OKON v. STATE (2020)

OKON v. STATE

(2020)LCN/15439(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/C/267C/2016

RATIO

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF CONSPIRACY

CRIMINAL PROCEEDING: CRIMINAL LAW: MEANS TO PROVE A CASE BEYOND REASONABLE DOUBT

It has been held numerously, that a case can be proved beyond reasonable doubt through any or all of the following:
i. Direct eye witness account.
ii. Confessional statement of the accused person which is direct and positive.
iii. Circumstantial evidence from which the quilt of the accused person can be inferred. See Olaoye vs. The State (2018) LPELR-43601 (SC), Kamila vs. The State (2018) LPELR – 43603 (SC), Manu vs. The State (2019) LPELR – 47744 (CA).

WORDS AND PHRASES: “TAINTED WITNESS”

A tainted witness has been held to be that person who may be strictly an accomplice, but is a witness with some purpose of his own to serve. The phrase tainted therefore connotes either of the following;
i. A witness who is by evidence an accomplice in the offence charged; or
ii. A person who may be regarded on the evidence as having some purpose of his own to serve. See Ezeuko vs. State (2016) ALL FWLR (pt. 831) 1529 @ 1564.
Also in Itu vs. The State (2016) LPELR – 26063 (SC), the Apex Court described a tainted witness as:
“My understanding of a tainted witness is that he is one witness who is an accomplice or by the evidence he gives whether for the prosecution or for the defence may and could be regarded as having some purpose of his own to serve”. PER HAMMA AKAWU BARKA, J.C.A.

EVIDENCE: EFFECT OF MATERIAL CONTRADICTIONS OR INCONSISTENCIES IN THE EVIDENCE OF PROSECUTION WITNESSES

The law is positioned to the effect that even though contradictions or inconsistencies in the evidence of prosecution witnesses material to the proof of the ingredients of the offence are fatal, see Atiku vs. The State (2010) 9 NWLR (pt. 1199) 241, the law is equally settled that only material contradictions or inconsistencies in the prosecution case, can lead to the Court resolving the issue in favour of the accused person and therefore not on minor or inconsequential contradictions or irrelevant issues. The authorities in support of this legal principle are legion: Igbo vs. The State (1975) 9-11 SC 129, Akpabio vs. State (1994) 7NWLR (pt. 359) 635, Onubogu vs. State (1974) 9 SC 1, Buba vs. State (1994) 7NWLR (pt. 355) 703, State vs. Musa (2020) 2NWLR (pt. 1709) 499 @ 538.
On what is material evidence, the Apex Court in Saraki vs. FRN (2018) 16 NWLR (pt. 1646) 405 @ 449, through the mouth of Nweze JSC, are heard to say that:
“Material Evidence which on account of its logical nexus with the issue, tends to influence decisively the establishment of the fact in issue, Audu vs. State (2003) 7NWLR (pt. 820) 516, Nnolim vs. The State (1993) 3NWLR (pt. 283) 569, Ikemson vs. The State (1989) 3NWLR (pt. 110) 455, Esangbedo vs. The State (1989) 4NWLR (pt. 113) 57 @ 83. Such is its cogency that the failure to call material evidence would be fatal to the prosecution’s case.” PER HAMMA AKAWU BARKA, J.C.A.

CRIMINAL LAW: INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

In establishing the offence of Armed Robbery, the prosecution is duty bound to prove the following ingredients of the offence:
i. That there was a robbery or series of robbery incidents.
ii. That the robbers or any of the robbers was armed with offensive weapon.
iii. That the accused person or persons were the ones responsible for committing the offence.
See. Bozin vs. The State (1986) 7 SC reprint 276, State vs. Bello (1989) 1 CLRN 370, Awosika vs. State (2019) All FNLR (Pt. 995) 719 @ 754. The elements of the offence must be proved beyond reasonable doubt, for where any doubt exists as to the guilt of the accused person, that doubt must be exercised in favour of the accused person. Woolmington vs. Dpp (1935) AC. 462, Uche vs. The State (2015) 4-5 SC (Pt. 11) 140, Awosika vs. The State (supra) @ 754 – 755.
This principle of the law is in tune with the operation of presumption of innocence enjoyed by an accused person by virtue of the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999), as amended. PER HAMMA AKAWU BARKA, J.C.A.

