OGUCHE v. STATE (2020)

OGUCHE v. STATE

(2020)LCN/15268(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, May 18, 2020

CA/C/109C/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

SIMON UCHENNA OGUCHE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN CRIMINAL TRIALS

The law is settled that in all criminal trials, the burden of proving the guilt of an accused person rests on the prosecution which has to prove beyond reasonable doubt. See Dibie Vs State (2007) 9 NWLR (Prt 10038) 30, State Vs Gwangwan (2015) 13 NWLR (Prt 1422) 600 and Ukpong Vs State (2019) 6 NWLE (Prt 1667) 1 at 21-22. Proof beyond reasonable doubt simply means establishing the guilt of an accused person with compelling and conclusive evidence and thus proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. The expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for establishing when the prosecution has discharged the burden imposed on it by law. Thus, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt. See Nsofor Vs State (2004) 18 NWLR (Prt 905) 292, Osuagwu VS State (2013) 5 NWLR (Prt 1347) 9 NWLR (Prt 1360) 589 and Ukpong Vs State (Supra). PER SHUAIBU, J.C.A.

INGREDIENTS FOR THE OFFENCE OF ARMED ROBBERY

The appellant in the instant case was tried and convicted for armed robbery and the essential ingredients for the offence of armed robbery are: –
(a) There was a robbery or series of robbery,
(b) The robbery or each robbery was an armed robbery, and
(c) The accused was one of those who took part in the armed robbery. PER SHUAIBU, J.C.A.

CIRCUMSTANCES WHERE IDENTIFICATION PARADE WILL BE REQUIRED

Identification parade would be highly required under the following circumstance, namely: –

(a) Where the accused was not arrested at the scene and he denies taking part in the crime,
(b) The victim did not know the accused before the commission of the crime,
(c) The victim was confronted with the accused for a short time, and
(d) The victim due to time and circumstances of the incident could not have had full opportunity of observing the features of the accused.
See Nwafor Vs State (2015) LPELR – 40684. In Sadiku Vs State (2013) 11 NWLR (Prt 1364) 191 at 213, it was held that an identification parade is useful and would be essential wherever there is doubt about the ability of a witness to recognize an accused person or when the identification of the accused person is in dispute. PER SHUAIBU, J.C.A.

WHETHER OR NOT EVERY CONTRADICTION IS FATAL TO A PROSECUTION’S CASE

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross-Rivers State, sitting at Ikom Judicial Division delivered on 26th June, 2014 wherein the appellant was convicted and sentenced to death.

A summary of the facts leading to this appeal as could gleaned from the printed record shows that one Emmanuel Enya who gave evidence as PW2 was returning home on 15th March, 2012 at Iko State Housing Estate at about 10pm when his house maid came out to open the gate for him, she noticed that some people were following him and immediately drew his attention. He was however overpowered by the men, who were armed with locally made guns. The armed men took from him the sum of two hundred and fifty thousand naira, his clippers and other sundry items.

Upon noticing the presence of strange persons in the locality, the attention of PW1, the head of a local vigilante group was drawn and he in turn mobilized his men to the scene where they encountered the appellant and one Christian Isaac Okoro having confrontation over the sharing of their loot. They recovered from the appellant and his co-accused some amount of money, a pistol and battery, shaver and thereafter invited the police who effected their arrest and took them to the police station. At the police station while PW2 was trying to give his statement on the robbery incident, he saw somebody with a gun that looked like the one used to rob him the previous day. He enquired to know the owner of the gun and was informed by the police that some robbers who were outside were caught with the gun. When PW2 went outside, he recognized the appellant and his co-accused as being amongst the armed men who robbed him the previous day. The appellant and his co-accused upon seeing PW2 apologized for robbing him.

