OJO OLOWOJEBUDE v. THE STATE
(2018)LCN/11870(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of July, 2018
CA/EK/58C/2017
RATIO
EVIDENCE: EVIDENCE OF CONSPIRACY
“The gist of evidence of conspiracy is usually a matter of inference by the Court from the surrounding facts and circumstances. In OMOTOLA & ORS VS. THE STATE (2009) 8 ACLR PAGE 29 AT 147, The Supreme Court has this to say:
”Where more than one accused persons are accused jointly commission of a crime, it is enough to prove that they participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifestly in the execution of the common object is enough to render each of the accused persons in the group of the offence.”” PER FATIMA OMORO AKINBAMI, J.C.A.
EVALUATION:EVALUATION OF EVIDENCE
“Proper evaluation of evidence, is the most important aspect of every judgment, and once the evaluation in any given case are properly evaluated, the judgment shall stand on appeal so far no substantial injustice has been done to the Appellant. In this instant case, the trial Judge properly evaluated the evidence and he urged this Court to so hold. See the case of BASHAYA VS STATE (1998) 4 SCN, 202.” PER FATIMA OMORO AKINBAMI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY
“The essential elements of the offence of armed robbery are as follows:
1. That there was a robbery or series of robberies.
2. That each of the robbery was an armed robbery, and
3. That the accused person was one of those who robbed. See the cases of EKE V THE STATE (2011) 1-2 SC (PT. 11) 219 AT 234-235.” PER FATIMA OMORO AKINBAMI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
OJO OLOWOJEBUDE Appellant(s)
AND
THE STATE Respondent(s)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice A.K. Fowe of Ekiti State High Court, Ado Ekiti Judicial Division, delivered on 30th day of March, 2017, convicting the appellant for the offences of conspiracy and armed robbery. See: pages 92 ? 122 of the Record.
Dissatisfied with the said judgment the appellant appealed against same vide the Notice of Appeal filed on 24th April, 2017. See: pages 123 ? 125 of the Record. The said Notice of Appeal contained four (4) grounds.
FACTS
Appellant was charged together with one Fatuase Olowojebude with the offences of conspiracy and armed robbery allegedly committed on or about the 11th day of November, 2008 at about 1a.m. Appellant was said to have conspired with the said Fatuase Olowojebude to rob and did rob one Christianah Okeporume (f) of the sum of N150,000 cash and one Nokia handset valued N7,000, Mary Okeporume (f) of her multimedia handset valued N6,500 and Okeporume James (m) of his Nokia handset valued N2,500, a cash of N7,000 at their residence situate at 19 Iloro Street, Ilawe Ekiti, Ekiti State. Appellant and the said Fatuase Olowojebude are brothers of full blood and neighbours to the victims of the alleged crimes.
In proof of his case, the prosecution called five witnesses whilst the appellant gave evidence but called no witness. However, the evidence of the 2nd defendant corroborated the evidence of the appellant.
According to the prosecution, the appellant with the second defendant at the trial Court did rob Christianah Okporume (f), Mary Okporume (f) and James Okporume (m). The victims are brother and sisters. All of them resided with their parents at 19, Iloro Street Ilawe Ekiti wherein they occupied 5 bedrooms of ‘face me I face you’. The prosecution further told the Court that the victims of the said armed robbery incident and the appellant as well the second defendant were neighbours. Prosecution further stated that the appellant was armed with offensive weapons on the day of the incident namely: knife and gun.
According to Pw1, Pw2 & Pw3, they identified the appellant as the one that attacked them and dispossessed them of their valuables on the aforesaid date of incident.
The incident of armed robbery occurred at about 1a.m. on 11th November, 2008.
On the contrary, appellant gave evidence, denying the aforesaid allegation. He admitted that the victim of the offence of robbery and himself were neighbours. He testified as to how he came to the rescue of the Pw1, when her daughter had convulsion prior to the incident by administering a native herbal medicine on the Pw1’s daughter and that Pw1, thanked him for his gesture. This was on 11th November, 2008, the date of the robbery incident. That at about 11p.m of the aforesaid date, he heard another noise coming from the victims’ house which woke him up from his sleep. That he together with the second defendant rushed to the victims’ house, but was challenged on the way to the victims’ house by some boys who threatened to shoot him and the second defendant. That the aforesaid boys fired gunshots and took to their heels. That when they heard the cries of the victims, he together with the 2nd defendant, came to their rescue by opening the door leading to the victim rooms and the victims thanked them for coming at the right time. That the victim narrated to them how they were attacked by their attackers and carted away some valuables. It was the evidence of the appellant that the 2nd defendant immediately went to the Police station and lodged a complaint therein.
However, the police told the 2nd defendant there was nothing they could do that night but promised to visit the scene of the incident the following morning. That on the following day, the 2nd defendant went back to the said police station but did not return having spent over 10hours there. This prompted the appellant to ride his motorbike to the said station but the police did not allow him to enter the station. He was asked to sit under a tree in front of the station.
Suddenly, one policeman, Dominic Ovie came out of the station, according to the appellant, and met him under the tree, held his shirt and was about dragging him to the police station but he resisted him. He stated further that the said Dominic Ovie, slapped him and eventually dragged him to the station. Appellant also gave evidence that Adebowale Debo, Ayo Meye and Babawale Tunde were arrested by the Police and charged to Court in connection with the same robbery incident.
He tendered in evidence and same was marked as Exhibit D9 a certified true copy of the charge at the Chief Magistrate Court, Ado Ekiti. Similarly, he tendered in evidence his solicitor’s letter to the police and same was admitted and marked as Exhibit D10. See page 50 of the record.