CRIMINAL PROCEEDING: BURDEN OF PROOF

It is basic that the burden of proving that any person is guilty of the commission of a crime is upon the prosecution, and that burden must be proved beyond reasonable doubt. See Section 135 (1) and (2) of the Evidence Act (2011) and the case of Emeka vs. The State (2019) 8 NWLR (Pt. 1673) 159 @ 167 – 168, Paul vs. The State (2019) 12 NWLR (Pt. 1685) 54 @71, State vs. Musa (2020) 2 NWLR (Pt. 1709) 499 @ 529. The connotation therein is not that prosecution is bound to in proving its case beyond any shadow of doubt, but that all the elements of the crime alleged are established by the prosecution, State vs. Musa (supra). PER HAMMA AKAWU BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ETIMBUK ISRAEL OKON APPELANT(S)

And

THE STATE RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Akwa Ibom State sitting in Uyo, delivered on the 17th of April, 2014.

Before the Court below, the appellant was the 1st accused person while one Victor Nkereuwem Edet was 2nd accused person. The appellant by the said judgment together with the said Victor Nkereuwem Edet, were convicted of conspiracy and armed robbery and sentenced to death.

It is on record, that on the 18th of April, 2012, appellant and his co-accused were arraigned on a two count charge which reads:
COUNT 1 STATEMENT OF OFFENCE
CONSPIRACY, contrary to Section 556 (1) (f) of the Criminal Code, Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
PARTICULARS OF OFFENCE
ETIMBUK ISREAL OKON, VICTOR NKEREUWEM EDET and others now at large on or about the month of December, 2010 at Idu Uruan, in Uyo Judicial Division conspired between yourselves to commit felony to wit: Armed Robbery.
COUNT II STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap R11, Vol. 14, Laws of the Federation of Nigeria 2004.

PARTICULARS OF OFFENCE
ETIMBUK ISRAEL OKON, VICTOR NKEREUWEM EDET and others now at large, on the 18th day of December, 2010 along Nsukara Offot – Ifa Ikot Okpon Road, Uyo in Uyo Judicial Division armed with offensive weapon, to wit: Knife and robbed Mrs. Esther Akaninyene Tom of the following items:- The cash sum of One Hundred and Twenty-Five thousand Naira (₦125,000.00) and the handbag valued ₦5,000. Total value of property robbed being ₦130,000.00 property of Mrs. Esther Akaninyene Tom.

When the two count charge was read to the accused persons to their understanding, they both pleaded not guilty, whereof the prosecution proceeded to called two witnesses namely, Esther Akaninyere Tom as Pw1 and one Sgt. Henry Edozie who testified as Pw2. The appellant testified in his defence and also called his mother Nkoyo Nkereuwem Edet Udofia who testified as Dw2. The second accused person also gave evidence on his behalf. A total of six exhibits were tendered by the prosecution. At the close of evidence and written addresses, the lower Court found the two accused persons guilty on the two counts of the charge, convicted and sentenced them to death accordingly.

The appellant aggrieved with his conviction and with his life at stake, filed a notice of appeal on the 29/1/2016. The extant Notice of Appeal is the amended Notice of Appeal filed on the 26/9/2016 predicated on four grounds. The appeal having been entered to this Court on the 6/9/2016 deemed filed on the 28/3/2018; parties proceeded to file in their briefs of argument.

The appellant filed a brief of argument on the 11/01/2017, deemed as having been properly filed on the 28/3/2018. The respondent also filed a brief of argument on the 6/7/2017, also deemed as having been properly filed on the 28/3/2018. The appeal having come up for hearing on the 21/10/2020, Dr. Sam Eboh, who appeared for the appellant, adopted the appellants brief and urged the Court to allow the appeal, set aside the decision of the trial Court and to discharge and acquit the appellant. The respondents counsel was duly served hearing notice, but was not in Court. Having already filed his brief of argument, this Court invoked the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016, and deemed the respondents brief as having been heard.
In the appellant’s brief settled by Dr. Sam Eboh of Kanu G. Agabi and Associates, three issues were formulated for the Court’s resolution as follows:
ISSUE NO. 1
Whether in view of the evidence adduced at the trial Court prosecution has successfully proved the allegation of armed robbery preferred against the appellant beyond reasonable doubt (Ground 2).
ISSUE NO. 2
Whether the trial Court was right in convicting the appellant for the offence of conspiracy to commit Armed Robbery (Ground 3).
ISSUE NO. 3
Whether the trial Court was right to place evidential weight on exhibits A, B1, B1A, and C.