At the trial, the prosecution called three (3) witnesses and tendered the recovered items as well as the confessional statement and his co-accused. The appellant through his counsel opted not to give evidence and rested his case on that of the prosecution. Also at the end of the trial, only the prosecuting counsel adopted his final address while counsel for the appellant orally urged the lower Court to discharge the appellant. In his judgment, the learned trial judge on 26th June, 2014 convicted the appellant for the lone count of armed robbery and sentenced him along his co-accused to death by hanging.

Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court on 17th February, 2016. His initial notice of appeal contains four (4) grounds of appeal. On 23rd May, 2017, appellant amended his notice of appeal and same was deemed on 15th November, 2017. The said amended notice of appeal has four (4) grounds of appeal out of which learned counsel for the appellant has distilled two issues for the determination of this appeal. On 18th March, 2020 when this appeal was argued, learned counsel for the appellant Chijioke P. Emeka, Esq. identified and adopted the appellant’s brief of argument filed on 23rd May, 2017 but deemed on 1st November, 2017 in which the two issues for determination are: –
1. Whether the prosecution discharged the burden placed on it by law to prove the offence charged beyond reasonable doubt? (Distilled from grounds 2, 3 and 4)
2. If the charge was proved, whether in view of the quality of legal representation available to the Appellant who stood trial for a capital offence and the nature of the conduct of his offence, the Appellant’s fundamental right to a fair hearing was not contravened? (Distilled from ground 1)

Also in his brief of argument filed on 16th January, 2018, settled by Emmanuel E. Odiong, Senior State Counsel, Ministry of Justice, Cross-Rivers State, he adopts the two issues formulated by the appellant.

Proffering argument on the first issue, learned counsel for the appellant submits that the prosecution failed to discharge the burden of proof required by law to establish the offence of armed robbery. He referred to the cases of The People of Lagos State Vs Umaru (2014) 7 NWLR (Prt 1407) 584 at 609 and Agboola Vs State (2013) 11 NWLR (Prt 1366) 619 at 641 on the essential ingredients of the offence of armed robbery. He contends that from the totality of the evidence before the trial Court, there was a clear distinction between the prosecution proving that there was an armed robbery on 15th March, 2012 and establishing that it was actually the appellant who committed that robbery. Thus, the two ingredients are separate and same must not only co-exist but must be proved conjunctively.

Learned counsel further submits that there was no proper identification by PW2 of the appellant and so also the items allegedly recovered. He contended that PW2 had a fleeting glimpse of the alleged robbers as evident in an answer to a question put to him under cross-examination wherein he admitted seeing only three persons instead of four and that he could not say if his assailants were fair or dark. He referred to Bozin Vs State (1985) 2 NWLR (Prt 8) 465 at 472, Ani Vs State (2009) 16 NWLR (Prt 1168) 443 at 460, State Vs Salawu (2011) 8 NWLR (Prt 1277) 663 at 694 and Yahaya Vs State (2016) LPELR – 40254 at 37-38 to the effect that where as in the instant case, the robbery took place in the night and the witness had never known the alleged robber before the incident, for that identification evidence to be credible and relied upon same must be very positive, clear, direct and point unequivocally to the accused and no one else. And the evidence must be given by the eye witness at the earliest opportunity to forestall such evidence being given as an afterthought to implicate an innocent person. He thus faulted the findings of the trial Court for relying heavily on the evidence of PW2 to satisfy itself that the appellant indeed was one of the armed gang that robbed PW2 on that fateful night.

Respecting the appellant’s confessional statement, Exhibit 6, learned counsel submits that although a confessional statement alone can ground a conviction, the Court must be wary in taking hook, line and sinker all that is purportedly credited to the alleged. Still in argument, learned counsel submits that even where no objection was raised to the admissibility of a confessional statement, the trial Court still has a duty to evaluate it and see whether it is probable as part of the whole case, presented by the prosecution, and in doing so it is desirable to have other evidence that corroborates the said confessional statement. He referred to Lasisi Vs State (2013) 9 NWLR (Prt 1358) 74 at 107.

