OBENWON v. STATE
(2020)LCN/15271(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, May 06, 2020
CA/B/230C/2019
Before Our Lordships:
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
SOLOMON OBENWON APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE MEANING OF THE TERM “EVALUATE”
The verb ‘evaluate’ means ‘to determine or fix the value of; to determine the significance, worth, or condition of usually by careful appraisal and study.’ So to say a Court failed in its duty of evaluating or doing so properly the evidence adduced before it in finding a charge proved beyond reasonable doubt is a very serious one, because it charges the Court with dereliction of its primary duty of careful appraisal of the evidence led before it in reaching its conclusion that an accused person was guilty of a crime. That charge is further magnified when the offence in issue is a capital offence like the instant one that attracts the death penalty upon conviction, and even more so when the Constitution of this country presumes every accused person innocent and it is the duty of the prosecution to not only prove its charges but do so beyond reasonable doubt to secure conviction. PER UGO, J.C.A.
THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON WHEN TRIED FOR ANY CASE INGRAINED IN THE CONSTITUTION
In that connection, I find the statement of the law by the Supreme Court (Pats-Acholonu, J.S.C.) in Shande v. State (2005) 12 NWLR (PT 939) 301 @ 321 very apt, when it said that: “When an accused is being tried for any case whatsoever, because of the principles of law ingrained in our Constitution that he or she shall be presumed innocent, it behoves on the Court to subject every item or facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. Where there is doubt in the mind of the Court either as to the procedure or failure to address on very important or latent issues that assail or circumscribe the case the Court should acquit and discharge. Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials), the Court seized of the matter must convince itself beyond reasonable doubt – a phrase coined centuries ago and even applied by the Romans in their well-developed jurisprudence and now verily applicable in our legal system – is proof that excludes reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence, in which case doubt has been created.” PER UGO, J.C.A.
WHETHER OR NOT AN OPPOSING PARTY IS EXPECTED TO CHALLENGE EVIDENCE THAT IS EMPTY
The Apex Court stated the correct position of the law when it (Pats-Acholonu, J.S.C.) said in Neka B.B.B. Mfg. Co. Ltd v. A.C.B. Ltd (2004) 2 NWLR (PT. 858) 521 at 550; (2004) ALL FWLR (PT 198) 1175 @ 1197 paras E-H that:
“Finally, let me discuss the point made in the appellant’s brief that the evidence of pw4, which I have described as being utterly hollow, was not challenged. An opposing party should not be expected to challenge evidence that is hollow, empty or bereft of any substance as that would to my mind amount to chasing a shadow. I am familiar with the case of Odulaja v. Haddad (1973) 1 ALL NLR 191 to the effect that an evidence not challenged by the party that had the opportunity to do so should ordinarily be believed and accorded credibility. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Edo State of 12th November, 2018 convicting the appellant of one count of conspiracy to commit armed robbery and three counts of armed robbery itself. He was discharged and acquitted of two other counts of armed robbery because the alleged victims of the robberies did not come to testify to support the charges. He was sentenced to death upon his conviction.
The case of the prosecution against him was that he, at about 3.00am on the 28th day of April, 2014, drove in his transport vehicle three armed robbers, of which two were masked, into his No. 2 Powerline Street, Off Sapele Road, Benin City residence where he also lived with his family of a wife and three children and directed the said three robbers to rob his co-tenants, Permanent Bernard Ineh (P.W.1), Darlington Achu (P.W.2), Christopher Imafidon (P.W.3), and Mrs. Catherine Ohonba (P.W.4).
The prosecution’s star witness, Permanent Ineh (P.W.1), specifically testified that on the said 28th day of April, 2014, he was in his upstairs apartment of their said common No. 2 Powerline Street residence when he saw appellant, a commercial vehicle driver who wakes up every morning and leaves Benin City in Edo to ply between Oghara and Asaba all of Delta State, drive out of their compound around 2.55 am with his vehicle only to drive in again about seven minutes later with the said three armed robbers. He said he then saw appellant direct the robbers to his co-tenants (prosecution witnesses) apartments to rob them. The robbers, he further claimed, also tried to break into his (P.W.1’s) apartment but were prevented by his burglary proof from gaining access into his apartment.
The robbery operation, it is common ground, was still going on when an inmate of the compound managed to escape from the robbers to call the police, whereupon the robbers, upon hearing the siren and sound of gunshots of the approaching cops, abandoned their operation together with some of their loot and left the compound.