In opposing the appeal, and in the brief settled by Uwemedimo Nwoko, the Learned Attorney General and Commissioner for Justice, Akwa-Ibom State adopted by Friday J. Itim, Assistant Director, Ministry of Justice, Uyo, Akwa-Ibom State, a single issue was crafted for the resolution of the appeal as follows:
Whether exhibit B, B1 and C were rightly admitted and relied upon by the trial Judge in the absence of a valid objection, and whether the prosecution had proved its case at the trial Court, beyond reasonable doubt against the appellant.

A sober examination of the three issues raised by the appellant shows that the issues can be conveniently subsumed in the respondent’s lone issue. I intend to therefore consider the submission of the learned counsel for the appellant under the three issues raised by him, and also consider the lone issue argued by the learned counsel for the respondent and thereby consider the appeal holistically.

Appellant under issue one; whether in view of the evidence adduced at the trial Court, prosecution successfully proved the allegation of Armed Robbery preferred against the appellant beyond reasonable doubt, referred to the pieces of evidence adduced by the prosecution and submitted that to establish the offence of armed robbery under count two of the charge, the prosecution needed to establish that;
i. There was robbery.
ii. It was carried out with offensive weapons.
iii. The accused persons participated in the robbery.
Onyenye vs. The State (2012) 7 NCC 304 at 325.
Demo Oseni vs. State (2012) 7 NSCR 1, Ogudo vs. The State (2012) 2 NSCR1.

Analysing the evidence adduced by the Pw1 and Pw2, learned counsel argued that there were material contradictions which the prosecution failed to explain. He contended that where material contradiction exists as in the instant case, the contradiction must be resolved in favour of the accused person and cited the cases of Bozin vs. The State (1985) 2 NWLR (Pt. 8) 465 @ 467 and Peter vs. The State (1997) 3 NWLR (Pt. 496) 629.

Learned counsel went on to analyse the entirety of the evidence adduced, highlighting areas that allegedly contradicted each other, and further submitted that the evidence given by the Pw2 is unreliable being hearsay evidence. Counsel proceeded to call in aid the decision of Utteh vs. The State (1992) 2 NWLR (Pt. 223) 257 @ 273 on what constitutes hearsay, fiercely contending that the evidence of the Pw2, substantially derived from the former I.P.O in Area Command, and the report on page 9 and 41 of the record as proof of evidence to be used in establishing Conspiracy and Robbery were all hearsay.

He contended that Grace Jacob who earlier concluded investigations at Area Command is a vital witness as held in Onuoha vs. The State (1995) 3 NWLR (Pt. 385) 599.

Learned counsel also drew the attention of the Court to where appellant was alleged to have been arrested, contending that none of the youths that arrested the appellant was called to give evidence. He submitted that in Criminal cases, a conviction can only be based on proof beyond reasonable doubt. Gabriel vs. The State (2011) 6 NCC 290, which held that:
“The mere fact that the accused admitted similar criminal conduct in his extra-judicial statement does not prove his guilt for the particular offence charged as the prosecution has to prove that in fact, the appellant committed the offence”.

On whether the trial Court was right in convicting the appellant for the offence of Conspiracy to commit Armed Robbery, it was submitted on behalf of the appellant that the prosecution failed to prove the count of the charge beyond reasonable doubt, and referred to the decision of Shurumo vs. The State (2010) 19 NWLR (Pt. 1226) 104. On the definition of Conspiracy as well as the elements of the offence of Conspiracy to commit Armed Robbery established in The State vs. Salawu (2011) 48 NSCQR, to the effect that:
“A conspiracy consists not merely in the intention of two or more but in agreement of two or more to do an unlawful act, or to do lawful act by unlawful means. So long as the design rests on intention only, it is not indictable. When two or more agree to carry it into effect, the very plot is an act in itself, actus confra actum, capable of being enforced if lawful, punishable if for a criminal object or for use for criminal means”
and submitted that from the evidence adduced by the prosecution the offence cannot be said to have been established. Learned counsel still referred to the perceived contradictions in the prosecution evidence, complaining that the lower Court failed to view the materiality of the contradictions against the element of the offence charged.

He argued that there was no motor cycle stolen as there was no evidence linking the 1st and 2nd accused persons to the committal of the offence, and faulted the identification of the appellant by the Pw1, reiterating that the procedure adopted was suspicious. He queried how identification became necessary since appellant was allegedly arrested by the village youths, more so, when he was not caught with the money, knife or motor cycle.

