OGHENEVWEREN STANLEY OGISUGO v. THE STATE
(2015)LCN/7830(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of March, 2015
CA/B/324C/2008
RATIO
EVIDENCE: THE PRESUMPTION OF INNOCENCE; THE NECESSARY COROLLARY OF THE PRESUMPTION OF INNOCENCE
Our criminal justice system is accusatorial. This is in tune with Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides that a person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of the presumption of innocence is that the prosecution has the onus of proving the commission of the offences charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. If on the whole of the evidence adduced a state of doubt exists, then the prosecution would have failed to discharge the onus of proof and the accused person will be entitled to an acquittal: UKPE v. THE STATE (2001) 18 WRN 84 at 105. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE: THE PROOF OF THE GUILT OF AN ACCUSED PERSON; THE WAYS OR METHODS OF PROVING THE GUILT OF AN ACCUSED PERSON
It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:
1. By reliance on a confessional statement of an accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses.
See EMEKA v. THE STATE (2001) 32 WRN 37 at 49 and OKUDO v. THE STATE (2001) 8 NWLR (PT 1234) 209 at 236D. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE: STANDARD OF PROOF; WHETHER PROOF BEYOND REASONABLE DOUBT MEANS BEYOND ANY DEGREE OF CERTAINTY
The burden on the prosecution of proving a charge beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced, no tribunal of justice would convict having regard to the nature of the evidence led. Evidence which is susceptible to doubt, discrepancy, inconsistency and contradiction as in the instant case cannot be said to have attained the standard of proof that is beyond reasonable doubt. Proof beyond reasonable doubt should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE v. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379 – 380. The doubts occasioned by the highlighted inconsistencies, contradictions and discrepancies in the case of the prosecution must be resolved in favour of the Appellant: EDET v. THE STATE (1988) LPELR (1008) 1 at 21 and ORJI v. THE STATE (2008) 10 NWLR (PT 1094) 31 at 50. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
OGHENEVWEREN STANLEY OGISUGO Appellant(s)
AND
THE STATE Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering The Leading Judgment): This is an appeal against the judgment of the High Court of Delta State delivered on 19th June, 2008 wherein the Appellant was convicted for the offences of conspiracy to commit armed robbery and armed robbery. The Appellant was in consequence of the conviction sentenced to death. Being dissatisfied with the judgment, the Appellant appealed against the same. And so here we are.
The facts leading to the charge against the Appellant as made out by the prosecution, in so far as is apparent from the cold printed records, show that while the PW4 was away from home, his residence was broken into and some items stolen therefrom. The PW4 lodged a report with the police who visited the scene. Later that same night, some persons tried to scale the gate of the residence of the PW4 whereupon the PW4 escaped and went to the police station to report. He later returned with some policemen who engaged in a shoot-out with some people who were breaking houses and in the course of the shoot-out the Appellant was shot in the leg and arrested. The facts on record also disclose that the PW2 was marched by the Appellant and another person to the shop of the PW1 where they forced the PW1 to open her window, broke the louvers and were given some bottles of beer and cigarettes by the PW1. The PW2 maintained that the Appellant and the person he was with were armed with shot-gun. It is on these set of facts that the Appellant was arraigned on a three count charge as follows:
“STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit armed robbery contrary to section 5(b) and punishable under section 1(2) (a) of the Robbery and firearms (Special Provisions) Act Cap. 398 vol. xxii Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE:
Oghenevweren Stanley Ogisugo (m) on or about the 21st day of February, 2006 at Sanubi Village within Isiokolo Judicial Division conspired with others now at large to commit armed robbery.
STATEMENT OF OFFENCE: COUNT II
Armed robbery, punishable under section 1(2) (a) of the Robbery and firearms (special Provisions) Act Cap. 398 volume xxii Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE:
Oghenevweren Stanley Ogisugo (m) on the 21st day of February, 2006 at Sanubi Village within Isiokolo Judicial Division robbed Victoria Moses (f) of the sum of N50,000.00 (Fifty Thousand Naira) cash and at the time of the robbery, you were armed with offensive weapon to wit: gun.
