GEOFREY OGIDI v. THE STATE (2014)

GEOFREY OGIDI v. THE STATE

(2014)LCN/7246(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of May, 2014

CA/OW/24/2011

RATIO

HEARSAY EVIDENCE: EXCEPTION TO THE HEARSAY RULE

WHETHER THE COURT MUST GIVE BENEFIT OF DOUBT WHERE THERE ARE INCONSISTENCIES IN THE EVIDENCE OF THE PROSECUTION WITNESS

The law remains sacrosanct that where there are material contradictions or profound inconsistencies in the evidence of prosecution witnesses that go to the root or fountain of a criminal case the trial Court must give benefit of doubt created as a result of the contradictory testimonies to the accused. This is because of another settled position of the law that where one witness called by the prosecution in a criminal matter contradicts another prosecution witness on a material point, the Court of trial cannot pick and choose between such contradictory evidence unless the prosecution treated the witness contradicting its evidence as a hostile witness and thereby asks the trial court to reject the evidence of the said witness. See BOY MUKA v. THE STATE (1976) 9-10 SC 305. See also CORPORAL DESMOND ONONUJU V. THE STATE (2013) 9 SCM 208 at 225 D-E per ALAGOA, J.S.C. who said:
“There is a long and almost in-exhaustive line of judicial authorities by the Court that in the prosecution of criminal cases material contradictions in the evidence adduced by the prosecution which lead to doubts as to the guilt of the accused must be resolved in favour of the accused person.”
However the contradiction that will resolve doubts created in the evidence of prosecution witness in favour of an accused must be vital and must cut at the foundation of the prosecution’s case. A miniature contradiction cannot affect the prosecution’s case. It must be a contradiction that raises reasonable doubt upon the guilt of the Accused Person. See OKON DAN OSUNG V. THE STATE (2012) 18 NWLR (PART 1332) 256 at 278 F-H to 279A PER MUNTAKA – COOMANSSIE, J.S.C. per PETER OLABISI IGE, J.C.A.

WHETHER THE TRIAL COURT HAS THE DUTY TO EVALUATE ALL MATERIAL AND RELEVANT PIECES OF EVIDENCE

The law is trite that the duty of evaluation of all material and relevant pieces of evidence are the primary responsibility of the trial Court. In other words ascription of probative value or weight to such evidence are the function of the trial court which saw, heard and watched the demeanour of witnesses while they testified. See BABALOLA BORISHADE V. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PART 1332) 347 at 401 E-H to 402 A per NWODO, J.C.A. of blessed memory who said thus:
“This issue brings to force the nature of the duty on the trial Court to evaluate evidence in criminal cases. It is trite that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial Court. Once a trial court has applied the established principles of law in assessment or evaluation of evidence adduced before the “Court, an appellate Court would have no viable justification to interfere with the decisions notwithstanding the style adopted in the procedure for the evaluation. See Martins V. The State (1997) 1 NWLR (Pt. 481) 355; Onuoha V. State (1989) 2 NWLR (Pt. 101) 23.
The rationale in support of the duty placed on the trial Court to assess or evaluate evidence is that they enjoy the privilege of listening and watching the demeanour of witnesses and are better placed to assess their credibility on oath.
The duty of the appellate Court is to look at the printed record of the evidence adduced at the trial in support of the charge to ascertain whether the trial court has made substantive or procedural errors or has failed to make proper findings in line with the evidence adduced before the court.Therefore where the trial court has appropriately evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its view for those of the trial Court.
However, where the trial court fails in its role to evaluate the evidence or properly appraise the facts based on the evidence before the court the appellate court is in as good a position to review the evidence and proceed to draw the necessary inferences from the evidence in the printed record, see Mogaji v. Odofin (1978) 4 SC 91 at 93-94.” per TER OLABISI IGE, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

GEOFREY OGIDI Appellant(s)

AND

THE STATE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant and another person as 1st and 2nd Accused were charged with offence of Armed Robbery contrary to section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII, Laws of The Federal Republic of Nigeria 1990.
The particulars of the said offence reads:
“Geofrey Ogidi, Anicetus Echesim Arinze and others now at large on the 10th day of November, 1998 at Umuire Village Orlu Judicial Division armed with guns robbed one late Albert Eshieuko of the sum of N500.000 cash, one Mercedes Benz Saloon Car with Registration No. AV 892 DKA valued at N430,000.00, one Video Camera and at the end left the victim dead;”

In order to sustain the case against the said Accused persons the prosecution called four (4) witnesses. Appellant testified in his own behalf. At the end of hearing and Learned Counsel addresses the Learned trial Judge on 27th day of October, 2005 gave a considered judgment and held in respect of the Appellant as follows:-
“The 1st accused Geoffrey Ogidi admitted being present at the scene of crime and in the company of the robbers but claimed that he was led to the scene forcefully and kept lying down and guarded by the robbers until after the robbery when he got up and started running and shouting “thief, thief, thief”. He did not testify that anybody in the village saw or heard him running and shouting. There was also no evidence of his membership of or the existence of the vigilante Outfit at Orlu or of his report to the Chairman of the said outfit about his encounter with the robbers.
On the other hand the only sound of an explosive heard by all other witnesses was that simultaneous with the entry of the robbers. If there was the sound of a knockout, it was heard only by the 1st accused and no one else. The 1st accused did not lead any evidence of the ban on knockouts and why he considered the enforcement of the ban so crucial as to abandon his family at meal to run out in pursuit of the knockout offender. There was the evidence of the confrontation of the 1st accused by the deceased mother with the plea of “why not shoot me instead of my son” of his walking past the prostrate body of the deceased as well as that he drove away in the same vehicle with the other robbers. In my view, the 1st accused offered no convincing answers to the said pieces of evidence.
There is also the evidence of the 3rd prosecution witness that he saw and gripped the 1st accused. Both of them fell down before he (P.W.3) was shot in the head. The answer of the 1st accused to that evidence was in my view, evasive. He spoke of not seeing any of P.W.1, P.W.2 and Nnamdi. He was silent about P.W.3 Emeka Eshieuko who allegedly gripped and fell down with him.
In sum, my view is that the story of his forceful abduction by the robbers to the house was a pre-planned defence. His bare bodied and maskless posture were intended to further his plot. His attitude after the crime-his failure or refusal to sympathize with the family; his alleged staying for 3 days at his work place from which work place he was already on suspension further strengthened the prosecution’s case of his voluntary involvement.
I find that he was one of the robbers who robbed and killed the deceased on the 10th November, 1998. He was not a victim of circumstance.”

