KPOM v. STATE
(2022)LCN/16949(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/AK/92C/2019
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
EFFIONG ROBERT KPOM APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
The main and substantive charge in this appeal is for Armed Robbery, and it is trite that in order to sustain a conviction for this offence the following ingredients must be established:
(1) That there was robbery or series of robberies.
(2) That the robbery or each of the robberies was an armed robbery
(3) That the accused took part in the armed robbery or armed robberies.
Bozin V. State (1985) 2 NWLR (Pt 8) 465 and Alabi V. State (1993) 7 NWLR (Pt. 307) 551. PER BASHIR, J.C.A.
WAYS PROSECUTION CAN PROVE THE GUILT OF AN ACCUSED PERSON
There are three main ways by which the prosecution can prove the guilt of an accused person:
(1) Through the evidence of an eye witness
(2) By confessional statement of the accused and
(3) By circumstantial evidence. See the following cases: Udor V. State (2014) LPELR 23064 SC and Adekoya V. State (2012) 3 SC (Pt 111) 36. PER BASHIR, J.C.A.
WHETHER OR NOT A WITNESS CAN BE CROSS-EXAMINED AS TO A PREVIOUS STATEMENT MADE BY HIM IN WRITING
Section 232 of the Evidence Act which the Appellant Counsel wants its provision invoked against the evidence of PW1 provides as follow:
“A witness may be cross-examined as to previous statement made by him in writing or reduced to writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing his attention must, before such writing can be proved or such contradictory part given, be called to those parts of the writing which are to be used for the purpose of contradicting him; provided always that it shall be competent for the Court at any time during the trial to require the production for its inspection, and the Court may thereupon make use of it for the purpose of the trial, as it deems fit.”
In interpreting the provision of this law the Supreme Court in Alakija and Ors V. Abdulai (1998) 5 SC 1 held that:
“Where a party intend to impeach the credit of a witness by showing what the witness has said in the present proceedings contradicts his evidence in previous proceedings, the attention of the witness must be specifically drawn to what he said in the previous case and must be given an opportunity of making an explanation.”
See also the case of Egboma V. State (2013) LPELR 21358 (CA). PER BASHIR, J.C.A.
WHETHER OR NOT A CONFESSION CAN BE ORAL OR IN WRITING
It is very trite that confession can be either in writing or oral; whereby an accused person expressly acknowledges guilt. In fact, it has been defined as “an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime”. See Section 28 of the Evidence Act, 2011.
See also James Noah V. State (2014) LPELR 23810 CA. PER BASHIR, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): On 12th October, 2017, the Appellant along with two other persons namely: (1) Efe Sunday and (2) Richard Effiong were arraigned before the Ondo State High Court of Justice sitting at Akure on a two counts Charge No: AK/24C/17 for conspiracy to commit armed robbery and armed robbery punishable under Section 6(b) and Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation. The Appellant pleaded not guilty to the allegation and the matter went to full trial during which the prosecution (Respondent) called four witnesses while the Appellant testified for himself and did not call any other witness.
At the end of the trial, the Appellant and the two others with whom he stood trial were convicted and sentenced to death by hanging, for conspiracy to commit armed robbery and armed robbery. Aggrieved by this decision the Appellant filed a Notice of Appeal containing six Grounds of Appeal.
The Record of Appeal was transmitted out of time but duly regularized on 20th July, 2020. After which the Appellant through the hand of his Counsel Mr. Fred Onuobia settled and filed his brief of argument on 21/3/2019 and regularized on 20th July 2020.
Two issues were formulated for determination as follows:
(1) Was the trial Court not wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of armed robbery, convicted and sentenced the Appellant to death? (Distilled from Grounds 1, 2, 3, 4 and 6 of the Notice of Appeal).
(2) Was the trial Court not wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of conspiracy to commit armed robbery, convicted and sentenced the Appellant to death (Distilled from Ground 5 of the Notice of Appeal).
Meanwhile, the Respondent whose brief was settled and filed by G. A. Olowoporoku (DPP) (Mrs) and B. F. Falodun on 20th July, 2020. Two issues were formulated therein for resolution:
(1) Whether going by the evidence adduced before the trial Court, the Court rightly held that the prosecution proved the ingredients of conspiracy to commit armed robbery and armed robbery against the Appellant.
(2) Whether the trial Court relied on hearsay evidence and rejected confessional statement of the Appellant in convicting the Appellant.
