. Legally speaking, conspiracy is the meeting of minds of two or more persons to carry out an unlawful purpose or act or to carry out a lawful purpose or act in an unlawful way or by unlawful means. In effect, the purpose of the meeting of the two or more minds must be to commit an offence. See the case of MARTINS V. STATE (2019) LPELR-48889(SC). The prosecution as well as the lower Court would also appear not to have appreciated the position of the law regarding an Information charging the offence of conspiracy to commit a specific offence and the substantive offence together. It is expedient to read the case of OKIEMUTE V. STATE (2016) LPELR-40639(SC) in order to appreciate this. In the case under reference, the Supreme Court stated thus:-
“This Court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious. This is because:
(i) evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and
(ii) such a joinder of charges adds to the length and complexity of the case so that the trial may easily be well near unworkable and impose a quite intolerable strain on the Court. See R V DAWSON v. WENLOCK (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in the Nigerian case of CLARK v. STATE (SUPRA). See further AIYEOLA & 2 ORS v. THE STATE SC/27/69 (Unreported) of 7/8/1970. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 24/11/2014, by the High Court of Delta State, holden at Otor-Udu Judicial Division presided over by Hon. Justice F.N. Azinge (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively). The Appellant was the 2nd accused person in an Information preferred against him and one Blessing Onokpe as the 1st accused person. The Information was preferred on 18/7/2011. Blessing Onokpe and the Appellant were charged with the following offences: –
“(i) Conspiracy to commit the offence of armed robbery contrary to Section 6(b) and punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R II Vol. 14 of the Laws of Federation of Nigeria 2004 (hereafter to be simply referred to as “the Robbery and Firearms Act”);
(ii) Armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms Act.”
The offences were alleged to have been committed by Blessing Onokpe and the Appellant on or about 27/12/2010. Save for the first
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count alleging the offence of conspiracy to commit the offence of armed robbery, each of the five other counts relate to named or specified victims of the armed robberies allegedly committed by Blessing Onokpe and the Appellant. The pleas of Blessing Onokpe and the Appellant were taken on 31/10/2011; and each of them pleaded not guilty to each count of the indictment/Information. The prosecution opened its case on 27/2/2012 and closed same on 3/12/2012. The prosecution fielded two of the victims named in the indictment before the lower Court as witnesses. The witnesses are: (i) PW1 – Mrs. Aniebiet Idim, the victim mentioned in the particulars of offence in count II of the Information; and (ii) Aaron Ugborikoko the victim mentioned in the particulars of offence in count IV of the Information. The particulars of offence in the aforementioned counts II reads: –
“Blessing Onokpe (M) and Godwin Emarah (M) on or about the 27th day of December, 2010 at Orhuwhorun within the Otor-Udu Judicial Division robbed one Aniebiet Idim of her Lexus SUV Jeep, HP laptop, jewelleries and cash while armed with gun.”
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While the particulars of offence of count IV reads: – “Blessing Onokpe (M) and Godwin Emarah (M) on or about the 27th day of December, 2010 at Orhuwhorun within the Otor-Udu Judicial Division robbed one Aaron Ugborikoko of his handsets, wedding rings and cash while armed with gun.”
The prosecution also called as witnesses, two Policemen who had one thing or the other to do with the arrest and investigation into the case involving the Appellant and his co-accused. Neither of the two victims fielded by the prosecution as witnesses gave a direct account of the involvement of either Blessing Onokpe and the Appellant, in the armed robberies in respect of which they were charged. Each of the victims/witnesses however identified as theirs, some of the items the prosecution established to have been recovered from the vehicle being driven by Blessing Onokpe with the Appellant therein, as at the time the two of them were apprehended. Blessing Onokpe and the Appellant each testified in his own behalf. Neither of them called any other witness to establish their respective defences which were a complete denial of the commission of the offences they were alleged to have committed. Blessing Onokpe
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and the Appellant respectively, also put up the defence of alibi. The judgment of the lower Court spans pages 74-91 of the records of appeal. The lower Court in its judgment found that the prosecution did not establish the charge of conspiracy to commit the offence of armed robbery preferred against the Appellant and his co-accused person. Similarly, the lower Court found the prosecution not to have established the offence of armed robbery against Blessing Onokpe and the Appellant, as charged. In other words, the lower Court found the prosecution not to have established the offences expressly charged in Counts 1-6 of the Information before it.
Having initially found that the prosecution did not prove the charge of conspiracy to commit the offence of armed robbery against Blessing Onokpe and the Appellant, and having further stated on page 87 of the records that: – “Consequently, the accused persons are discharged of the offences of armed robbery in counts II, III, IV, V and VI of the information.”
The said Court proceeded from the said page 87 to page 91 thus: –
“The PW4 testified that the items which were robbed from the PW1, PW2
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and others which included Exhibits ‘A’ and ‘B’ were recovered from the two accused persons in a bus with registration No. XA 724 AFM. They were the only occupants of the bus. That at a police stop and search operation at Otokutu junction, he flagged down the said bus and found drinks in one bag, upon his enquiry, the accused person (sic) said they were drinks they got from a burial party. On further search, the PW4 found another bag under the conductor’s seat which contained various items, including among others, Exhibits ‘A’ and ‘B’. When he further enquired from the accused persons, they both could not give satisfactory explanation as to how they came about the items. The PW4 arrested the two accused persons.