Lastly on whether the trial Court was right to place evidential weight on exhibits A, B1, B1A, and C, it was the contention of the learned counsel that the statement alleged to be the confessional statement of the accused person was retracted, thus casting doubt on the veracity of the statements. He highlighted the defences put forth by the accused persons with regards to the alleged confessional statements contending that from the facts highlighted, it is improbable that the alleged confessional statement attract weight by the trial Court.
He further drew the Courts attention to the six way test laid down in R vs. Sykes (1913) 8 CAR, followed in Afolabi vs. The State (2014) 9 NCC 346, and submitted that the lower Court failed to adhere to the test stated.

Counsel examined the facts from the evidence adduced concluding that there was a vacuum which the statement of Pw1 would have assisted to close, and the absence of an eye witness did not help matters. He urged the Court to allow the appeal and thereby discharge and acquit the accused person.
Responding to all the issues raised under the lone issue, whether exhibits B, B1, and C, were rightly admitted and relied upon by the trial judge in the absence of a valid objection, and whether the prosecution had proved its case at the trial Court beyond reasonable doubt against the appellant, and on the contention that the lower Court was wrong to have admitted and relied on exhibits B,B1, and C in convicting appellant for the offence of conspiracy to effect unlawful purpose and Armed Robbery, on the ground that the exhibits were admitted in error referred the Court to the record, contending that the objection of learned counsel to the appellant before the lower Court was as to the certification of the exhibits which was rightly overruled.

He submitted that the statement being the originals of the statements duly signed by the appellant and endorsed by a Superior Police Officer in line with the judges rules is admissible without more and the lower Court right to have admitted them in evidence and to rely on same in convicting the appellant. On the contention that exhibits B, B1, and C, having been retracted by the appellant, the Court ought not to have admitted the exhibits in evidence, it was contended relying on the decision of Agugua vs. State (2017) LPELR-42021 (SC), that the Court having admitted the exhibits in evidence, the Court was right to rely on it in arriving at its decision.

He argued that a Court can rely and act on a retracted confessional statement once the Court is satisfied of its truth and cited Adamu vs. State (2017) LPELR – 41436 (SC) On whether the prosecution proved its case beyond reasonable doubt, counsel referred to the three known modes of proof, namely:
i. Eye witness account.
ii. Confessional Statement of the accused.
iii. Circumstantial Evidence
Abdu vs. State (2016) LPELR – 41461 (SC).
Usman vs. The State (2012) 3 NWLR (Pt. 1342) 607,
and also referred to the confessional statements of the appellant as well as the eye witness evidence of the Pw1 relied upon to ground appellant’s conviction. Akpa vs. State (2008) 14 NWLR (Pt. 1106) 72.

On the contention that the evidence of Pw1 did not fix the appellant at the scene of crime, counsel referred to the evidence of Pw1 at page 124 of the record contending that the evidence fixed the appellant at the scene of crime. He also referred to exhibits B, B1, and C, which also confirmed the fact that appellant was at the scene of crime, and argued that the evidence of Pw1 being eye witness account, does not need any corroboration. On whether Pw1 is a tainted witness, counsel referred to the case of Itu vs. The State (2016) LPELR – 26063 (SC) on who qualifies as a tainted witness, and argued that appellant failed to show the interest of the Pw2 in the matter apart from the performance of his normal duty. He debunked the fact that the evidence of Pw2 is hearsay evidence rather, contending that his evidence is direct evidence and relied on Obot vs. The State (2014) LPELR – 23130 (CA).

Also responding to the contention that prosecution failed to tender in evidence the weapon of crime, counsel countered by submitting that it is not the requirement of the law that the weapon of crime be recovered and tendered. The case of Okoh vs. The State (2009) All FWLR (Pt. 453), 1358 and Simon vs. The State (2017) LPELR – 41988 (SC) were referred to.

On the prosecutions failure to tender the statement of Pw1 as well as the I.P.O report at the divisional police level, counsel was of the view that statements are not tendered as a matter of course as the accused has the opportunity of calling the maker of the statements as witness should he so require. He states that where the defence intends to make use of such statements all that is required is for them to lay the proper foundation and tender the statements in evidence. The case of Ndidi vs. The State (2005) 17 NWLR (Pt. 953) 17 @ 46 and Adoga vs. The State (2014) LPELR – 22944 (CA), were cited on the point.

He reiterates that the prosecution needs to call only those witnesses needed to prove its case, and where two police officers investigates a case, the other I.P.O is competent to tender those statements earlier made as well as those recorded by him. He maintained that it is the prerequisites of the prosecution to call any of the witnesses listed, and no duty is foisted on it to call any particular witness. The case of Itu vs. State (supra) was further relied upon on the legal principle, and insists that the failure to call the initial I.P.O in proof of its case, does not amount to withholding evidence.