Learned counsel contends that the appellant had entered a plea of not guilty but the absence of legal representation deprived him the opportunity to impugn or accept the confession credited to him. This according to the learned counsel would have put the trial judge on red alert considering the facts that the offence carries a capital punishment but unfortunately, the trial Court failed to evaluate the alleged confession as a whole. Had the trial Court considered the alleged confession with the self-contradictory pieces of evidence led by the prosecution, it would have found that it was improbable and doubtful that the appellant committed the offence of which he was convicted and sentenced, concluded learned counsel for the appellant. In aid, he relied on the authorities of Shehu Vs State (2010) 8 NWLR (Prt 1195) 112 at 135 – 136, Nwosu Vs State (1986) 4 NWLR (Prt 35) 384 at 395 and the unreported judgment in Appeal No. CA/C/143c/2016: MacDonald Ita Okon Vs The State delivered on 27th April, 2017.

In response, learned counsel for the respondent submits that there was certainty and no dispute as to the identity of the appellant as one of the armed robbers who attacked PW2 on the 15th of March, 2012. That being the case, there was absolutely no need for an identification to further identify the appellant. The appellant by his confession had identified himself and therefore, there was no need for any further identification.

Learned counsel submits further that the evidence of PW1 provided enough circumstantial evidence that tied down the appellant who was caught with a locally made gun that was used to rob PW2 and he was also found with some of the money and clippers robbed from PW2. Thus, the learned trial judge was under no legal disability in admitting the appellant statement, Exhibit C and relying on it to convict the appellant as an accused can be convicted on his confession alone once it is properly proved and admitted in evidence. He referred to Emeka Vs State (2008) 4-5 SC (Prt 11) 1 and Agboola Vs State also reported in (2013) LPELR – 20652.

On the alleged discrepancies in the evidence of PW2 respecting the number of armed robbers vis-à-vis the nature of the gun used in robbing him, learned counsel submits that the substance of PW2’s evidence was not challenged during cross-examination. And where as in this case, the evidence of a witness is not inadmissible in law, uncontroverted and unchallenged, a Court of law can act on it and accept it as true version of the case it seeks to support. He referred to Okoebor Vs IGP (2003) 6 MJSC 13 at 19 and Uwaekweghinya Vs State 12 NSCQR 573 at 587 to the effect that contradictions of minor details which do not affect the substance of the issue to be decided are irrelevant.

See Nsofor Vs State (2004) 18 NWLR (Prt 905) 292, Osuagwu VS State (2013) 5 NWLR (Prt 1347) 9 NWLR (Prt 1360) 589 and Ukpong Vs State (Supra).

What is discernible from the evidence of the three prosecution witnesses are that PW2 was robbed of his money and other valuable items at a gun point on the 15th of March, 2012 at about 10pm. And soon after the robbery operation, the appellant was arrested along with his co-accused in which some of the items forceably taken from PW2 were recovered including a locally made gun. The following day and while PW2 was at the police station, the appellant and his co-accused were brought to the station wherein PW2 instantaneously identified the appellant and his co-accused as well as the locally made gun used in committing the alleged robbery.

The contention of the appellant is that the evidence of Pw2 and by the necessary implication the evidence of PW1 are not sufficient to convict him for armed robbery. In other words, the appellant was not properly identified as one who took part in the said robbery operation. Thus, identification parade was necessary in the circumstance of the case.
Identification parade is necessary in order to properly identify suspect or accused person who took part in a crime. However, accused or suspect can ordinarily be identified without the need to mount a colourful parade of suspects to a crime at any stage of investigation. Thus, whether an identification parade is necessary or not depends largely on the facts available to the investigating officer at the time of investigation and the necessity to have such a full dressed identification parade. Where as in the instant case, there is no serious issue of identity of the suspect is raised from the facts available to the investigation office, it would be absurd to embark on such a colourful exercise, just for the sake of conducting an identification parade.
Identification parade would be highly required under the following circumstance, namely: –