The prosecution did not cross-examine the appellant on these vital pieces of evidence. Yet, the learned trial judge convicted him of the offence of conspiracy and armed robbery. See page 122 of the record. He was accordingly sentenced to death.
Dissatisfied with the said judgment he appealed to this Honourable Court. See pages 123 – 126 of the record.
The Notice of Appeal contained four (4 grounds of Appeal out of which a sole issue was formulated for determination in this appeal).
ISSUE FOR DETERMINATION
The sole issue that calls for determination in this appeal is:
Whether the prosecution proved his case beyond reasonable doubt at the trial Court to justify the conviction of the appellant by the trial Court.?
This lone issue was formulated or distilled from the four grounds of appeal in the appellant’s Notice of Appeal.
See: pages 123 – 126 of the record. Respondent’s counsel adopted Appellant’s lone issue for determination of this appeal.
Appellant’s counsel in arguing the issue for determination submitted that under the adversarial system of justice practiced in Nigeria, a defendant standing trial is presumed innocent until proved guilty, provided that if any law requires him to prove any particular fact, such law shall not be delivered invalid. See:Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) and see: 135 of the Evidence Act.
The standard of proving the guilt of a person standing trial is as provided for by Section 135(1) of the Evidence Act, which is that it should be beyond reasonable doubt, which means that within the bounds of evidence adduced, and staring the Court in the face no Tribunal of justice worth its salt would convict on it having regards to the nature of the evidence led and the law marshalled out of the case. It can be said that evidence in a criminal trial that is susceptible to doubt, cannot be said to have attained the height or standard of proof that can be said to be beyond all reasonable doubt.
Regardless of what one might think, in a given state of affairs, neither suspicions nor speculation or intuition can be a substitute for a proof beyond reasonable doubt. See: STATE v. ONYEKWU (2004) ALL FWLR (PT 221) 1388 at 1345 SC. IGABELE v. STATE (2004) 15 NWLR (pt 896) 314 at 334 (CA).
Appellant’s counsel asked whether it can be rightly said in the instant case that the prosecution proved its case beyond reasonable doubt against the appellant? Learned counsel answered in the negative. Referring to the judgment learned counsel contended that the learned trial judge, throughout the length and breadth of his Lordship’s judgment the trial Court did not set before it this standard proof. The phrase ‘Proof beyond reasonable doubt’ is no where to be found in the judgment.
Appellant’s counsel submitted that it is the case of the Appellant, before the trial Court that some three persons were arrested by the Police, in connection with the offences with which the appellant was charged before the trial Court. And this is what the appellant said before the trial Court:
”Adebowale Debo now narrated to the Police that Ayo Ameye Babawale Tunde were involved in the plan to implicate the two accused persons. The 3 i.e. Adebowale Debo, Ayo Ameye and Babawale Tunde were arrested by the police and brought to this Court. This is the certified true copy of the charge.” see: pages 49 – 50 of the Record.
Learned prosecuting counsel, O.P. Alabi vehemently opposed the admissibility of the said charge, but the learned trial judge overruled his objection and same was admitted and marked as Exhibit D9. See page 50 of the Record.
Referring to Exhibit D9 learned counsel submitted that it revealed that the trio, ADEBO ADEBOWALE, AMEYE AYO and BABATUNDE TUNDE were alleged to have conspired together to commit armed robbery, and did rob the alleged victim of crime in the same charge being prosecuted against the appellant, at the trial Court. More importantly, Exhibit D9, does not contain the phrase ‘others at large’ to suggest that the trio committed the offences with others who are at large. Unlike the 2 counts’ charge on page 2 of the Record, the phrase ‘others at large’ appeared in the two counts.
Under cross examination the appellant had this to say:-
”I do not know where Adebowale Debo, Ayo Ameye and Babawale Tunde are now. The three early (sic) mention were charged at the Magistrate Court but myself and my brother the 2nd accused are now standing trial in this Court.” see: page 51 of the Record.
Learned counsel submitted that a reasonable doubt ought to have been created in the mind of the trial Court, that the alleged offences could have been committed by the trio, and such a reasonable doubt ought to have been resolved in favour of the appellant. It is trite law that a defendant cannot be convicted of an offence committed or might have been committed by another person or persons. See:- OGUNSOWOBO & 2 ORS v. I.G.P. (1958) WRNLR 23.
Appellant’s counsel submitted that another reasonable doubt ought to have been created in the mind of the trial Court by the failure of the prosecution to inform the trial Court of the outcome of the Exhibit D9. He asked the question whether any legal advice was issued by the Director of Public Prosecutions, Ekiti State, exonerating the trio from the alleged offence? Is the charge against the trio, withdrawn by the Attorney General of Ekiti State? Is the charge still pending before another Court in the State? These facts are shrouded in secrecy by the prosecution who is constitutionally expected to place before the trial Court all defences, that are available to the appellant. That the prosecution failed in this duty. Had the trial Court adverted its mind to the failure of the prosecution to discharge this sacred duty, the trial Court’s decision would have been in favour of the appellant, failure of the trial Court in this regard had occasioned a miscarriage of justice.
Appellant’s counsel further submitted with that, the conclusion of the learned trial judge in paragraph 1, of page 121 of the Record that the three arraigned in MAD/217C/2009 in the Magistrate Court were never pursued, because the two accused persons who were identified in the robbery incident were already in the High Court for the same offence was wrongly reached with respect to the learned trial judge. There was no evidence, or material placed before the trial Court, from which the learned trial judge drew this conclusion. It is trite my law that a Court does not embark on a voyage of self discovery.