See pages 101-106. The trial Judge concluded thus:

“In the result, I find that the prosecution has proved the case against the accused persons. I find them- Geoffrey Ogidi and Anicetus Echesim Arinze guilty of Armed Robbery as charged.

ALLOCTUS:
1st accused – I cannot collect myself to ask for leniency, God and everybody knows that I am not a rogue. I have never stolen since I was born. This is a case of accusation against me. 2nd accused – please have mercy on me. I have never stolen before. Chief M.A.C Opurum – Prays the court to temper justice with mercy. Urges the Court to consider the relationship between the parties. Hereby gives oral notice of appeal.
The sentence of this court on you Geoffrey Ogidi and Anicetus Echesim Arinze is death by hanging by the neck or by a firing squad till you be dead. The manner of the execution of the sentence shall be determined by the Governor of Imo State. May the Lord have mercy on your souls.”

The Appellant GEOFREY OGIDI was dissatisfied by the aforesaid judgment where upon he filed Notice of appeal consisting of ten (10) grounds on 25th day of January, 2006 which are without their particulars read as follows:-

GROUNDS OF APPEAL

GROUND ONE – MISDIRECTION ON THE FACTS

The learned trial Judge misdirected himself and thereby came to a wrong decision when he held that

“There was also no evidence of his membership of the vigilante outfit at Orlu or of his report to the chairman of the said outfit about his encounters with the robbers.”

GROUND TWO – MISDIRECTION ON THE FACTS
The learned trial judge misdirected himself and thereby came to a wrong decision when he held that:
“….The only sound of an explosive heard by all other witnesses was that simultaneous with the entry of the robbers, if there was the sound of a knock out, it was heard only by the 1st accused and no one else.”

GROUND THREE – MISDIRECTION ON THE FACTS
The learned trial Judge misdirected himself and thereby came to a wrong decision when he held that;
“The 1st accused did not lead any evidence of the ban on knock outs and why he considered the enforcement of the ban so crucial as to abandon his family at meal to run out in pursuit of the knock out offender.”

GROUND FOUR – ERROR IN LAW
The learned trial judge erred in law when he accepted the evidence of what the mother of the deceased allegedly said to 1st accused person.

Ground FIVE-ERROR IN LAW
The learned trial judge erred in law when he picked and chose the evidence of the witnesses that were materially contradictory.

GROUND SIX-ERROR IN LAW
The learned trial judge erred in law when He accepted, believed and acted on the evidence of P.W.3 that he held the accused/appellant and wrestled him to the ground before he was shot.

GROUND SEVEN-ERROR IN LAW
The learned trial judge misdirected facts and thereby came to a wrong decision when he held:
“In sum, my view is that the story of his forceful abduction by the robbers to the house was a pre-plan defence. His bare bodied and markless posture was intended to further his plot. His attitude after the crime-his failure or refusal to sympathize with the family; his alleged staying for 3 days at his work place from which work place he was already on suspension- further strengthened the prosecution’s case of his voluntary involvement.”

GROUND NINE-ERROR IN LAW
The learned trial judge erred in law when he convicted the accused/appellant on manifestly unreliable evidence of the prosecution and its witnesses based entirely on uninvestigated allegations.

GROUND TEN – ERROR IN LAW
The learned trial court erred in law when it held that:
“I found that he was one of the robbers, who robbed and killed the deceased on the 10th November, 1999. He was not a victim of circumstances.”

RELIEF SOUGHT FROM THE COURT OF APPEAL
To set aside the judgment of the High court of Imo state dated 27/10/2005 and in its place enter a judgment of acquittal for the Appellant.(Pages 110-116 of record).
The Appellant filed his appellant’s Brief of Argument dated 16th day of March, 2012 on 21st day of March, 2012. The said Appellant’s Brief of argument was deemed properly filled and served on 8th day of October, 2012.

Respondent’s Brief of Argument was filed on 27th day of November, 2012. It is dated 26th day of November, 2012. It was deemed properly filed and served on 28th day of November, 2012.
The Appellant thereafter filed APPELLANT’S REPLY BRIEF OF ARGUMENT on 20th day of December, 2012 but was deemed properly filed and served on 4th day of March, 2013.

The Learned Counsel to the Appellant and Respondent adopted their Briefs of Argument in this appeal on 10th day of March, 2014 when his appeal came up for hearing.
The Learned Counsel to the Appellant C.H. Nwuke Esq distilled seven (7) issues for determination of the appeal viz:
“(1) Whether the learned trial judge misdirected himself in law and fact and came to a wrong conclusion which occasioned a miscarriage of justice against the appellant when he held at page 101, 102 of the record of appeal that
(i) “There was no evidence of his membership of or the existence of the vigilante outfit at Orlu or of his report to the chairman of the said outfit about his encounter with the robbers.”
(ii) “On the other hand the only sound of an explosive heard by the other witnesses was that simultaneous with the entry of the robbers. If there was the sound of knockout, it was heard only by the 1st accused and no one else.”
(iii) The first accused did not lead any evidence of the ban on knockouts and why he considered the enforcement of the ban as crucial as to abandon his family at meal to run in pursuit of the knockout offender.

(2) Whether the Learned trial Judge was right in accepting and acting on the evidence of what the mother of the deceased allegedly said to the 1st accused person.