In an answer put to PW2 under cross-examination in relation to the identity of the appellant who was the 2nd accused at the trial Court, he responded thus:-
“The accused was there holding the gun. All the robbers had guns. The 2nd accused held a locally made pistol. It was the 1st accused person that pointed a short gun at me. I do not know whether the gun of the accused was single or double barrel gun. The gun that was brought while I was making my statement in police station was a single barrel gun.
If the accused persons were not brought to the station and the gun too, I would have been able to identify the robbers as they were not masked and the lights were on in my house and in the security points.”

It is instructive to state that the appellant proffered no evidence that discredited the testimony of PW2. It is my respectful view therefore that the evidence of PW2 clearly fixed the appellant at the scene of crime and thereby rendering identification parade unnecessary. Moreover, the appellant had in exhibit 6 confessed to have taken part in the alleged robbery.

Learned counsel for the appellant also faulted the findings of the trial Court for what he described as “heavy reliance” on Exhibit 6, the confessional statement of the appellant. He premised his argument on lack of good legal representation that led to him not having the opportunity to impugn or accept the confession credited to him.

It is well settled that a free and voluntarily confession whether judicial or extra-judicial so long as it is direct, positive and properly proved is sufficient proof of guilt and conviction could be based entirely on such evidence. It is however important that the Court should not act on the confession without first testing the truth thereof. See Jimoh Yusuf Vs The State (1976) 6 SC 167, Nwangbomu Vs The State (1994) 2 NWLR (Prt 327) 380, Kalu & Anor Vs King 14 WACA 30 and Idowu Vs The State (2000) 7 SC (Prt 11) 50 at 89.
In the present case, the appellant neither objects the admissibility of the said confessional statement nor retracted it. He simply attacked the weight attached to it by the trial Court merely on quality of the legal representation which I will in the course revert to it. The Supreme Court has however decided in plethora of authorities that a free and voluntary confession alone, properly taken, tendered and admitted proved to be true is sufficient to support a conviction. The trial judge in this case had meticulously considered the appellant’s confessional statement alongside other proven facts as demonstrated at page 61 of the printed record of appeal as follows: –
“I have carefully studied the evidence adduced by the prosecution. The evidence is in my view cogent and compelling. The accused person(s) made confessional statements I have carefully studied the confessions. They appear to me to be a corroboration of the evidence adduced by the prosecution witness.
Confessional statement is the best evidence coming from the accused persons. The prosecution is strengthened by the facts that the accused persons did not challenge the said exhibits 5 and 6, neither did they adduced contrary evidence.
The evidence of the prosecution is unchallenged. I am bound by it.
Let it be noted particularly that some of the items stolen and confessed to were indeed recovered by the police. There are the part of the money N61,000.00, the two clippers. Also received was the fire arms used in committing the offence – the gun and the cartridges.
It is therefore my view and I also hold that prosecution have proved its case beyond reasonable doubt in respect of its offence of armed robbery.”
In the light of the above, I am also satisfied that the appellant was rightly convicted on his confessional statement which was consistent with other facts which have been ascertained and proved at the trial.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the appellant also made a mountain out of a mole hill on the contradictions as to the exact number of armed robbers that robbed PW2 and whether the locally made gun used was a double or single barrel. I entirely agree with the submission of the learned counsel for the defence that the substance of the evidence of PW2 was that he was robbed by the appellant and his cohorts who were armed with locally made guns on the 15th of March, 2012 as a result of which his money and other sundry items were stolen from him.

