FRIDAY v. STATE (2022)

FRIDAY v. STATE

(2022)LCN/16687(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 11, 2022

CA/OW/173C/2021

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

JUSTICE OGEDEGBE FRIDAY APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ESSENTIAL INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

To establish the offence of armed robbery, the prosecution must prove the following:
1. That there was a robbery or series of robbery
2. That each of the robbery was an armed robbery
3. That the accused was one of those who robbed
These ingredients must be proved conjunctively and not disjunctively. BELLO VS. STATE (2007) ALL FWLR (PT 396) 702; AFOLALU VS. THE STATE (2010) ALL FWLR (PT.538) 812. PER PEMU. J.C.A.

WHETHER OR NOT ANY FINDING WITHOUT EVIDENTIAL SUPPORT IS PERVERSE AND SHOULD BE SET ASIDE

Any finding without evidential support is perverse and must be set aside. UDO VS C.R.S. NEWSPAPER CO. (2001) 22 WRN 53 CA.
A decision is said to be perverse when it runs counter to evidence, or where it has shown that the Court took into account matters it ought not to have taken into account, or shuts it eyes to the obvious, or when it has occasioned a miscarriage of justice. See INCAR LTD VS ADEGBOYE (1985) 1 NWLR (PT 8) 453; RAMONU ATOLAGBE VS SHORUN (1985) NWLR (PT 2) 360. PER PEMU. J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 22nd day of February, 2021 in Charge No. HOW/1/119C/2016, whereby the Appellant was convicted of the offence of Armed Robbery, and sentenced to death by hanging.

SYNOPSIS OF FACTS
On the 7th day of April, 2016, at Akwakuma/Orlu Road, Owerri, Imo State, the Appellant, while armed in company of others, robbed NZEREM AUGUSTINA of a red coloured Highlander Jeep with Registration Number APP 755 CB and Chassis Number TEHF21A930118570 containing the following items, Nokia handset, gold chain, foreign handbags, Nigeria wax wrapper, hollandaise wrapper and N95,000 (Ninety Five Thousand Naira Only).

The Appellant allegedly also kidnapped Pw1 (the victim) who later escaped from their custody into the bush and came out at a place called Ngugo in Ikeduru on the 8th day of April, 2020.

On the 22nd day of June, 2016, Pw1 received a call from Benin City, whereby the caller asked her if she had sold her vehicle. The appellant has said that one Friday sold the car to him, but he never disclosed who Friday was. His particulars remain unknown.

The appellant, dissatisfied with the decision of the Court below is desirous of appealing it and pursuant to the Practice Direction of this Honourable Court, filed a Notice of Appeal on the 11th day of March, 2021 – pages 141-145 of the record of Appeal.

The appellant filed his brief of argument on 15th day of September, 2021. It is settled by N.A Oti-Onyema Esq.

The respondent’s brief was filed on the 14th day of October, 2021 it is settled by Udo-Ndupu J.O. Esq.

The appellant’s reply brief was filed on the 2nd day of November 2021.
The parties adopted their respective briefs of argument.

The appellant proffered three (3) issues for determination from the grounds of appeal: they are:
ISSUES FOR DETERMINATION
1. Whether the learned trial judge was right to convict the Appellant based on the contradictory evidence of the prosecution witnesses. Ground 1 of the Notice of Appeal.
2. Whether the prosecution has proved the ingredients of the offence of armed robbery against Appellant beyond reasonable doubt to warrant the onus of proof to be shift to the Appellant. Grounds 2 and 4 of the Notice of Appeal
3. Whether the judgment of the lower Court is not perverse, unwarranted having no regard to the evidence adduced and against the weight of evidence. Ground 3, 5, 6 and 7 of the Notice of Appeal.

The respondent formulated two issues for determination which are:
1. Whether the prosecution proved its case beyond reasonable doubt against the appellant for the offence of Armed Robbery.
2. Whether any defence avail the Appellant and whether or not the doctrine of recent possession established a case of armed robbery against the appellant.

I shall consider this appeal based on the appellant’s issues for determination.
ISSUE NO. 1:
The appellant submits that the evidence of Pw1 & Pw2 are contradictory as to the time the incidence took place. That Pw1’s evidence itself was contradictory.