The police, on arrival at the premises and after ensuring that none of the tenants was hurt, left after extending an invitation to the tenants to come to their office at Etete Police Station in the morning to make statements.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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P.W.1, it must be noted, claimed, additionally, that the policemen interrogated the tenants even that night and appellant ‘denied and said he didn’t know how a bus was parked outside’ but he, P.W.1, came down from his upstairs apartment and “informed the police all that happened” and even told them that he would later go to the station to make statement. I should hasten to say here that P.W.1’s co-tenants, P.W.2, P.W.3, and P.W.4, seem unaware of this event of P.W.1 informing the Police “all that happened” that same night, for none of them mentioned anything of such in their testimonies. In fact P.W.2, P.W.3 and P.W.4 were all in agreement in their testimonies that it was in the morning at ‘day break’ (see p. 49 para. 4 of the records for P.W.2; p. 51- 52 1 of same records for P.W.3 on the same issue, and p. 54 for evidence of P.W.4 on it) that P.W.1 called them and informed them for the first time that he saw appellant drive in the robbers into their compound. In fact, both P.W.2 and P.W.4 said they did not tell the police in their statements that appellant was among the robbers that robbed them.
I shall later look at this issue more closely which appellant in his testimony also denied.
Appellants and the prosecution witnesses were in agreement, nevertheless, that following the revelation by P.W.1 that the robbers came into their compound in the company of appellant and in appellant’s vehicle, the Youth Chairman of their Area, one Mr. Goodluck Imadiyi, was also called in and interrogated appellant. Where they disagree is what transpired before the said Youth Chairman. While the four prosecution witnesses all claimed appellant admitted complicity in the robberies before the Youth Chairman and even pleaded for two weeks to get his ‘comrades’ to return the stolen properties, appellant in his testimony denied making any such admission. He rather insisted that he maintained his innocence even before the said Youth Chairman. He claimed he was also a victim as he was robbed too. He said he even challenged the prosecution witnesses to a juju oath, but none of them was willing to take it, instead P.W.1 attacked him, broke his head with a piece of wood and even beat his wife.
P.W. 1 to P.W.4 and appellant who first made statements to the Police at Etete Police Station and later at State C.I.D. Benin when the case was transferred there all testified too.
In addition, one Obaze Efosa, an Inspector of Police attached to Police Special Anti-Robbery Squad, Benin, to whom the case was assigned on 6/5/2014 upon its transfer from Etete Police Station, testified as P.W.5 and the prosecution’s last witness. His evidence was simply to the effect that he took a second set of statements from appellant and P.W. 1 to P.W.4 upon the transfer of the case from Etete Police Station and also visited their compound as well as a Carwash where appellant claimed he was when the robbers commandeered him and his car at gun point to his No. 2 Powerline Street, Off Sapele Road, Benin City residence for the robbery.
Appellant who testified alone in his defence maintained his innocence and gave very interesting evidence (which I shall later reproduce). The gist of his defence was that he was compelled by the robbers at gun point at a Carwash adjacent to their compound, where he was washing his vehicle in preparation for his long daily journey to Oghara in Delta State, where he works as a driver with one Orunoefe Transport Company Motors Oghara, to take first turn at 5.00am to pick passengers to Asaba. He insisted he was also a victim of the robbers as he was himself robbed by them.
I need add that, it is common ground between the prosecution and the appellant that there had been two previous armed robbery attacks at appellant and P.W.1 to P.W.4’s Powerline Street residence, the last of them being just as recent as 14th April of 2014 – about 14 days earlier.
In his judgment, the trial judge believed the prosecution’s case, put a lot of premium on the failure of appellant’s counsel to frontally challenge some of the evidence of the prosecution witnesses and on that basis convicted appellant as earlier stated and sentenced him to death.
Aggrieved by that decision, the appellant lodged this appeal to this Court on six grounds which I shall here reproduce without their particulars:
Ground 1: The learned trial judge erred in law when he improperly evaluated the evidence on record and held that the evidence of P.W.1 was not contradicted and that same was corroborated by the evidence of PW2, PW3 and PW4.
Ground 2: The learned trial judge erred in law when he held that the prosecution proved counts 1, 3, 4 and 6 against appellant beyond reasonable doubt and thus convicted him.
Ground 3: The learned trial Judge erred in law when he held that the appellant’s evidence denying involvement in the alleged offence both in Exhibit A and B (his extra judicial statements) and his oral defence in Court are afterthought evidence and thus have no evidential value.
Ground 4: The learned trial judge erred in law when he that the evidence of the PW1 positively identified the appellant as the person who gave directives to the robbers on the day of the incident and thus the appellant conspired with the armed robbers to rob his neighbours.
Ground 5: The learned trial Judge embarked on speculation when he held thus: “The appellant confirmed that there was an earlier robbery incidence in his house on the 14th of April, 2014. He was robbed on that occasion. The same defendant who earlier was an armed robbery victim still came out of his house two weeks after at 3am to wash his car.”