The accused persons did not deny that the items were recovered from them however the 1st accused stated in his statement to the police i.e. Exhibit ‘D’ that the two bags were forgotten by a passenger whom he did not know, that he was to take the bags to the National Union of Road Transport Office on the following day, i.e. 28th December, 2014. In his evidence in-chief and under
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cross-examination, he maintained that he returned the bags to the union office at Enerhen Warri at 8:00pm on the day of the incident but the office had closed. His evidence was also that he discovered the bags at the close of work at 8:00 pm when he was sweeping his bus.
The 2nd accused person stated in his statement to the police Exhibit ‘C’ that he did not work on the day of the incident. That he was with his mother at Effurun market. I quote him “On 27/12/2010, I did not go to work as a driver or conductor. I went to see my mother at Effurun Market Effurun.”
However, in his oral evidence before the Court, he testified that he went to see his mother who suffered a stroke at her home. In Exhibit ‘F’ which is an application for bail filed on behalf of the 2nd accused in Suit No. OUHC.M/BC/8C/2011: COMMISSIONER OF POLICE VS. BLESSING ONOKPE & ANOR, in the affidavit in support of the application, the 2nd accused stated in paragraph 3 thereof thus and I quote him: –
‘3. That on the 27/12/2010, I did not go to work because my mother who stays at Warri/Sapele road opposite MTN Office Effurun was very sick
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and I went to attend to her till the evening of that day.”
The 2nd accused also testified that he got to Effurun roundabout on that fateful day where he met the 1st accused person at about 7:30 pm in Exhibit ‘C’ but testifying in-chief, he said he left his mother after eight in the evening.
From the evidence before the Court, it is not in doubt that the recovered items which the victims identified were theirs, were found in possession of the accused persons immediately after the robbery, and the accused persons could not satisfactorily account for how they came in possession of the items.
Although the prosecution did not prove the elements of the offence charged, the evidence before the Court as adduced by the prosecution witnesses particularly the PW4 is positive and unequivocal. It is the position of the law that, when a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence other than that for which he was expressly arraigned before the Court. See Section 179(2) of the Criminal Procedure Act. Under Section 15(1)(a) of the Robbery and Firearms Act (Special Provisions) Act (supra),
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the word stealing was interpreted in the interpretation Section and the word robbery was interpreted to mean stealing anything.
By Section 167(a) of the Evidence Act, a man who is in possession of stolen goods after the theft is either the thief or have received goods knowing them to be stolen unless he can account for his possession. The evidence that the stolen items were found in possession of the accused persons was not rebutted by the defence. There is avalanche of evidence that the stolen items including Exhibits ‘A’ and ‘B’ were found in possession of the two accused persons who did not deny this. Their explanation was that, it was forgotten by a passenger as stated by the 1st accused. Is it not curious that a driver of a commercial bus who found items of a passenger in his bus did not take them immediately to the Transport Union Office? Indeed the 1st accused in his statement stated that, he was going to return them on the following day 28/12/2020 after the incident of 27th December, 2010 whereas he testified in-chief that, he returned the bags to the Transport Union Office at 8:00 pm
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and that the said office closes between 8:00 pm and 9:00 pm but when he got there on 27th December, 2010 at 8:00 pm, the office was closed.
The evidence before the Court shows that he closed from work at about 8:00pm when he said he discovered the bags and also took the bags to the union office at 8:00 pm.
The 2nd accused testified that he joined the 1st accused at about 8:00 pm, they were arrested at about 8:00 pm. How is it possible then that the 1st accused closed at 8:00 pm and got to the Transport Union Office at 8:00 pm, as he claimed? This testimony does not jell. Because if he actually went to the Transport Union Office which is in doubt, at about 8:00 pm, how come they were arrested at about 8:00 pm at Otokutu junction as they told the Court? This is very curious. What the Court can deduce from the evidence is that, both accused persons have been economical with the truth.
Another point which agitates the mind of this Honourable Court is the evidence of the 2nd accused person that on the day of the incident, he went to visit his mother at Effurun market. In another breath, he claimed his mother suffered a stroke and he went to visit
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her where she was staying at Warri/Sapele Road, meaning that is where his mother lived. I cannot reconcile how a woman who suffered a stroke and was very sick according to the 2nd accused, was in the market on 27/12/2010, the day of the incident. And yet the 2nd accused was with her in the market as well as in her house at the same time. It all boils down to the same thing, that the 2nd accused was economical with the truth.
In addition, how come the bags which were recovered from the bus were under the conductor’s seat? The inference to be drawn is that, the bags were hidden under the seat. What in my view accords with the common course of natural events and human conduct is that, having discovered the bags, it (sic) should be on top of the seat and not under the seat as in this present case.
The presumption to be drawn by the Court in the face of the many inconsistent evidence of the accused persons is that, they know more than they have told the Court of the incident of the 27th day of December, 2010.
By virtue of Section 167 of the Evidence Act, 2011, the Court may presume the existence of any fact which it thinks likely to have
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happened, regard being had to the common course of event, human conduct and public and private business in their relationship to facts of the particular case, and in particular, the Court may presume that a person who is in possession of stolen goods soon after the theft, is either the thief of (sic) he received the goods knowing them to be stolen, unless he can account for it (sic).