That while Pw1 tried to establish the fact that the appellant robbed her with arms, Pw2 states that in her findings as the I.P.O the proper charge the appellant should be facing is that of receiving stolen property rather than a charge of armed robbery. That Pw2 further said that she believes the fact stated in Exhibit ‘E’ (alleged statement of appellant to the police) by implication, Pw2 disbelieved the statement of Pw1. Submits that many of the facts adduced in Court by Pw1 are contrary to what is in Exhibit ‘A’.

ISSUE NO. 2:
Submits that the prosecution failed to prove the offence of armed robbery against the appellant. That there was no robbery committed by the appellant. That the prosecution did not produce the vehicle allegedly stolen. The police said they have released the vehicle on bond, Neither have they produced the bond with which the vehicle was released. Submits that nothing was stolen. That the prosecution failed to prove that the appellant was one of the persons who robbed the victim.

That the only evidence with which the judge convicted the appellant was the evidence of Pw1 who identified the appellant at the police station that there was no proper identification.

ISSUE NO. 3
Submits that the decision of the Court below is perverse and not supported by evidence. That on the time as to the commission of the crime, the Court took judicial notice that Pw1 was returning from work between 4:30pm and 5:pm. In the statement of Pw1, she did not state the time she was coming from work. That judicial notice is a matter of law, where there is no provision for such it should not be allowed. That Section 122(1) of the Evidence Act (2011) empowers the Court to take judicial notice of facts.

That the findings of the trial Court that Pw1 and Pw1’s evidence is sufficient and indeed proves the ingredient of armed robbery beyond reasonable doubts against the defendant is unwarranted and against the weight of evidence.

RESOLUTION
ISSUE NO.1:
The appellant has made a heavy weather about the contradictions in the evidence of Pw1 and Pw2. Pw1 has said in the statement to the police that the incidence took place at 12 midnight, but in her evidence-in-chief she said the incident took place between 4:30pm and 5:pm.

The appellant says that her story in Court was quite different. Hear the observation of the Court below:
“I have meticulously gone through the evidence of Pw1 before this Court and Exhibit ‘A’, her extra-judicial statement and I have noted the graphic precision with which Pw1 (victim of the robbery incidence) described the robbery incident in terms of how and when it happened. And how her vehicle was driven by the defendant and the other armed men pointing a gun at her inside her said vehicle from Akwakuma in Owerri in the evening i.e. 4:30-5:00 pm when it was still day to Okigwe road to Amaraku and turning back to Iho Ikeduru taking right to the bush till 12 midnight when she escaped. This piece of evidence by Pw1 was not controverted nor contradicted in any manner whatsoever.”

The appellant has submitted that the contradiction in the time the event occurred is material as it affects the credibility of the purported identification of the appellant by Pw1 which the Court relied on to convict the appellant.
Again, the Court below observed:
“I must say that considering the distance and time that the incident happened, there was sufficient time for Pw1 to have fully taken note of the defendant as to enable her identify him when next she saw him. The time Pw1 spent in the company of the defendant and his co-armed men in the vehicle of Pw1 was sufficient to identify the defendant and was not fleeting.”

The opinion of Pw2 the Investigating Police Officer that the proper charge the appellant should be facing is that of receiving stolen property rather than that of armed robbery holds no water.
The duty of the police is to investigate but it is the duty of the Ministry of Justice to peruse the facts of the case and file information with the appropriate charges after vetting. The appellant cited Section 4 of the Police Act (2020) that it is the duty of the police to detect, interrogate and charge any person for crimes. Yes, but it is the Attorney General that has the final say in respect of the offences of the nature with which the Appellant was charged.

It is the duty of the Court to evaluate evidence before it before arriving at a conclusion. The Court has a duty to holistically view every relevant facts before arriving at its conclusion.

The question is whether the so-called inconsistency which the appellant is referring to is material? I do not think so. Also is there any conflicting evidence which materially creates a serious doubt in this case? I think not.
I am of the view that the Court is at liberty to accept a version or the more truthful version of a story in other to arrive at a finding on the guilt or innocence of the accused.

The Court, based on the facts before it, chose to believe the evidence of the prosecution in the circumstance and justly too.

This issue is resolved in favour of the respondent and against the appellant.