Ground 6: The learned trial judge erred in law when he decided to pick and choose the evidence that catches his fancy and deliberately left out the obvious evidence that is favourable to the appellant, which was adduced by the PW2 and PW3 during cross-examination to the effect that the appellant was himself a victim of the robbery incident.
From these six grounds, he formulated the following four issues for determination by your Lordships:
1. Whether or not the trial judge was right to have relied on the evidence of the PW1, PW2, PW3 and PW4 to convict the appellant despite the obvious material contradiction therein.
2. Whether from the totality of the evidence adduced at the trial, the prosecution successfully proved its case beyond reasonable doubt as required by law.
3. Whether or not the trial judge properly considered the oral defence of the appellant as well as his prompt denial in Exhibits A and B before arriving at the conclusion of guilt against the appellant.
4. Whether or not it was proper in the circumstance of this case for the trial judge to have picked and chosen which evidence to rely on and embark on speculation in the absence of cogent evidence.
The State took the view that issues one and two of appellant adequately represented the issues arising from his six grounds of appeal.
Arguing appellant’s issue 1, Mr. S.O. Omobude for appellant submitted that one of the constituents elements of the offence of armed robbery, namely whether the appellant also participated in the robbery, was not proved by the prosecution as there was material contradictions between the evidence of the prosecution’s star witness, P.W.1, and those of PW2, PW3 and PW4. He said whereas P.W.1 testified that the actual robbery took place in P.W2 – PW4’s apartments and not his own apartment so it was they who told him that appellant was among those that robbed them, which evidence counsel submitted is even hearsay, the evidence of P.W.2, P.W.3 and P.W.4 was that appellant was not among those that robbed them. Counsel further pointed out that P.W 2 and P.W. 3 even admitted that appellant was also robbed by the same armed robbers. P.W.1, counsel then submitted, was simply desperate to rope appellant into the robberies despite appellant’s credible explanation of how he found himself among the robbers that night because they held him hostage.
He branded P.W.1 an incredible person who told lies that went against the evidence of PW2-PW4. The learned trial judge, he said, failed to properly evaluate the evidence of P.W.1 hence his conclusion that appellant was positively identified by PW1.
On issue 2, counsel submitted that the prosecution failed to prove beyond reasonable doubt the participation of appellant in the robberies and the trial judge wrong in holding otherwise. To buttress his argument, counsel again cited the admission of PW2 and PW3 that appellant was also robbed by the same robbers that night and how appellant at the earliest opportunity explained to the police the circumstances that led to his being in the midst of the robbers. Learned counsel particularly drew your Lordships’ attention to the following reasons why your Lordships should find credible appellant’s version of the events:
(a) The fact that appellant is an Interstate transporter, a fact that was not disputed but rather confirmed by the prosecution witnesses too.
(b) That it is also not disputed that more often than not appellant usually left home (Benin City) very early in the morning and returned late and same was not deliberate but as a result of the nature of his work.
(c) That the evidence revealed that there was indeed a car wash centre in the neighborhood where appellant usually washed his car and that was where he was before the robbers came. Being a regular routine for him, he could have been monitored without his knowledge.
(d) That Appellant had lived in No. 2 Powerline Street for over 3 years and there had not been any case of theft or any wrongdoing against him. He is not new to the area or the house. He is well known by his neighbours without being masked.
(e) That there is no evidence from PW1 that appellant was masked; that it is not possible for appellant to go to his own house to rob his neigbhours unmasked; that it will in fact be absolute foolhardiness for a person to lead armed robbers to rob his neighbours without being masked.
(f) That appellant lives in the same house with his wife and children who were also subjected to the same ordeal in the hands of the robbers. That in reality the probability of him (appellant) subjecting his wife and children to the horrible experience of armed robbery attack in the circumstance of this case is very slim.
(g) The evidence was that appellant and his family was also robbed of their belongings including money and phone and the phone has not been found till date.
(h) That the situation the appellant found himself could have happened to anybody; he could not have put up a resistance against four robbers that are armed with guns when he was being ordered to take them to his house and subsequently used to access the house; that it is risky, if not even foolish, for anybody to resist armed robbers he knows he cannot easily overpower.
(i) The evidence of PW1 shows that the appellant was not armed with any gun or weapon when he saw him with the robbers.
On issue three, learned counsel argued that the trial judge unfairly picked on the evidence that favoured the case of the prosecution and simply set his face against anything that favoured appellant. Counsel relied principally on the facts he gave in support of issue 2 to buttress this issue.
