OKORO v. STATE (2020)

OKORO v. STATE

(2020)LCN/15405(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/225C/2018

RATIO

EVIDENCE: WHETHER AN ADDRESS OF COUNSEL CAN BE REGARDED AS EVIDENCE

Where a counsel undertakes a defence of a person accused of a crime he shall exert himself by all fair and honourable means to put before the Court all matters that are necessary in the interest of justice. In the instant case, the appellant was represented by counsel throughout the trial and in fact, the appellant’s counsel had subjected all the prosecution’s witnesses to vigorous cross-examination. He however opted not to lead any evidence and of course did not file final address. It was to be noted that when an accused person elected to rest his case on that of the prosecution, he did so at his own peril. See UTTEH V. STATE (1992) LPELR – 623 (SC) and MAGAJI V. NIGERIAN ARMY (supra). It is likewise settled that an address of counsel cannot be regarded as evidence. And where the circumstance of the commission of an offence is positive, direct, unequivocal and irresistibly lead to the inference that it is the accused person that committed the crime, such an inference ought to be and should be drawn. Also where as in this case an appellant made the evaluation of evidence undertaken by the trial Court and credibility of the witnesses an issue, the appellate Court will not interfere except where the trial Court failed or did the evaluation and draw wrong inference. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

FUNDAMENTAL HUMAN RIGHT: RELEVANCE OF THE PRINCIPLE OF FAIR HEARING

CRIMINAL PROCEEDING: RELEVANCE OF AN IDENTIFICATION PARADE

CRIMINAL LAW: ARMED ROBBERY: FACTS TO BE PROVEN TO ESTABLISH A CHARGE OF ARMED ROBBERY

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

CHRISTIAN ISAAC OKORO APPELANT(S)

And

THE STATE RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant and one other were charged before the High Court of Cross River State sitting at Ikom Judicial Division on one count charge of armed robbery punishable under Section 1(2) (A) of the Robbery and Firearms (Special Provisions) Act 2004. It was alleged that on the 15th day of March, 2012 at about 10pm in the State Housing Estate, Ikom, while armed with a locally made gun, the appellant and his co-accused robbed one Emmanuel Enya of the sum of Two Hundred and Fifty Thousand Naira, three Nokia phones and three clippers.

Each of the accused persons pleaded not guilty to the charge. The prosecution called three witnesses and tendered the recovered items namely; the gun, live cartridges, two clippers and the sum of N61,000.00 admitted and marked as Exhibits 1, 2, 3 and 4 respectively. Also tendered by the prosecution were the extra-judicial statements of the accused persons as Exhibits 5 and 6 respectively. The appellant was the 1st accused and his extra-judicial statement was admitted and marked Exhibit 5. Both the accused persons did not testify in their defence nor call any other witness. In the end, the appellant and his co-accused rested their case on that of the prosecution. At the conclusion of the trial, both the appellant and his co-accused were found guilty and convicted for armed robbery. They were sentenced to death by hanging.

The appellant was dissatisfied with the decision and appealed to this Court through a notice of appeal filed on 17/2/2016. By leave of this Court granted on 21/12/2018, appellant amended his notice of appeal. The said amended notice of appeal contains four grounds of appeal.

At the hearing of this appeal on 7/10/2020, Chijioke O. P. Emeka Esq. adopted and relied on the appellant’s brief of argument filed on 21/12/2018 but deemed as properly filed on 26/3/2019 in urging this Court to allow the appeal. Fred Onuebia Esq., adopted and relied on the respondent’s brief of argument filed on 11/4/2019 but deemed on 7/10/2020 in urging the Court to dismiss the appeal.

Learned counsel for the appellant formulated the following two issues for the determination of this appeal. These are:-
1. Whether the prosecution discharged the burden placed on it by law to prove the offence charged beyond reasonable doubt?
2. If the offence was proved, whether in view of the quality of legal representation available to the appellant who stood trial for a capital offence and the nature of conduct of his defence the appellant’s fundamental right to a fair trial was not contravened?

On behalf of the respondent, learned counsel adopts the two issues formulated for the appellant.

Arguing issue one, learned counsel for the appellant submitted the finding of the trial Court was perverse because the prosecution failed to prove that it was the appellant who committed the robbery in question. He contended that there is a clear distinction between the prosecution proving that there was armed robbery on 15th March, 2012 and establishing that it was actually the appellant who committed that robbery. Counsel cited THE PEOPLE OF LAGOS STATE V UMARU (2014) 7 NWLR (prt 1407) 584 at 609 on the essential ingredients of armed robbery as follows –
(a) That the robbery or each robbery was an armed robbery;
(b) That the accused was one of those who took part in the armed robbery.
(c) That the accused was one of those who took part in armed robbery.