(3) Whether the learned trial judge was right in picking and choosing materially contradictory evidence of witnesses and placing reliance on them to convict the accused person/Appellant.

(4) Whether the learned trial judge was right in accepting, believing and acting upon the evidence of PW3 as to his encounter with the 1st accused person before he (PW3) was shot.

(5) Whether the findings of facts and decisions of the learned trial judge were correct when such findings and decisions were reached based on irrelevant consideration and improper evaluation of the evidence before the court.

(6) Whether the learned trial judge misdirected himself on the facts and came to a wrong decision which occasioned a miscarriage of justice when he held that the Appellant was one of the robbers who robbed and killed the deceased on 10/11/1998 and that he (Appellant) was not a victim of circumstances.”

(7) Whether the Learned trial Judge was right in convicting the Appellant based on manifestly inconsistent unreliable evidence of the prosecution witnesses and upon uninvestigated allegations.

On his part the Learned Director of Public prosecutions C.N Akowundu Esq formulated four issues for determination of the appeal namely:

“(1) Whether the prosecution did prove its case beyond reasonable doubt against the Appellant.

(2) Whether the appellant was not properly identified as one of the robbers that robbed the deceased victim on 10th day of November 1998.

(3) Whether there are material contradictions in the evidence of the prosecution witnesses.

(4) Whether the Learned trial Judge did not properly evaluate the evidence before him before finding the Appellant guilty.”

I am of the view that this appeal can be determined on the seven issues raised or formulated by the Appellant and I will treat them in sequence.

ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE MISDIRECTED HIMSELF IN LAW AND FACT AND CAME TO A WRONG CONCLUSION WHICH OCCASIONED A MISCARRIAGE OF JUSTICE AGAINST THE APPELLANT WHEN HE HELD AT PAGE 101, 102 OF THE RECORD OF APPEAL THAT:
“(i) There was no evidence of his membership of or the existence of the vigilante outfit at Orlu or of his report to the Chairman of the said outfit about his (sic) encounter with the robbers”
(ii) On the other hand the only sound of an explosive heard by other witnesses was that simultaneous with the entry of the robbers. If there was the sound of knockout, it was heard only by the 1st accused and no one else.
(iii) The first accused did not lead any evidence of the ban on knockouts and why he considered the enforcement of the ban as crucial as to abandon his family at meal to run in pursuit of the knockout offender.”

The Learned Counsel to the Appellant C. H. Nwuke Esq stated that this issue is distilled from grounds 1, 2, 3 of the grounds of Appeal. He quoted the findings of the Learned trial Judge on pages 101-102 of the Record of appeal and submitted that they constitute grave misdirection both in law and fact. That these led the trial Judge to come to a wrong conclusion that occasioned great miscarriage of justice against the Appellant. That there is abound evidence that is contrary to the position of the trial Court. He referred the court to the evidence of the Appellant who testified as DW1 on pages 68 & 69 of the record. He referred to the Cross examination of appellant that from the evidence of the appellant the findings, direction and conclusion of the Learned trial judge were perverse. That the Learned trial Judge placed burden of proving his innocence on Appellant contrary to section 36(5) of the 1999 Constitution as amended. That the prosecution must prove the case against an Accused person beyond reasonable doubt and not otherwise. That the findings are based on hunches, speculations and suspicion and that suspicion is inconsistent with the burden of proof beyond reasonable doubt. He relied on the cases of
(1) KOR v. THE STATE (2011) FWLR (Pt. 76) 637 at 662 and
(2) AHMED v. THE STATE (2002) FWLR (Pt. 90) 1358 at 1372.
(3) ONAH v. THE STATE (1985) 2 NWLR (Pt. 12) 236 at 244.
(4) UGHENEYOVWE VS. THE STATE (2005) ALL FWLR (Pt. 245) 1006 at 1027, 1030 and 1032.

C.H. Nwuke Esq. for the appellant urged this Court to resolve issue 1 in favour of the Appellant. The Respondent through the Learned Director of Public Prosecution C.N. Akowundu Esq responded to this issue under its own issue 4 in Respondents Brief. The Respondent relied on the evidence of PW1 and PW3 on page 35 of the record who the Respondent stated saw the Appellant in company of the robbers. That the action of the Appellant depicted him as a person who had foreknowledge of the robbery as Appellant was seen conversing with the robbers. That PW1 gave details of the Appellant’s conduct on that fateful day. That the appellant did not controvert the evidence of PW1 who said the Appellant’s mother confronted the Appellant after the deceased had been shot dead why they did not kill her instead of her son. That he relied on the case of DAGASH v. BULAMA (2004) 14 NWLR (PT. 892) 44. On the fact that the appellant was identified among the robbers the Learned DPP relied on Sections 7 and 8 of the Criminal Code Cap 30 Vol.11 Laws of Eastern Nigeria 1963 applicable in Imo State. That it is immaterial that the Appellant was not holding gun since Appellant was in the company of the robbers. He relied on the case of OKOSI V. THE STATE (1998) 1 ACLR 281 AT 298.

I agree with the Learned Counsel to the appellant that the duty to prove the guilt of an Accused person rests squarely on the prosecution and the 1999 Constitution of the Federal Republic of Nigeria as amended or altered makes it clear in Section 36(5) thereof that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. See the decision of this court in the case of LT. COL. K.S. IBERI (Rtd) V. A.G. of the Federation (2014) 5 NWLR (PART 1401) 610 at 649 C-H per IKYEGH, J.C.A. see also the case of FRANCIS OMOSAYE V. THE STATE (2014) 10 N.W.L.R (PART 1404) where I.T. MUHAMMAD J.S.C. said:
“It is equally in tandem with our Constitution (Section 36(5) of Constitution (1999) as amended) which covers an accused with garment of presumption of innocence. The trial Court must at all times, presume a person accused of committing a crime or crimes innocent until proved guilty, the onus which rests on the shoulders of the prosecution”
The complaint of the appellant borders on the following findings of the trial court that:
“There was no evidence of his membership of or the existence of the vigilante outfit at Orlu or of his report to the chairman of the said outfit about his encounter with the robbers.
On the other hand the only sound of an explosive heard by all the other witnesses was that simultaneous with the entry of the robbers. If there was the sound of knockout, it was heard only by the 1st accused and no one else. The 1st accused did not lead any evidence of the ban on knockouts and why he considered the enforcement of the ban so crucial as to abandon his family at meal to run out in pursuit of the knockout offender.”