In this case, the two accused persons were found in possession of the stolen items including Exhibits ‘A’ and ‘B’ on the date of the robbery incident 27/12/2010 which the PW1 and PW2 said happened at between 7:00 pm and 7:30 pm at Orhuwhorun area in Udu Local Government Area. The two accused persons could not give satisfactory account of their possession of the stolen items. The logical inference to be drawn from the direct and circumstantial evidence before the Court is that, the 1st and 2nd accused persons were the ones who stole the items including Exhibit ‘A’ and ‘B’. The Court believes the evidence of prosecution witnesses particularly the PW4 that, those items were stolen and that the accused persons could not account how
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the items came into their possession. See Gbadamosi vs. State (1991) 6 NWLR (Pt. 196) 182 at 194.
From the totality of the evidence before the Court and the finding and reasoning above, the Court has arrived at the irresistible conclusion that the two accused persons cannot be free from guilt and can be convicted with the lesser offence of robbery based on the principle of recent possession of stolen jewelry box, Nokia phone and other items found in their possession in the Mitsubishi bus. The prosecution has succeeded in proving a lesser offence of robbery, against the accused persons.
Consequently, the 1st and 2nd accused persons are hereby found guilty of the lesser offence of robbery and are hereby convicted of same, under Section 1(1) of the Robbery and Firearms (Special Provisions) Act (supra).
ALLOCUTUS
Counsel pleads for leniency as the two accused persons are first offenders. I plead with the Court to be lenient with them, as the Court pleases.
I have considered the allocutus of the learned defence counsel, this is my sentence.
Sentencing
Section 1(1) of the Robbery and Firearms (Special Provisions) Act (supra)
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provides that any person who commits the offence of robbery shall be upon trial and conviction under the Act, be sentenced to imprisonment not less than 21 years.
Therefore the Court will be lenient by imposing the minimum sentence. The 1st accused person is sentenced to 21 years imprisonment, to run consecutively. The 2nd accused person is also sentenced to 21 years to run consecutively.
This is the judgment of the Court.”
Being dissatisfied with the judgment of the lower Court convicting Blessing Onokpe and him of the lesser offence of robbery and sentencing him (Appellant) to 21 years therefore, the Appellant initiated the instant appeal by lodging at the registry of the lower Court on 22/12/2014, a notice of appeal bearing the same date. An amended notice of appeal was filed in the appeal on 23/2/2018, but it was deemed to have been properly filed on 7/5/2018. The amended notice of appeal contains 6 grounds of appeal. The grounds of appeal with their respective particulars read: –
“GROUND ONE
The learned trial Judge erred in law in relying on the mere fact that the appellant was found in the commercial bus which
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contained the recovered items some hours after they were stolen along with its driver as circumstantial evidence to link the appellant with the commission of the offence.
PARTICULARS OF ERROR
(i) The Appellant gave explanation in his defence that he was offered a lift by his friend who was the driver of the commercial bus.
(ii) The Appellant as at the time of the arrest was not the driver of the commercial bus in which the two boxes containing the stolen items were found.
(iii) The driver of the commercial bus admitted in evidence both documentary and oral that appellant is not his conductor but a fellow driver who was giving (sic) a lift.
(iv) The mere fact that the appellant was in the commercial bus in which the items were found is not a conclusive proof that he was one of the armed robbers.
(v) The appellant at the earliest time upon his arrest informed the Police that he was not at work but had been with his mother until about 8:00pm when he got to Roundabout to look for a vehicle to take him home.
GROUND TWO
The learned trial Judge erred in law and came to a perverse decision when she held as follows:
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The two accused persons could not give satisfactory account of their possession of the stolen items. The logical inference to be drawn from the direct and circumstantial evidence before the Court is that, the 1st and 2nd accused persons were the ones who stole the items including Exhibits ‘A’ and ‘B’.
PARTICULARS OF ERROR
(I) The appellant denied his presence at the scene of crime and the commission of the offence both in his oral and documented evidence before the Court.
(ii) The appellant told the police at the earliest opportunity time that he was with his mother at the material time of the commission of the offence.
(iii) PW1 and PW2 did not identify the appellant as one of the robbers who robbed them.
(iv) No gun was recovered from the appellant.
(v) The Police did not properly investigate the defence of alibi raised by the appellant.
(vi) There is no onus on the appellant to establish his innocence.
(vii) The prosecution has the burden to prove the charges against the appellant beyond reasonable doubt.
(viii) There was no eyewitness account fixing the appellant at the scene of crime.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(ix) The Police did not investigate the offence for which the appellant was arraigned, tried and convicted.
GROUND THREE
The learned trial Judge erred in law in convicting the appellant for a lesser offence of robbery based on the principle of recent possession.
PARTICULARS OF ERROR
(i) The appellant gave reasonable explanation as to how he joined the commercial in which the 2 bags containing items such as Exhibits ‘A’ and ‘B’ were found.
(ii) The driver of the commercial bus admitted in evidence both documentary and oral that the appellant is not his conductor but a fellow driver who he was giving a lift.
(iii) PW4 confirmed that he flagged down a commercial bus returning home after close of the day about 22:35 hours.
(iv) None of the victims (PW1 and PW2) identified the appellant as one of the armed robbers who robbed them at gun point.
