JOSEPH SUNDAY EKPO v. THE STATE
(2015)LCN/8078(CA)
In The Court of Appeal of Nigeria
On Monday, the 22nd day of June, 2015
CA/C/172C/2014
RATIO
EVIDENCE: CALLING OF WITNESS; WHETHER IT IS THE DUTY OF THE PROSECUTION TO CALL VITAL WITNESSES
Looking at the sole issue in this appeal, it is trite that the burden placed on the prosecution to prove its case beyond reasonable doubt is dependent primarily on the quality of the evidence adduced by the prosecution and not necessarily on the number of witnesses called, it is also trite that where a witness is vital to the case of the prosecution, it is under an obligation to call such a witness, otherwise, the Court will presume that it deliberately withheld such evidence. See Section 167(d) of the Evidence Act, 2011. per. CHIOMA EGONDU NWOSU-IHEME J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; CONDITIONS FOR A CONFESSIONAL STATEMENT TO BE RELIED ON SOLELY TO CONVICT AN ACCUSED PERSON
There is no doubt that a confessional statement is the best evidence against an accused, but it has to be voluntary, corroborated and satisfactorily proved. For a confessional statement to be relied upon solely in convicting an accused person, the I.P.O who obtained the statement ought to testify, particularly as in this case where the Appellant denied making the confessional statement. A death penalty as prescribed by law for the offence of Armed Robbery is not a game of chess, therefore to convict and sentence a person to death solely on the basis of a confessional statement when the I.P.O who obtained it did not testify and no cogent reason given for his not being called to testify, in my view is perverse and miscarriage of justice which yawns for the intervention of this Court. per. CHIOMA EGONDU NWOSU-IHEME J.C.A.
CRIMINAL LAW THE OFFENCE OF ARMED ROBBERY; WHEN IS THE OFFENCE OF ARMED ROBBERY SAID TO HAVE BEEN COMMITTED
An offence of armed robbery is said to have been committed where at the time of the commission of the robbery, the accused person was proved to be armed with an offensive weapon. The prosecution must therefore prove beyond reasonable doubt that the robber was armed. per. CHIOMA EGONDU NWOSU-IHEME J.C.A.
Before Their Lordships
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISIJustice of The Court of Appeal of Nigeria
PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria
Between
JOSEPH SUNDAY EKPOAppellant(s)
AND
THE STATERespondent(s)
CHIOMA EGONDU NWOSU-IHEME J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the judgment of the High Court of Cross River State, Calabar Judicial Division, delivered by Adie Attoe-Onyebueke, J. on the 26th of March, 2014 in which the Appellant was convicted of the offence of Armed Robbery and sentenced to death by hanging.
Aggrieved by that judgment the Appellant brought this appeal.
A summary of the case as presented at the trial Court was that the Appellant, Joseph Sunday Ekpo was charged before the High Court of Cross River State, Calabar Judicial Division on an information containing a count of Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms (special Provisions) Act, Vol. 1, cap. R.II, Laws of the Federation of Nigeria, 2004.
on the 14th of April, 2008, the Appellant and one Papa were said to have robbed one Peter Archibong Jimmy of the sum of N2,100.00 and one telephone handset while armed with machete.
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The Appellant and Papa were said to have forcefully gained entry into Mr. Jimmy’s house to commit the offence. As they tried to escape, Mr. Jimmy held the Appellant while
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Papa escaped. Jimmy screamed for help which attracted some of his neighbours to the scene who helped him to apprehend the Appellant and handed him over to the police at the Federal Housing Police Station who subsequently transferred the case to the State Criminal Investigation Department (C.I.D.) Calabar for further investigation.
The Appellant was charged and the case went into trial.
In a considered judgment delivered on the 26th of March, 2014, the learned trial Judge convicted the Appellant of the offence of Armed Robbery and sentenced him to death. This appeal is predicated on that judgment.
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Four Grounds of Appeal were lodged in the Appellant’s Notice of Appeal, which without their particulars read:
”GROUND ONE:
The learned Trial Judge was wrong in law to admit in evidence the Appellant’s confessional statement as Exhibit one when the maker was not called to give evidence and when the Appellant stated that PW1 through whom Exhibit 1 was tendered did not take any statement from him.