Still in argument, appellant’s counsel contended that pw2 had a fleeting glimpse of the robbers but was not sure how many persons he saw and that he could not say if his assailants were fair or dark and that Mary Ogar did not describe their features to him. He further contended that pw3 who claimed to have investigated the matter could not interview the other dramatis personae namely Mary Ogar who allegedly alerted pw2 that he was being followed into his premises by armed robbers on the night of the incident, Mrs. Enya (pw2’s wife) who was there at the scene of the crime and even allegedly opened the door to the bedroom for the armed robbers and even Ntui Neji Obi who handed over the appellant and his co-accused to the police. He submitted that the picture depicted by the evidence of the prosecution is that there was no proper identification by pw2 of the appellant and of the items recovered. He referred to ANI V. STATE (2009)16 NWLR (prt 1168) 443 – at 460, BOZIN V. STATE (1985) 2 NWLR (prt 8) 465 at 472 and STATE V. SALAWU (2011) 8 NWLR (prt 1277) 663 to the effect that identification of an accused person in the commission of crime is a most serious exercise in the administration of criminal justice as it creates the link between the person and the offence. Thus, it was erroneous for the lower Court to hold that there was no need for an identification parade.

In further argument, counsel submitted that it was erroneous for the trial Court to rely heavily on Exhibit 5, the alleged confessional statement of the appellant in the absence of any credible evidence outside the said Exhibit 5 before proceeding to convict the appellant. And that had the lower Court considered the alleged confession Exhibit 5 with self contradictory pieces of evidence led by the prosecution, it would have found that it was improbable that the appellant committed the offence of which he was convicted.

In response to the above, learned counsel for the respondent referred to the evidence of pw2 in submitting that he was on the 15/3/2012 robbed by some armed men in his residence at the state Housing Estate, Ikom. That in the process, the robbers collected from pw2 N250,000.00 in N1,000,000 and N500.00 denominations, clippers, his wife’s jewelries and mobile phones. That Exhibits 1 and 4 which belonged to the pw2 were recovered from the appellant and his cohorts and which facts were corroborated by the appellant in his extra-judicial statement, Exhibit 5. Thus, from the evidence of pw1, pw2 and pw3 which evidence was further corroborated by the appellant’s extra-judicial statement, Exhibit 5, the prosecution has established all the three essential ingredients for the offence charged. He submitted that the appellant and his cohorts, having been found with some of the stolen items soon after the robbery incident and without the appellant being able to account for his possession is either the armed robber or has received stolen items knowing them to be stolen. He relied on Section 167 (a) of the Evidence Act and the cases of NWAEBONYI V. STATE (1994) 5 NWLR (prt 342) 13 and KOLAWOLE V. STATE (2015) LPELR – 24400 (SC).

Counsel submitted further that on the basis of the appellant’s confessional statement above, the lower Court was entitled to and was indeed right to have found the appellant guilty of the offence of armed robbery relying on BUSARI V. STATE (2015) LPELR – 24279 (SC) to the effect that once the confessional statement is proved to have been made voluntarily and it is direct, positive, and unequivocal, it can still ground conviction regardless of the fact the maker resiled therefrom or retracted the same completely at the trial, as such retraction does not make it inadmissible or that the Court should not act on it.

On the alleged inconsistencies on the evidence of pw2, learned counsel for the respondent submitted that there was no contradiction on the number of persons that attacked him. He reproduced the extract of pw2’s testimony in Court to buttress the point that at first he only saw three persons who were wandering outside the gate of his compound but on entering his compound, he discovered that they were four not three. He further submitted that there was no need of identification parade because the appellant had voluntarily confessed to committing the offence charged and even identified pw2 as their victim. Counsel submitted that the duo of Mary Ogar and Mrs. Enya are not necessary witnesses as the ingredients of the offence have been established by the available witnesses. Thus, it is enough if the evidence led is sufficient to discharge the onus placed by law on the prosecution. At any rate, the appellant if he so desired, had the opportunity to call them to testify but failed to do so. He referred to ALABI V. STATE (1993) 7 NWLR (prt 307) 511 at 526 – 527.