STATEMENT OF OFFENCE: COUNT III
Armed robbery, punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 volume xxii Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE:
Oghenevweren Stanley Ogisugo (m) on the 21st day of February, 2006 at Sanubi Village within Isiokolo Judicial Division robbed Ngozi John Odorume (f) of four bottles of drinks and some sticks of sigaratte [sic] and at the time of the robbery, you were armed with an offensive weapon to wit: gun.”
In the course of addressing the Lower Court, the Prosecution urged the court to strike out count 2 of the charge (See page 83 of the Records). In the vexed judgment which is at pages 85 – 97 of the Records, the Lower Court conclusively found the Appellant guilty as charged in Counts 1 and 3 and struck out count 2 (See page 97 of the Records). The Notice of Appeal is at pages 100 – 102 of the Records wherein the Appellant raised four grounds of appeal. The Records of Appeal were deemed as duly transmitted on 15th May, 2014 and by the order of this court the Appellant’s Brief of Argument which is dated and filed on 6th December, 2012 was deemed as properly filed and served on 15th May, 2014. The extant Respondent’s Brief is dated 13th May, 2014 but filed on 15th May, 2014.
In arguing the appeal, Taiwo Kupolati, Esq., of Counsel for the Appellant adopted the submissions in the Appellant’s Brief of Argument and he urged the court to allow the appeal, set aside the decision of the Lower Court and quash the conviction and sentence imposed.
In the same vein, O. F. Enenmo, Esq., Deputy Director of Public Prosecutions, Ministry of Justice, Delta State, who appeared for the Respondent adopted the submissions in the Respondent’s Brief of Argument and he urged the court to dismiss the appeal. He further urged the court to discountenance the submissions of the Appellant on issues relating to tendering of the Police Investigation Report and the Statement of the victim of the robbery since the said issues did not arise from the grounds of appeal.
The Appellant distilled three issues for determination in his brief of argument as follows:
“1. Whether the trial court was right in law to have convicted and sentenced the appellant to death for armed robbery, in spite of the apparent failure of the prosecution to prove the guilt of the appellant beyond reasonable doubt. (Ground 1 of the Notice of Appeal).
2. Whether the trial court was right to have convicted the appellant for conspiracy to commit armed robbery without proper findings, and in spite of the obvious failure of the prosecution to prove the guilt of the appellant beyond reasonable doubt. (Ground 2 of the Notice of Appeal).
3. Whether, the trial court was not in grave error when it convicted and sentenced the appellant to death for armed robbery, without proper evaluation and findings on the evidence before it. (Ground 3 of the Notice of Appeal.)”
On its part, the Respondent formulated a sole issue for determination in the Respondent’s Brief, namely:
“Whether having regard to the evidence on record the learned trial Judge was right in law when he convicted the appellant with the offences of conspiracy to commit armed robbery and armed robbery?”
The issues for determination formulated by the parties are differently worded, however the underlying and central quaere in the issues as distilled is whether the Lower Court was right to have convicted the Appellant. The all pervading burden in criminal trials is for the prosecution to establish the offences charged beyond reasonable doubt.
In this wise, any question as to whether the Lower Court was right in convicting actually questions whether the charge was established beyond reasonable doubt. Accordingly, I would take the liberty to reformulate the issue on the basis of which I will consider the submissions of learned counsel and determine this appeal. The issue which I find distensible to encompass the issues distilled by the parties and their submissions thereon is:
“Whether the Prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt?”
SUBMISSIONS OF APPELLANT’S COUNSEL
The Appellant contends that in order to secure a conviction the prosecution has to prove all the ingredients of the offence charged beyond reasonable doubt. The ingredients to prove in a charge of armed robbery were set out and it was submitted that the case of the prosecution did not prove the ingredients beyond reasonable doubt as the prosecution case was marred by irreconcilable contradictions and wide discrepancies. The contradictions in the testimony of the PW1 and PW2 were highlighted vis-a-vis the extra judicial statement of the PW2, which was tendered as Exhibit A, and it was submitted that the testimony of the PW1 did not go to show that the attackers were armed or that actual violence or threat of violence was used on her. While there were contradictions and discrepancies in the testimony of the PW2 and his statement to police as to what transpired on the day of the incident. It was posited that the PW2’s statement to the police was made within days of the alleged robbery and may not have been distorted by extraneous influences and memory loss that would have come with the passage of time as at the date he testified in court.