On Issue 4, counsel submitted that the trial judge simply picked and chose which evidence to rely on and thereafter embarked on speculation contrary to the position of the law that a trial judge should not pick and choose evidence that catches his fancy in favour of a party while abandoning the one that favours the other party. In the instant case, he complained, the trial judge deliberately refused and/or neglected to make any reference to the evidence of the PW2 and PW3 adduced during their cross-examination when they expressly admitted that appellant was a victim of the armed robbery incident because his belongings were also robbed. Counsel said the trial judge failed or neglected to refer to the said evidence of PW2 and PW3 and made no finding on it even when appellant’s counsel copiously made it his No 2 Issue for determination in his final written address. He complained that the trial Judge’s deliberate omission amounts to picking and choosing evidence favourable to the prosecution and leaving out evidence that favored the appellant which apparently cast reasonable doubt on the case of the prosecution and we should so hold.
The learned trial judge, counsel further complained, not only picked and chose evidence, he also embarked on speculation in arriving at appellant’s guilt and gave no cogent reason why it preferred the prosecution’s party’s case to that of appellant. Counsel submitted that the holding of the learned trial judge that since appellant was a victim of an earlier robbery incident in the compound he ought not to have come out by 3.00am to wash his vehicle preparatory to embarking on his journey is also clearly speculative because same had nothing to do with the issue of his actual participation in the robbery with which he was charged.
Counsel submitted, too, that it was also speculative for the learned trial judge to hold that since there was evidence that appellant promise to refund the items robbed, he was part of the armed robbers. This piece of evidence, he pointed out, did not come from the appellant but was even denied by him appellant in his extra judicial statements and his defence in Court. Assuming but without conceding that appellant had even promised to refund the robbed items to the victims, it might be because he was held hostage and used to access the compound or because he was subjected to mob action and he had to say that to save his life, and it is speculative, he submitted, for the trial judge to rely on same and to hold that he was one of those that robbed his neighbours in the absence of any evidence to that effect.
On his part, Mr. Salihu Bello for the State supported the reasoning and conclusion of the trial judge on all the issues and quoted copiously from the judgment. He argued that the State proved its case and the trial judge correct in his decision convicting appellant.
Resolution of issue(s)
I am of the humble opinion that issue 2 of both parties regarding whether the State proved beyond reasonable doubt its four charges against the appellant to warrant his conviction by the trial Judge on them adequately covers all appellant’s complaints in his six grounds of appeal. All his four issues at the end of the day also boil down to the correctness of that finding. In the event, I shall adopt issue 2 of both parties for the determination of this appeal.
Now, the gravamen of appellant’s complaint is that the Lower Court failed to properly evaluate the evidence adduced before it in arriving at its conclusion that the prosecution proved beyond reasonable doubt its case of his participation in the armed robbery of 28/4/2014 that took place at No 2, Powerline Street, Benin City. The verb ‘evaluate’ means ‘to determine or fix the value of; to determine the significance, worth, or condition of usually by careful appraisal and study.’ So to say a Court failed in its duty of evaluating or doing so properly the evidence adduced before it in finding a charge proved beyond reasonable doubt is a very serious one, because it charges the Court with dereliction of its primary duty of careful appraisal of the evidence led before it in reaching its conclusion that an accused person was guilty of a crime. That charge is further magnified when the offence in issue is a capital offence like the instant one that attracts the death penalty upon conviction, and even more so when the Constitution of this country presumes every accused person innocent and it is the duty of the prosecution to not only prove its charges but do so beyond reasonable doubt to secure conviction. In that connection, I find the statement of the law by the Supreme Court (Pats-Acholonu, J.S.C.) in Shande v. State (2005) 12 NWLR (PT 939) 301 @ 321 very apt, when it said that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“When an accused is being tried for any case whatsoever, because of the principles of law ingrained in our Constitution that he or she shall be presumed innocent, it behoves on the Court to subject every item or facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. Where there is doubt in the mind of the Court either as to the procedure or failure to address on very important or latent issues that assail or circumscribe the case the Court should acquit and discharge. Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials), the Court seized of the matter must convince itself beyond reasonable doubt – a phrase coined centuries ago and even applied by the Romans in their well-developed jurisprudence and now verily applicable in our legal system – is proof that excludes reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence, in which case doubt has been created.”
The question is: was that high threshold of proof beyond reasonable doubt attained by the evidence adduced by the prosecution against the appellant to justify his conviction and sentence by the trial Judge? To properly resolve that issue, I find it necessary to look at the probabilities of the case presented by the prosecution. Over time, I have found this probability test most reliable when confronted with conflicting stories of this kind. That is just as a celebrated Judge, Oputa, J.S.C., also said in Dibiamaka & Ors v. Osakwe & Ors (1989) 1 N.S.C.C. 258 @ 260 that “Probability has always been the surest road to the shrine of truth and justice.” His lordship (Oputa J.S.C.) emphasized this point in several other cases including Onuoha v. The State (1989) 1 N.S.C.C. 411@ 418, saying:
“Now, what were the surrounding circumstances of this case which ought to form the crucial wedges necessary to drive conviction into the mind? What are the possibilities and probabilities which ought to induce belief in the testimony of p.w.2?