On the contention that the prosecutions case is riddled with contradictions, particularly as to the place of arrest of the appellant, counsel conceded that the alleged contradictions even where contended does not affect the substance of the offence. This is so because the ingredient of the offence of armed robbery, and that appellant was the robber and armed with a Knife was established. He contended that the locus criminis was not in doubt and therefore the place of arrest was not material.

He argued relying on Igabele vs. State (2005) 6 NWLR (Pt. 975) 100, that for contradiction to be material it must relate to the material ingredients of the offence charged, and alluded to the holding of the lower Court with regards to exhibits B, B1, and C, submitting that the lower Court rightly relied on same in convicting the appellant. He opined that prosecution proved its case beyond reasonable doubt and the lower Court justified in convicting the appellant after due consideration of the evidence placed before him.

Counsel finally urged the Court to dismiss this appeal and to confirm the conviction and sentence imposed on the appellant.
The simple issue which this Court is being called upon to resolve turns on whether the lower Court from the evidence before it, oral and documentary, the lower Court, can be said to have rightly convicted the appellant.

The appellant and his co-accused were charged with the offence of Conspiracy and Armed Robbery. In establishing the offence of Armed Robbery, the prosecution is duty bound to prove the following ingredients of the offence:
i. That there was a robbery or series of robbery incidents.
ii. That the robbers or any of the robbers was armed with offensive weapon.
iii. That the accused person or persons were the ones responsible for committing the offence.
See. Bozin vs. The State (1986) 7 SC reprint 276, State vs. Bello (1989) 1 CLRN 370, Awosika vs. State (2019) All FNLR (Pt. 995) 719 @ 754. The elements of the offence must be proved beyond reasonable doubt, for where any doubt exists as to the guilt of the accused person, that doubt must be exercised in favour of the accused person. Woolmington vs. Dpp (1935) AC. 462, Uche vs. The State (2015) 4-5 SC (Pt. 11) 140, Awosika vs. The State (supra) @ 754 – 755.
This principle of the law is in tune with the operation of presumption of innocence enjoyed by an accused person by virtue of the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999), as amended.

The complainant, who happens to be the only person who gave an eye witness account, narrated how on the 18th of December, 2010, on her way to Aba, boarded a commercial motorcycle to Itam Park. In the course of the journey however, appellant diverted to a cemetery linking Ifa Ikot Okpon road. That she grew suspicious and struggled with the appellant who beat her with fist blows, brought out a knife and asked her to surrender her bag, containing ₦125,000.00, and her phone which she surrendered to him.
That she went back to the village and reported to a police surveillance team (Oduma) at Idi Uruan and also informed the youths of the village who quickly mobilised and caught the appellant at Ifa Ikot Okpon and handed him over to the police. This witness went further to say that the owner of the motorcycle, appellant used to carry her later appeared and laid claim to the ownership of the motorcycle.

Pw2 Corporal Henry Edoziem testified and tendered some exhibits in evidence. In particular the witness narrated what he did in the course of his investigation.

On whether there was armed robbery, learned counsel for the appellant complained that there were material contradictions on the issue. Counsel specifically drew the Courts attention to the evidence of the Pw1 and the investigative report of one Grace Jacob as well as the evidence of Pw2, the police investigation officer, alleging that there were contradictions as to where appellant was arrested, and by whom. The law is positioned to the effect that even though contradictions or inconsistencies in the evidence of prosecution witnesses material to the proof of the ingredients of the offence are fatal, see Atiku vs. The State (2010) 9 NWLR (pt. 1199) 241, the law is equally settled that only material contradictions or inconsistencies in the prosecution case, can lead to the Court resolving the issue in favour of the accused person and therefore not on minor or inconsequential contradictions or irrelevant issues. The authorities in support of this legal principle are legion: Igbo vs. The State (1975) 9-11 SC 129, Akpabio vs. State (1994) 7NWLR (pt. 359) 635, Onubogu vs. State (1974) 9 SC 1, Buba vs. State (1994) 7NWLR (pt. 355) 703, State vs. Musa (2020) 2NWLR (pt. 1709) 499 @ 538.
On what is material evidence, the Apex Court in Saraki vs. FRN (2018) 16 NWLR (pt. 1646) 405 @ 449, through the mouth of Nweze JSC, are heard to say that:
“Material Evidence which on account of its logical nexus with the issue, tends to influence decisively the establishment of the fact in issue, Audu vs. State (2003) 7NWLR (pt. 820) 516, Nnolim vs. The State (1993) 3NWLR (pt. 283) 569, Ikemson vs. The State (1989) 3NWLR (pt. 110) 455, Esangbedo vs. The State (1989) 4NWLR (pt. 113) 57 @ 83. Such is its cogency that the failure to call material evidence would be fatal to the prosecution’s case.”
Still on the effect of contradictions in the prosecution’s case, Onnoghen JSC, in Igabele vs. The State (2005) 6NWLR (pt. 975) 100, also reported as (2006) LPELR – 1441 (SC) reiterated the fact that:
“It is trite law that for contradiction in the evidence of the prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. It is not every inaccuracy in the testimonies of witnesses that will render such testimonies unreliable”.