It is the further submission of the Appellant that the confessional statement of the Appellant, Exhibit B and the questionnaire for confessional statement, Exhibit C, were legally inadmissible because the recorder of the statement, Exhibit B, did not state his name and there was nothing to show that the statement was interpreted to the Appellant who by having thumb printed the exhibits shows that he could not write in the language in which the statements were written. The court was urged to expunge Exhibit B from the Records. With regard to Exhibit C, it was posited that it was in respect of a charge of house breaking/stealing against the Appellant and not for armed robbery; thus showing that the testimony that the Appellant was engaged in a shoot out with the police was a complete falsehood. The Appellant therefore submitted that the prosecution’s case was doubtful as Exhibit C and the evidence of the prosecution witnesses were irreconcilable and illogical. The court was accordingly urged to expunge Exhibit C from the Records and also treat the testimony of the PW3 as unreliable and doubtful.
It was further contended that the interpreter of Exhibit C was not called as a witness and also the superior police officer who confirmed and attested to Exhibits B and C was also not called to testify. The Appellant asserted that the failure to call the interpreters of the extra judicial statements to testify rendered the statements inadmissible. The cases of NWAEZE v. THE STATE (1996) 2 NWLR (PT 428) 1 and F.R.N. v. USMAN (2012) ALL FWLR (PT 632) 1539 among others were relied upon.
The Appellant further highlighted the contradictions in the testimony of the PW4 as it relates to how and when the Appellant was arrested, emphasising that there were huge discrepancies and contradictions between the extra judicial statement of the PW4, Exhibit D, and his testimony in Court. It was posited that in Exhibit D it was stated that the Appellant had a cutlass and was arrested as he was running away while in his testimony in court he stated that the Appellant was shot in the leg during exchange of gunshot fire with the police. The Appellant maintained that the extra judicial statement, Exhibit D, was made when the incident was fresh as opposed to the testimony in court which is grossly suspect and doubtful. The court was urged to hold that there were material contradictions in the testimony of the PW4 and his extra judicial statement, Exhibit D, and to accordingly disbelieve both accounts and hold that the PW4 is not a witness of truth.
The Appellant submitted that the evidence of the prosecution as to whether offensive weapon was used and the type of weapon used was fraught with discrepancies and contradictions. The testimony of the PW2 in court that the Appellant and his accomplice were armed with shot-guns and the extra judicial statement that the Appellant’s accomplice had a pistol were referred to, as well as the testimony of the PW4 in Court that the Appellant had a gun and in his extra judicial statement, Exhibit D, that Appellant had a cutlass were referred to. The court was urged to apply the inconsistency rule and disbelieve the entire evidence of the prosecution witnesses.
It was the further submission of the Appellant that the failure by the Prosecution to tender the statement of the PW1 was suppressing and withholding evidence and the non-tendering of the said statement, made the testimony of the PW1 highly unreliable. The Appellant also contended that the failure to tender the Police Investigation Report was withholding evidence which if produced would have been fatal to the prosecution’s case as the Report would have shown that no complaint of armed robbery was made to the police or investigated by them and that there was no exchange of gunfire with the police. The Appellant argued that all the extra judicial statements he made ought to have been tendered by the prosecution and that the failure to tender them was fatal since it was not for the prosecution to pick and choose which one to tender. The cases of DANDARE v. THE STATE (1967) NWLR 56 and ELE v. THE STATE (2000) ALL FWLR (PT. 329) 849 were referred to.
