OBI v. STATE (2021)

OBI v. STATE

(2021)LCN/15510(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Tuesday, March 16, 2021

CA/AW/62C/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

IKENNA OBI APPELANT(S)

And

THE STATE RESPONDENT(S)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned with two others before the High Court of Anambra State Ihiala Division, presided over by R. O. Onunkwo, J, on an information of a one count charge of Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation 2004.

In his Judgment delivered on the 6th of November, 2017 the learned trial Judge convicted the Appellant with one Osadebe Eze on the one count charge of Armed Robbery and sentenced the Appellant and the other co-accused to death. This appeal is predicated on the said Judgment.

SUMMARY OF RELEVANT FACTS:
​The case as presented by the prosecution at the trial Court was that the Appellant on the 2nd day of February, 2009 at about 7.30 am, one Chinenye Ogujiuba (PW1) was on her way to the market, the Appellant and two others who were charged with him accosted her, the three were on a Motorcycle. The Appellant and the third accused person (at the trial Court) disembarked from the Motorcycle and demanded for PW1’s hand bag. Her bag contained her handset and a cash of N10,000.00 (Ten Thousand Naira), when she refused to hand over her hand bag, they brought out a gun and pointed it at her. She was then forced to surrender her bag and when the robbers fled, she immediately raised alarm which attracted the villagers. The robbers were given a chase by the villagers who apprehended the Appellant and the said third accused, while the 1st accused person in the charge escaped.

​The villagers descended on the robbers attempting to lynch them. PW2 heard the noise and moved towards the direction of the noise and saw two men who were about being lynched by the crowd. The crowd demanded for the bag, and one of the robbers brought out the bag with its contents. The two young men turned out to be among those who robbed Chinenye Ogujiuba of her bag at gun point. PW1 later came to the place and identified herself as the owner of the bag. The police were invited and the two men were taken to the Police Station. It was the Police who retrieved the bag that was recovered from the robbers counted the money in the bag and it was Ten Thousand Naira. The victim identified herself again as the owner of the hand bag robbed at gun point. In a considered Judgment, the learned trial Judge believed the version of the prosecution and disbelieved the version of the Appellant and proceeded to convict and sentenced the Appellant to death.
This Appeal is a by product of the said Judgment.

Learned Counsel for the Appellant C. P. Oguchienti Esq distilled two issues for determination as follows:
1. “Whether the Prosecution successfully discharged the onus on it to prove the elements of the offence of Armed Robbery against the Appellant beyond reasonable doubt as required by law.(Ground 1).
2. Whether from the totality of evidence led at trial and the circumstances of the case, the trial Court was not wrong to have convicted the Appellant of Armed Robbery, when same was not established by the prosecution. (Ground 2).

Learned Counsel for the Respondent Charity Madukife Esq adopted the two issues distilled by Counsel for the Appellant.

The two issues raised by learned Counsel for the Appellant which Counsel for the Respondent adopted can conveniently be compressed into one straight forward issue of narrow compass thus: “Whether on the facts and circumstances of this case, the learned trial Judge was right in rejecting the defence put forward by Appellant and held that the prosecution proved its case beyond reasonable doubt.”

Taking the issues he formulated, learned Counsel for the Appellant, C. P. Oguchienti Esq enumerated the ingredients of the offence of Armed Robbery and contended that the Respondent at the trial Court did not adduce cogent and sufficient evidence to establish the elements of the offence of Armed Robbery.

He submitted that the learned Trial Judge relied solely on the evidence of PW1 to convict the Appellant without considering the defence put forward by the Appellant.

Counsel reiterated that the only valid or direct evidence before the trial Court was the evidence of PW1 which was not corroborated.
He posited that it was erroneous for the trial Judge to have held that the inability of the victim of the Armed Robbery (PW1) to identify which of the men who robbed her wielded the firearm was not fatal to the case of the prosecution (Respondent herein).

Counsel made heavy weather on the fact that the Police Investigation Report which formed part of the proof of evidence was not tendered in evidence. He cited the case of MADU V. STATE (2007) FWLR (PT. 371) PG 1642.

He also posited that it was only from the evidence of PW1 who also was the victim that the suggestion that a gun was used in the robbery arose. He also made heavy weather on the fact that the said gun was not tendered in evidence before the trial Court. He cited the case of ABDULLAHI V. THE STATE (2005) FWLR (PT. 263) P. 713 to drive home this point.

Counsel submitted further that failure by the prosecution to call Investigating Police Officer as a witness at the trial was fatal to the case of the prosecution and enough to justify a reversal of the verdict passed on the Appellant by the trial Court. He referred to AITUMA V. STATE (2007) ALL FWLR (PT. 381) P. 1812.

He also dwelt on the issue of identification parade and posited that there was no evidence of an identification parade to confirm the identity of the men who were apprehended before they were charged to Court. He cited ATTAH V. STATE (2010) ALL FWLR (PT. 540) PG. 1250 among others.