“All men stamp as probable that which they would have said or done under similar circumstances and as improbable that which they themselves would not have said or done under the same set of similar circumstances. Things inconsistent with human knowledge and experience are properly rated as improbable.”
Adding later that:
“This failure to charge or accuse the appellants of the murder raises a very serious doubt about the veracity of P.W.2. Did he really see the appellants that night? The parties live close by each other. Why did P.W.2 not raise an alarm to alert the villagers? Why did the P.W.2 not shout the names of the appellants around the village? All these questions naturally suggest themselves and should have suggested themselves to any trial Judge. With this analysis it becomes quite obvious that the evidence of P.W.2 is contradicted by the surrounding circumstances of this case as well as by the evidence of PW4 and it was quite unsafe to believe it (evidence of P.W.2).
“I will now repeat what I have said on many similar occasions. There is no magic in the words ‘I believe” or “I do not believe.” These words will not and cannot turn an apparent falsehood into truth and vice versa, belief and disbelief should really represent a fair and impartial appraisal of all the facts and surrounding circumstances of any given case. They should represent the Court’s reaction not only to facts but also to possibilities and probabilities naturally arising from those facts. If a trial Court chooses to believe an impossible and improbable story, an appellate Court has a duty to reverse any decision based on such belief.” (Italics mine)
His brother Nnamani, J.S.C., in supporting him in Onuoha’s case, had this to add at p. 422:
“Where there is no basis for belief, or where the surrounding circumstances are such as clearly negative truth, the finding of the learned trial Judge could not be accepted merely because he used the words ‘I believe’. No one can really say the learned trial Judge in this case found sanctuary in the words ‘I believe’, for he attempted some evaluation of the testimony given by the parties before him, but he does not appear to have fully adverted his mind to pieces of evidence which would have given him second thoughts about the wholesale belief of the P.W.2.”
In the local (Benin City) case of Aibangbee v. The State (1988) 2 NSCC 192 @ 222, it was again said (by Oputa, J.S.C.) that:
“Conclusion of fact is within the province of the trial Court to believe or disbelieve the witnesses it had the privilege of seeing and hearing and whose demeanour it watched. Such belief or disbelief must, however, be in consonance with the general drift of the evidence and the probabilities which on the totality of the evidence it is natural to expect.”
Also commenting on the same issue, a learned author, S.D. Singh, in his book Judgments and How to write them, 4th edition, had this to say (at p.101):
“The probabilities of the facts deposed to in evidence is also an important consideration in judging the worth of the evidence and even this consideration is so important that it may at times write off the entire effect of volume and weight of the evidence. The story that is being deposed to by the witnesses or the version of the opportunity which the witnesses had to observe the facts connected with it must be credible and in keeping with the ordinary course of human affairs. If they come forward with fantastic stories, which are on their face improbable or incredible, the judge will certainly find it difficult to rely upon them for his findings. The safe principle, therefore, to be followed is to consider, in case of conflicting evidence, which story fits in the admitted circumstances and the resulting probabilities.”
Section 167 of the Evidence Act 2011 also enjoins the Court to:
“…presume the existence of any fact which is likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business; in their relationship to the facts of the particular case…”
As earlier said, the prosecution’s case is that appellant, while unmasked, brought robbers to his compound, where he had lived for three years with his family of five, to rob his co-tenants. That is as against his denial of robbery and assertion that he was compelled at gunpoint by the robbers and he was also a victim of the robbery as his apartment was also robbed by the same armed robbers. So, I now ask – as I also did in the very similar case of Efe Nikoro v. The State (2016) LPELR-42024 (CA) – whether it is in accord with the natural course of events and human conduct, and so probable, that appellant would by himself and using his own transport vehicle that is known to his neighbours willfully drive armed robbers to his compound to rob his co-tenants who had known him for three years? And assuming that he would is it probable for him to do so unmasked and risk recognition especially when the evidence from even the prosecution witnesses is that two of the robbers also took care to wear masks to avoid recognition? Would a man who is clever enough to plan a robbery be that foolish and foolhardy? Implicit in those two questions is the further question whether it is probable that appellant would even accompany robbers to his own compound to rob his co-tenants? Is it not more probable in such circumstances that even if he would be involved he is more likely to simply give directions to the robbers on how to get to his residence and stay away from the actual robbery itself to avoid recognition and detection? At any rate assuming that he would follow the robbers to his compound, is it probable that he would also go the extra mile of going round the apartments of his co-tenants, unmasked, to give directives to the robbers as Mr. Permanent Ineh, P.W.1, said he did? And why would he do that when even the evidence from prosecution witness is that he did not take part in the robbery itself? Were the robbers blind to have needed that extra direction from appellant?