See the case of Agballah v.Nnamani (2005) all FWLR part 245 page 1052 part 1080 paragraphs G ? H.
Appellant’s counsel submitted that another area where His Lordship erred at the trial Court, is on the failure to attach probative value to the evidence of the Appellant, which evidence was unchallenged or discredited during cross-examination.
On page 47 of the Record, appellant testified thus:-
”On the 11th of November, 2008, the daughter of Pw1 had a convulsion and there was noise on the neighbour I took a native herbal concoction to her and she was attended to and she got better and the mother thanked me for this. On this same day at 11pm, there was another noise emanating from that house. I woke up the 2nd defendant to the noise and he followed me to the house. As we were about approaching the house some boys approached us and said that what are we doing here that they have not come for us…”
Under cross examination appellant reiterated his evidence in chief when he stated thus:-
”I live in Ilawe Ekiti. I have been neighbour for 2 years. I have the herbal medicine in my house as my father made it. The pw1 & pw2 are my neighbours and that is why we rendered assistance to her when they call me.”
Learned counsel submitted that what is relevant to the issue in controversy, and which has not been discredited is good, and reliable evidence and ought to be relied upon and accepted by the Court. See IMAM v. SHERIFF (2005) 4 NWLR (PT. 914) 80 at page 179, PARAS E – F.
The trial Court ought not to have attached any probative value, to the evidence of the prosecution witnesses on the alleged acts of the appellant. A reasonable doubt ought to have been created in the mind of the trial Court, on the involvement of the appellant and his brother in the armed robbery incident, considering the fact that the armed robbery incident took place, few hours after the appellant came to the rescue of the PW1, PW2 & PW3 all of whom are neighbours of two years.
Similarly, PW3 said under examination in chief at page 29 of the record that:
”All of us moved to the passage in the house some people now come (sic) into our house to rescue us. Among those who came to our houses (sic), was 1st accused person who said it must have happen by Delta man not Yoruba speaking people.”
Learned counsel submitted that PW4 Police Corporal Lijofi Oluwole, who carried out the preliminary investigation when he was serving at Nigeria Police Station Ilawe Ekiti testified that:
”On the 11th of November, 2008, one of the accused persons had come to reported (SIC) at the police station of a robbery incident states how the robbery took place in the complaint’s house.” See page 39 of the record.
The above piece of evidence coming from one of the prosecution witnesses corroborated the evidence of the appellant before the trial Court that it was his brother, the 2nd defendant that reported the armed robbery incident at the Police Station, Ilawe Ekiti. The trial Court ought to have treated the evidence of the prosecution witnesses with caution. Its failure in this regard has occasioned a miscarriage of justice.
Appellant’s counsel finally submitted that the prosecution failed woefully to prove the alleged offences against the appellant beyond reasonable doubt.
He urged this Honourable Court to allow the appeal, set aside the judgment of the trial Court, and return a discharged and acquitted verdict in favour of the appellant in view of the several reasonable doubts that existed in the case of the prosecution.
The Respondent’s learned counsel in his Reply referred to the fact that the Appellant in this appeal was charged and arraigned before the trial Court for a 2 count charge of conspiracy and armed robbery. At the close of trial, he was found guilty of conspiracy to commit armed robbery, and armed robbery and was accordingly sentenced to death by hanging. The Appellant not satisfied with his conviction by the trial Court appealed to this Honourable Court.
The Appellant in his notice of appeal filed on the 24th day of April, 2017 raised 4 grounds of appeal.
Respondent’s counsel gave the background facts of this case which l had earlier stated in this judgment.
”WHETHER THE PROSECUTION PROVED HIS CASE BEYOND REASONABLE DOUBT AT THE TRIAL COURT TO JUSTIFY THE CONVICTION OF THE APPELLANT.”
In arguing the issue, Respondent’s counsel submitted that the Respondent is not oblivious of the fact that the onus of proving its case beyond reasonable doubt in every criminal trial lies always on the Prosecution.
Flowing from the above, it is the Respondent’s conclusion that from the facts on the face of the record of the trial Court, the Respondent fulfilled the standard of proof both evidential and factual as placed on the Prosecution, by the 1999 Constitution of the Federal Republic of Nigeria (as Amended) upon which any criminal conviction would be grounded.
This Honourable Court has decided in plethora of cases the duty of proving beyond reasonable doubt expected of the prosecution, in those cases, the doubt my must be such doubt that is arising from some evidence, and not from the imagination, conjecture or inference not supported by evidence. Respondent’s counsel most referred to the case of OLALEKAN VS. STATE (2001) 18 NWLR (PT. 476) 822.
He submitted that the trial Court was right in convicting the Appellant, the Respondent having adduced sufficient evidence to establish the ingredients of conspiracy to commit armed robbery and armed robbery.
Respondent’s counsel further submitted that the most important ingredients of conspiracy lie in the bare agreement and association to do an unlawful act. It does not matter whether the accused person had knowledge of its unlawfulness. The conspirators do not even need to be in direct communication with each other in respect of the offence. In ascertaining that agreement, direct evidence is not indispensable. A Court can infer from the criminal acts of the parties including evidence of complicity. SeeBOLAJI VS. THE STATE (2010) ALL FWLR (PT. 534) 10.
Respondents counsel submitted that the Court below rightly inferred conspiracy from the oral testimony of DW2, as can be seen in the record at page 60 lines 8-11. At the said page, DW2 stated as follows:
”…November 11th, 2008, I was at Aramoko as a herbalist, there is a Chieftaincy title…… and after the ceremony the 1st accused person called me around 1.00am that a child had convulsion and needs help.”