I am of the view that the finding of the Learned trial Judge is only to the effect that the evidence of the Appellant did not establish his membership or even the existence of a VIGILANCE OUTFIT in Orlu, and that he did not show that he made a report of his encounter with robbers to the Chairman of the vigilante group he said he belonged to. This is the natural thing that would be expected of any person in the Appellant’s shoe who claim to be a member of a vigilante group, should do, by reporting the incident to his Chairman more so that there is evidence which is not denied by the defence that Appellant was seen in company of the robbers while the robbery was going on. The statement of the trial Judge that appellant must have been the only one who heard sound of the knock out as opposed to sound of gun is not farfetched. The inference that the trial Judge drew was that it is not a normal thing for appellant to abandon his family and run out on the ostensible ground that he wanted to arrest knock out offender. The position and what informed the findings of the trial judge was made more clearer when he said:
“In my view the 1st Accused offered no convincing answers to the said pieces of evidence. There is also the evidence of the 3rd prosecuting witness that he saw and gripped the 1st accused. Both of them fell down before he (PW3) was shot in the head. The answer of the 1st accused to that evidence was in my view evasive. He spoke of not seeing any of PW1, PW2 AND Nnamdi. He was silent about PW3 Emeka Eshieuko who allegedly gripped and fell down with him. In sum, my view is that the story of his forceful abduction by the robbers to the house was a pre-planned defence. His bare bodied and maskless posture were intended to further his plot. His attitude after the crime;his failure or refusal to sympathize with the family, his alleged staying for 3 days at his work place from which work place he was already on suspension further strengthened the prosecution’s case of his voluntary involvement.”

The findings of the trial Court did not place any burden or onus of proof of the commission of the offence of armed robbery for which appellant was charged. The findings are not perverse and they do not entail any miscarriage of justice. It is the evidence of the prosecution that the trial Judge believed which in effect tantamount to rejection of defence put forward by the Appellant.
Issue 1 is resolved against the Appellant.

ISSUE 2
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN ACCEPTING AND ACTING ON THE EVIDENCE OF WHAT THE MOTHER OF THE DECEASED ALLEGEDLY SAID TO THE 1ST ACCUSED PERSON.

The Appellant referred to page 102 of record where the learned trial Judge made reference to the alleged statement of deceased victim mother that she said “why not shoot me instead of my son”. That that was the words with which deceased mother confronted the appellant according to the evidence of PW1 Callistus Eshieuko. That it was wrong of the trial Judge to accept and act upon that evidence concerning what the Appellant mother said because it was hearsay. That the mother of the victim was not called and so the appellant was unable to test the veracity of the evidence by cross examination. That before evidence can be accepted and acted upon it must be direct. He relied on Sections 37 and 38 of the Evidence Act. That evidence is not only hearsay but that it is inadmissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made. He relied on the case of JAMB V. NKEIRUKA (2008) Vol. 44 WRN 92. That the evidence of what the mother of the deceased said was hearsay and that the trial Judge was wrong to have accepted and acted on the said statement. Appellant urged this Court to resolve issue 2 in the negative and allow the appeal.

The Respondent reacted to issue 2 under its issue 2. The position of the respondent is that the evidence of PW1 on pages 35 of the record concerning the statement said to have been made by victim’s mother was not controverted by the appellant during cross examination. That the contention of the appellant that the evidence was hearsay cannot be sustained. That the confrontation by the deceased mother of the appellant was seen by the PW1. He relied on Section 75 and 76(b) of the evidence Act now Sections 125 and 126(b) of the evidence Act 2011. He also relied on the case of SYLVESTER UTTEH VS. THE STATE (1993) 1 WFLR (Pt. 1) 58 at 77.

The law is trite that what a person tells another is not generally admissible in evidence because of the hearsay rule. The statement is admissible and givable in evidence by the person to whom the statement was made or heard by that person if the purpose is just to establish that a third party made or utter such a statement but the truth of the statement for the words will not be taken as true unless the person who made or utter the statement is called as a witness.See
(1) SYLVESTER UTTEH VS THE STATE (1992) 2 SCNJ 183.
(2) CHIMA IJIOFOR VS THE STATE (2001) S 5 SCM 107.
(3) FERDINAND ABADOM V. THE STATE (1997) 1 NWLR (PART 479) 1 at 24 per UBAEZONU JCA.
In the case of FEDERAL REPUBLIC OF NIGERIA VS MOHAMMED USMAN ALIAS YARO YARO & ANOR (2012) 8 NWLR (PART 1301) 141 at 160 B-D The apex Court per RHODES VIVOUR, J.S.C. held firmly thus:
“The question to be answered is what constitutes hearsay evidence. A witness is expected to testify in Court on Oath on what he knows personally. If the witness testifies what he heard some other person says, his evidence is hearsay. Such evidence is to inform the court of what he heard the other person say e.g. in cases of slander. If on the other hand his testimony is to establish the truth of the contents of the Appellants statements, it is hearsay, and inadmissible evidence. Hearsay evidence is secondary evidence of an oral statement best described as second hand evidence. What a witness says he heard from another person is unreliable for many reasons. For example he may not have understood the information/interpreters, or he may say things that were never said. Such evidence remains hearsay evidence because it cannot be subject to cross examination in the absence of the informant interpreters.”
I agree with the submission of the Learned counsel to the appellant that the learned trial judge cannot make use of the evidence allegedly uttered by the deceased mother. For avoidance of doubt the words “Why not shoot me instead of my son” are not admissible in evidence, being hearsay evidence. Issue 2 is therefore resolved in favour of the Appellant.