On the conviction for the offence of conspiracy the Appellant submitted that the evidence proffered did not disclose common intention to commit armed robbery on the part of the Appellant and that there is no evidence on which the charge of conspiracy can be sustained. The Appellant maintained that there is no direct or circumstantial evidence on which conspiracy to commit armed robbery can be inferred. The Court was once again urged to apply the inconsistency rule in the light of the numerous fundamental discrepancies between the extra judicial statements of the prosecution witnesses and their testimony in court and to consequently treat the evidence as unreliable. The cases of EGBOGHONOME v. THE STATE (1993) 7 NWLR (PT 306) 383 and UBANI v. THE STATE (2004) FWLR (PT 191) 1533 at 1551 were relied upon.
The Appellant contended that the Lower Court failed in its primary duty of evaluating the evidence, positing that summarizing the evidence is different from evaluating; consequent upon which the Lower Court did not make any specific findings on whether the ingredients of the armed robbery and conspiracy to commit armed robbery were made out. The case of NDEM v. NKPINANG (2001) 2 NWLR (PT 698) 481 was cited in support. The Appellant maintained that a conviction arrived at without proper evaluation of evidence cannot be allowed to stand. The case of ONUOHA v. THE STATE (1995) 30 NWLR (PT 385) 591 at 600 was referred to. The Appellant further submitted that the Lower Court completely failed to evaluate the evidence adduced in defence of the charge and that the failure to consider the defence raised must result in a conviction being quashed on appeal. The cases of MOSES v. THE STATE (2003) FWLR (PT 141) 1983 and EBRE v. THE STATE (2001) 12 NWLR (PT 728) 615 were relied upon. Conclusively, the Appellant urged the court to quash the conviction and sentence imposed on the Appellant and to discharge and acquit him.
SUBMISSIONS OF RESPONDENT’S COUNSEL
The Respondent submits that it proved the offences that the Appellant was charged with beyond reasonable doubt by adducing credible evidence to prove the ingredients of the offences. This it stated was done by the direct evidence of PW1 – PW4 and the confessional statement of the Appellant, Exhibit B. The ingredients to prove in a charge of armed robbery were set out and it was posited that the Lower Court was right when at page 93 of the Records it took the entire evidence on record into account in finding that the charge of armed robbery was proved beyond reasonable doubt.
The Respondent further contended that no law requires the prosecution to tender all the statements made to the police by the witness in order to prove a charge beyond reasonable doubt since it sufficed to adduce sufficient credible evidence to prove the ingredients of the offence charged. The Respondent maintained that the only use to which the extra judicial statements and Police Investigation Report could be put was to cross examine or discredit the witness. The cases of BALOGUN v. A – G OGUN STATE (2002) FWLR (PT 100) 1287 and ESANGBEDO v. THE STATE (1998) 1 ACLR 109 at 120 and 121 were cited in support. It was therefore submitted that it was open to the Appellant to have called for the extra judicial statement of the PW1 and the Police Investigation Report for purposes of cross examination. It was asserted that it was in the course of investigating the report of breaking and entry made by the PW4 that the PW3 and other policemen became involved in exchange of gunfire with the Appellant and his cohorts which resulted in the Appellant being shot in the leg.
The Respondent maintained that it did not suppress or withhold evidence stating that all the statements made by the Appellant were tendered and admitted without objection. It was asserted that the court cannot look at any extra judicial statements that were not tendered as exhibits. The cases of ALARAPE v. THE STATE (2001) 84 LRCN 600 at 625 and ESANGBEDO v. THE STATE (supra) were referred to. The Respondent submitted that the Appellant did not contest the fact that it was PW3 who recorded his statement at the trial and that it was speculative to assume that the Appellant was an illiterate who required an interpreter as the same was not supported by the evidence.
On the offence of conspiracy, the Respondent argued that it was hardly capable of direct proof and that the offence was complete by the agreement to do the act or make the omission complained about. It was submitted that the Lower Court rightly inferred conspiracy from the act of robbery in order to arrive at a conviction. The Respondent conclusively urged the court not to interfere with the findings of the Lower Court as the said findings were not perverse but were in line with the evidence led.