It has long been laid down by chains of authorities that not every contradiction is fatal to the prosecution’s case save where such contradictions goes to the substance and materiality of a fact or facts in issue in the charge as to raise a doubt in the mind of the Court. See Udo Vs State (Prt 224) 471 at 479, Mallam Zakari Ahmed Vs The State (1999) 7 NWLR (Prt 672) 641 at 622, Oduneye Vs State (2001) SC (Prty 1) 1 at 15 and Iko Vs State (2001) 7 SC (Prt 11) 115 at 121.
I am therefore at one with the trial Court that the purported contradictions in this case are mere discrepancies of inconsequential nature that relate to the role played by the appellant in this case. It ought safely to have been overlooked. I would, myself reject the wobbling submissions of the learned counsel for the appellant in this regard.

Finally, on the appellant’s allusion that no vital witness gave evidence for what transpired in PW2’s house on the night of the robbery incident, the law is firmly settled that it is the sole duty of the prosecution to prove its case by calling all material witnesses. Thus, the prosecution is not bound to call all available witnesses. If the defence considers Mary and PW2’s wife as vital witnesses, nothing stops them from summoning them. The first issue is undoubtedly resolved against the appellant.

On the second issue, learned counsel for the appellant relied on Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to contend that by resting his case on the prosecution’s case, the appellant’s right to fair trial was gravely impugned. He submits that legal representation for an accused person particularly on a capital offence is not only mandatory but his counsel must exert his best to ensure that he represents the accused to the best of his ability.

Still in contention, learned counsel drew a distinction between apparent and real legal representation and thereafter submits that the failure of a defence counsel to submit a final address on behalf of appellant who stood trial for his life is a very serious issue impacting on the character and quality of the defence available to the appellant. And since he had no representation at that stage, his lawyer having absented, the learned trial judge ought to have appointed another counsel to take over his defence. He referred to Edibo Vs State (2007) 13 NWLR (Prt 1051) 306, Gabriel Vs State (1989) 5 NWLR (Prt 122) 457 and Udofia Vs The State (1988) 3 NWLR (Prt 84) 533 at 547.

On his part, learned counsel for the respondent submits that what the Constitution envisages is an opportunity to be given to address the Court before judgment is delivered in the matter where a law makes provision in favour of a person, such person can waive his right under the law and the Court is not under any duty to inquire into the reason for the person’s decision to waive or decline to exercise his right under the provisions of the law. He referred to Ariori Vs Elemo (1983) LPELR – 552 and Ezomo Vs Oyakhire (1985) 2 SC 260.

Still in argument, learned counsel submits that there is no rule of the Court that stipulates that counsel for the parties must address the Court before the Court can proceed to deliver judgment. And since counsel to the appellant had deliberately chose not to file written address, the trial Court was right in proceeding to deliver the judgment based on the available evidence adduced.

On the quality of the legal representation of the defence, learned counsel contends that counsel has authority, except he is expressly limited to call or refuse to call a witness, to decide to cross examined a witness unless his client insist on the use of questioning. Thus, counsel must be the master in the conduct of his client’s case and should not eventually be dictated to by his client as to how to conduct the case. He submits that there is nowhere the appellant in this case placed any limitation or displayed any lack of confidence in the conduct of his defence by his counsel at the trial Court. And that the appellant was given an opportunity to address the court but failed to do so.