Respondent’s counsel submitted that it is settled law that in most charges of conspiracy, nobody except the conspirators themselves can give direct and positive evidence of agreement. SeeAMINU TANKO VS THE STATE (2008) 16 NWLR (PT. 114) 597 @ 638.
The gist of evidence of conspiracy is usually a matter of inference by the Court from the surrounding facts and circumstances. In OMOTOLA & ORS VS. THE STATE (2009) 8 ACLR PAGE 29 AT 147, The Supreme Court has this to say:
”Where more than one accused persons are accused jointly commission of a crime, it is enough to prove that they participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifestly in the execution of the common object is enough to render each of the accused persons in the group of the offence.”
It was submitted by Respondents counsel that in the instance appeal, the Appellant, in his evidence in chief to the Court below gave direct and positive evidence from where the Court can infer evidence of agreement.
Respondent’s counsel submitted that by virtue of Section 138 (1) of the Evidence Act, the prosecution has the burden of proving the alleged offence against the accused person beyond reasonable doubt and same has been discharged in this case by the Respondent and he urged this Court to so hold.
On the issue raised by the Appellant’s Counsel, regarding the proof of the Appellant’s guilt beyond reasonable doubt, counsel submitted that proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of pro per, Olabode Rhodes-Victor JSC, in the case of NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) PAGE 170. See also, ADEWUNMI VS. STATE (2016) LPELR- 40106 (SC).
Respondent’s counsel submitted that, the golden thread rule that a crime is to be proved beyond reasonable doubt, was postulated within the realm of reason. Put differently, the refrain, ”proof beyond reasonable doubt” must not be stretched beyond reasonable doubt otherwise it will cleave. The proof beyond reasonable only be applied rightly in deserving cases. See the case of OKOROJI Vs STATE (2001) FWLR (Pt. 77) PAGE 871 AT PAGES 894 – 895.
Respondent’s counsel on whether the offence of armed robbery was established against the Appellant, as rightly decided by the learned trial judge, submitted that it is beyond any controversy that the elements of the offence of armed robberies are as follows:
(a) That there was robbery.
(b) That the robbers were armed with offensive weapons.
(c) That the accused persons participated in the robbery.
See the case of OLAYINKA VS STATE (2007) 9 NWLR (PT. 1040) 575 and SOWEMIMO VS THE STATE (2011) ALL FWLR (PT. 599) AT 1064.
Respondent’s counsel reiterated the fact that the Prosecution at the trial Court proved its case by employing one of the methods stated above in proving the guilt of the Appellant i.e. through an eye witness account.
Consequently, in establishing the first ingredient, that there was a robbery, PW1, PW2 and PW3 were consistent in their evidence that there was a robbery in the house of PW1, PW2 and PW3 in the night of 11th day of November, 2008 and this was never denied by the Appellant.
The Prosecution also equally called direct eye-witness, to establish the second ingredient i.e. that the robbery was an armed robbery attack. PW1 was unequivocal in her testimony that the robbers were armed with gun, axe, knife and wooden stick when they invaded her place.
On the third ingredient, that is, whether the Appellant was one of the robbers who took part in the robbery, the PW1, PW2 and PW3 gave evidence of the Appellant’s involvement in the armed robbery incident. The evidence of PW1, was damning, overwhelming, and uncontroverted as to the involvement of the Appellant, and her evidence was corroborated by the evidence of PW2, and PW3. For instance, the PW1 at page 9 lines 9-15 of the record, stated as follows:
”… I woke up in my own and the 1st accused person (the Appellant) came over to our room and knocked the lantern there destroying it and said 1st accused person asked us to face down with my mother. He (i.e. the Appellant) picked me up and started beating me with the stick/or log in my arms demanding for money from me which my mother said there was no money. He replied that he know we have money from the sale we recovered in our clothing materials because he sees us during their sales.”
The evidence of PW1 was further corroborated by PW2, at page 19 of the record as to whom they saw on the night of the incident. PW2 page 19 lines 19- of the record stated as follows:
”…there was a lantern which illumination was turned up by Mary (i.e. PW1) to brighten the room, it was then the 1st accused person (i.e. the Appellant) slammed on me a wooden axe at the same time was demanding for money..”
Evidence of PW3, one Okporume James was more damning in linking the Appellant to the commission of crime. At page 28 lines 6-12 stated thus:
”…Ojo Olowojebude, the 1st accused person came into my room. I recognize him because he started knocking me with cocoa stick. The room was illuminated with local lantern as there was no electricity…”
At page 28 lines 19 of the record, the PW3 went further to say thus:
”The 1st accused person later came back into our room with all of us crying then lucky Okporume tried to mention the 1st accused person’s name but his mouth was covered by the 1st accused person preventing him from pronouncing the name.” (The underline mine).
The evidence of PW1, PW2 and PW3 were not challenged nor discredited throughout cross examination. The law is long settled that, the effect of failure to cross examine a witness upon a particular matter is stated to be a tacit, acceptance of truth of the witness’s evidence.
Further to the above, Ayoola (JSC) (as he then was) in the case of OFORLETE VS STATE (2003) 3 NSCQCR 243 AT 260 while citing HART (1932) 23CR APP. 202 as authority has this to say:
”a party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credit by calling other witness tacitly accepts the truth of the witness’s evidence in chief on that matter. And will not thereafter be entitled to invite the jury to disbelieve him in that regard. The proper cause is to challenge the witness while he is in the witness box or at any rate, to make it plain to him at that stage that his evidence is not accepted.”