The Appellant reacted to the Respondent Brief of Argument by filing a reply brief on 21/6/2021. All these processes were adopted for and on behalf of the Appellant and the Respondent on 4th November, 2021 when the Appeal came up for hearing.
FACTS OF THE CASE
The allegation against the Appellant and his two (2) co-accused persons before the Court of Trial which resulted to this appeal is that on or about the 7th day of December, 2016, Efe, Sunday and the Appellant Effiong Robert Ekpom along a foot path linking Oshodi camp to Okeluse in the Ifon Judicial Division, conspired together, attacked and robbed one Ewenla Omolade of a sum of (Two Million Nineteen Thousand Three Hundred Naira) (N2,019,300).
Let me from the onset clarify the fact, the Appellant in this appeal was tried and convicted together with two other suspects, (1) Efe Sunday and (2) Richard Effiong Okon both of whom appealed against their conviction before this Court in Appeal Nos: CA/AK/92CA/2019 and No: CA/AK/92CB/2019 which appeals were decided on 20th day of December 2021 per James G. Abundaga, JCA.
All the appeals being from and against the same judgment in Suit No: AK/24C/17 have the same facts and characteristics, everything about them is on all fours.
The judgment of my learned brother Abundaga JCA shall therefore serve as the major precedent and point of reference in the determination of this appeal. Being so guided and upon a careful review of the various issues formulated by the Appellant and the Respondent’s Counsel it is my considered view that this appeal can conveniently be determined on a single issue which effectively encompasses all the four issues submitted by the respective counsel. This sole goes thus:
“Whether or not from the totality of the evidence adduced before the trial Court it was right to hold that the prosecution proved the case of conspiracy to commit armed robbery and armed robbery to warrant the conviction of the Appellant”.
I will commence the resolution of this appeal by first dealing with the main offence, armed robbery and then determine the issue of conspiracy thereafter as recommended by the Supreme Court that where both the count of conspiracy and the main offence are based on the same facts the Court should first consider the substantive offence and thereafter see if the circumstance exist upon which the alleged count of conspiracy can be inferred. See Kachi V. State (2015) NWLR (Pt 1464) 213 at 229.
Followed and applied by Abundaga, JCA in Efe Sunday V. State (Appeal No CA/AK/92CB/2019).
The main and substantive charge in this appeal is for Armed Robbery, and it is trite that in order to sustain a conviction for this offence the following ingredients must be established:
(1) That there was robbery or series of robberies.
(2) That the robbery or each of the robberies was an armed robbery
(3) That the accused took part in the armed robbery or armed robberies.
Bozin V. State (1985) 2 NWLR (Pt 8) 465 and Alabi V. State (1993) 7 NWLR (Pt. 307) 551.
There are three main ways by which the prosecution can prove the guilt of an accused person:
(1) Through the evidence of an eye witness
(2) By confessional statement of the accused and
(3) By circumstantial evidence. See the following cases: Udor V. State (2014) LPELR 23064 SC and Adekoya V. State (2012) 3 SC (Pt 111) 36.
The Learned Appellant’s Counsel argued that there is no credible and admissible evidence sufficient enough to warrant the conviction of the Appellant as PW2, PW3 and PW4 are not eye witnesses so their entire evidence amounts to hearsay. He cited the case of Uwa V. State (2015) 4 NWLR (Pt 1450) 438 at 471 in support of his contention that hearsay evidence is not admissible and that it is wrong for a Court to place reliance on hearsay evidence in arriving at a decision.
Appellant counsel further submitted that the testimony of PW1 is not credible having contradicted himself in Exhibit 1. So the Court, he submits, has erred in its understanding of the application of Section 232 of the Evidence Act. After all the document was essentially tendered to contradict pw1. That counsel drew the attention of PW1 to the part of the Exhibit 1 which he sought to use to contradict the witness as required in Magaji V. Nigerian Army (2008) LPELR 1814 SC he directed our attention to pages of record of appeal, where PW1’s attention was drawn to the part of Exhibit which they wanted to contradict him on and he was reminded on what he said on the previous occasion and was given the opportunity to make an explanation, by this, Appellant has complied with the requirement of the law in order to contradict witness so argued the counsel. Yet the trial court failed to treat the evidence of PW1 as unreliable. For being inconsistent with what he had previously written in Exhibit 1.