ISSUE 3
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN PICKING AND CHOOSING MATERIALLY CONTRADICTORY EVIDENCE OF WITNESSES AND PLACING RELIANCE ON THEM TO CONVICT THE ACCUSED PERSON/APPELLANT. (GROUND 5)

The Learned Counsel to the appellant C.H. Nwuke Esq referred to the four witness called by the prosecution and their evidence that PW1, PW2 and PW3 gave evidence as eye witnesses to the commission of the crime.
The Learned counsel to the Appellant stated that the PW1 and PW3 gave evidence of seeing the Appellant that night, the PW2 was emphatic in his evidence that he did not see the Appellant. That it was this PW2 that handed over the money to the robbers. That it was curious that the learned trial Judge did not make any finding or comment on PW2’s evidence. That the Learned trial Judge erred in law by picking and choosing which of the evidence of these prosecution witnesses to believe. That the contradiction is a disparagement of the evidence of other witnesses. He relied on the case of BODI V. AGYO (2003) FWLR (Pt. 156) 815 at 834. That the contradiction is material and ought to have raised doubts in the mind of the trial Jugde. He relied on the case of OBIDIKE & ORS V. THE STATE (2002) FWLR (Pt. 87) 784 at 808. He urged the court to resolve issue 3 in favour of the Appellant.

The Respondent dealt with this matter of contradiction in the evidence of witnesses for prosecution under issue 3 formulated by respondent. The Learned DPP C.N. AKOWUNDU Esq urges this Court to hold that there were no contradictions in the evidence of prosecution witnesses. That extra judicial statement of PW3 was not tendered by the Defence at the trial to show that his account of the incident as testified in Court contradicted statement made to the Police. That the difficulty of the Appellant was that he did not cross examine PW3 on material issues. That it is not every discrepancy or inconsistency that will affect the substance of a criminal charge which has been proved with credible and unchallenged evidence relying on the case of ADEKOYA VS THE STATE (2012) 2 MSCJ 1 at 22 F-H. He urged the court to resolve the issue against the Appellant.

In his Appellant’s Reply Brief the Appellant stated that PW1 and PW3 were duly cross examined.
The law remains sacrosanct that where there are material contradictions or profound inconsistencies in the evidence of prosecution witnesses that go to the root or fountain of a criminal case the trial Court must give benefit of doubt created as a result of the contradictory testimonies to the accused. This is because of another settled position of the law that where one witness called by the prosecution in a criminal matter contradicts another prosecution witness on a material point, the Court of trial cannot pick and choose between such contradictory evidence unless the prosecution treated the witness contradicting its evidence as a hostile witness and thereby asks the trial court to reject the evidence of the said witness. See BOY MUKA v. THE STATE (1976) 9-10 SC 305. See also CORPORAL DESMOND ONONUJU V. THE STATE (2013) 9 SCM 208 at 225 D-E per ALAGOA, J.S.C. who said:
“There is a long and almost in-exhaustive line of judicial authorities by the Court that in the prosecution of criminal cases material contradictions in the evidence adduced by the prosecution which lead to doubts as to the guilt of the accused must be resolved in favour of the accused person.”
However the contradiction that will resolve doubts created in the evidence of prosecution witness in favour of an accused must be vital and must cut at the foundation of the prosecution’s case. A miniature contradiction cannot affect the prosecution’s case. It must be a contradiction that raises reasonable doubt upon the guilt of the Accused Person. See OKON DAN OSUNG V. THE STATE (2012) 18 NWLR (PART 1332) 256 at 278 F-H to 279A Per MUNTAKA – COOMANSSIE, J.S.C.

I have gone through the printed record and I found nothing materially contradictory in the evidence of PW1 and PW3 on one hand and the evidence of PW1 on the other hand concerning what transpired that night as regards the Appellant. The PW1 and PW3 are at one that the appellant was among the Armed robbers that killed the deceased victim.
The fact that PW2 who was the father of the deceased victim said he did not see the Appellant that night did not mean that Appellant was not in his house in company of the robbers. It is here of utmost importance to note that the appellant himself corroborated the evidence of PW1 and PW3 that they saw him that night when they were robbed though he said he was forced into the house by the robbers.
The Appellant under examination in chief admitted knowing the deceased, PW1 and PW2 as his kinsmen. He testified on page 69 of the Record from lines 11 as follows:-
“As I was asking to know who were firing the knock out two people came out from a nearby cassava farm and pointed 2 guns at me one by my right and the other by my left. When they pointed the gun at me they continued ordering me to go I queried them where do you want me to go? They then conducted me to the house of Albert Eshieuko, the deceased. It was when they conducted me into the house that I found that they were robbers. I also saw other robbers there when they led me into the house of the deceased they asked me to lie down. As they got me lying down, I found out that one of the robbers had entered the house of the deceased.”
There is therefore nothing materially contradictory in the evidence of the prosecution witnesses of what transpired that night with respect to their evidence against the appellant. The principles in all the cases cited by the appellant’s Learned Counsel do not apply to the facts of this case. I do not find any substantial variation or conflict in the evidence of PW1, PW3 and evidence of PW2. See LUKMON OSEYOLA & ANOR V. THE STATE (2012) 17 NWLR (PART 1329) 251 at 282 D-E per FABIYI, J.S.C.
Consequently issue 3 is resolved against the Appellant.

ISSUE 4
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN ACCEPTING, BELIEVING AND ACTING UPON THE EVIDENCE OF PW3 AS TO HIS ENCOUNTER WITH THE 1ST ACCUSED PERSON BEFORE HE (PW3) WAS SHOT (GROUND 6.)