(v) No arm/weapon was recovered from the appellant or the other occupant of the commercial bus.
(vi) There was no proper investigation of this case.
(vii) One of the stolen vehicle (sic) (Lexus Jeep) was recovered at another location by Policemen
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of Ekpan Division.
(viii) The appellant denied the commission of the offence both in his oral and documentary evidence before the Court.
GROUND FOUR
The learned trial Judge erred in law in convicting the appellant of the offence of robbery when the particulars of the said offence stated in the charge were not proved to justify conviction.
PARTICULARS OF ERROR
(i) The appellant was charged with robbing PW1, PW2 and three other persons while armed with a gun.
(ii) There was no evidence linking the appellant to the scene of the crime.
(iii) There was no evidence that appellant robbed PW1 and PW2 and the three other persons while armed with a gun and nobody said he saw the appellant robbing any of the victims.
(iv) The law requires that all the particulars of the charge should be proved for conviction to be secured.
(v) The appellant denied the commission of the offence both in his extra judicial statement and his evidence before the Court.
GROUND FIVE
The learned trial Judge erred in law and thereby came to a perverse decision when she rejected the defence of the appellant in holding that:
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From the evidence before this Court, it is not in doubt that the recovered items which the victims identified were theirs, were found in possession of the accused persons immediately after the robbery, and the accused persons could not satisfactorily account for how they came into possession of the item.
PARTICULARS OF ERROR
(I) The appellant gave reasonable explanation of how he entered the commercial bus in which the stolen items were found.
(ii) There was no credible evidence on record to support the conclusion of the trial Court that the appellant was involved in the robbery of the victims.
(iii) The trial Court failed to properly consider the defence of the appellant as borne out from the totality of evidence on record.
(iv) The evidence led by the prosecution did not positively link the appellant with the commission of the offence for which he was convicted.
(v) There is no onus on the appellant to prove his innocence.
(vi) The prosecution has a duty to prove all the ingredients of the offence beyond reasonable doubt.
GROUND SIX
The judgment of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the evidence.”
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The appeal was entertained on 10/6/2020 with learned counsel John Smart adopting and relying on the Appellant’s brief of argument dated 14/6/2019 and filed on the same date, and Appellant’s reply brief of argument dated 16/3/2020 and filed on the same date, in urging the Court to allow the appeal. In the same vein, learned Law Officer, E.E. Erebe (Asst. Director) leading two other Law Officers, adopted, and relied on the Respondent’s brief of argument dated 22/7/2019 and filed on 23/7/2019, in urging the Court to dismiss the appeal.
The Appellant formulated a lone issue for the determination of the appeal from the six grounds of appeal contained in the amended notice of appeal. The issue reads: –
“Whether from the totality of the evidence on record, the trial Court was right in convicting and sentencing the appellant for a lesser offence of robbery based on the principle of recent possession of the stolen items found in the Mitsubishi commercial bus.”
The Respondent, like the Appellant formulated a lone issue for the determination of the appeal in its brief of
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argument. The issue reads: –
“Whether the trial Court was right in convicting the Appellant for a lesser offence of robbery based on the doctrine of recent possession.”
The lone issue as formulated by the parties are the same in purport, I will however couch the issue for the determination of the instant appeal as “whether the decision of the lower Court that is based on the application of the doctrine of recent possession can be sustained having regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession.”
I consider the issue as couched by me more apt for the resolution of the instant appeal, against the backdrop of the position of the law (whether in civil or criminal jurisprudence) that the purpose or essence of an appeal is basically for the appellate Court to determine from the relevant processes before the lower Court, evidence adduced and applicable law, whether the said Court had come to the right decision in respect of the matter before it. See in this regard the civil case of ODOM V. PDP (2015) LPELR-24351(SC) and the
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criminal case of NDUKWU V. STATE (1999) LPELR-6735(CA) wherein this Court even though recognising some differences between an appeal in civil proceedings vis-a-vis criminal proceedings, stated thus:
“On the first point of objection, I observe that all the cases relied on by Mr. Nwofor are civil cases. There is none of them the facts or circumstances of which are anywhere near the facts or circumstances of the one now before us. In many material respects a civil appeal is different from a criminal appeal. One such respect, in my view, is the filing of cross-appeals or the giving of a respondent’s notice. It is easy to find many reasons why a respondent in a civil appeal would want to file a cross-appeal or give a respondent’s notice. The reliefs or benefit that a party hopes to obtain before a Court of civil jurisdiction are far more varied and imprecise than before a criminal Court. The civil Court may give a decision that is unsatisfactory to both sides, either one of them feeling that the decision ought not to have gone the way it has, or has not gone in that direction as far as it ought to have.
In a criminal trial, however, the Court is
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concerned only with one thing. That is to ascertain whether or not the guilt of the accused has been established as required by law. Where it comes to a decision that it has, then it enters a conviction. If not, it acquits. If it convicts as charged the convict may appeal, but I cannot see any ground for complaint by the prosecutor either by way of a cross-appeal or a respondent’s notice. If it acquits, the prosecutor may appeal.