The argument of the Appellant’s Counsel as to the real culprit, will not hold water because the cogent, unequivocal and direct evidence of PW1, PW2 and PW3 effectively fixed the Appellant and his partner in crime, to the scene of the crime on the 11th November, 2008.
Respondent’s counsel therefore submitted that the Court below was right when it held at page 121, of the record as follows:
”The voice of the 2nd accused was recognized by the 1st and 2nd PW as they are neighbours. The 2nd accused was in the room and prevented James Okporume from moving out of that room when the 1st accused left for the room of the 1st and 2nd Complainant to continue his activities in the robbery incident.”
Respondent’s counsel submitted that nothing incriminating was found in the premises of the Appellant, will not be an excuse to exonerate the Appellant, in view of the eye witness accounts of PW1, PW2 and PW3 regarding the dangerous weapons the Appellant wielded that very day. Besides, it is not in all criminal cases that incriminating objects or weapons will be found in the premises of an accused person, since they might have kept it in a safe place. See:OLAYINKA VS STATE (2007) 9 NWLR (PT. 1040) 575 PARA D-F. See also OLAYINKA VS. STATE (SUPRA).
The appellant’s Counsel made heavy weather about three other persons who he said, were arrested by the Police in connection with the offences with which the Appellant, was charged with, Respondents counsel submitted that the argument of his learned friend is misconceived and cannot hold water.
The Police may arrest any number of persons in the cause of investigating a crime, but once investigation is concluded and the case file is forwarded to the Director of Public Prosecution’s office for legal advice, it is the facts in the case file that will reveal the culpability or otherwise of any of the persons so arrested in connection with the case.
Quite apart from the above, the Appellant was convincingly fixed to the commission of the crime to the extent that the issue of real perpetrator of the dastardly act did not arise and neither will identification parade as to the real culprit be necessary.
Further to the above, learned counsel submitted that Sections 74 and 264 of the Administration of Criminal Justice of Ekiti State, 2014 clearly empower the Director of Public Prosecutions to appraise a case file forwarded to his office by the Police and equally issue legal advice before prosecuting any suspect that a prima facia case has been established against. See the cases of IBEZIAKOR Vs COP (1963) NWLR AT 98 and LUFADEJU VS. EVAN (2007) SCJ.
The mere fact that the three people mentioned by the Appellant’s Counsel were arrested and arraigned in Magistrate Court was not a conclusive proof or indication that the DPP, must compulsorily find them liable of the charge they were alleged to have committed by the Police.
It is a notorious fact that when a suspect is arrested in connection with an alleged crime, and such suspect is taken to Magistrate Court, it is the duty of the Director of Public Prosecution to determine (based on the available facts in the case file sent to him by the Police) whether such a suspect has case to answer or not.
Respondent’s counsel agreed that a party is not bound to call a host of witnesses. He submitted that a party is bound to call a witness that is material to his case. The Appellant throughout his defence never called any witness to buttress his assertion, that others and not he was responsible for the armed robbery attack, despite the overwhelming evidence of Prosecution witnesses 1-3. See: AFOLALU VS STATE (2010) 96 NWLR (PT. 1220) 584 @ 613.
Flowing from the above, counsel submitted that the Appellant had opportunity of calling Chief Iloro, Chief Olorisa and Kayode Ceremony whom he claimed were all at the house of the Victims together with him, to sympathize after the incident. If anything, the only thing that can only be inferred from this is that the Appellant knew that their evidence will not be favourable to him.
Learned counsel submitted that the Appellant’s failure to call the above mentioned persons is at variance with SECTION 167(D) of the EVIDENCE ACT CAP. E14 LFN, 2011 and he urge this Court to so hold.
As regards the submission of the Applicant’s Counsel in Paragraph 3.12, respondent?s counsel submitted that the contradiction in the evidence of the Appellant with that of the DW2 renders same valueless. My Lords, whilst the Appellant claimed they went to the house of the PW2, the morning to administer convulsion concoction and again later went there at 11pm, DW2 , claimed to be away at Aramoko-Ekiti and only went to PW2 in the night at 1.00am. See pages 47 and 60 of the record and with the kind permission of the Court, same is hereunder reproduced.
At page 47 lines 9-14 of the record, DW1 (i.e. the Appellant) stated as follows:
”The daughter of PW1, had a convulsion and there was noise in the neighbour, I took a native herbal concoction to her and she was attended to and she got better… on this same day at 11pm, there was another noise emanating from that house.”
While DW1 (i.e. Appellant) claimed he went there twice. First, in the morning time and later called DW2, at 11pm, DW2 claimed DW1 i.e. Appellant called him 1.00am. Therefore, the trial Court was right in holding, that it was obvious that the three arraigned in MAD/217C/2009 in Magistrate (Court), were never pursued as the two accused persons who were identified in the robbery incident are already in the High Court for same offence.
The evidence of PW1, PW2 and PW3 linking the Appellant with the commission of the crime were very cogent, unequivocal and direct as to whom they saw on the fateful night. The defence of the Appellant linking the Armed Robbery to any other person is a mere distraction of the Court. He submitted that evidence of a solitary witness, if believed can establish a case. See the case of BAZIL AKALOZI VS THE STATE (1992) 2 SCNJ 19.
In the instant case, PW1 gave a detailed account of the Appellant?s involvement in the incident and same was corroborated by the evidence of PW2, and PW3, in their evidence in chief, and even during cross examination. Unlike the Appellant, PW1, PW2, and PW3, never contradicted themselves as to the role played by Appellant in the Armed Robbery incident. The defence of the Appellant, as to whether the offence was committed by the three persons, under reference is nothing but a diversionary antic.