Indeed, the respondent’s counsel and the lower Court were correct, submitting from the totality of the oral and written evidence before it, that the variance in evidence as to where appellant was arrested and the mode of his arrest does not affect the fact that there was robbery along an isolated place on the road leading to the cemetery in Ifa Ikot Okpn village, that the appellant was indeed the robber, and that he during the said robbery he was armed with a knife. This finding by the lower Court was appropriately based on the evidence of the Pw1, and the confessional statement of the appellant.

The Pw1, in her evidence material to the issue at hand, stated that:
“I came out to Idu road. I saw Etimbuk standing on the road with his motorcycle. Etimbuk is the first accused person (appellant herein). The 1st accused person agreed to carry me on his motorcycle for a fee to Itam Park. The 1st accused person carried me on his motorcycle, in the course of the journey instead of proceeding towards Itam Market, he diverted to the road to the cemetery which also links Ifa Ikot Okpon. I became suspicious and struggled with him… when I came down from the motorcycle, the 1st accused person kicked me and beat me with fists blows, I fell down. He brought out a knife and ordered me to let go my bag. I let go the bag to him..”

The appellant in his confessional statement exhibit B, also on the issue stated that:
“I personally went and carry her while Victor my friend waited for me on the road. When I carry her, I diverted to Ifa Ikot Okpon road, reaching where Victor was hiding he pointed torch light on my face, I stopped. From there I asked the woman of the money, I collected the money from her and Victor also collected N5,000.00 out of the money. I took the whole money away”.

This pieces of evidence by the Pw1 and the accused confessional statement put paid to the fact that there was indeed a robbery as stated, that the appellant was the robber or one of the robbers, and that he used a knife during the robbery to dispossess the victim (pw1) of her possession, the sum of N125,000.00.

The appellant seeks to impugn the evidence of the Pw1 and Pw2. With respect to the evidence of Pw1, appellant contended that the evidence ought to have been corroborated in order to accord it weight, and further that Pw2 is a tainted witness. The submissions of the learned counsel, I must say are premised on a wrong perception of the law, and grossly misconceived. A tainted witness has been held to be that person who may be strictly an accomplice, but is a witness with some purpose of his own to serve. The phrase tainted therefore connotes either of the following;
i. A witness who is by evidence an accomplice in the offence charged; or
ii. A person who may be regarded on the evidence as having some purpose of his own to serve. See Ezeuko vs. State (2016) ALL FWLR (pt. 831) 1529 @ 1564.
Also in Itu vs. The State (2016) LPELR – 26063 (SC), the Apex Court described a tainted witness as:
“My understanding of a tainted witness is that he is one witness who is an accomplice or by the evidence he gives whether for the prosecution or for the defence may and could be regarded as having some purpose of his own to serve”.

Obviously, Pw2, a police officer doing his normal official duty cannot be said to be an accomplice, and or that he has any motive other than doing the work he was assigned to do. Appellant did not state why the witness qualifies as a tainted witness. That argument to my mind is unfounded. Contrary to the assertion of the appellant, it is basic that a police investigating officer testifies on what he has done in the investigation of the case assigned to him, just like any other person in his official capacity. See Obot vs. The State (2014) LPELR– 23130 (CA). I agree that hearsay evidence by virtue of Sections 37 and 38 of the Evidence Act 2011, is inadmissible and unavailing as proof of all offences. But for evidence to gain the notoriety of being hearsay, that evidence must be of a statement made to a witness by a person who is not himself called as a witness. See Saraki vs. FRN (2018) 16 NWLR (pt.1646) 405 @ 460. The argument by the appellant’s counsel therefore that Pw2’s evidence is hearsay, on the mere basis that one Grace who investigated the case at the divisional level of the police was not called has no support in law. I now proceed to ask whether the evidence of the Pw1 requires corroboration for it to assume any weight. I do not think so.