The trial Court has power to convict for a lesser offence, though not charged, if it is of the view that the facts proved by the prosecution do not establish the offence charged, but constitute the lesser and related offence. See Sections 169 – 179 of the Criminal Procedure Law. Cap. 31, Laws of Eastern Nigeria applicable in Imo State. In such a situation either side could appeal, the later appellant in time being referred to as cross-appellant. In the matter before us the prosecutor pressed for and secured a conviction before the trial Court. On further reflection, however, he came to the conclusion that the conviction of the appellant was not right in law. He now thinks that the conviction should have been for different and
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lesser offence disclosed by the facts. I do not think that as the law stands he needs to cross-appeal or give a respondent’s notice. He has no ground to cross-appeal on. The trial Court gave him exactly what he asked for i.e., the conviction of the accused as charged. It is true that he has asked us to vary the decision of the trial Court. It is equally true, however, that he is not asking for the varying of the decision in his favour, but in the appellant’s favour. A respondent’s notice would, in my view, therefore, be inappropriate in the circumstances. In any case Order 4 of the Court of Appeal Rules, which deals with criminal appeals, makes no provision for the giving of a respondent’s notice as does Order 3, which deals with civil appeals….”
In arguing the lone issue formulated for the determination of the appeal in his brief of argument, the Appellant in the main submitted that the lower Court was wrong to have found him guilty of the offence of robbery based on the application of the doctrine of recent possession. The Appellant narrated events which went to show that the charges preferred against Blessing Onokpe and him were not
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as a result of any proper investigation but to douse the tension created by the petition written to the office of the Assistant Inspector-General of Police, Zone 5, Benin against PW3 for damaging in an accident the Lexus Jeep recovered at Ekpan and taken to the Ekpan Police Station, while the said PW3 was using the said Jeep. In this regard, the Appellant stated to the effect that he was charged with conspiracy, armed robbery and possession of stolen property in Charge No. MCOR/4C/2011, six months after he had been granted bail in Charge No. MCOR/1C/2011 at the Magistrate’s Court. The Appellant argued to the effect that before a trial Court can properly apply the presumption in respect of stolen property found in possession of an accused person, the following essential elements must co-exist and be proved beyond reasonable doubt. The elements are: (i) it must be established that the good were stolen; (ii) the accused must have been found in possession of the stolen goods; (iii) the possession must have been soon after the theft; and (iv) the accused is unable to account for the possession of the goods recently stolen. Some cases considered relevant
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including that of The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 541, were cited in aid. It is the stance of the Appellant that the fact that he was inside the commercial bus in which stolen items were found was not in contention. In other words, that though there was evidence before the lower Court establishing elements (i) and (iii) above, elements (ii) and (iv) were however not established by the prosecution as required by law. This is because, (i) he (Appellant) was not in possession of the stolen items but they were simply found in the commercial bus belonging to Blessing Onokpe who was charged along with him (Appellant) and who admitted that he only gave him (Appellant) a lift in the bus as they were both bus drivers and were staying in the same place; and (ii) that he (Appellant) gave reasonable explanation as to how he entered the commercial bus in which the stolen items were found. It is also the stance of the Appellant that the lower Court did not avert its mind to the position of the law that the said Court need not be convinced of the truth of the explanation before it, in order for the presumption created by the doctrine of recent
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possession to be displaced. The case of State v. Nnolim was cited in aid of this position. The Appellant also argued that there was no credible evidence before the lower Court from PW3 and PW4 to warrant the finding of the lower Court that the evidence of the said witnesses, was positive and unequivocal in establishing his guilt. That the circumstantial evidence in the case was not positive, cogent and conclusive, to ground a conviction in a criminal trial. The Appellant in paragraphs 3.34 – 3.38 of his brief of argument argued to the effect that the lower Court did not accord his defences appropriate consideration. I however cannot but observe that the Appellant never disclosed the defences which were not considered by the said Court or accorded appropriate consideration in the paragraphs in question. The Appellant further dwelled on what he described as “poor investigation by the Police” and in this regard, he brought to the fore that all the Police did regarding his case was taking statements from witnesses. That there was no effort made to confirm the defence he (Appellant) put up by inviting his mother to confirm whether or not he was
26
with her. It is the stance of the Appellant that he has no duty in law to prove his alibi. Also dwelling specifically on Exhibits ‘A’ and ‘B’, the Appellant argued to the effect that the procedure of first tendering an item for identification and later tendering it as an exhibit is not known to law. That this procedure is not recognised by the Evidence Act 2011; and the cases of Egwa v. Egwa (2007) 1 NWLR (Pt. 1014) 71 and Macfoy V. UAC (1961) 3 All ER 1169, were cited in aid of this position. In concluding his arguments in the appeal, the Appellant urged this Court to set aside the decision of the lower Court and acquit and discharge him for the following reasons: –
“(i) The Police failed to investigate the case especially the defence of alibi raised by the appellant.
(ii) The prosecution failed to lead credible evidence linking the appellant with the commission of the crime;
(iii) The appellant gave explanation as to how he came to be in the commercial bus belonging to the 1st accused in which the stolen items were found both in his extra judicial statement and oral evidence before the Court.
(iv) The learned
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trial Judge failed to consider the defence of the appellant from the totality of the evidence;
(v) The appellant is entitled to the defence of alibi.
(vi) The stolen items were not in the appellant’s custody.”