The counsel to the Appellant made heavy weather, on the fact that the trial Court did not say that, the prosecution has proved its case beyond reasonable doubt before convicting the Appellant and his partner in crime. He submitted that this is not the law.
In addition to the above, SECTION 275 of the Administration of Criminal Justice Laws of Ekiti State, 2014 provides that the Judge or Magistrate shall record his judgment in writing, and same shall contain the points for determination the decision and reason for the decision and shall be dated and signed by the judge at the time of signing it. It is obvious that, there is no requirement that a Judge must state in his judgment that the prosecution, has proved its case beyond reasonable doubt, before convicting the appellant.
Proper evaluation of evidence, is the most important aspect of every judgment, and once the evaluation in any given case are properly evaluated, the judgment shall stand on appeal so far no substantial injustice has been done to the Appellant. In this instant case, the trial Judge properly evaluated the evidence and he urged this Court to so hold. See the case of BASHAYA VS STATE (1998) 4 SCN, 202.
Besides, the trial Court reiterated this phrase at the beginning of his appraisal of the evidence in page 119 of the record when he said ‘before the prosecution can secure a conviction, the prosecution must prove its case beyond reasonable doubt and the three essential ingredients of Armed Robbery’. For ease of reference, the said page is herein reproduced under:
”…it is now firmly established that to secure a conviction for armed robbery, the prosecution must prove its case beyond reasonable doubt the three essential ingredients of the offence of armed robbery.”
The trial Court having first said the above wouldn’t have convicted the Appellant if it had not been convinced that the prosecution has proved its case beyond reasonable doubt all the ingredients of the offence.
Respondents counsel urged the Court to hold that the lower Court rightly convicted the Appellant, the prosecution having passed the test of proving the three ingredients of armed robbery against the Appellant.
He therefore urged this Court to dismiss this appeal as lacking in merit and affirm the findings of the trial Court.
Appellant’s counsel in the Reply brief, referred to paragraph 3:18 of the respondent’s brief of argument, wherein respondent submitted albeit wrongly with respect to the learned counsel to the respondent that the evidence of PW1, was as damning, overwhelming and uncontroverted, as to the involvement of the Appellant in the robbery incident, and same was corroborated by PW2 and PW3. Counsel submitted that the evidence of PW1, PW2 and PW3, were not consistent. PW1, said under examination that she was sleeping in her room with her mother at No. 25, Iloro Street, Ilawe Ekiti, on the 11th November, 2008 when the purported incident happened whereas on the information sheet, the incident happened at No. 19, Iloro Street, Ilawe Ekiti. See pages 2 and 8 of the record.
PW1 equally said under cross-examination that she did not know No. 19, Iloro Street, Ilawe Ekiti. She further said thus under cross-examination:
”When neighbours came following the alarm raised and I was asked whether I know those robbers who attacked us. I said no, I do not know them.” See page 11 of the record.
Whereas she has earlier said that it was appellant that robbed them. What a sharp contradiction! See pages 9, 10 & 11 of the record.
In her statement to the Police she referred to those who robbed them as Ogun and Ojo. See page 17 of the record and Exhibit P1.
PW2, said under Examination in chief that some people entered, broke down the door leading to her room contrary to the evidence of PW1, who said only appellant entered her room. See pages 18 and 19 of the record.
PW2 equally stated under Examination in chief thus: ”these intruders now opened this door to my room where there was a lantern which illumination was turned up by Mary (PW1) to brighten the room contrary to the evidence of PW1 who said 1st accused (appellant) came over to our room and knocked the lantern there destroying it.” See pages 9 and 19 of the record.
PW2 stated thus under examination in chief: ”just as we were at the Police Station, the two accused persons came voluntarily to the Police station.” See page 21 of the record.
PW3 stated thus under examination in chief: ”All of us moved to the passage in the house. Some people now came into our house to rescue us. Among those who came to our house was 1st accused person who said it must have happened by a Delta man not Yoruba speaking people.” See pages 29 of the record.
This piece of evidence by PW3, has done an incalculable injury to the case of the prosecution. This is because one wonders how possible it is for a person to rob a victim, and come back again immediately to rescue the same victim, and the victim could not raise alarm telling people that this was the person that robbed him/her.
Appellant’s counsel then submitted that, it is evident that the evidence of PW1, PW2 and PW3 supra are contradictory and irreconcilable yet the trial Judge still went ahead to sentence the appellant to death.
It is trite that where two or more witnesses testify in a criminal prosecution, and the testimonies of such witnesses are contradictory and irreconcilable, it would be illegal to accept and believe the evidence of such witnesses. See Agbo V. State (2006) 6 NWLR part 977 page 545 at 564 paras B – C. He urged this Court to so hold.
The apex Court had this to say in the case of Agbo v. State supra at 564 para F ”where there are contradictions in the evidence of the prosecution witness or witnesses, the Court must make a finding in relation to the contradictions. If the trial Court fails to do so, the conviction of the accused person may be vitiated.”
The apex Court was right when it held in the case of IKEMSON V. THE STATE (1998) 1 ACLR page 80 at 90 that ”if there are contradictions in the evidence of the prosecution and the contradictions go materially to the charge, doubt will be created and benefit of it must be given the accused person in which case he will be discharged.”
Appellant’s counsel, submitted that a reasonable doubt can be deduced from the evidence of PW1, PW2 and PW3 about the involvement of the appellant in the purported armed robbery, and if the trial Judge had taken this into special consideration, he should had arrived at a different verdict and this has occasioned a miscarriage of justice.