ISSUE NO 2:
To establish the offence of armed robbery, the prosecution must prove the following:
1. That there was a robbery or series of robbery
2. That each of the robbery was an armed robbery
3. That the accused was one of those who robbed
These ingredients must be proved conjunctively and not disjunctively. BELLO VS. STATE (2007) ALL FWLR (PT 396) 702; AFOLALU VS. THE STATE (2010) ALL FWLR (PT.538) 812.

From the evidence of Pw1, it is clear that there was a robbery of her car. The Appellant was armed at the time of the armed robbery. She was able to identity him even a couple of months after the robbery incidence. The robbery took place on the 7th day of April, 2016.

She identified the appellant on the 24th day of June, 2016. The lacklustre attitude with which the police investigated the matter leaves much to be desired. Pw1 (the victim) of the armed robbery was also an eye witness. Hear her evidence:
“2 men well armed jumped out ask me to give them car key which I did”
Pw1 also stated:
“… my car was hit i.e. my Toyota Highlander (a jeep) wine colour. I stopped and came out from the car, in my humble manner I wanted to enter my car but the same car that hit my car double crossed my car and fling open their doors and two boys jumped out of the car well armed.” page 31 of the Record of Appeal.

Pw1 identified the appellant as one who beat her up seriously. That it was the Appellant who drove her vehicle. That it was the appellant who told her to follow him into the bush. That while she was in the bush, it was the Appellant that ordered her movement. It was the Appellant who removed her sim cards and gave them to the other boy. That the Appellant had more than 20 sim cards and kept changing them in other to call people – Pages 31 to 32 of the Record of Appeal.

Decidedly, the best identification of an accused person is the evidence given by the victim of the crime with which the accused is charged. EHIMEN ESENE VS THE STATE (2017) LPELR-41912 (SC).

Pw1’s evidence was that she was robbed between 4:30pm and 5:pm. She was in the company of the robbers till about 12 midnight before she escaped from them. She obviously was in a position to positively identify the robbers. It was the Appellant who was found in possession of the vehicle. The Appellant did not deny this fact but stated that he bought it from someone. The said vehicle was recovered in Benin-city Edo State where the Appellant hails from.

In the instant case, in an identification parade, Pw1 still identified the Appellant.

Proof beyond reasonable doubt is not proof to the hilt. Per Denning J. as he then was in the case of MILLER VS MINISTER OF PENSION (1947) 3 ALL ER 373.
What matters is whether all the essential ingredients of an offence has been proved or established by the persecution. That is when a charge is proved beyond reasonable doubt. This is the situation in this instant case.
The Court below had observed thus:
‘’It is the holding of this Court that the evidence of Pw1 and Pw2 in this case is sufficient and indeed proved the three ingredients of armed robbery beyond reasonable doubt against the defendant’.”

I agree with this, as I hold this opinion as well.
This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE 3
Any finding without evidential support is perverse and must be set aside. UDO VS C.R.S. NEWSPAPER CO. (2001) 22 WRN 53 CA.
A decision is said to be perverse when it runs counter to evidence, or where it has shown that the Court took into account matters it ought not to have taken into account, or shuts it eyes to the obvious, or when it has occasioned a miscarriage of justice. See INCAR LTD VS ADEGBOYE (1985) 1 NWLR (PT 8) 453; RAMONU ATOLAGBE VS SHORUN (1985) NWLR (PT 2) 360.

I am of the view that the Court here did not fall short of being fair in the evaluation of evidence before it in this instant case. The judgment is not perverse and there is nothing to suggest same as the Court below had a proper understanding of the facts of the case.

This issue is misconceived and same is resolved in favour of the Respondent against the Appellant.

The appeal fails and same is hereby dismissed.

The judgment of the High Court of Imo State, Owerri Division in Charge No. HOW/119C/2016 delivered on the 22nd day of February, 2021 whereby the Appellant was sentenced to death by hanging, having been found guilty of armed robbery is hereby affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts and contentions of Counsel to the parties have been set out and determined. I am in agreement with my learned brothers reasoning and conclusions. I also find this appeal without merit and dismiss it. I, accordingly affirm the conviction and sentence of the Appellant by the lower Court.

IBRAHIM WAKILI JAURO, J.C.A.: I had the preview of the draft judgment just delivered by my learned brother Rita N. Pemu, JCA. My Lord has extensively dealt with the issues in this appeal such that I have nothing to add. I agree the appeal lacks merit and I too dismiss same. The judgment of the lower Court of 22nd day of February, 2021 is hereby affirmed.