The main complain here is that considering the quality of the defence at the trial Court, the appellant was not afforded fair trial before delving into the inefficiency or inadequacies of the said legal representation. There is no doubting the fact that the right of fair trial is a fundamental right. It lies in the procedure followed in the determination of a case as opposed to the correctness of the decision of the case. As was held in Whyte Vs C.O.P. (1966) NMLR 215 at 217, it can hardly be stated that an accused has not had a fair hearing as intended by the Constitution when the trial Court had followed the procedure laid down for such hearing and has not violated the principle of natural justice. Thus, fair hearing in relation to a trial of a case or the conduct of the proceedings with the relevant law and rule of Court. See Muhammed Vs Kano N.A (1968) 1 All NLR 427,Salu Vs Egeibon (1994) 6 NWLR (Prt 348) 23 and Muhammed Vs Olawunmi & Ors (1990) 2 NWLR (Prt 133) 458.
In the case in hand and at the end of the prosecution’s case on 15th March, 2013, counsel for the appellant and his co-accused stated that they would enter a defence on the next adjourned date. However, when the matter came up for defence on 20th and later 22nd March, 2013, defence counsel rested their case on that of the prosecution. The Court adjourned to 15th May, 2013 for adoption of addresses. The matter did not come up until over a year and precisely on 20th May, 2014. On that day, the defence counsel O. N. I. Ojong informed the Court that he wanted to look at the matter to determine the nature of the address to put in if any and hence the matter was adjourned to the 11th June, 2014 for adoption of address.
On the 11th May, 2014 when the prosecution adopted its address, counsel for the defence orally urged the Court to discharge the appellant. See pages 43 and 56 of the printed record. Subsequently, judgment was delivered on 26th June 2014 with the defence being represented by M. E. Adoni holding brief of E. E. Oji.
The above clearly shows that unlike in the case of Udo Akpan Udofia Vs The State (Supra), the appellant was throughout his trial at the lower Court represented by a counsel of his own choice who conducted the defence to the best of his ability.

The counsel first assigned to Udofia was absent for most of the days the prosecution was leading evidence while the defence in the instant case thoroughly and proficiently cross-examined all the prosecution’s witnesses. In my opinion, the defence of the appellant cannot be regarded as an affront to the principle of fair hearing enshrined in Section 36 of the Constitution and also capable of breaching the rule relating to fair trial. In Mosheshe General Marchant Ltd. VS Nigeria Steel Product Ltd cited with approval in Akanbi Vs Alao (1989) 5 SC 1 at 21-22, Eso, JSC stated thus: –
“A counsel who has been briefed and has accepted the brief and also has indicated to the Court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him. So far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster, if he consider it necessary for the conduct of his case but subject to condition by the Court. The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.”
Turning back to the complaint of inadequacies of appellant’s legal representation, same relates to the failure of the defence counsel to file final address but orally urged the trial Court to discharge the appellant. It is trite that an address of learned counsel in a trite cannot be regarded as evidence. Perhaps, it may be pertinent to state that the fact that the defence counsel did not address the trial Court is a fact well known to the accused and it is for him or his counsel to take the initiative at the earliest opportunity. And if he does not claim the right at the proper time, he may not be able to have a valid complaint afterwards for instance on appeal. The failure to address the trial Court in the circumstance can therefore not affect the validity of the judgment of the trial Court.

The appellant also complained of failure of the trial Court to consider the available defences open to him. It is certainly the law that the trial Court is not limited to considering the defence brought forward by an accused person. A trial Court is to consider all defences that could be available to an accused person from the evidence before the Court. See Gabriel Vs State (1989) 12 SC 129 at 133. The question then is, was there evidence from which any defence could be available?

I have stated elsewhere in this judgment that PW2 was an eyewitness whose evidence was strengthened by the evidence of PW1 and PW3. Likewise, the appellant in Exhibit 6 made confessional statement. Confession of an accused person to the commission of a crime plays a major part in the determination of guilt of the accused person and a Court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. The appellant in this case having rested his case on that of the prosecution did not give any indication of any defence and the learned trial judge came to the right conclusion that none was available to the appellant. I also resolved the second issue against the appellant.
In the result, I find no merit in this appeal and I dismiss it. I affirm the judgment of the trial Court.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhamed L. Shuaibu, JCA. I agree with the reasoning and conclusion in the judgment. I agree that the appeal lacks merit and ought to be dismissed.
I abide the consequential orders.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the decision reached therein. I also affirm the judgment of the trial Court.
The appeal is unmeritorious and ought to be dismissed.

Appearances:

O. P. Emeka For Appellant(s)

Emmanuel E. Odibu (Dep. DPP with him James Anijong, SC, MOJ, CRS) For Respondent(s)