The evidence of a victim of a crime falls within eye witness account of the happenings that generated the case against the accused/appellant. Where found to be direct, positive and believable, the evidence of the victim of a crime, excepting those cases that require corroboration as a matter of law, for example rape, can ground conviction. It does not matter that the knife used by the appellant, and or the Motorcycle allegedly used to ferry the complainant to the scene of crime, were not tendered. In chastising this Court which held firm to the view that the weapons of crime must be tendered before a conviction can stand, the Apex Court in Awosika vs. State (supra), restated the law to the effect that there is no principle of law mandatorily requiring the prosecution to tender the weapons used in an alleged robbery in order to establish the quilt of the accused person. See also Ngwuta JSC, in Ezeuko vs. The State (2016) ALL FWLR (pt. 831) 1529.
Of equal importance is the fact that whereas the prosecution is bound to produce material witnesses, it has no obligation calling witnesses where the evidence has no bearing on the case. In that regard, the accused is in good a stead to also call any witness, including utilising any witness the prosecution failed to call in his defence. The argument therefore that prosecution failed to call the earlier investigating Officer in proof of its case is of no moment, since the prosecution is satisfied with the evidence adduced in support of its case. I must say that whereas it is always desirable that the evidence of the any witness including the victim of an offence be corroborated, that is not a statutory requirement, where the case is not one bordering on rape. The law is trite in that the evidence of the victim alone where it is credible and believed by the trial Court, can ground a conviction without the need for corroboration. Appellant also complained that the trial Court ought not to have placed any evidential weight on exhibits, A, B1, B1A and C tendered before it for reasons enumerated by him. The exhibits being referred to primarily being exhibits B, the confessional statement of the appellant, and exhibits B1 and C, the additional statements also made by the appellant. The appellant now argued that the said extra judicial statements of the appellant were heavily retracted, which cast doubt on the veracity of the statements. Counsel relied on Egbogitonome vs. State (1993) 7 NWLR (pt. 306) 397, and the further case of Afolabi vs. The State (2014) 9NCC 345 positing that the lower Court ought to have considered the six way test in ascertaining the veracity of appellants statement before relying on it.
I have been referred to pages 136 of the record which relates to the tendering of the exhibits in question. Let me briefly reproduce the happenings of that day. It runs as follows:
F. J. Etim: We pray to tender the statement of the 1st accused person as exhibit.
U. Inem: I shall be objecting because it is not certified as a public document.
F. J. Itim: The statement is the original made for the IPO. It does not require certification.
Court: the statement sought to be tendered as exhibit are original taken down by the Police recorder. There are two statements. All signed by the accused person. On the statement dated 21/10/2010 I have found the signature of the recorder being the Pw2 and that of an ASP Akpan Essien before who the 1st accused was subsequently brought. Original statement taken down by the IPO or even written by an accused person never required certification because they are the same original.
Consequently the objection is overruled. The statement of the 1st accused persons (sic) are admitted as further statements dated 18/12/2010 – Exhibit B and B1 statement dated 21/10/2010 exhibit C.
It is apparent from the foregoing that appellant did not deny the authorship of the statements, nor did appellant contend before the lower Court that he did so under duress as counsel now wants the Court to believe. In any case, learned counsel for the appellant is not appealing the admission of the exhibits in evidence, and having admitted them, the Court can rely on it even where retracted. In Ikpo vs. The State (1995) LPELR – 1488 (SC), the Court held that:
A Court can still base a conviction on a confessional statement, retracted at trial if satisfied that the accused person made the statement in circumstances which gave credibility to the contents of the confession. See also Ejinima vs. The State (1991) 6NWLR (pt. 200) 627.
The lower Court dealt with the issue from pages 181 – 183 of the record in the following manner:
“Exhibit B, B1 and C are the statements of the 1st accused person. At the point of tendering, the objection which was raised was that they were not certified true copies being public documents. That objection was over ruled and the statements admitted as exhibits. In his written submission, counsel to the 1st accused has further submitted that this Court should not have regards to exhibit B, B1 and C, contending that they did not come from proper custody. What custody would be proper in relation to the statement of an accused person? I am entitled to take judicial notice of the judicial process leading to the filling of information by which the original copies of statement of all witnesses listed in the proof of service and those of the accused persons are usually lodged with the Court at the filling of information. These statements are produced from the custody of the Court at the point of tendering. The submission by learned counsel to the 1st accused that exhibit B, B1 and C did not come from proper custody is therefore untenable. The 1st accused person has not denied making the said exhibits B, B1 and C. They are signed by him. Every other objection amounts to hanging on a tenuos twig. I shall therefore have full regards to the said exhibits B, B1 and C.
The statements of the 1st accused person are corroborated by the evidence of Pw1 as to the fact that there was an armed robbery on 18/12/2010 and he, the 1st accused was one of the robbers.
Learned counsel to the 1st accused person has made heavy whether about exhibit c. The duty of this Court in respect of exhibit c which is confessional is to examine and determine whether the facts stated therein are probable. This is whether the contents are true. See Lasisi vs. The State (2013) 9NWLR (pt. 358) 74 @ 107 when the content of exhibit C is placed side by side with the evidence of Pw1 as to what happened it will be seen that they are true. In other words, exhibit C finds corroboration in the evidence of Pw1. Accordingly I find as a fact that 1st Accused was a lead participant in the armed robbery incident of 18/12/2010 at which Pw1 was robbed. I find that evidence cogent and sufficient to amount to proof beyond reasonable doubt.”
The reasoning and conclusion by the lower Court on the issue is sound and cannot be interfered with.
In any case, the prosecution is not bound to call all manner of witnesses once it is satisfied that the witnesses called had done the job. Prosecution may list one hundred witnesses, (as it a times happened in a election matters), but may end up calling only few witnesses. Thus the evidence of a solitary witness where credible and acceptable can establish a case beyond reasonable doubt. See Egbufor vs. State (2019) 5NWLR (pt. 1665) 260 @ 282. In the instant case it is vivid that the lower Court utilised the evidence of the Pw1 as well as the confessional statement of the accused person in arriving at the conclusion that appellant committed the alleged robbery. I side with the lower Court.