The Learned Counsel to the Appellant made reference to the evidence in chief of the P.W.3 wherein he said he saw Appellant and gripped him and the fact that two of them fell on the ground upon a shot on which fell him (PW3) down and became unconscious. That this pieces of evidence was demolished under cross examination. That it was wrong for the learned trial Judge to have received and acted on the evidence of PW3 since the evidence was not corroborated by other eye witnesses to the robbery. That there was report to the police to show he (PW3) received gunshot injuries. That there was nothing in the statements of PW3 made on 19/11/98 and 26/11/98 about the events narrated by him. That there is no reason given for the inconsistency in the evidence of PW3 on Oath and in his extra judicial Statement.

In response to the submissions of Appellant on issue 4 which is tied to ground 6 of the Grounds of appeal, the Learned DPP opined that the evidence credited to the PW3 not only showed that the robbers were armed but that they also killed their victim Albert Eshieuko on 10th November, 1998. That PW1 also testified that he saw the Appellant among the robbers. That the extra judicial statement of the PW3 was never tendered at the trial Court to show that PW3 account in court is at variance with his extra judicial statement to the Police.
I have read through the evidence of the PW3 and I see nothing inconsistent with it. Contrary to the submission of the Appellant’s Learned Counsel that there was no evidence before the court to show that PW3 was treated for gunshot or was hospitalized, there is such evidence on record.
The entire evidence of PW3 both in-chief and under cross examination is as follows:-
“My name is Emeka Eshieuko Live at Umuire Orlu in the Orlu Local Government Area. I am a shoe maker. I know the deceased Albert Eshieuko. Gabriel Eshieuko (PW2) is my father.The deceased Albert was my brother. Albert is now deceased. He died in our house. I live at Umuire in my father’s house. I was in my own room (apartment) on the day the deceased died.

On the day of the incident, I was in my room and heard my mother shouting “live him and shoot me” when I heard the shouts I ran out of my room, saw the 1st Accused and gripped him. The next was that I was shot I feel (sic)s down and became unconscious. I was shot in the head. I became unconscious after the shooting I later noticed the next day that I was in the hospital for a long period. The hospital is central Maternity Hospital Orlu. I later made statement to the police after I left the hospital. That is all.

CROSS EXAMINED BY OPURUM ESQ:
“It is true I told the court that I was holding the 1st accused when I was shot. I cannot say from what direction the shot came. It is true I cannot say who shot me when I gripped the 1st accused both of us fell on the ground when I held the 1st accused, he was bare bodied and wore a pair of shorts. He was unmasked. They were many of them when I came out and saw the 1st accused. That is all. Re Examination – None.”

It is glaring that the accusation of the Learned appellant’s Counsel against the evidence of PW3 and findings of the Court thereon are unfounded and baseless. The statements of 26/11/98 and 19/11/98 referred to as made by PW3 to the Police was never used to cross examine PW3 and they were not made evidence before the trial Court.

It is therefore out of place and off tangent to talk of any inconsistency in the evidence of PW3 on oath and his extra judicial statement to the Police.
The record of appeal does not support the Appellant’s submissions under issue 4.

It is trite law that the Appellate court and the parties are all bound by the record of Appeal before the court and cannot say anything outside the record of appeal. See the decision of this Court in the case of Commissioner of Police V EJIKE OKOYE & ORS (2012) 14 NWLR (PART 1320) 396 AT 425 F-G per AUGIE, J.C.A. who held:
“It is an inexorable principle of law that an appellate court is always bound by the record and the record only. It has no jurisdiction to go outside the record and draw conclusions unsupported by the record…”
See also OTUNBA A. OGUNTAYO V. PRINCE FATAI ADELAJA & ORS (2009) 15 NWLR (PART 1163) 150 at 190 H to 191 A per OGBUAGU J.S.C. and SOLOMON OHAKOSIM VS. C.O.P. IMO STATE & ORS (2009) 15 NWLR (PART 1164) 229 per KEKERE-EKUN J.C.A. NOW J.S.C.”
The Learned trial Judge was the one who saw and heard the witnesses. He was in the best position to ascribe probative value to all the pieces of evidence proffered before him. This Court cannot fault the finding of the trial court on the evidence of PW3. I hold that the Learned trial Judge was right in accepting, believing and acting upon the evidence of PW3 as to his encounter with the 1st accused person before the PW3 was shot. Issue 4 is resolved against the Appellant.