Finally, he submitted that the appellant’s extra-judicial statement needed no corroboration as same was neither controverted nor challenged under cross-examination. Failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness and therefore Exhibit 5 is deemed admitted. Again, if an accused person does not object his confessional statement when same is being tendered, the only reasonable conclusion is that it was made voluntarily. He referred to OKOSI V. STATE (1989)1 NWLR (prt 100) 642 and SHURUMO V. STATE (2010) 19 NWLR (prt 1226) 73.

On issue two, learned counsel for the appellant contended that the appellant did not have any legal representation at his trial and that legal representation for an accused person is not only mandatory but it must be seen that counsel for an accused exerted his best effort to ensure that he represents the accused to the best of his ability. He referred to Orders 37 and 38 of the Rules of Professional Conduct for Legal Practitioners, 2007 and the dictum of AGBAJE, JSC in UDOFIA V. STATE (1988) 3 NWLR (prt 84) 533 at 545 on the distinction between apparent and real legal representation.

Counsel submitted that where the defence counsel fails to bring his expertise to bear on the case of an accused person in a capital offence, the Court has a duty to consider all the defences available to that accused whether or not they are brought to its attention. Also, where there is failure of a defence counsel to submit final address on behalf of an accused that invariably impact on the character and quality of the defence. He thus submitted that the nature of defence availed the appellant deprived the trial of the character of legitimate adjudication and thereby entitled the appellant to an acquittal. He referred to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 on the appellant’s right to quality legal representation.

In reaction to the above, learned counsel for the respondent submitted that the appellant was represented by a counsel throughout the proceedings from arraignment uptil judgment. Similarly, counsel on behalf of the appellant participated in the trial and even cross-examined all the prosecution’s witnesses. The fact that the appellant rather than enter defence decided to rest his case on that of the respondent does not make the representation of the appellant any less effective. He referred to AJIBADE V. STATE (2012) LPELR- 15531 and MAGAJI V. THE NIGERIAN ARMY (2008) LPELR- 1814 (SC) in buttressing the point that the appellant exercised his constitutional right to not enter a defence but rest his case on the evidence presented by the respondent. And that the fact that counsel did not address the Court cannot be denial of fair hearing which could vitiate the judgment.

RESOLUTION
Before proceeding to resolve the two issue canvassed above, it is imperative to state the facts leading to this appeal, albeit briefly.

On 15th of March, 2012, one Emmanuel Enya (pw2) was returning home at Ikom State Housing Estate when his house maid by name Mary Ogar came out to open the gate. The said Mary Ogar noticed that some people were following him and she immediately drew pw2’s attention. The people immediately bounced and over powered pw2. They forcefully took from him the sum of Two Hundred and Fifty Thousand Naira, clippers and other sundry items at a gun point.

At around 12:00pm a brother to the victim phoned to inform pw1, the head of the vigilante in the community about the robbery incident who immediately mobilized and blocked everywhere in the community. Pw1 led some vigilante members to a compound where they arrested the appellant and the other co-accused having confrontation over the sharing of their loots. They recovered from them some amount of money, a gun and cliffers. The appellant and his cohort were arrested and taken to the police station along with the recovered items. At the police station where pw2 had already reported the robbery incident and was about writing his statement, someone went into the police station with a gun that looked like the one used to rob him the previous day. Upon inquiry, he was told that some armed robbers who were outside were caught with the gun. When pw2 went outside, he instantly recognized the appellant and his cohort as those that robbed him the previous day. And upon seeing pw2 they both apologized for robbing him.

The appellant’s contention on issue one is that the evidence of the prosecution was not sufficient to convict him for the offence of armed robbery charged. He predicated his argument on the ground that the appellant was not properly identified as the person who took part in the said robbery and that in the absence of identification parade, the appellant was wrongly convicted.

It was rightly posited that in a charge of armed robbery, the prosecution must prove that:-
(a) That there was a robbery or series of robberies;
(b) That the robbery or each robbery was an armed robbery; and
(c) That the accused person was one of those who committed the armed robbery/robberies.

In the instant case, from the evidence of pw1 and pw2 and Exhibit 5 (appellant’s confessional statement), it was not in doubt that on 15th March, 2012 there was a robbery at the State Housing Estate Ikom around 10pm and that it was an armed robbery. The appellant and his cohort were arrested within two hours after the robbery incident and found in their possession the items robbed. The question is, was the appellant properly identified and was the failure to conduct an identification parade detrimental to the prosecution’s case?