​Reacting to the foregoing, learned Counsel for the Respondent Charity Madukife Esq referred to the evidence of PW1 who was also the victim and contended that she gave details of the Armed Robbery incident and the role played by the Appellant and his co-accused. That the evidence of PW1 was unshaken.

Counsel enumerated the elements of the offence of Armed Robbery and the penalty and submitted that the prosecution at the trial Court left no stone unturned in proving its case beyond reasonable doubt.

Referring to PW2, Counsel described his testimony as direct and impeccable as he was the person who saw the Appellant about to be lynched by a crowd and that he rescued the Appellant from being lynched. It was PW2 he argued that invited the Police and handed over the Appellant and his co-accused to the Police together with PW1’s hand bag which the crowd recovered from the Appellant.

On the issue of identification of the Appellant and his co-accused, Counsel argued that since they were arrested while escaping from the scene of crime and their identity well known, that there was no need to embark on an identification parade. He cited OTTI V. STATE (1991) 7 NWLR (PT. 207), Page 103 at 117.

On the reason why the report of the Investigating Police Officer was not tendered at the trial Court, Counsel referred to pages 72 – 73 of the Record of Appeal and narrated how the Respondent on the 6th of March, 2017 informed the trial Court about the death of the DSP Moshood who signed the investigation report and all efforts to get other officers who worked with the said DSP Moshood proved abortive as all of them were posted out. He then argued that the Respondent can prove its case with the evidence of a single witness and not bound to call a horde of witnesses.

Now to the offence of Armed Robbery. In driving home their case at the trial Court, PW1 who was also the victim gave a comprehensive evidence at pages 63 – 64 of the Records:
“My name is Chinonye Ogujiuba. I live at Eziama, Uli. I am a trader. I know the accused persons seated in the dock. I remember the 2nd day of February, 2009. Something happened on that day. On that day, I was on my way to the market, when I was accosted by three persons on a motorcycle. The three persons were all men. They stopped me. Two of the men disembarked and asked me to bring my bag. I refused.

Thereupon, they began to struggle with me over the bag. I refused. Thereupon one of the two men then brought out a gun and pointed the same at me. When this happened, I gave them my hand bag. They then mounted the same motorcycle in which they were riding when they accosted me and all three men rode away with my hand bag. I then started shouting. This incident took place about 7.30 am. Before this incident, I did not know any of the 3 men that accosted me. Inside my hand bag which the men collected forcefully from me, were my Nokia handset and N10,000 cash. When I started shouting, my shout attracted the attention of people who came out and started pursuing the 3 men on the motorcycle. They were apprehended. Two out of the three men were apprehended. Operatives of the Special Anti-Robbery Squad apprehended the third man later that day. When the two men were apprehended by the people who pursued them, I identified the two of them immediately and spontaneously as part of three men that accosted and robbed me. The two men that were apprehended and whom I immediately identified are in this Court. They are the 2nd and 3rd accused persons. The 2nd and 3rd accused persons were the persons that disembarked from the motorcycle and at gun point robbed me of my handbag and its contents. The 1st accused person was the man who was seated on the motorcycle during the incident. He was the man that drove the motorcycle. My handbag with its content was recovered from the robbers. The contents of the handbag were intact. The people that pursued the 3 men and apprehended 2 of them, retrieved my handbag from the two men they caught. The handbag with its content was handed over to the police. The police later handed it over to me. I signed a document before the police hand over my handbag to me …”

In an offence of Armed Robbery, the burden of proof is on the prosecution to prove the following beyond reasonable doubt:
a. That there was robbery or series or robberies.
b. That the said robbery was an Armed robbery.
c. That the Appellant was one of those who took part in the Armed robbery.
See ATTAH V. THE STATE (2010) 10 NWLR (PT. 1201) PG 190 at 224.

In proof of the ingredients of the offence of Armed Robbery, PW1 who was the victim of the armed robbery as well as eye witness in her testimony in Court part of which I already reproduced earlier in this Judgment stated categorically the role played by the Appellant and his gang and that the Appellants used a gun to rob her.

PW2 who rescued the Appellants from being lynched and who recovered PW1’s hand bag from the Appellants and handed same to the Police also gave graphic account of the role he played. In EBEINWE V. THE STATE (2011) Vol. 201, LRCN PG. 224, the Supreme Court held as follows:
“It is immaterial in whichever form stealing/theft of anything is executed by an accused person, once the act involved extortion by force or infusing fear of instant death or hurt, it would amount to armed robbery.”

The evidence of PW1 shows clearly that there was threat of violence and actual violence when the Appellant and his gang while armed with a gun forcefully and violently took the hand bag of PW1 containing her phone and the sum of Ten Thousand Naira. The testimony of PW1 left no one in doubt that there was robbery on the 2/2/2009 and that the robbery was an armed robbery.

Section 1 (1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation, 2004 provides as follows:
1. “Any person who commits the offence of robbery shall upon trial and conviction under the Act be sentenced to imprisonment for not less than 21 years”:
2. “If any offender mentioned in subsection (1) of this Section is armed with any Firearm or any offensive weapon or is in the company with any person so armed. The offender shall be liable upon conviction under this Act to be sentenced to death”.