ISSUE 5
WHETHER THE FINDINGS OF FACTS AND DECISIONS OF THE LEARNED TRIAL JUDGE WERE CORRECT WHEN SUCH FINDINGS AND DECISIONS WERE REACHED BASED ON IRRELEVANT CONSIDERATION AND IMPROPER EVALUATION OF THE EVIDENCE BEFORE THE COURT (GROUND 7)
The Appellants started off by quoting the conclusion of the Learned trial Judge in the Record. That the conclusion was based not only on irrelevant facts but that they are perverse. That there is no evidence on record to support the finding of the trial court. The reasons, according to the Appellant are:
(a) There is no evidence before the learned trial Judge that 1st accused/Appellant was on suspension from his place of work.
(b) There is no evidence that the 1st Accused/Appellant drove away with the robbers.
(c) There was evidence from appellant that he visited the family of the deceased to sympathize with them after the incident.
(d) That the learned trial Judge did not evaluate and or properly evaluate the evidence of the 1st Accused/Appellant.
That this is wrong in law and that what the trial Judge did was to speculate and make conjecture and instinctive deductions and reasoning devoid of legal or judicial reasoning. That there was nothing to show that the Appellant did anything in furtherance of the crime. That his maskless posture cannot be said to be in furtherance of any plot. That the finding was not based on evidence and should be set aside. He urged the Court to resolve issue 5 in favour of the Appellant.
This issue was responded to or dealt with under issue 4 by the Respondent. The Respondent urged this court to hold that the trial Judge properly evaluated the evidence before him in finding Accused/Appellant/guilty. That it is trite in our criminal jurisprudence that a court is always enjoined to properly evaluate evidence led before it and defence open to an accused person. He relied on the case of NDUKWE VS THE STATE 37 NSCO r 425 at 494-495. That while doing this the same court cannot gloss over direct and positive evidence of prosecution witnesses. He referred the court to pages 101-103 of the record of appeal. That the trial Judge made meticulous evaluation of the evidence before him and considered whether Accused/Appellant was a victim of circumstance.That there was proper evaluation of the evidence before the trial Judge.
The law is trite that the duty of evaluation of all material and relevant pieces of evidence are the primary responsibility of the trial Court. In other words ascription of probative value or weight to such evidence are the function of the trial court which saw, heard and watched the demeanour of witnesses while they testified. See BABALOLA BORISHADE V. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PART 1332) 347 at 401 E-H to 402 A per NWODO, J.C.A. of blessed memory who said thus:
“This issue brings to force the nature of the duty on the trial Court to evaluate evidence in criminal cases. It is trite that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial Court. Once a trial court has applied the established principles of law in assessment or evaluation of evidence adduced before the “Court, an appellate Court would have no viable justification to interfere with the decisions notwithstanding the style adopted in the procedure for the evaluation. See Martins V. The State (1997) 1 NWLR (Pt. 481) 355; Onuoha V. State (1989) 2 NWLR (Pt. 101) 23.
The rationale in support of the duty placed on the trial Court to assess or evaluate evidence is that they enjoy the privilege of listening and watching the demeanour of witnesses and are better placed to assess their credibility on oath.
The duty of the appellate Court is to look at the printed record of the evidence adduced at the trial in support of the charge to ascertain whether the trial court has made substantive or procedural errors or has failed to make proper findings in line with the evidence adduced before the court.Therefore where the trial court has appropriately evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its view for those of the trial Court.
However, where the trial court fails in its role to evaluate the evidence or properly appraise the facts based on the evidence before the court the appellate court is in as good a position to review the evidence and proceed to draw the necessary inferences from the evidence in the printed record, see Mogaji v. Odofin (1978) 4 SC 91 at 93-94.”
See also STEPHEN HARUNA VS THE ATTORNEY GENERAL OF THE FEDERATION (2012) 9 NWLR (PART 1306) 419 at 438 E-F where GALADIMA, J.S.C. had this to say:
“There was other issue requiring my emphasis whether there was evaluation by the trial Court. It is instructive to note that evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial court who had the opportunity to see and hear the parties and assessed the witnesses. The trial Judge has the advantage of seeing the witnesses, watching their demeanour and hearing them give evidence”
In the same report ADEKEYE, J.S.C. on page A-B said
“Where the trial Court unquestionably evaluate the evidence and exhaustively appraised the facts. It is not the business of appellate court to substitute his own views for that of the trial Court. It is only where and when it fails to evaluate such evidence properly or at all that an appellate Court can intervene and re-evaluate such evidence. STATE V. AJIP (2000) 7 SC (Pt. 1) page 24, (2000) 11 NWLR (Pt. 678) 434.”

I am of the view that what is important under this issue is to find out what are the ingredients of the offences for which the Appellant was charged and to wade through the evidence led at the trial in order to discern whether the ingredients of the offence charged have clearly or positively linked the Accused/Appellant with the commission of the offence.
The offence for which the Appellant was arraigned is Armed Robbery.
What constitute the elements or ingredient of offence of Armed robbery have been stated and restated in numerous cases. In the case of AKEEM AGBOOLA V. THE STATE (2013) 8 S.C.M. 157 at 173 13 – F ARIWOOLA J.S.C said:
“First and foremost, it is pertinent to state what the prosecution is expected to prove to establish an offence of armed robbery. Robbery generally is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See BLACK’S LAW DICTIONARY NINTH EDITION PAGE 1443. THEREFORE, FOR THE PROSECUTION TO ESTABLISH THE OFFENCE OF ARMED ROBBERY THE FOLLOWING ARE REQUIRED TO BE PROVED:
(c) That there was infact a robbery
(d) That the robbery was an armed robbery.
(e) That the accused person was the armed robber”
See also KAYODE BABARINDE & ORS V. THE STATE (2014) 3 NWLR (PART 1395) 568, at 598 C-D per KEKERE EKUN, J.S.C. who had this to say:
“With respect to the charge of armed robbery the law is settled that in Order to secure a conviction the prosecution must prove the following beyond reasonable doubt.
(a) That there was robbery or series of robberies.
(b) That each of the robberies was an armed robbery.
(c) That the accused person was one of those who took part in the armed robbery See BOZIN V. THE STATE (1985) 2 NWLR (Pt.8) 465; AFOLALU V. THE STATE (2010) 16 NWLR (Pt.1220) 584; Eke V. The State (2011) 3 NWLR (Pt.1235) 589. Bello V. The State (2007) 10 NWLR (Pt.1043) 564″
See further NNAMDI OSUAGWU V. THE STATE (2013) 1 S.C.M. 170 AT 185 D-F PER RHODES – VIVOUR, J.S.C.

Now in this case the evidence of PW1, PW2, PW3 and PW4 and the appellant confirmed that robbery actually took place on 10th day of November, 1998. All parties to this appeal agreed that the robbery was an armed robbery at UMUIRE VILLAGE ORLU, IMO STATE whereat and in the process of the robbery on Albert Eshieube was robbed of N500,000 and his Mercedes Benz valued at N430,000 and was shot and later died.

There is also overwhelming evidence that the Appellant was in company of the said robbers. I am not unmindful of the defence of the appellant that he was forcefully forced by the robbers to the scene of the robbery. The defence was rejected by the Learned trial Judge who heard and saw him and prosecution witnesses testified before him.