RESOLUTION OF THE ISSUE
Our criminal justice system is accusatorial. This is in tune with Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides that a person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of the presumption of innocence is that the prosecution has the onus of proving the commission of the offences charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. If on the whole of the evidence adduced a state of doubt exists, then the prosecution would have failed to discharge the onus of proof and the accused person will be entitled to an acquittal: UKPE v. THE STATE (2001) 18 WRN 84 at 105.
I have already set out the three count charge on which the Appellant stood trial and for which he was convicted on Counts I and III.
The Respondent has rightly submitted that the Lower Court convicted for the offence of conspiracy based on inference from the criminal act of armed robbery. By analogous reasoning, where the conviction for armed robbery cannot stand then the rational basis and premise on which the conviction for conspiracy was made would crumble. This makes it imperative in the general scheme of this appeal to closely consider the arguments on both sides of the divide on the conviction for armed robbery.
The parties relying on the case of BOZIN v. THE STATE (1985) 2 NWLR (PT 8) 465 among others set out the conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery, as follows:
1. That there was a robbery.
2. That the robbery was an armed robbery.
3. That the accused person was one of the armed robbers.
Understandably, while the Appellant contends that the Lower Court was in error to have held that the ingredients were established, the Respondent asserts that the decision of the Lower Court was right since the guilt of the Appellant had been established by direct evidence and the confessional statement he made.
It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:
1. By reliance on a confessional statement of an accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses.
See EMEKA v. THE STATE (2001) 32 WRN 37 at 49 and OKUDO v. THE STATE (2001) 8 NWLR (PT 1234) 209 at 236D.
The Respondent contends that the charge against the Appellant was proved inter alia, by the confessional statement of the Appellant, Exhibit B. The Appellant on his part has challenged the said confessional statement raising issues among others as to who recorded and interpreted the statement as well as the superior police officer who attested to the statement vide Exhibit C. It is instructive that the statement Exhibit B, was tendered without objection at the Lower Court. This being so, it seems that the Appellant failed to take advantage of the moment when to challenge the statement, id est, when it was tendered at the Lower Court. Be that as it may, I do not think that the Appellant is on a strong wicket on the issue raised with respect to the recorder of the statement. The PW3 testified that the Appellant volunteered a statement which he recorded. This testimony was not challenged at the Lower Court; furthermore the issue as to whether the statement had to be interpreted to the Appellant does not seem to arise from the Records. The statement, Exhibit B, which is at pages 109 -112 of the Records annotates at the end that it was written in English language. The Records show at page 50 that the three court information was read and explained to the Appellant in English language and he seemed very well to understand the same before he took his plea. Also page 66 of the Records shows that the Appellant testified in English language. In the circumstances therefore there cannot be any issue as to any need to interpret the statement to the Appellant or calling the interpreter to testify. The Records clearly shows that the Appellant speaks and understands English language.
The foofaraw made as to the attestation of the confessional statement, Exhibit B, by Exhibit C on the grounds that the superior police officer who attested to the statement Exhibit B, was not called to testify and that the officer who signed as interpreter on Exhibit C was also not called to testify is a mere storm in a tea cup. As already stated, the Appellant from the Records understands English language. Exhibit C was issued in compliance with the requirements of the Judges Rules on obtaining statements. The law is well settled beyond peradventure that the Judges Rules are not Rules of law but merely Rules of administrative practice. They are rules made for the more efficient and effective administration of justice and therefore should never be used to defeat justice. While it is prudent to follow the Judges Rules by getting a superior police officer to attest to a confessional statement made by an accused person to a junior police officer, it is never the law that where this prudent practice is not followed the statement should be viewed with suspicion. In NWIGBOKO v. THE QUEEN (1959) 4 FSC 101 at 102, the Federal Supreme Court held that:
“We do not, however, agree with the Judge that where the practice is not followed, the statement should necessarily be viewed with suspicion…We are not prepared to go to the length of laying down as a general rule that where it (the practice) is not observed the statement should be viewed with suspicion.”
In the words of Oputa, JSC in OJEGELE v. THE STATE (1988) LPELR (2370) 1 at 16 –
“The aim of the Judges Rules is to ensure that confessions are voluntary. That practice shall never be stretched too far, for the protection of guilt.”