It is trite that where on the totality of the evidence in a criminal case, there is reasonable doubt about the guilt of the accused person, the doubt should be resolved in his favour. See Edoho V. State (2004) 4 NWLR part 865 page 17 at 51 paras G – H.
In paragraphs 3.30 to 3.32, the learned counsel for the respondent submitted that appellant ought to have called witnesses to corroborate his defence. The learned counsel to the Respondent, that submission is of no moment. This is because it is trite, that the commission of a crime by a person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution, and it never shifts. If on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by the law, and the accused is entitled to an acquittal. See Igabele v. State (2006) 6 NWLR part 975 page 100 at 127 paras E – H and Amadi V. FGN (2009) All FWLR part 462 page 1103 at 1121 paras C – D.
Section 167 (D) of the Evidence Act cap. E 14 LFN 5 2011 cited by the learned counsel to the respondent was cited out of con. He urged this Court to discountenance same.
Appellant’s counsel referred to, the learned counsel to paragraph 3:35 that that trial Court was right in holding that it was obvious that the three persons arraigned MAD/217/2009 in Magistrate Court were never pursued as the two accused persons who were identified in the robbery incident were already in the High Court for same offence.
That the holding of the trial Judge in this regard is wrong. This is because the prosecution kept silent throughout in respect of the three that were arraigned at the Magistrate Court. The prosecution even objected to the admissibility of the charge sheet of the three that were arraigned, at the Magistrate Court in respect of the same offence which the appellant and his brother were alleged to have committed. The apex Court held in the case of Bello v. State (1998) 1 ACLR page 156 at 167 that ”We cannot do better than reminding counsel that it is the duty of the prosecution to put all facts at its disposal before the Court and not to hide fact. Anything short of this is an attempt to conceal from the Court any evidence favourable to the accused…” He urged this Court to so hold.
What happened to the three that were charged at the Magistrate Court of the same offence, which the appellant and his brother were alleged was not brought to the notice of the trial Court, by the prosecution. To this note, the trial Court ought not to have pronounced on that issue. It is trite that in considering whether or not there was a prima facie case against the appellant, the Court is bound to confine itself to the evidence strictly so called, tendered in Court. See Mohammed V. State (2008) 19 WRN page 1 at 10 lines 10 – 15.
It was held in the case ofIgabele v. State supra at page 119 paras F – G. That ”the Court should not speculate on evidence. A Court is only entitled to rely on the evidence presented before it and not on speculations.”
Counsel urged this Court to so hold.
Finally Appellant’s counsel submitted, that the prosecution failed woefully to prove the alleged offences against the Appellant beyond reasonable doubt.
He urged this Court to allow the appeal, set aside the Judgment of the trial Court and return a discharged and acquitted verdict in favour of the appellant in view of the various reasonable doubts and contradictions that existed in the case of the prosecution.
RESOLUTION OF APPEAL
The offence for which the Appellant was charged, tried and convicted by the lower Court was armed robbery. Simply defined, it means no more than stealing, in addition to the use of violence, actual or threatened. See the case of ARUNA V THE STATE (1990) 9-10 SC. 87; AMINU TANKO V THE STATE (2009) 1-2 SC. (PT 1) 198 AT 223 and a host of other decisions of Court on the subject matter.
The pertinent question to address at this stage is whether the offence of armed robbery was established by credible evidence to the satisfaction of the trial Court or not. The responsibility of proving or establishing the charge against an accused person in a criminal trial remains with the prosecution, and this he must discharge beyond reasonable doubt. It must also be added that this onus or burden does not shift. See the cases of AHMED V THE STATE (2003) 3 ACLR 145 AT 177; ANAEKWE V THE STATE (1998) ACLR 426 AT 433; OBIAKOR V THE STATE (2002) 6 SCNJ 193 and a host of other decided cases on the subject.
It is the contention of the Respondent that the prosecution discharged the burden of proof placed on it by law, through the evidence of the prosecution witnesses on record, and as such the Appellant was properly convicted and sentenced by the lower Court.
The Appellant on the other hand had contended inter alia that the Prosecution did not place him firmly at the Locus Criminis in the face of discrepancies and conflicts in the evidence of prosecution witnesses.
The essential elements of the offence of armed robbery are as follows:
1. That there was a robbery or series of robberies.
2. That each of the robbery was an armed robbery, and
3. That the accused person was one of those who robbed. See the cases of EKE V THE STATE (2011) 1-2 SC (PT. 11) 219 AT 234-235.
The evidence of the PW1, PW2, PW3 are instructive in this regard. The evidence of the PW1 of the 23-5-11 contained on page 8- 12 of the record of appeal.
She testified that she lives at No 25 Iloro Street. The charge sheet stated that PW1, was robbed at No 19 Iloro Street. There is doubt created by the discrepancy in the address on the charge sheet and the address given by PW1. One is left to wonder at what exact address the armed robbery took place. PW1, on 11th November, 2008, on page 11 under cross examination stated that she did not know No 19, lloro Street, llawe Ekiti. PW1, stated under cross examination:
”When neighbors came following the alarm raised, and l was asked whether l knew those robbers who attacked us. I said no, l did not know them.” See page 11 of the record of appeal.
Whereas she had earlier stated that it was appellant that robbed them. PW1, evidence is one that creates a doubt in the mind of any Court. What is the Court to believe? It is pertinent for the Court to be sure whether the appellant was at the scene of robbery or not. On page 17 of the record, PW1, in her statement to the Police, referred to those who robbed them as Ogun and Ojo. In Exhibit P1, ?In that statement, l made mention of Ogun and Ojo. In that statement, l was referring to the two accused persons.?