On the count of conspiracy, appellant insists that the offence defined by the Supreme Court in Shurumo vs. State (2010) 19 NWLR (pt. 1226) 104 and State vs. Salawu (2011) 48 NSCQR 322 was not established in that there was nothing linking the two accused persons before the lower Court.

The lower Court also on the issue at page 184 of the record, reasoned that:
“In his evidence in chief Pw2 provided a link between the armed robbery and the 2nd accused person. He testified to the effect that the motorcycle used by the 1st accused person was provided by the 2nd accused person who had stolen it specifically for the robbery.
This piece of evidence was not controverted throughout the trial. This piece of evidence established the fact that the 1st and 2nd accused persons did conceive of the plan to rob Pw1. This evidence suffice in proof of the count of conspiracy. The subsequent act that leads to the execution of the robbery is the putting into effect of what had been conspired”.

Now the gist of the offence of conspiracy lies in the agreement or the plot amongst the parties with the intention of committing most a times a criminal conduct. This agreement or plot often hatched in utmost secrecy is rarely capable of proof, but can be inferentially deduced from the acts of the parties involved in the doing or realisation of their common goals. See Wisdom vs. The State (2019) ALL FWLR (pt. 973) 378 @ 407. In the case at hand, Pw2 identified the 2nd accused person as an active participant in the alleged crime. He was said to have procured the stolen motorcycle used in the commission of the crime. The accused person also in his confessional statement narrated the part played by the co-accused in actualizing the commission of the crime. The lower Court was therefore right to infer that the two accused persons must have agreed and thereby set in motion the processes leading to their common goal. The conclusion of the lower Court that the two accused persons conspired that cannot be faulted.

I agree with the lower Court that the offences of armed robbery and conspiracy against the two accused persons was established by the prosecution as required by law, and resolve the issue against the appellant.

Hence having determined that prosecution proved the offences of robbery and conspiracy labelled against the appellant, the inevitable consequence is that this appeal fails as lacking in merit, and thereby dismisses the same. In the event, the judgment of Hon. Justice Ifiok E. Ukanna of the High Court of Justice Uyo, in Charge with No. HU/9C/2012, between the state and Etimbuk Israel Okon and 1 or., delivered on the 17th of April, 2014, convicting and sentencing the appellant to death is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA.

I agree with the reasoning and conclusion in the appeal that the prosecution proved the offences of robbery and conspiracy against the Appellant beyond reasonable doubt.
I also dismiss the appeal and affirm the judgment of the Court below.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of previewing the judgment delivered by my learned brother, Hamma A. Barka, JCA.

My learned brother has carefully dealt with the pertinent issue raised and canvassed, before arriving at the conclusion that the lower Court was fight In convicting the appellant for the offences conspiracy and robbery charged. I also dismiss the appeal and affirm the judgment of the lower Court.

Appearances:

Dr. Sam Eboh Esq. For Appellant(s)

No legal representation for the Respondent. For Respondent(s)