Exhibit C shows compliance with the Judges Rules by the Appellant being taken to a superior police officer to attest to the confessional statement, Exhibit B. The fact that the superior police officer who did the attestation was not called to testify would not adversely affect the voluntariness of Exhibit B. See EGBOGHONOME v. THE STATE (supra). This is especially so in the light of the fact that the voluntariness vel non of Exhibit B was never made an issue in the Lower Court. I am consequently unable to accede to the Appellants submission that Exhibits B and C should be expunged from the Records.
The critical question however is whether Exhibit B qualifies as a confessional statement on the basis of which a court can convict.
Doubtless, it is trite law that a confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO v. A – G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN v. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI v. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. A confessional statement in criminal law is a statement which admits of the crime. It must admit of the commission of the crime both in fact and in law. It must admit of the doing of an act or the making of an omission which constitutes an offence in law. The confession must admit of all the ingredients of the crime or offence confessed. See NWOBE v. THE STATE (2000) 15 WRN 133 at 141, YUSUF v. FRN (2010) LPELR (5118) 1 at 17 and NWACHUKWU v. THE STATE (2007) ALL FWLR (PT 390) 1380.
The offence which the Appellant was charged with and which Exhibit B was treated as a confessional statement inter alia includes robbing the PW1 while armed with a gun. For Exhibit B to be a basis on which to convict, it has to be admission of the commission of the crime both in fact and in law in the sense that it would admit of the facts as contained in the particulars of offence. In Exhibit B, the Appellant was emphatic in stating that nobody had any gun. It is interesting that in the flow of the statement it was after the Appellant had told the story of what transpired and how properties were damaged (which are not subject of the charge) and his arrest; that the reference was made to the robbery subject of Count III of the charge. While it is alluring to have a confession as a veritable tool on which to convict, but where the purported confession sticks out like a sore thumb in the general tenor of the statement, then the same must be viewed with a great deal of suspicion. Quite apart from the fact that Exhibit B does not admit of the commission of the offence charged in fact and in law, I view as suspect the manner in which reference to the charge in Count III was incorporated at the tail end of Exhibit B. Its insertion definitely does not flow with the general trend and tenor of the statement. In a summation, I must hold that Exhibit B which does not admit the commission of the offences charged both in fact and in law cannot by itself be a basis on which to convict the Appellant.
The Respondent submitted that the charge against the Appellant was established by the direct evidence of the PW1 – PW4. The learned counsel for the Appellant dwelt at length on the several inconsistencies and discrepancies in the evidence of the prosecution, maintaining that the contradictions were such that the Lower Court should not have convicted on the available evidence. It is hornbook law that where the evidence of the prosecution is contradictory on a material issue, the court should give the benefit of the doubt to an accused person, as a result of the non-credibility of such evidence and consequently discharge and acquit the accused person: CHUKWU v. THE STATE (1996) LPELR (856) 1 at 23.
On the issue of whether there was an armed robbery, the testimony of the PW1, the victim of the alleged robbery, at page 51 of the Records does not betray any demands made on her with menace. She alludes to a conversational setting of people knocking on her window and asking her for money and drinks and that she gave the people drinks and cigarettes, they drank the beer and left. The PW2 in his testimonial evidence asserted that the Appellant and his accomplice forced the PW1 to open her windows, broke her louvers and that it was through the window that the PW1 gave the Appellant and his accomplices some bottles of beer and cigarettes (See page 52 of the Records). However in the extra-judicial statement of the PW2 which was tendered as Exhibit A (pages 107 – 108) of the Records there was nothing stated about any robbery attack on PW1. There is a clear inconsistency in Exhibit A and the testimonial evidence of the PW2. By the inconsistency rule, where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which the Court can act. See EMOGA v. THE STATE (1997) LPELR (1134) 1 at 17 – 18, SULE v. THE STATE (2009) 17 NWLR (PT 1169) 33 and EGBOGHONOME v. THE STATE (supra). There is therefore nothing in the evidence of the PW1 and PW2 on which the ingredient of there having being an armed robbery can be taken to have been established beyond reasonable doubt.