All these apparent improbabilities in the story of the prosecution should have ‘suggested themselves’ to the trial judge, if I may borrow from Oputa, J.S.C., in Onuoha v. The State (supra), and made him realize that the events of 28/4/2014 at No. 2 Powerline Street, Benin City were exaggerated by P.W.1 to implicate appellant and so not worthy of belief.
As against that, this is what appellant said in his defence (which story also tallies with what he told the police in his two statements, Exhibits A and B):
“On the 28th of April 2014, I woke up around 3.30am to wash my vehicle. I got two buckets of water, a towel; I got into my car and drove to a car wash near my house to wash my car. I collected water from a nearby well and began to wash my car. As I was washing my car, I was almost done with washing when all of a sudden I saw three men with guns. One of them pointed a gun on me and asked for the key of my car. I gave him the key. He opened the front door of my car and sat by the steering.
“The other two men dragged me into my car they got into the car themselves. The one by the driver’s seat now drove my car into my compound. They dragged me out of the car. They said I will be shot if they hear a sound from me. They directed me to my room. They said I should show them my room. I did. They bailed me up. One put a gun on my head. They entered my room, my wife had woken up. They threatened to shoot her if they hear a word from her.
“They asked me and my wife to lie down, we did, one of them now said they were sent to kill me. One of them asked for my money. I showed them one of my shoes where I had kept some of my money. They collected the money. The money was ten thousand five hundred naira. They also collected my Nokia torch phone with the Sim or line in the phone
“Myself and my wife were still lying on the floor with our faces down, later we heard the noise of some people outside. Later police drove into my compound blaring their siren. They fired some shots and my compound became silent. Later we heard some of the men introducing themselves as policemen. They met me and my wife in the floor.
“They asked us to stand up. We did. Later they assembled all the occupants of my compound. They asked if anybody was injured by the robbers. We told them that nobody was injured. They also asked if anybody was raped. We said no. One of the police men said that we should all come to the station to make our statements. They said we should also take inventory of all our properties that was stolen by the armed robbers as this will assist them in their investigation. We all now went to our various apartments.
“Later I came out of my room to see how I could contact the owner of the car I was driving. The armed robbers took the car away P.W.1 Mr. Inneh now came out of his apartment. I told him I was trying to send words to my boss, the owner of the car that was stolen. P.W.1 said I should wait he said I could reach my boss later in the day. I respected his counsel or advice because he was elderly.
“So I went to my apartment to sit down. Later PW3 Christopher Imafidon one of my co-tenants came to my apartment. He said P. W. 1 wanted to see me. I went to P. W. 1’s apartment; I met P.W.2 Darlington, one Matthew another neighbour, one Faith Ewaleifo, Augustine Ogbebor, Nicholas. P.W.l said I should tell him the truth about all that happened. I told him all that happened just as I have told the Court. P.W.1 said I was not telling him the truth. I insisted I was telling the truth. I told him that we have been neighbours for three years and he was aware that I usually washed my car in the car wash where the robbers bailed me up. P.W.1 said the only way I could exonerate myself from the robbery that had just taken place was that I should return or provide all the items that were stolen from my neighbours by the armed robbers. I asked him if he knew what he was saying. I refused bluntly. I asked if he was the one who sent assassins to kill me as the robbers even told me that they were sent by somebody to kill me. P.W. 1 slapped me. He said I dared to utter the words I just said. We started fighting. Christopher Imafidon and Darlington joined P.W. 1 to fight me. One of those present went to call my wife. My wife came to the scene and she started screaming. Darlington slapped her. I then told my wife to go and report to the police as the situation was getting out of control. When they heard what I told my wife, they all left and went to their various apartment, one Mr. Goodluck, a customer of mine, I mean a passenger, was passing by. He came and he tried to intervene. Just as I looked towards the direction of my passenger, Mr. Goodluck, P.W.1, Mr. Inneh picked a wood and hit me on my head. I started bleeding from the head. I pleaded with Goodluck to get the police even though I had earlier sent my wife to report to the police. Goodluck succeeded in separating us. Later the police came to our compound with their Hilux Van. I told the policemen who came all that happened. They saw with me. They took me to their police station, new Etete Police Station in Benin City. I was treated in nearby clinic.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Later while waiting at Etete police station, P.W.1 Mr. Inneh, Christopher Imafidon came to the police station. They reported to the divisional police officer. They went into his office. I don’t know what they told him. The divisional police officer came out of his office and ordered that I should be detained. Later the police took me to my house, the car wash where I was washing my vehicle. They searched my house nothing incriminating was found. We returned back to the police station where I made statement. Later I was transferred to the police headquarters in Benin City call the State C.I.D.