Dwelling on the lone issue for the determination of the appeal as couched in its brief of argument, the Respondent submitted that it is trite law that a person found in possession of property reported to have been stolen (with or without violence from another person maybe convicted for the theft of the property) and that resort is normally made by the prosecution to the doctrine where direct evidence to establish the guilt of the accused is unavailable. The case of Ehimiyein v. State (2017) All FWLR (Pt. 868) 728 at 735 was cited in aid. It is the position of the Respondent in the main that the lower Court properly invoked the doctrine of recent possession in convicting the Appellant and many cases were cited in aid of the position. The cases cited include that of State v. Nnolim (supra) which the Respondent claimed the Appellant did not quote in details. Having urged the Court to resolve the sole issue it formulated for the
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determination of the appeal in its favour, the Respondent proceeded to dwell on the submissions of the Appellant in his brief of argument and submitted to the effect that (i) the submission of the Appellant that the stolen items recovered were not in his possession but were only found in the commercial bus driven by Blessing Onokpe, should be discarded as the Appellant did not dispute the fact that the items in question were found in his possession; (ii) that he (Appellant) was in actual and constructive possession of the stolen items having regard to the manner in which they were discovered and the unchallenged evidence of PW4 as to how the said items were found in the Appellant’s possession; and (iii) that constructive possession of stolen property stands in the same legal position and is an important concept in criminal law regarding theft and embezzlement.
The Respondent also submitted that there were no material contradictions in the evidence of PW3 and PW4 as any alleged contradiction particularly that in respect of who was the leader of the Police team that apprehended the Appellant, was immaterial. That they are mere discrepancies. Also, it
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is the stance of the prosecution that the defence of alibi did not avail the Appellant and that the rejection of the same by the lower Court cannot be faulted. On the question that Exhibits ‘A’ and ‘B’ were first tendered as ID before they were admitted as exhibits and that such practice is not recognised by the Evidence Act, 2011, the Respondent submitted that the argument in this regard does not flow from the notice of appeal. That it is a fresh issue and should be discountenanced as no leave was obtained to raise and argue the same. The Respondent concluded by urging this Court not to disturb the finding of the lower Court and hold that from the totality of evidence on record, a lesser offence of robbery was proved by the prosecution based on the doctrine of recent possession.
The Appellant in his reply brief of argument responded to submissions of the Respondent in respect of the defence of alibi that he (Appellant) had extensively argued in his brief of argument; and the proper manner of tendering exhibits. I will however state right away that the Appellant in filing his reply brief of argument and to have engaged in the
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argument of the defence of alibi therein, would appear to have lost sight of the position of the law that a reply brief of argument is not filed for the purpose of re-arguing an issue that has been argued in an appellant’s brief of argument.
I have hereinbefore couched the lone issue for determination of the instant appeal to be “whether the decision of the lower Court that is based on the application of the doctrine of recent possession can be sustained having regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession.”
The issue for the determination of the appeal was couched as above, against the backdrop of the specific findings by/of the lower Court made in different portions or parts of its judgment (and against which the prosecution never appealed), that the prosecution did not establish the offence of conspiracy to commit the offence of armed robbery; as well as the counts charging Blessing Onokpe and the Appellant with the offence of armed robbery in relation to various victims specified in the Information; and as a result of
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which findings and application of law, the said Court consequently discharged Blessing Onokpe and the Appellant of the offences they were specifically charged with.
The position of the lower Court that the prosecution did not prove the charges and or elements of the charges it preferred against Blessing Onokpe and the Appellant, was again reiterated in the judgment of the said Court prior to the invocation of the doctrine of recent possession when the said Court said: –
“Although the prosecution did not prove the elements of the offence charged, the evidence before the Court as adduced by the prosecution witnesses particularly the PW4 is positive and unequivocal. It is the position of the law that, when a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence other than that for which he was expressly arraigned before the Court. See Section 179(2) of the Criminal Procedure Act. Under Section 15(1)(a) of the Robbery and Firearms Act (Special Provisions) Act (supra), the word stealing was interpreted in the interpretation Section and the word robbery was interpreted to mean stealing anything.”
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In my considered view, the position which the Appellant has endeavoured to demonstrate in the instant appeal even though not concisely articulated (because of his wrong notion that the non-investigation of his defence of alibi must necessarily lead to his acquittal), is that the lower Court having found the prosecution not to have established the essential elements of the offences for which he was charged, was wrong in law to have later on found him guilty of an offence to wit: robbery which is a constituent of the offence of armed robbery for which he was charged and prosecuted. This is particularly so, given his (Appellant’s) explanation regarding the items found in the vehicle in which he was at the time of his arrest.
I will begin the resolution of the issue formulated for the determination of the instant appeal as couched by me, by stating that the position of the law in respect of the elements or ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence as enunciated by the Supreme Court from time immemorial as it were, till
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present time are: (i) that there was a robbery or series of robberies; (ii) that the robbery or each of the robberies was an armed robbery; and (iii) that each of the accused persons was part of or had taken part in the armed robbery or robberies. See in this regard the cases of IKEMSON V. STATE (1989) 3 NWLR (Pt. 110) 455 and AJUMOBI V. STATE (2018) LPELR-43854(SC), amongst many others.