GROUND TWO
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The learned trial Judge erred in law to convict the Appellant on the strength of the hearsay evidence of PW1.
GROUND THREE
The learned trial Judge was wrong in law to have held that the prosecution proved its case beyond reasonable doubt.
GROUND FOUR
The judgement is unreasonable or cannot be supported having regard to the evidence.”
A sole issue was distilled by the Appellant’s counsel for determination, it reads:
“Whether or not the prosecution proved the Appellant’s guilt beyond reasonable doubt as required by law.”
The Respondent’s counsel adopted the sole issue as formulated by the Appellant.
In his argument, in summary, learned counsel for the Appellant contended that the prosecution failed to prove the offence of Armed Robbery beyond reasonable doubt. He argued that the victim Mr. Peter Archibong Jimmy never testified even though he was listed as one of the witnesses for the prosecution. He
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described it as inconceivable that the Appellant was convicted in the absence of such a vital witness. Counsel submitted that where a witness is vital to the case of the prosecution, it is under an obligation to call such a witness, otherwise the Court will presume that it deliberately withheld the evidence of such a witness under Section 167(d) of the Evidence Act, 2011.
counsel posited that the prosecution relied solely on the confessional statement by the Appellant Exhibit one, without calling the I.P.O who obtained the said confessional statement from the Appellant and also failed to tender the statement obtained from Mr. peter Archibong Jimmy the victim who was said to have reported a case of Armed Robbery to the police.
He further argued that failure by the prosecution to call Mr. Jimmy the victim to give evidence or tender his evidence at the police was fatal to this case.
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Counsel posited that PW1 the only witness for the prosecution testified that the Appellant was armed with a machete at the time of his arrest. He contended that in a criminal case of this nature, it is only when an accused person was arrested at the scene of crime
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that you can recover the arms from him. He submitted that failure by the prosecution to tender the machete has created a doubt as to whether the Appellant was indeed armed and that doubt ought to be resolved in favour of the Appellant.
On whether the Appellant took the sum of N2,100.00 and a telephone handset, counsel further argued that there was no evidence showing that the Appellant was arrested at the scene of the crime. Not only that the complainant and neighbours who were said to have interrogated the Appellant not testify, the testimony of the only witness for the prosecution was hearsay and nothing to corroborate the contents of Exhibit 1 the confessional statement. He therefore prayed the Court to quash the conviction of the Appellant.
Reacting to the foregoing submissions, counsel for the Respondent contended that even though the Appellant later retracted from his confessional statement, none the less the confessional statement was found to be voluntary and true by the trial Court.
He argued that the Appellant’s confessional statement was found to have contained account of how the operation was carried out which detail could only have
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been told by an active participant to the offence. In addition, he posited that the confessional statement was found to be consistent with other surrounding circumstances such as the Medical report tendered as Exhibit 2 which confirmed the confession of the Appellant that he gave the victim a human bite.
on the submission of counsel for the Appellant that having not called the victim of the alleged offence as witness that the trial Court shouldn’t have convicted the Appellant solely on the hearsay evidence of PW1 and Exhibit 1, counsel replied by citing the Supreme Court case of AKINDEPE V. THE STATE (2012) NWLR (Pt.94) pg.94 and argued that the success or failure of a criminal trial is not a function of the number of witnesses called in proof of her case, but the quality of evidence offered at the trial in discharge of the burden of proof. He urged the Court to dismiss the appeal and affirm the conviction and death sentence on the Appellant.
Looking at the sole issue in this appeal, it is trite that the burden placed on the prosecution to prove its case beyond reasonable doubt is dependent primarily on the quality of the evidence adduced by the
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prosecution and not necessarily on the number of witnesses called, it is also trite that where a witness is vital to the case of the prosecution, it is under an obligation to call such a witness, otherwise, the Court will presume that it deliberately withheld such evidence. See Section 167(d) of the Evidence Act, 2011.
It is noteworthy that the complainant Mr. Jimmy never testified, even though at page 3 of the Record of Appeal he was listed as one of the prosecution witnesses on the information.
Apart from the fact that the victim Mr. Jimmy did not testify, Mr. Jimmy’s statement to the police which PW1 mentioned was obtained, was also never tendered at the trial Court.