The importance of correctly identifying the perpetrator of a crime in a criminal trial cannot be over-emphasized. This is so because not only his liberty, but in the case of a capital offence his life is at stake. Thus, identification is a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offence charged. It may consists of or include evidence in form of finger prints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprit by witnesses who saw him in the act of commission, which is called in question or a combination of two or more of these. See EGBUFOR V. STATE (2019) 5 NWLR (prt 1665) 260 at 277 and LAWALI V. STATE (2019) 4 NWLR (prt 1663) 457 at 478.
Learned counsel for the appellant stressed the need of identification parade which is one out of many means of associating a person charged with the commission of the offence charged. Thus, an identification parade is necessary in order to properly identify an accused person who took part in a crime. However, an accused person can ordinarily be identified without the need to mount a colourful parade of suspects to a crime at any stage of investigation. Therefore, whether an identification parade is necessary or not depends largely on the facts available to the investigating officer at the time of investigation and the necessity to have such a full dressed identification parade. In other words, an identification parade is useful and would be essential wherever there is doubt about the ability of a witness to recognize an accused person or when the identification of the accused person is in doubt. See NWAFOR V. STATE (2015) LPELR – 40684 and SADIKU V. STATE (2013), NWLR (prt 1364) 191 at 213.
In the instant case, there is no serious issue of identity of the appellant, the prosecution having led credible evidence fixing the appellant at the scene of the crime as participant. Apart from his confessional statement Exhibit 5, the appellant was found in possession of stolen goods soon after the theft. Section 167 (a) of the Evidence Act, 2011 is to the effect that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession which the appellant has not done. In his evidence before the trial Court as regards the identity of the appellant, pw2 was very emphatic when he stated at page 34 of the record of appeal thus:-
“The accused was holding the gun. All the robbers had guns. The 2nd accused held a locally made pistol. It was the 1st accused person that pointed a short gun at me. I do not know whether the gun of the accused was single one double barrel gun. The gun that was brought while I was making my statement in the police station was a single barrel gun.”
Pw2 continued as follows:-
“If the accused person were not brought to the station and the gun too; I would have been able to identify the robbers as they were not masked and the lights were on in my house and in the security points. Yes; these were the two persons who were brought to the station and I was made to see them.”
Whereas in this case, the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the appellant’s guilt beyond reasonable doubt. See EGBUFOR V STATE (supra). And since the appellant proffered no evidence discrediting the testimony of pw2 on his identification, the evidence of pw2 clearly fixed the appellant at the scene of crime and the trial Court was therefore right in holding that identification parade is unnecessary in the circumstance of this case. InADISA V STATE (2019) 3 NWLR (pt 1660) 488 at 502, the Supreme Court has held that if an accused can be identified by some means other than through identification parade, his conviction should not be set aside simply because an identification was not carried out.

Learned counsel for the appellant also faulted the findings of the trial Court on what he described as heavy reliance on the appellant’s extra-judicial statement, Exhibit 5. The law is settled that a voluntary confessional statement made by an accused person, which is tendered and admitted without objection does not need corroboration. See OBASI V. STATE (1965) NMLR 119 ADIO V. STATE (1986)2 NWLR (prt 24) 581 and OGHENEOVU V. F.R.N. (2019) 13 NWLR (prt 1689) 235 at 255.
The appellant in this case did not object the admissibility of Exhibit 5 nor retracted it. He attacked the weight attached to it by the trial Court on the guise of the quality of the appellant’s legal representation. The time to raise objection to the voluntariness of a confessional statement is at the time it is sought to be tendered and not after it has been admitted in evidence. Once a confessional statement is admitted in evidence, it forms part of the prosecution’s case and its probative value will be considered alongside other evidence in the case. See STATE V. IBRAHIM (2019) 8 NWLR (prt 1674) 214 at 309. In the instant case, the trial judge considered the appellant’s confessional statement Exhibit 5 along with other evidence when he held at page 61 of the record of appeal that:-
“The accused persons made confessional statements. I have carefully studied the confessions. They appear to me to be corroboration of the evidence adduced by the prosecution witnesses. The prosecution is strengthened by the facts that the accused persons did not challenge the said Exhibits 5 and 6, neither did they adduced contrary evidence. The evidence of the prosecution is unchallenged. I am bound by it.
Let it be noted particularly that some of the items stolen and confessed to where indeed recovered by the police. These are the part of the money N61,000.00, the two clippers. Also received was the Firearms used in committing the offence gun and the cartridges.”

In the light of the above, the trial Court was right in relying on the appellant’s confessional statement, Exhibit 5 and I so hold.