At the State C.I.D, the policemen who were investigating this case asked for one hundred and Fifty thousand naira so that they will grant me bail. I didn’t have money to bribe them. They even refused the sum of one hundred thousand naira as bribe which my boss offered. I made Statement at the state C.I.D. The case was later charged to Court.
“Q: you said something earlier about coming out at 3.am to wash your car.
“A: It was my usual practice to bring my car out at 3.am or thereabout for washing because I reside in Benin. I had to go to Oghara everyday in Delta to convey passengers from Oghara to Asaba, we usually convey our first set of passengers at 5.am for Asaba. So in order to meet up with the 5 am I must rise up as early as 3am to wash my vehicle, dress up and prepare to drive first from Benin to Oghara and then to Asaba. That was why I was up at about 3 am on the 28th of April 2014.
“Q: did you say this in all your statement?
“Q: any other thing to say
“A: I deny this charge in it’s entirely. I am not an armed robber and I did not rob anybody on 28th of April, 2014. Pw2 and Pw3 even said in Court that I was also robbed.
It must be noted that, as asserted by appellant, P.W.2 and P.W.3 also testified to the fact that appellant was robbed by the same robbers.
He was cross-examined extensively by the prosecution but stuck to this very probable story.
I have also earlier alluded to the fact that it is very likely that prosecution’s star witness, P.W.1, who appellant swore broke his head and even beat his wife in his desperate bid to compel him to confess complicity in the robbery, embellished his story of what happened in that night, when he said he told the police in the same night of 28/4/2014 in the presence of P.W.2- P.W.4 all that happened in that night including the part he claimed appellant played by directing the robbers from one apartment to the other. P.W. 2 (at p.50 of the records) and P.W.4 (at p.50 of the records) I have pointed out all admitted under cross-examination that they did not mention to the police in their statements that appellant was one of the thieves. It is very unlikely that P.W.2 and P.W.4 would omit to mention this important fact of appellant their co-tenant being not just one of the robbers but even the one directing it as P.W.1 claimed if that fact was mentioned to the police by P.W.1 right in the same night in their presence when the police came to disperse the robbers. In fact, it is equally unlikely, and again improbable, that the police would not have there and then arrested and promptly taken away appellant identified by his own ‘eyewitness’ co-tenant as one of the robbers if P.W.1 had revealed any such fact to them as he claimed. It is unlikely, too, that the inmates of that compound who were said to have suffered three armed robbery attacks within a period of just one month would have been able to resist lynching appellant their co-tenant if any such information of his complicity was disclosed to them by P.W.1 as he claimed. At the very least they would not have allowed him pass the rest of the night peacefully in their compound.
And all that further goes to reinforce the fact that P.W.1 simply embellished in Court what he saw in the night of the robbery to rope appellant in by all means, especially after his failed attempt in their compound to make him confess before the Youth Chairman.
Even the said confession, which the appellant incidentally denied vehemently, is most likely a ruse, notwithstanding the fact that all four victims of the robbery testified that it actually took place. The said confession is a vital piece of evidence and since it is denied by appellant, it was absolutely necessary that the Youth Chairman, Mr. Goodluck Imadiyi, before whom the P.W.1 – P.W.4 claimed it was made, should have been called by the prosecution to confirm it. It is no answer that the prosecution is not obliged to call a host of witnesses to prove its case; where a particular witness is necessary to prove an important disputed fact he must be called by the prosecution if not its case would be deemed not proved: see Omogodo v. The State (1981) NSCC 119 @ 128-129. In the absence of the said Youth Chairman, who was the only neutral person in that meeting and so in position to give credible evidence of whether appellant actually admitted taking part in the robberies, it was not open to the lower Court to accredit the claim of the prosecution of admission of robbery by appellant in preference to the denial by the appellant: see again Omogodo v. The State supra. In fact the failure of the prosecution who had the un-shifting burden of proof to call Mr. Goodluck Imadiyi is also capable of raising the presumption in Section 167 of the Evidence Act that it withheld his evidence because it would have been unfavourable to its case.