Learned Counsel cited the case of Onafowokan V. State (1986) LPELR-21075 CA on how to deal with unreliable evidence.
In all, the Appellant’s Counsel submit that there was no armed robbery at all, as the evidence adduced by PW1, PW2, PW3 and PW4 was insufficient for being contradictory on one part and hearsay on the other part. Moreover, there is no confessional statement from the Appellant having being rejected by the Court for failure to comply with Section 10(3) of the ACJL. The trial Court having relied on rejected evidence, the learned counsel urged us to hold that the Appellant was wrongly convicted.
The Appellant’s counsel submits further that the testimonies of PW2, PW3 and PW4 being hearsay evidence should not have been relied upon by the trial Court in arriving at its decision. He cited Uwa V. State (2015) 4 NWLR (Pt. 1450) 438, Subremanian V. Public Prosecution (1956) WLR 965 at 969 and Kasa V. State (1994) LPELR 1671 on why hearsay evidence is inadmissible and should not be relied upon by the trial Court.
The Respondent’s Counsel on the other hand submits that the prosecution through its four witnesses has successfully established that there was robbery and that the evidence of PW1 who was the victim of the offence and the evidence of PW4 of the result of his investigation shows that the robbery was armed and that the Appellant and the other co-defendants actively participated in the commission of the crime. This evidence he submits further was so convincing that even the trial Court was convinced that there was armed robbery which the learned trial Judge expressed at page 110 lines 10-22.
Respondent’s counsel submitted that the assessment and ascription of probative value to a piece of evidence is the primary duty of the trial Court. See Afolalu V. The State (2010) 11 SCM pg 22.
Counsel also argued that the evidence of PW3 about the Appellant and his cohorts’ confession before the Edo State Commissioner of Public cannot be dismissed as hearsay.
Secondly, that the Appellant and his cohorts were apprehended with the complainant’s bag containing substantial part of the money violently stolen from him in their possession shortly after the incident.
That the identification of the Appellant as an active participant in the commission of the crime via the doctrine of recent possession can be reasonably inferred. See Okiemute V. State (2016) 12 SCM page 113 and Section 167 (a) of the Evidence Act, 2011.
Respondent’s Counsel further argued that the identification evidence adduced by PW3 and PW4 and the confession by the Appellant which PW3 and PW4 testified about are sufficient materials to establish that the Appellant and his cohorts jointly committed the offence. This is enough to prove conspiracy which is usually inferred from the act of the accused person. Njorens V. The State (1998) 1 ACLR 224 at 263.
Still submitting Respondent’s Counsel argued that the evidence of PW2 and PW3 that they saw the Appellant and his cohorts on this fateful day and that the bag containing stolen money was found on them cannot be regarded as hearsay.
Similarly the evidence of the investigating police officer about what he saw and heard in the course of investigation cannot be regarded as hearsay evidence. See Awosika V. The State (2010) 9 NWLR (Pt. 1198) 96.
Respondent’s Counsel further submitted with respect to what the Appellant’s Counsel said about the contradiction in the evidence of PW1 that this minor inconsistency in the evidence of PW1 is not material but minor, and that it is not every inconsistency or contradiction in the case of the prosecution that would warrant the reversal of the decision of the Court. Dominic Prince V. The State so provision of Section 232 of the Evidence Act cannot be invoked to impeach the credibility of PW1 having given satisfactory explanation for the apparent contradiction in his oral testimony and his previous statement Exhibit 1.
Counsel urged this court to uphold the decision of the trial Court and dismiss the appeal.
COURT
The contention of the Appellant’s Counsel that there is no sufficient or legally admissible evidence to convict the Appellant implies that the Respondent was unable to prove the guilt of the Appellant on the strength of the evidence adduced at the trial.
The Appellant was very vehement in his attack on the evidence of PW1 whose evidence counsel argued the Court ought not to rely on based on Section 232 of the Evidence Act, 2011.