Similarly, the position of the law in respect of how the prosecution can successfully prove its case beyond reasonable doubt against an accused person, has been enunciated in relatively old decisions of the Supreme Court as well as new decisions of the said Court. The ways by which the prosecution might do this are: (i) by direct evidence of witnesses; (ii) by circumstantial evidence; and (iii) by reliance on the voluntary confessional statement of the accused. See ONITILO V. STATE (2017) LPELR-42576(SC) and STEPHEN V. THE STATE (2013) VOL. 223 LRCN (Pt. 2) 215 amongst many others. It is also clear as crystal having regard to numerous decided cases, that any one of these methods or a combination of one or two or even all of them can be employed by the prosecution.
It would
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also appear to be an incontrovertible position of the law that the offence of “robbery” is not only a lesser offence vis-a-vis the offence of armed robbery but that a Court can eminently convict an accused person charged with the offence of armed robbery with the said lesser offence of robbery or any other lesser offence created by the Robbery and Firearms (Special Provisions) Act (hereafter to be simply referred to as “Robbery Act”). One of such lesser offences, is that of receiving created or punishable under Section 5 of the said Act.
Blessing Onokpe, the 1st accused in the Information preferred against him and the Appellant as 2nd accused person, before the lower Court and who like the Appellant was found guilty of the lesser offence of robbery being aggrieved with his conviction and sentence lodged a separate appeal against the same as he is expected so to do by law. As in the instant appeal, the issue formulated for the determination of the appeal lodged by Blessing Onokpe was “whether the decision of the lower Court that is based on the application of the doctrine of recent possession can be sustained having
35
regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession.”
Suffice it to say that after a consideration of decided cases dealing with the propriety of a conviction for the offence of robbery, in a case of armed robbery by the Courts; vis-à-vis the facts of the instant case as established by the evidence before the lower Court; as well as the prior findings made by the said Court before it convicted the accused persons before it for the lesser offence of robbery, I had in the appeal of the said Blessing Onokpe arrived at the conclusion that the lower Court wrongly invoked the doctrine of recent possession of stolen items in the instant case, in finding the said Blessing Onokpe guilty of the offence of robbery and a fortiori was wrong in sentencing him to 21 years therefor.
It is to be noted that the prosecution (Respondent) in the instant appeal, in relation to the Appellant herein, has not placed before this Court, any evidence that is different from the evidence before the lower Court and upon which it invoked (albeit wrongly) the doctrine
36
of recent possession of stolen goods to sustain its conviction of Blessing Onokpe.
The position of the law would appear to be very settled that where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was discharged and acquitted. See the cases of in AKPA V. STATE (2008) 14 NWLR (Pt. 1106) 72 and ALO V. STATE (2015) LPELR-24404(SC).
However, it has to be noted that it is not in every case where an accused is tried jointly with another that the discharge of one must lead to the discharge of the other. This is because it is equally the law that when the evidence against one accused is different from that against the other, a different conclusion will certainly arise at which one may be discharged and the other convicted. Each case is considered on its own merits. Therefore, where there are some extenuating circumstances which inured to the advantage of an accused person, the accused person in question cannot be so considered as his circumstances make a distinct peculiar presentation. See the case of YUSUF V. FRN (2017) LPELR-43830(SC).
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Given the positions of the law as enunciated in the above cited cases, it becomes obvious in my considered view that the issue for the determination of the instant appeal, being the same with the issue for determination in the appeal of Blessing Onokpe, it must be resolved in the same manner in which it was resolved in the appeal lodged by Blessing Onokpe against his conviction for the lesser offence of robbery and the sentence passed on him therefore.
Indeed, I cannot but observe that there are more compelling reasons for the conviction of the Appellant in the instant appeal to be set aside. This is because, I do not think it is a correct application of the doctrine of recent possession of stolen goods for the lower Court to have found the Appellant guilty of any offence in respect of the stolen items recovered from the vehicle owned by Blessing Onokpe, simply because the Appellant herein was arrested in the bus/vehicle in which the said stolen items were found and which bus/vehicle the Appellant never had charge of or control over. I am of the considered view that it is simply not commonsensical, for example to
38
hold all or any other passenger(s) or occupant(s) of a vehicle to be in possession of stolen goods found therein, simply because of their presence in the vehicle in question at the point of the discovery or recovery of the said stolen goods in the vehicle in question. This is particularly so when there was no evidence placed before the lower Court as in the instant case, that it was the Appellant who hid the stolen items found in the vehicle in which he was arrested under the seat where they were found. In other words, the finding of the lower Court as it were, that the recovery of stolen items as in the instant case under the seat where the Appellant sat in the vehicle being driven by Blessing Onokpe, led to the irresistible inference that the Appellant acting alone or in concert with the said Blessing Onokpe, hid the said items there, beats me hollow. The lower Court it must be noted had before the invocation by it of the doctrine of recent possession of stolen good, made a finding that the prosecution did not prove beyond reasonable doubt the offence of conspiracy to commit armed robbery against the Appellant and Blessing Onokpe. Likewise, the said Court
39
had equally made a finding that the prosecution never established beyond reasonable doubt the counts of armed robbery preferred against Blessing Onokpe and the Appellant. The position of the law is settled as to what conspiracy is even though conspiracy is a distinct and separate offence. It is to the effect that conspiracy means an agreement of two or more persons to do an act which is an offence or to agree to do it. The very plot or concert or agreement is an offence in itself. Legally speaking, conspiracy is the meeting of minds of two or more persons to carry out an unlawful purpose or act or to carry out a lawful purpose or act in an unlawful way or by unlawful means. In effect, the purpose of the meeting of the two or more minds must be to commit an offence. See the case of MARTINS V. STATE (2019) LPELR-48889(SC). The prosecution as well as the lower Court would also appear not to have appreciated the position of the law regarding an Information charging the offence of conspiracy to commit a specific offence and the substantive offence together. It is expedient to read the case of OKIEMUTE V. STATE (2016) LPELR-40639(SC) in order to appreciate this.