PW2 on page 18 and 19 of the record of appeal stated in that people entered broke down the door leading to her room contrary to the evidence of PW1, who said only appellant entered her room.
PW2, equally stated that:
”those intruders now opened this door to my room where there was a lantern which illumination was turned up by Mary PW1, to brighten the room, contrary to the evidence of PW1, who said 1st accused (appellant) came over to our room and knocked the lantern there destroying it.”
On page 21 of the record, under cross examination, PW2, stated ”just as we were at the police station, the two accused persons came voluntarily to the Police Station.”
PW3, on page 29 of the record; All of us moved to the passage in the house. Some people now came into our house to rescue us. Among those who came to our house was 1st accused person who said it must have happened by a Delta man not Yoruba speaking people.
This piece of evidence of PW3, did incalculable injury to the case of the prosecution. This is because if the appellant after robbing the PW1, PW2, and PW3 who recognized him during the armed robbery, went back to sympathize with his victims, they ought to have raised alarm since there were other people now present.
The position of the law has always been that minor variation in the evidence of witnesses are not enough to destroy the credibility of the witnesses. A contradiction is usually said to have occurred when two pieces of evidence are by themselves inconsistent. This must be distinguished from a discrepancy which will usually occur when when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor differences in details.
The evidence of the appellant given in defence of the charge was the usual defence of denials in all such related cases. He said he went to the house of the victims to administer medication the first time. Later he went back to the house of the victims to rescue them after they were robbed.
The contention of Appellant’s counsel is that the Prosecution failed to establish the offence of armed robbery against the appellant as none of the elements of armed robbery were established against the Appellant. I share the Appellant’s counsels views.
There is contradiction in the evidence of PW1, PW2, and PW3. PW1 categorically denied knowing No. 19 llawe Street. There is no consistency in the evidence of PW1, PW2 and PW3 as to what actually happened on the night of the alleged robbery.
Proof beyond reasonable doubt as DENNING J., (as he then was) observed in the cases of MILLER V MINISTER OF PENSIONS (1947) 2 All E.R 373;
”The law would fail to protect the community if it admits fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his Favour which can be dismissed with the sentence- “Of course it is possible but not in the least probable”, the case if proved beyond reasonable doubt.”
In the case of MUFUTAU BAKARE V THE STATE (1987) LPELR 714 (SC); Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged.
Absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt means just what it says. It does not admit of a high degree of cogency, consistent with an equally high degree of probability.
Although the onus to prove the commission of a crime beyond reasonable doubt resides with the prosecution and does not shift, same will undoubtedly shift unto the accused person where the prosecution is said to have established same to the satisfaction of the trial Court. In the instant case, the prosecution having failed to discharge the burden placed on it by law, the burden of proving reasonable doubt cannot shift to the Appellant, who through his defence counsel submitted that the evidence of the prosecution witnesses were contradictory.
The position of the law has always been that minor variations in the evidence of witnesses are not enough to destroy the credibility of the witnesses. A contradiction is usually said to have occurred when two pieces of evidence are by themselves inconsistent. This must be distinguished from a discrepancy which will usually occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says, or contains some minor differences in details.
Generally the law looks at these two different situations differently. Where a witness for instance, gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable. But where there are minor discrepancies between a previous written statement and a subsequent oral testimony, this will not destroy credibility of the witness. See the cases of GABRIEL V THE STATE (1989) 5NWLR (PT. 122) 475; OGOALA V THE STATE (1991)2 NWLR (PT. 175) 509 AT 534; ASARIYU V THE STATE (1987) 4 NWLR (PT. 67) 709; ASANYA V STATE (1991) 3 NWLR (PT. 180) 422 and a host of other decisions of the Court on the subject.
It cannot therefore, in the circumstance of this case find any plausible reason not to fault the findings of the learned trial judge, who at page 121 of the record held:
”The Court holds that the 2nd accused after receiving a call from the 1st accused to come from Aramoko to join him in llawe in the commission of the crime. The voice of the 2nd accused was recognized by the 1st and 2nd PW as they are neighbors. The 2nd accused was in the room and prevented James Okporume from moving out of that room when the 1st accused left for the room of the 1st and 2nd complainants to continue his activities in the robbery incident.”
In this instant case, the contradictions are quite grave and go to the root of the alleged offence of armed robbery. I am therefore not in agreement with the findings and conclusions reached by the learned trial judge in this judgment. I have hesitation in my mind in upholding the learned trial judges appraisal and findings in this case. To this end, the appeal succeeds and it is upheld. The judgment of the High Court of Ekiti State delivered in Suit No HAD/8C/2010 on the 30th day of March 2017 is hereby set aside.
The Appellant is discharged and acquitted.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had read in draft the judgment just delivered by my learned brother, F.O Akinbami, JCA and I agree with his reasoning and conclusions. The appeal succeeds and it is upheld.
The judgment of the High Court of Ekiti State delivered in suit No. HAD/8C/2010 on the 30th day March, 2017 is hereby set aside.
The Appellant is discharged and acquitted.
PAUL OBI ELECHI, J.C.A.: I agree.
Appearances:
Ade Adewumi, Esq. with him, L. A. Fasanmi,Esq. and Oyebola Babalola, Esq.For Appellant(s)
L. B. Ojo, Esq. (Solicitors General and Permanent Secretary Ekiti State) with him, I. J. Adelusi, Esq.For Respondent(s)