PW1 it should be understood is the victim of the robbery for which the Appellant and the two others were tried and convicted resulting to this appeal. The evidence of PW1 is at page 27-31 of the Record of Appeal. He gave his name as Omolade Ewenla. He testified that on 7th December, 2016 at about 8 o’clock in the morning he left his house at Okeluse going to Oshodi Camp. He met the three defendants who were coming from the opposite direction heading to Okeluse, they asked him whether he saw a girl carrying gari, he said no, thereafter the 3 defendants turned back and started following him towards Oshodi Camp on a foot path. PW1 stopped to call somebody, the defendants walked passed him. He continued that later on the 1st and 3rd defendants turned back and stopped so PW1 started walking behind 2nd defendant. “Suddenly “the 1st and 3rd Defendants’’ “attacked me from behind with cutlass and injured me in the head”. The witness showed his head to the Court the scars are conspicuous on his head. PW1 continued:
“The defendants carried me to the bush and collected my bag containing N2,019,300.00 when I regained consciousness, I came back to the road and sat down on the road so that people coming from both directions of the road will see me. The road is a thick forest it is a foot path. I started hearing voices, when passerby saw me, they wanted to run back because I was soaked in my own blood but I beckoned them to come closer.”
The people are Gbeja Adetola (PW2). NB: The Appellant was the 3rd Defendant at the Court of trial.
The PW1, the record as shown had made a statement to the police in respect of the incident the statement was tendered and admitted in evidence during cross-examination as Exhibit 1. Intending to contradict the PW1 based on his previous statement in writing learned Appellant’s Counsel drew the attention of the witness to the relevant portions of the statement in the following dialogue: where counsel put the question and PW1 gave answers thus:
“Counsel: Did the defendant attack you with guns and cutlass?
Witness (PW1) I saw the defendant with two cutlasses and wood.
Counsel: Do you remember that you made a statement at SARS Akure?
PW1: Yes.
Counsel: In that statement, you told the police that you did not see the defendants and gun
PW1: I told the police that I did not see them with gun.
Counsel: You also told the police that you did not see cutlass with the defendant.
PW1: that is correct.
Counsel: Which one do you want the court to believe between your statement to the police and your evidence given in the dock?
PW1: I want the Court to believe my evidence given in the dock, because when I made the statement to the police I was still in shock.
It was based on this dialogue that the Appellant’s Counsel capitalized to submit that the evidence of PW1 is unreliable being inconsistent with his previous statement and therefore argued that the trial Judge was wrong in not invoking Section 232 of the Evidence Act, 2011 and discountenanced the testimony of PW1.
Section 232 of the Evidence Act which the Appellant Counsel wants its provision invoked against the evidence of PW1 provides as follow:
“A witness may be cross-examined as to previous statement made by him in writing or reduced to writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing his attention must, before such writing can be proved or such contradictory part given, be called to those parts of the writing which are to be used for the purpose of contradicting him; provided always that it shall be competent for the Court at any time during the trial to require the production for its inspection, and the Court may thereupon make use of it for the purpose of the trial, as it deems fit.”
In interpreting the provision of this law the Supreme Court in Alakija and Ors V. Abdulai (1998) 5 SC 1 held that:
“Where a party intend to impeach the credit of a witness by showing what the witness has said in the present proceedings contradicts his evidence in previous proceedings, the attention of the witness must be specifically drawn to what he said in the previous case and must be given an opportunity of making an explanation.”
See also the case of Egboma V. State (2013) LPELR 21358 (CA).
In this appeal PW1, it is very clear utilized this opportunity, to make explanation on the differences noticed in his previous statement and his evidence in Court which explanation sits well with the Learned Trial Judge within whose province and exclusive jurisdiction it is to ascribe probative value to the evidence of witnesses.
Moreover, Section 232 in its proviso has expressly permitted the Court before which the document was produced “To make use of it for the purpose of the Trial, as it deems fit.”
Accordingly, the explanation given by the PW1 was deemed satisfactory by the trial Judge who feels rightly that the provisions of Section 232 of the Evidence Act cannot be invoked to impeach the credibility of the evidence of PW1. See Egboma V. State (Supra).
The evidence of PW1 has clearly established all that is needed to prove armed robbery. His evidence has shown that there was an armed robbery incident on 7th December 2017 along Okeluse to Oshodi Camp road in Ose Local Government Area of Ondo State.
Secondly that the robbers were armed, thirdly PW1 knows all the robbers as per his testimony being the victim and finally the Appellant was one of the robbers. Having fully identified him and indeed all the remaining two robbers, the accomplices of the Appellant. These 3 are the ingredients needed to be proved to sustain a conviction for armed robbery. See Olatinwo V. State (2013) LPELR 19979 SC.