With respect to whether the evidence disclosed that the Appellant was one of the robbers, even though I have found that the evidence did not establish that there was a robbery, the PW1 in her evidence clearly stated that she did not see the persons who asked her for drinks. Based on the same inconsistency Rule, the testimony of the PW2 of gunshots everywhere and his seeing the Appellant with bullet wounds is not contained in his extra-judicial statement, Exhibit A, which he made soon after the incident when everything would have still been fresh in his memory. The testimony of the PW2 must therefore be treated as unreliable.
The testimony of the PW4 and his extra-judicial statement, Exhibit D (See pages 114 – 116 of the Records) is laden with inconsistencies. In his testimony in Court, (page 62 of the Records) the PW4 testified on the arrest of the Appellant following a shoot-out with the police during which the Appellant was shot in the leg; however in Exhibit D, the PW4 stated that the Appellant had a cutlass which he raised up to use to cut the DCO. There was no allusion to any gunshots. By the inconsistency rule, the testimony of the PW4 is to be treated as unreliable while the extra-judicial statement cannot be acted upon since it was not a piece of evidence taken before the court: USUFU v. THE STATE (2008) ALL FWLR (PT 405) 1731 at 1750 – 1751.
On the question of whether the ingredient that there was an armed robbery was established. There are material contradictions in the evidence adduced by the prosecution. The PW2 in his testimonial evidence stated that the Appellant was and his accomplice were both armed with shot-gun. In his extra-judicial statement, Exhibit A, he stated that the person with the Appellant had a pistol. For the PW4 he stated under cross examination that he did not see the Appellant with a gun (page 64 of the Records) and in his extra-judicial statement, Exhibit D he alluded to the Appellant having a cutlass.
For the PW3, he testified that when they got to the scene there was an exchange of gunfire in the process of which the Appellant was shot in the leg and that the Appellant was one of those exchanging gunfire with the police (See page 59 of the Records). Given this testimony, it leaves unanswered the question of why it was stated in Exhibit C that the Appellant was arrested for house breaking and stealing. This is clearly contradictory and at variance with the story of an arrest of the Appellant at 2:00am after a gun battle with the police!
The material contradictions in the evidence adduced by the prosecution which lead to doubts as to the guilt of an accused person must be resolved in favour of the accused person. See ONONUJU v. THE STATE (2013) LPELR (2008) 1 at 26. In OGIDI v. THE STATE (2002) 9 NWLR (PT. 824) 1 at 23 – 24, contradiction was given the following meaning:
“The word ‘contradiction’ is a simple English word. It derives from two Latin words: ‘Contra’ and ‘Deco-ere-dixi-dictum’ meaning ‘to say the opposite’, hence ‘contradictum’. A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.”
A contradiction is a statement, action or fact that contradicts itself. A contradictory statement is an affirmation of the contrary of what was earlier stated or spoken. Where the contradiction is material, like in this case, it will tilt the appeal in favour of the party relying on the contradiction, in this con the Appellant. See SULE v. THE STATE (2007) LPELR (8901) 1 at 32.
From the totality of the foregoing, I must agree that the finding of the Lower Court that the prosecution established the charge of armed robbery beyond reasonable doubt is not borne out by the evidence on record. In finding the Appellant guilty of the charge of conspiracy the Lower Court held as follows on page 97 of the Records:
“This issue deals with the question of conspiracy in count one. The offence of conspiracy, as it is well known, is not easily provable by direct evidence, but by inferences drawable from evidence of the prosecution witnesses as it relates to the acts of the accused persons. In this case, the PW1 testified that there were persons who broke her window in the thick of the night, demanding money and drinks. The PW2 identified the accused person as one of those who knocked at the window of the PW1, demanded money and took drinks and cigarettes which they did not pay for. And at this time also, the PW2 said that the accused person and one Happy Idemudia were armed with short guns. I cannot help but hold that the prosecution proved the count of conspiracy to commit the offence or armed robbery against the accused person.”