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In the case under reference, the Supreme Court stated thus:-
“This Court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious. This is because:
(i) evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and
(ii) such a joinder of charges adds to the length and complexity of the case so that the trial may easily be well near unworkable and impose a quite intolerable strain on the Court. See R V DAWSON v. WENLOCK (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in the Nigerian case of CLARK v. STATE (SUPRA). See further AIYEOLA & 2 ORS v. THE STATE SC/27/69 (Unreported) of 7/8/1970. This proposition is good if there will be clogging of otherwise simple trial with a count of complicated conspiracy, especially when there is no independent evidence of conspiracy. This is the merit of this proposition of the law. It should not be over-stressed or stretched to
41
a ridiculous elasticity. I agree with the stance of the Court below on the point when it held on page 190 of the record, while relying on the cases of CLARK v. STATE (Supra) and SULE v. THE STATE (2009) 17 NWLR (Pt.1169) 33 thus:
“That position of law is eminently suitable (sic). This is because in a charge of conspiracy to commit on (sic) offence such as armed robbery, even although a separate offence from armed robbery, where the facts are intricately interwoven, the Courts are enjoined to the deal with the main offence first, since, if the substantive offence is unproven; the case for conspiracy is (sic ) such circumstances collapses.”
However, in the present appeal, I am in no doubt that the evidence, as clearly pointed out earlier, support the count of conspiracy to commit armed robbery as well as the count for actually carrying it out. The circumstances of this case when considered, then the charging of Appellant with conspiracy along with the substantive charge does not render the information inherently bad in law.”
In my considered view, it is very apparent from its judgment that the lower Court totally lost sight of its findings in respect
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of the count of conspiracy to commit the offence of armed robbery and the counts in respect of the substantive offence of armed robbery, when it came to the conclusion as it were, that the Appellant was in possession of the stolen items in the instant case, simply because the said items were discovered or recovered under the seat where the Appellant sat in the vehicle being driven by Blessing Onokpe.
The lower Court in my considered view did not address its mind to the fact that the stolen items recovered or discovered in the vehicle being driven by Blessing Onokpe, could have been hidden where they were discovered or recovered by the driver of the vehicle in which they were found (i.e. Blessing Onokpe) ever before the Appellant got into the vehicle in question. In my considered view, the prosecution having not proved by any iota of evidence that the stolen items found in the vehicle in which the Appellant was arrested could only have been hidden there with the knowledge of the Appellant, there was therefore no need for the Appellant to have offered any explanation as to how the said stolen items came about. The prosecution in my considered view never
43
proved beyond reasonable doubt by direct or circumstantial evidence and or the extra judicial statement of the Appellant, that the said Appellant was in actual or constructive possession of the stolen items found in the vehicle in which he was arrested.
It is if the prosecution had proved this beyond reasonable doubt in the first place, that the duty or burden to establish reasonable doubt by the Appellant by way of reasonable explanation for his possession of the items in question; and or any meaningful or purposeful consideration of the defence of alibi put up by the Appellant would have arisen. See in this regard the case of BAKARE V. STATE (1987) LPELR-714(SC) wherein the Supreme Court stated thus:-
“But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. xxx”
Flowing from all that has been said, is that the issue formulated by the Court for the determination of the instant appeal to wit: “whether the decision of the lower Court that is based on the
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application of the doctrine of recent possession can be sustained having regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession” is resolved against the Respondent and in favour of the Appellant.
In the final analysis, there is merit in the instant appeal and it succeeds. Accordingly, the appeal is allowed and the judgment of the lower Court convicting the Appellant – GODWIN EMARAH for the offence of robbery contrary to Section 1 of the Robbery and Firearms (Special Provisions) Act is set aside.
The Appellant – GODWIN EMARAH is hereby acquitted and discharged in respect of all the counts contained in the information preferred against him in the instant case.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with and adopt the lead Judgment of my Lord, AYOBODE OLUJIMI LOKULO-SODIPE, JCA allowing the instant appeal. The principal offence charged, was not proved, let alone robbery per se as the inference of “theft” was without basis. This is aside the absence of violence.
Indeed, there was no evidence of conspiracy led against anybody, let alone its proof
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beyond any reasonable doubt and for a non-existent offence. There was nothing from whence to draw any inference of conspiracy either.
The guilt of an accused person must be one proved beyond reasonable doubt, failing which the presumption of innocence anures.
Appeal is allowed.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA and I am in agreement with the Judgment.
I too join my learned brother in allowing this appeal and judgment of lower Court is set aside.
I also abide by all consequential orders made therein.
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Appearances:
John Smart For Appellant(s)
E. Erebe (Asst. Director, Appeals, Delta State) with him, M. U. Dibia (Asst. Chief State Counsel) and O. Eyesio (Senior State Counsel) For Respondent(s)