The conclusion of the trial Judge is therefore right. Even on the strength of the evidence of PW1 alone; because in criminal trial it’s not the quantity of witnesses but the quality of the evidence that matters. So even the evidence of one credible evidence once believed and contains all the ingredients required to establish an offence is sufficient to convict the implicated suspect. This you find in the evidence of PW1 here. See Chukwunyere V State (2017) LPELR 43725.
I agree entirely with the trial Judge when he declined to invoke Section 232 of the Evidence Act and impeach the evidence to PW1 as requested by the Appellant counsel, because the argument that the evidence of PW1 has contradicted his earlier written statement is not convincing, PW1 has offered an acceptable explanation on why there was this minor difference between his statement in writing and evidence in Court. Section 232 cannot therefore be properly invoked to impeach this otherwise credible evidence from an eye witness.
There is also the evidence of PW3 and PW4 in whose presence the Appellant admitted/confessed before the Commissioner of Police Edo State while PW4 as the I.P.O on a visit to the scene crime describe how the suspect demonstrated the way and manner they hit the victim on his head.
It is very trite that confession can be either in writing or oral; whereby an accused person expressly acknowledges guilt. In fact, it has been defined as “an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime”. See Section 28 of the Evidence Act, 2011.
See also James Noah V. State (2014) LPELR 23810 CA.
Notwithstanding, the evidence of PW3 that the suspect including the Appellant had confessed to the crime at the office of the Commissioner of Police Edo State, the Appellant did not cross-examine PW3 on this all important question. The implication is that the Appellant has accepted the truth of that testimony. See Akinkumi V. Idowu (1980) 3-4 SC 108 and Azeez V. State (1986) 2 NWLR (Pt. 23) 541.
The Appellant cannot be heard to complain that the evidence of PW2, PW3 and PW4 are hearsay. Moreover, all the three of them testified substantively on what they did or witnessed in respect of the circumstances surrounding the robbery and the plight of the victim which pieces when put together constitutes circumstantial evidence on which the Court can rely upon to convict, provided it points at the suspect, that is the Appellant in this case, which infact it did. In our criminal legal system, circumstantial evidence is often the best evidence, because it is the evidence of surrounding circumstance which, by undesigned coincidence, is capable of proving a proposition with the mathematical accuracy. Chima Ijioffor V. State (2001) 9 NWLR (Pt. 718) 385.
Therefore to describe the totality of the Evidence of PW2, PW3 and PW4 as hearsay evidence by the Appellant is wrong. As it is from the evidence of this witnesses that you see the condition of the PW1 victim of the crime when he was rescued, you see how the suspects were arrested and how part of the money robbed from PW1 by the Appellant and the other accused persons was recovered and finally how they were all interviewed at the Edo State Police Command before the Commissioner of Police and their oral confession of the offence.
The combined effect of this evidence available before the trial Judge establishes without any doubt the complicity of the Appellant in the commission of the armed robbery along with the remaining two suspects, from which conspiracy can conveniently be inferred.
The law is very clear that conspiracy is a matter of inference from certain criminal conduct of parties concerned and done in pursuance of their common criminal intention. See Oduneye V. State (2001) 4 NWLR (Pt. 697) 311 and Yusuf V. FRN (2017) 43830 SC.
Therefore the only inference to be drawn from the conduct of the Appellant and the other accused persons is that there was a common intention from amongst them to commit the offence of armed robbery against the PW1, the offence of conspiracy stand proved against the Appellant and the trial Judge was right to have convicted the Appellant as charged.
On the whole, this appeal has no merit, it is hereby dismissed. The conviction and sentence entered against the Appellant in charge No AK/24C/2017 by Hon. Justice Yemi Fasanmi in his judgment delivered on 24th day of July 2018 is hereby affirmed.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother YUSUF ALHAJI BASHIR, JCA.
I agree with his reasoning and conclusions.
The appeal lacks merit and same is dismissed by me.
The judgment of Ondo State High Court sitting in Akure delivered on the 24th day of July, 2018 in Charge No. AK/24C/2017 is hereby affirmed.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft, the judgment delivered by my learned Brother, BASHIR A. YUSUF, JCA. I adopt his reasoning and conclusion that the appeal is lacking in merit. It is hereby dismissed and the judgment of the trial Court is accordingly affirmed.
Appearances:
Fidelis Adewole, Esq. For Appellant(s)
B. V. Falodun C. L. O. Ministry of Justice Ondo State For Respondent(s)