It is thus clear that the Lower Court inferred conspiracy from the evidence as it relates to the offence of armed robbery. While it is trite law that conspiracy is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts: OBIAKOR v. THE STATE (2002) 36 WRN 1 at 10 and THE STATE v. OSOBA (2004) 21 WRN 113; the fact that I have found that the evidence adduced did not establish the offence of armed robbery beyond reasonable doubt, necessarily connotes that the available evidence is not of such quality that irresistibly compels to an inference being made as to the guilt of the Appellant on the conspiracy charge.
The burden on the prosecution of proving a charge beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced, no tribunal of justice would convict having regard to the nature of the evidence led. Evidence which is susceptible to doubt, discrepancy, inconsistency and contradiction as in the instant case cannot be said to have attained the standard of proof that is beyond reasonable doubt. Proof beyond reasonable doubt should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE v. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379 – 380. The doubts occasioned by the highlighted inconsistencies, contradictions and discrepancies in the case of the prosecution must be resolved in favour of the Appellant: EDET v. THE STATE (1988) LPELR (1008) 1 at 21 and ORJI v. THE STATE (2008) 10 NWLR (PT 1094) 31 at 50.
The Appellant was charged with an offence attracting capital punishment, an offence for which he had to pay the supreme price with his life upon conviction. In NWOSU v. THE STATE (1986) LPELR (2134) 1 at 21, Aniagolu, JSC dealing with the considerations that should affect the mind of a trial court when it comes to weigh the effect of evidence adduced referred to the case of EGBE v. THE KING (1950) 13 WACA 105, where a passage in the 10th Ed. of Best on Evidence was referred to that:
“The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, ‘such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.”
The persuasion of guilt from the evidence adduced in this matter clearly did not amount to a moral certainty. Therefore the conviction and sentence of death imposed on the Appellant cannot be allowed to stand. The same must be reversed. The Appeal succeeds. The judgment and orders of the Lower Court in Charge No. HCI/3C/2007 delivered on 19th June 2008 convicting the Appellant for conspiracy to commit armed robbery and armed robbery and sentencing him to death is hereby set aside. In its stead I make an order discharging and acquitting the Appellant on all counts of the charge.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the record of appeal vis-a-vis the briefs of argument of the respective learned counsel, I have no hesitation in concurring with the reasoning and conclusion reached in the leading judgment, just delivered by my learned brother the Hon. Justice U. A. Ogakwu, JCA, to the effect that the instant appeal is meritorious. Hence, I adopt the reasoning and conclusion reached in the said judgment as mine, and accordingly allow the appeal. I abide by all the consequential orders made therein.
PHILOMENA MBUA EKPE, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother U. A. Ogakwu, JCA and I agree with him that the appeal has merit and it succeeds. My learned brother has painstakingly and most admirably dealt with all the salient issues and I have indeed nothing more useful to add except to reiterate the fact that in this particular case which attract capital punishment, any nebulous issues arising therefrom must be unraveled with a deductive and almost mathematically calculative reasoning on the part of the learned forerunners of justice.
I shall however loosely refer to the case of OKEKE V. THE STATE (1999) 2 NWLR (Pt.590) 2490, 251 where the court held as follows:
“Court should not take for granted a charge of conspiracy to commit an offence, particularly a capital offence. This is so because the Charge, if proved along with the substantive capital offence will result in the extinction or termination of the life of the accused person”.
I have also found from ploughing through the record with a fine tooth comb, that the evidence adduced therein fraught with inconsistencies and contradictions does not embellish the case of the prosecution.
For this, and the much fuller reasons in the lead judgment, I too agree that this appeal is meritorious and is hereby allowed. The judgment of the lower court delivered on the 19th day of June, 2008, in charge No.HC1/3C/2007 which convicted the Appellant for conspiracy to commit Armed Robbery and armed Robbery sentencing him to death is accordingly set aside. I abide by his Lordship’s order discharging and acquitting the Appellant on all counts of the charge.
Appearances
Taiwo Kupolati, Esq.For Appellant
AND
O. F. Enenmo, Esq., Deputy Director of Public Prosecutions, Ministry of Justice, Delta StateFor Respondent