I have calmly perused the printed record again and I am of the settled view that the Appellant has not been able to show that the findings of the trial Judge are perversed. The Appellant failed to show that the findings are not supported by the evidence. There is also no evidence of miscarriage of justice established by the Appellant to enable this court interfere in the lower Court’s judgment. I am of the view that issue 5 ought to be resolved against the Appellant and same is hereby resolved against the Appellant.

ISSUES 6 AND 7
These issues were argued together. They are:
(6) WHETHER THE LEARNED TRIAL JUDGE MISDIRECTED HIMSELF ON THE FACTS AND CAME TO A WRONG DECISION WHICH OCCASIONED A MISCARRIAGE OF JUSTICE WHEN HE HELD THAT THE APPELLANT WAS ONE OF THE ROBBERS WHO ROBBED AND KILLED THE DECEASED ON 10/1/1998 AND THAT HE (APPELLANT) WAS NOT A VICTIM OF CIRCUMSTANCES.

(7) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN CONVICTING THE APPELLANT BASED ON THE MANIFESTLY INCONSISTENT AND UNRELIABLE EVIDENCE OF THE PROSECUTION WITNESSES AND UPON UNINVESTIGATED ALLEGATIONS.

These issues are tied to grounds 8, 9 and 10 of the appellants Notice and Grounds of appeal.
I must say at once that virtually all the arguments and submissions pontificated upon under Issues 1, 3, 4 and 5 have been repeated under these two issues (6 & 7). I will not bother repeating them save to deal with issue of extrajudicial statements vis-a-vis the inconsistency rule raised under the issues under consideration. The Appellant stated that PW1, PW2 and PW3 admitted making statement to the Police during the investigation of the armed robbery but that it was surprising the prosecution did not tender any of the said extra judicial statements in evidence and that when the defence tried to tender them the prosecution stridently opposed the application.
That the prosecution knew and that any reasonable tribunal ought to have observed that the extra judicial statements made by PW1, PW2 and PW3 are riddled with inconsistencies and contained evidence favourable to the appellant. That in the entire statement Exh. ‘A’ made on 12/11/1998 the PW1 did not mention appellant. That it was in the statement made on 24/11/98 Exhibit.”B” that he mentioned the Appellant. That PW2 made statement dated 13/11/98 but signed on 12/11/98 and said he did not see Appellant at the scene of robbery. That where a witness makes an extra judicial statement which is inconsistent with his testimony in Court such testimony is to be treated as unreliable. He relied on the case of EGBOGHONOME VS THE STATE (1993) 7 NWLR (PART 306) 283 at 40. The Learned DPP had on page 1.50 of the Respondent’s Brief of Argument stated that PW1 and PW3 were witnesses to the crime. That it will amount to witnesses giving a uniform account of the incident of that day with attendant danger. He relied on the case of ESENGBEDO VS THE STATE 1 ACLR 109 at 140 where he stated that the Supreme Court held that when witnesses to one incident reproduce the same or uniform account of the incident danger is that their evidence has been tailored and doctored, that in actual life there is bound to be minor variations in the account of truthful witnesses. The Respondent dealt with this under their own issues 1 and 11.

I am of the firm view that the Learned Counsel to the Appellant is wrong in accusing the prosecution of failing to tender any of the extra judicial statements made by the PW1, PW2 and PW3 on the vile ground that they are riddled with inconsistencies and contained evidence favourable to the Appellant Rule. The inconsistency Rule is only applicable to a witness who had on previous occasion made a written statement which is now contrary to the oral evidence of that witness in the witness box. In such a situation a cross examiner could ask for the production of the witness’s statement to confront the witness with it in order to show that his oral testimony before the Court is unreliable.
See CHUKWUKA OGUDO VS THE STATE (2011) 11-12 (pt. 1) SCM 209 at 222 G.1 TO 223 A per RHODES-VIVOUR J.S.C. who said:-
“It is that where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which a Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency. See ONUBOGWU VS STATE (1974) 9 SC p.1. The inconsistency rule is restricted only to the evidence of a witness who made an extra judicial statement which was in conflict with the evidence given at trial. The previous statements are not evidence which the Court can act on/and the evidence given at the trial is taken by the court as unreliable. See EGBOGHONOME VS STATE 1993 7 NWLR Pt. 306 P.393”

The written statement of a prosecution witness is only relevant when the witness testifies and proves adverse in the witness box when giving evidence that shows that what he testified about is contrary to his written statement to the Police. The written statement can then be used to discredit him. The statement on its own is no evidence against the accused. See ITESHI ONWE VS THE STATE (1975) 1 ALL NLR (Pt. 2) 16 at 21 Per FATAYI WILLIAMS J.S.C. later CJN of blessed memory who said:-
“The written statement of a prosecution witness is only relevant to the proceedings at which he gives evidence where the witness proves “adverse” or is shown to have made at other times, a statement inconsistent with his present testimony. Such a statement is not evidence against the accused with respect to the allegation it contains, it is relevant only as to the credibility of the witness (See R. V. While (1924) 17 Cr. App R.P. 60 and also sections 208 and 209 of the Evidence Law of East-Central State (Cap 49).”

There is no merit in all the arguments made under issues 6 and 7 as formulated by the Appellant. I adopt all my reasoning and conclusions as reached under issues 1, 3, 4 and 5 respectively which have all been resolved against the Appellant.

The prosecution proved its case against the Appellant beyond reasonable doubt. Issues 6 and 7 are hereby resolved against the Appellant.

The inevitable conclusion I have reached is that the Appellant’s appeal ought to be dismissed. The Appellant’s appeal is hereby dismissed as lacking in merit.

The conviction of the Appellant by the lower Court stands: The sentence imposed upon the Appellant by the Learned trial Judge is hereby affirmed.

UWANI MUSA ABBA AJI, J.C.A.: I agree.

PHILOMENA MBUA EKPE, J.C.A.: I agree.

Appearances

NWUKE C. H. WITH EMEGANA EMEKAFor Appellant

AND

C. N. AKOWUNDU DPP WITH K. A. LEWANYA ACSCFor Respondent