Learned counsel for the appellant also made an allusion on the failure of the prosecution to call as witness other dramatis personae namely; Mary Ogar who alerted pw2 that he was followed into the premises by the armed robbers and Mrs. Enya (pw2’s wife) who opened the door to the bedroom for the armed robbers. Learned counsel for the respondent has submitted and I agree with his submission that there is no law which imposes an obligation on the prosecution to call a list or host of witnesses. The prosecution is merely needed to call enough material witnesses to prove its case; and in doing so it has discretion in the matter on who to call or who not to call. See TAIYE V. STATE (2018) 17 NWLR (prt 1647) 115 at 133. In the instant case, there was no necessity to call other witnesses since all they would come to say had been fully established. Issue one is therefore resolved against the appellant.

The appellant’s complaint on issue two is on the legal representation which was argued not to have been commensurable to the gravity of the offence charged. The appellant contended that he was not afforded fair hearing at the trial.

There is no doubting the fact the right to fair hearing is a fundamental right. The provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that every person who is charged with a criminal offence shall be presumed innocent until he is proven guilty. Equally fundamental are the constitutional right of the accused person to be represented by a counsel of his own choice and also be afforded adequate time and facilities for the preparation of his defence. Where an accused person as in the present case exercises his right of silence and or rest his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person is deemed to have been admitted or adopted by such an accused person. Such evidence being unchallenged, uncontroverted, a trial Court has a duty and in fact is entitled to act on it where credible. See ADA V. THE STATE (2008) 13 NWLR (prt 1103) 149. Also in NAFIU RABIU V. STATE (1980) NSCC 291 at 293, the Supreme Court has held that even though the appellant did not give evidence, the trial judge was perfectly entitled to draw the inference that the evidence of the prosecution witnesses which the Court has no other reason to doubt for lack of rebutting is true.
I have stated elsewhere in this judgment that at the close of the prosecution’s case the appellant through his counsel Mr. E. E. Oji rested their case on that of the prosecution. At the resumed hearing of the case on 20/5/2014, the appellant’s counsel applied for another date to look at the matter to determine the nature of address to put in if any. Thereafter, the appellant’s counsel failed and or neglected to file a final address.
Where a counsel undertakes a defence of a person accused of a crime he shall exert himself by all fair and honourable means to put before the Court all matters that are necessary in the interest of justice. In the instant case, the appellant was represented by counsel throughout the trial and in fact, the appellant’s counsel had subjected all the prosecution’s witnesses to vigorous cross-examination. He however opted not to lead any evidence and of course did not file final address. It was to be noted that when an accused person elected to rest his case on that of the prosecution, he did so at his own peril. See UTTEH V. STATE (1992) LPELR – 623 (SC) and MAGAJI V. NIGERIAN ARMY (supra). It is likewise settled that an address of counsel cannot be regarded as evidence. And where the circumstance of the commission of an offence is positive, direct, unequivocal and irresistibly lead to the inference that it is the accused person that committed the crime, such an inference ought to be and should be drawn. Also where as in this case an appellant made the evaluation of evidence undertaken by the trial Court and credibility of the witnesses an issue, the appellate Court will not interfere except where the trial Court failed or did the evaluation and draw wrong inference. The inference drawn by the learned trial judge was based on the credible evidence adduced by the prosecution’s witnesses which the Court has no other reason to doubt for lack of rebutting as the Court is not precluded from drawing such inferences in the discharge of its adjudicative duties. Thus, the appellant’s right to fair hearing was nowhere impinged by the trial Court. Issue two is also resolved against the appellant.

In the result, the appeal is lacking in merit and it is accordingly dismissed. The judgment of the lower Court delivered on 26/6/20014 is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA.

I agree with the reasoning and conclusion reached in the judgment. I also find that the appeal lacks merit and it is accordingly dismissed.

HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading before now the judgment just delivered by my Learned brother, Muhammed Lawal Shuaibu, JCA. Having equally perused the briefs of argument by the respective counsel and studied the record of appeal, I cannot but concur with the reasoning and conclusion reached to the effect that the appeal is lacking in merit and ought therefore be dismissed.

In the circumstance, I equally dismiss the appeal and in doing so affirm the decision of the Cross River State High Court, holden at Ikom Judicial Division delivered on the 26th June, 2014.

Appearances:

C. O. P. EMEKA For Appellant(s)

…For Respondent(s)

Appearances:

C. O. P. EMEKA For Appellant(s)

…For Respondent(s)