Counsel for the Appellant made heavy weather about the failure by the Prosecution to call any member of the team of Policemen who investigated or played any role in connection with this case. It is on Record that the Respondent on the 6th of March, 2017 informed the trial Court about the death of DSP Moshood. On the 28th day of March, 2017, the Respondent again informed the trial Court that the Unit Commander at SARS Ihiala Unit informed the prosecutor that all the Officers who worked with the late DSP Moshood had been posted out and the present Police Officers at the said unit were new and never worked with the late DSP Moshood. (See page 72 – 73 of the Records).

The Supreme Court per Olufunlola Adekeye JSC in ADESINA V. THE STATE (2012) 14 NWLR (PT. 1321) PG 452 stated as follows:
“It is the prerogative of the prosecution to call witnesses relevant to its case.
Furthermore, the prosecution is not bound to call all probable witnesses or every person that was linked to the scene of crime by physical presence or give evidence of what he saw. Once persons who can testify to the actual commission of a crime have done so, it suffices for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act Cap. 112, Laws of the Federation of Nigeria 1990.”

Counsel for the Appellant also queried failure by the prosecution to tender the gun recovered from the Appellants. It is trite that failure by the prosecution to tender the offensive weapon used in the robbery cannot result in the acquittal of the accused person.
Once the prosecution is able to prove the ingredients of the offence of Armed Robbery beyond reasonable doubt, it is not compulsory that the weapon of an Armed Robbery must be tendered.

Counsel for the Appellant also frowned at failure by the prosecution to conduct identification parade to ascertain the identity of the Appellant as one of the suspects.

The issue of identification parade becomes necessary when the identity of the accused person in relation to the offence is in issue. In the instant case, PW2 testified that the Appellant and another member of his gang were about to be lynched by villagers when he rescued them, invited the Police and handed them over to the police together with PW1’s hand bag which they snatched from her at gun point. All these happened immediately preceding the robbery. PW1 also gave evidence that she raised alarm immediately she was robbed at gun point and villagers gave the Appellant and his gang a hot chase and apprehended them. There was therefore no need for an identification parade when the Appellant and his gang were apprehended immediately after the crime.
Identification parade is therefore not conducted for the fun of it. See KENNETH OGOALA V. THE STATE (1991) 2 NWLR (PT. 175) PG 509.

The pertinent questions in this case in my view are:
1. Was there a robbery?
2. Was the Robbery an Armed Robbery?
3. Was the Appellant one of those who took part in the armed robbery?

The evidence of PW1 showed that there was threat of violence and actual violence when the Appellant and his cohorts while armed with gun forcefully and violently collected the hand bag of PW1 containing her phone and the sum of Ten Thousand Naira. The testimony of PW1 and PW2 left no one in doubt that there was robbery on the 2/2/2009.

The issue as to whether or not the robbers were armed could be gleamed from the testimony of PW1 who was the victim as well as an eye witness. In AKEEM AGBOOLA V. THE STATE (2013) 11 NWLR (PT. 1366) 619, the Court threw more light on the meaning of “Armed Robbery” as follows:
“Armed Robbery is robbery committed by a person carrying a dangerous weapon and regardless of whether the weapon was revealed or used.”

In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side to believe. He did so extensively in relation to the offence of Armed Robbery as charged where he found inter alia at page 139 of the Records as follows:
“Finally, available facts established by credible evidence justify the invocation of the doctrine of recent possession against the 2nd and 3rd accused persons. The sum effect of that invocation proves that the 2nd and 3rd accused persons were the armed robbers who, with a firearm, robbed the PW1 on her way to the market at about 7.30 am on the 2nd of February, 2009.
In the light of the above considerations, I hold that the arguments canvassed in the written address of learned Counsel for the 2nd and 3rd accused persons have no merit whatsoever.
I reject his argument and throw same over board … I further hold that the prosecution has established the third ingredient of the offence of armed robbery against the 2nd and 3rd accused persons.”

The above is a clear and succinct finding of fact which this Court has no reason or justification to reverse.
In the premise, the sole issue is resolved against the Appellant and in favour of the Respondent.

This appeal is unmeritorious and is hereby dismissed. The Judgment of the trial Court in Charge No HIH/16C/2010 delivered on the 6th day of November, 2017 by R. O. Onunkwo J, sitting at the Ihiala Division of the Anambra State High Court, the conviction and sentence are hereby affirmed.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, CHIOMA NWOSU-IHEME, (Ph.D) JCA. I agree with the reasoning and conclusion therein. I find no merit in the appeal and dismiss it accordingly.
I abide by the consequential orders.

PATRICA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment of my learned brother CHIOMA NWOSU-IHEME, JCA in appeal NO. CA/AW/62C/2018.
​I agree with the reasoning and conclusion therein.

Appearances:

C. P. Oguchienti For Appellant(s)

C. C. Madukaife Assistant Director Ministry of Justice Anambra State For Respondent(s)