Available facts show that the eyewitnesses in this Armed Robbery case are Mr. Jimmy who is the complainant and his neighbours who were said to have aided him to apprehend the Appellant at the scene. Their evidence is very vital as to whether or not the offence of armed robbery actually took place. Mr. Jimmy the complainant in particular was not called to testify at the trial Court. No reason whatsoever was given to explain why the complainant in an offence as serious as armed
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robbery was not called to testify. The best evidence in prove of a crime against an accused person is that of the complainant. See UTTEH V. THE STATE (1999) 2 LRCN PW1, P9.22.
From the testimony of PW 1 at pages 39-40 of the Record of Appeal, it was clear that PW1 was not at the scene of crime, he was not an eye witness to the crime of armed robbery. A summary of his testimony was that he was in the office when the Appellant and the case file were transferred from Federal Housing Police station to State C.I.D Calabar and assigned to his team headed by one Inspector Ubana Iwara the I.P.O. The I.P.O Inspector Iwara issued Exhibit 2 the Police Medical form to the complainant. It is also strange that Inspector Iwara did not testify at the trial Court, the said Inspector Iwara made statement in respect of this case which even though not tendered in evidence could be seen at page 6 of the Record of Appeal.
From the testimony of PW1 Sgt.Omori Ibiang, it is clear that he was not at the scene and so did not witness the said armed robbery. He also did not obtain Exhibit 1 the confessional statement of the Appellant, he did not issue the medical form Exhibit 2.
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It then became clear that PW1 the only witness for the prosecution was not an eye witness and therefore his testimony is hearsay. The evidence of a person who did not personally witness an incident is hearsay. Such evidence is worthless and unhelpful. See IKARA V. THE STATE (2014) 1 NWLR (Pt.1389) pg.639.
In his testimony at the trial Court, the Appellant denied making the confessional statement Exhibit 1, part of his testimony reads:
“….. I do not know any other I.P.O except Insp. Iwara that took statement from me.”
Under cross examination, he stated thus:
“I only made statement at the State C.I.D where the matter was transferred to. I made the statement through my I.P.O Insp. Iwara. It was Insp. Iwara who recorded the statement. What I said in Court is what I told Insp. Iwara. I left from the cell to Insp. Iwara’s office to give my statement.”
From the facts and circumstances of this case, after an examination of the said Exhibit 1, I see no justification why the trial Court would attach any evidential value to Exhibit 1 allegedly made by the Appellant when it is apparent that the I.P.O
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Inspector Iwara who obtained the said confessional statement from the Appellant did not testify in Court as to how he obtained it and more importantly, the said Exhibit 1 was not tendered through him.
There is no doubt that a confessional statement is the best evidence against an accused, but it has to be voluntary, corroborated and satisfactorily proved.
For a confessional statement to be relied upon solely in convicting an accused person, the I.P.O who obtained the statement ought to testify, particularly as in this case where the Appellant denied making the confessional statement. A death penalty as prescribed by law for the offence of Armed Robbery is not a game of chess, therefore to convict and sentence a person to death solely on the basis of a confessional statement when the I.P.O who obtained it did not testify and no cogent reason given for his not being called to testify, in my view is perverse and miscarriage of justice which yawns for the intervention of this Court.
I cannot therefore attach any value to Exhibit 1 considering the circumstances it was admitted in evidence.
It was erroneous for the learned trial Judge to accord weight
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and evidential value to Exhibit 1.
Another aspect worth looking into in an offence of Armed Robbery is whether or not the Appellant was armed at the time the offence was committed.
An offence of armed robbery is said to have been committed where at the time of the commission of the robbery, the accused person was proved to be armed with an offensive weapon. The prosecution must therefore prove beyond reasonable doubt that the robber was armed.
PW1 even though not at the scene of crime had this to say at page 40 of the Record of Appeal:
“As the accused was struggling to escape from the grip of the complainant, the accused person used the machete on him and caused the complainant injury on his hand.”
PW1 stated under cross examination at the trial Court that the accused was arrested with a machete and that he received the machete.
Granted that there is no principle of law that requires the prosecution to tender in evidence the weapon used in a robbery in order to secure a conviction, but considering the circumstances of this case, particularly PW1’s testimony that the Appellant was arrested with a machete and
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that he PW1 received the machete coupled with the fact that the Appellant was said to have been arrested at the scene of crime, it became incumbent on the prosecution to tender the machete they said they recovered in proof of their case.