Now, I am not unmindful of the heavy weather made by the trial judge of appellant’s counsel’s omission to challenge in cross-examination some of the evidence of the prosecution witnesses. I am however of the opinion that given the improbable story presented by the prosecution and the burden on it to prove its case beyond doubt, that omission does not help it in any way. The Apex Court stated the correct position of the law when it (Pats-Acholonu, J.S.C.) said in Neka B.B.B. Mfg. Co. Ltd v. A.C.B. Ltd (2004) 2 NWLR (PT. 858) 521 at 550; (2004) ALL FWLR (PT 198) 1175 @ 1197 paras E-H that:
“Finally, let me discuss the point made in the appellant’s brief that the evidence of pw4, which I have described as being utterly hollow, was not challenged. An opposing party should not be expected to challenge evidence that is hollow, empty or bereft of any substance as that would to my mind amount to chasing a shadow. I am familiar with the case of Odulaja v. Haddad (1973) 1 ALL NLR 191 to the effect that an evidence not challenged by the party that had the opportunity to do so should ordinarily be believed and accorded credibility. I believe that such holding rests on the premise that such evidence is capable of being believed if not challenged. In other words, when the evidence is weak in content as not to assist the Court or is manifestly unreasonable or is devoid of any substance as not to help to resolve the matter in issue it will be safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the Court but must be accepted as true, it is also true to say that the Court is not in all circumstances bound to accept as true testimony and evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.” (Italics mine)
Willfully and corruptly false, incredible, improbable and sharply falls below the standard expected in the particular case is also the story/nature of the case the prosecution/respondent presented against appellant and the trial judge had no business believing it as he did on grounds mainly that some evidence of the prosecution was not challenged by appellant’s counsel; in the circumstances, this Court is under a bounden duty to intervene and set aside its decision convicting him.
I shall also say that the Lower Court applied a standard that has no bearing with reality and the admitted facts of the case when it dismissed as ‘infantile, nonsensical and unbelievable’ appellant’s assertion that he was out of his house at 3.00 a.m. to wash his car when the robbers came to meet him at gunpoint and compelled him to take them to his compound. The trial judge in response to that explanation said ‘it appeared appellant’s job seemed more important to him than his life’ and that made the story ‘unbelievable, infantile and nonsensical’ given that robbers had struck there just two weeks earlier. I fail to see any unreasonableness in the action of appellant, a common driver in someone else’s employment in far away Oghara in Delta State, who, it was admitted by both sides, usually rose very early every morning to wash his car to leave Edo State for his place of work in Oghara in Delta State to queue and pick passengers to Asaba as early as 5.00 am every morning. In fact the trial Judge by that decision seems to have applied his own very sophisticated and very comfortably employed High Court Judge’s standard of a ‘reasonable man’ who sits in his own State of employment and resumes work only at 9.00am with equally understanding superiors who would also excuse his sitting late whenever necessary. That standard ought not to apply to the poor driver that appellant is, especially in the circumstances of his employment and nature of his job. It is preposterous to expect appellant not to do, and do so in the only way he can effectively do it, the only job that puts bread and butter on his poor family’s table simply because robbers had attacked his house two weeks earlier, even more so when it is not suggested that there was any prior information of the robbers attack that night of 28/4/2014. In fact, if anything, it is rather sensible to expect that his presence in that area at that time of the night, with or without arms, would go some way in deterring any robbers, after all it is common knowledge that the vast majority of security guards in Nigeria do not also bear arms. The test of a reasonable man and his actions must necessarily take into account the accused person’s standing in life as well as his cultural background; so standards differ depending on the person involved: see Stephen v. The State (1986) LPELR-3117 (SC) p. 44.
In effect, I agree with appellant that the trial judge did not carefully and properly appraise the evidence that was adduced before it, for if it did it would have been clear to it that there were serious doubts in the case of the prosecution that appellant conspired with and was one of the armed robbers that robbed the residents of No. 2 Powerline Street, Benin City, on 28/4/2014.
I think it will not be out of place for me to also advise that while it is everyone’s undoubted task to stamp out this scourge of armed robbery from our society, the Courts must be discerning enough at all times to separate the wheat from the chaff lest we send innocent souls to the gallows in the name of fighting armed robbery. Two wrongs do not make a right.
In conclusion and for all the reasons enumerated above, I hereby allow this appeal and set aside appellant’s conviction and sentence by the High Court of Edo State. In its stead, I enter for him a verdict of not guilty and hereby discharge and acquit him, Mr. Solomon Obenwon, of all the charges that were brought against him by the State.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother B.M. Ugo, JCA, has afforded me the opportunity of reading before now the draft of the judgment just delivered.
I agree with the reasoning and conclusion contained therein. I also allow the appeal. I abide by the consequential orders made in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: Having been privileged to have a preview of the judgment of my learned Brother, BOLOUKUROMO MOSES UGO, JCA just delivered, I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. In addition, I abide by the consequential orders made thereto.
Appearances:
S.O. Omobude, Esq. For Appellant(s)
Mrs. V.U. Adeleye, Deputy Director, Edo State Ministry of Justice, with him, Itohan Okungbowa, Esq., Chief State Counsel, also of Edo State Ministry of Justice) holding the brief of Bello Salihu, Esq. For Respondent(s)