In criminal cases it is not common to recover arms used in commission of the crime. It is only where the accused was arrested at the scene of crime like in this case that recovery of arms used becomes paramount.
It is pertinent to look at some of the pronouncements of the learned trial Judge in his judgement that led to the conviction and sentencing the Appellant to death. At page 50 of the Records in his Judgement, learned trial Judge had this to say:
“It is noteworthy that the victim of the robbery never testified and no other witness testified except the PW1 who was not the direct investigating police officer.
Also worthy of note is that the machete used in the robbery was not tendered.”
Still on page 50 (last paragraph) the learned trial Judge observed as follows:
“From the evidence before the Court, it is not in doubt that there was armed robbery of
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which Peter Archibong Jimmy was a victim. Unfortunately he never testified.”
At page 52 the trial Judge observed thus:
“It is in evidence that the statement was tendered and the defence counsel raised an objection, not on the ground that it was not voluntary, but on the ground that PW1 was not the recorder.”
one then wonders how the Learned trial Judge turn round to convict and sentence the Appellant to death despite all these findings and observations he made.
Although in criminal cases the prosecution has the discretion to call the number of witnesses it considers necessary to prove the offence charge, its failure to call very vital witnesses like the complainant himself and the I.P.O who recorded the alleged confessional statement was bound to result in fatal consequences. In the absence of the evidence of the complainant Mr. Jimmy, the important question as to whether the Appellant is guilty of the offence of armed robbery as charged could not have been properly resolved by the learned trial Judge.
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The prosecution did not call the complainant in this case. They also failed to call as witness the policeman
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Inspector Iwara who was said to have been handed over the Appellant with the machete recovered from him at the scene. It was this same I.P.O Inspector Iwara who recorded the said confessional statement Exhibit 1. He never testified for the prosecution. Mr. Jimmy’s neighbours who were said to have aided him in apprehending the Appellant at the scene were also not called to testify for the prosecution.
None of these vital eye witnesses were called by the prosecution. Exhibit 1 having not been tendered through the I.P.O Inspector Iwara who recorded same, I hereby discountenance Exhibit 1. The story of how the armed robbery occurred as testified by PW1 who never witnessed the armed robbery was mere hearsay and hearsay evidence is inadmissible and I so hold.
For the above reasons, it is my view that it was erroneous for the Learned trial Judge to accord so much evidential value to Exhibit 1. The conviction and subsequent sentence to death of the Appellant was not borne out of credible evidence adduced in the Court below.
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In the circumstance, the sole issue is resolved against the Respondent in favour of the Appellant. This appeal succeeds and is
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allowed. The Judgement of Adie Attoe-Onyebueke, J. of Cross River State High Court, Calabar Division delivered on 26th March, 2014 is quashed. The conviction and sentence to death by hanging passed on the Appellant is set aside. The Appellant is accordingly discharged and acquitted.
ONYEKACHI AJA OTISI, J.C.A.:
I had the opportunity of reading in advance, a draft copy of the Judgment just delivered by my learned Brother, C.E. Nwosu-Iheme (Ph. D), JCA, in which the appeal has been allowed. The issues raised in this appeal have been completely resolved. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also allow the appeal, and set aside the conviction of the Appellant.
The Appellant is hereby discharged and acquitted.
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PAUL OBI ELECHI, J.C.A.:
I have read in advance the lead Judgment just delivered by my Learned brother Chioma Nwosu-Iheme (Ph.D), JCA in this matter. My Lord has exhaustively dealt with the issues that arose in the appeal. I entirely agree with his reasoning and conclusions that the appeal succeeds
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and is hereby allowed. The Judgment of Adie Atoe Onyebueka J, of Cross River State High Court is hereby quashed. The Conviction and Sentence to death by hanging passed on the Appellant is set aside. The Appellant is accordingly discharged and acquitted.
?I adopt all the above as mine in allowing this appeal.
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Appearances:
G. OmoakaFor Appellant(s)
P. S. BisongFor Respondent(s)
Appearances
G. OmoakaFor Appellant
AND
P. S. BisongFor Respondent
