OMAKA v. COP (2020)

OMAKA v. COP

(2020)LCN/15355(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 04, 2020

CA/A/440C/2019

RATIO

CRIMINAL LAW: CONSTITUENT OF THE OFFENCE OF CONSPIRACY

CRIMINAL PROSECUTION: CIRCUMSTANCE IN WHICH AN IDENTIFICATION PARADE WILL BE ESSENTIAL

Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances:
1) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
2) Where the victim or witness was confronted by the offender for a very short time;
3) Where the victim due to time and circumstance, might not have had the full opportunity of observing the features of the accused: UKPABI V STATE (2004) 11NWLR, PT 884, 349; EBRI V STATE (2004) 11NWLR, Pt 885, 589; DAIRO V STATE (2017) LPELR-43724(SC) and CHUKWUDOZIE V STATE (2019) LPELR-47164(CA). PER PATRICIA AJUMA MAHMOUD, J.C.A.

CRIMINAL LAW: BURDEN OF PROOF: INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

It is not in dispute and there are several authorities in support of the well settled common law principle that in all criminal trials the burden or onus of proof is always on the prosecution and except in a few statutory offences, this burden has to discharged beyond reasonable doubt: OGUNDIYAN V STATE (1991) 3 NWLR, PT 181, 519; STATE V OLADOKUN (2011) AFWLR, PT 586, 399 AT 422; MBANG V THE STATE (2011) AFWLR, PT 562, 1766 AT 1781; ONONOJU V THE STATE (2015) AFWLR, PT 810, 1198 AT 1223 and EJEDEGBA V STATE (2018) AFWLR PT 942, 399 AT 419.
However, while conceding to this age old principle, we must, like the respondent’s counsel, relying on the case of DAIRO V STATE (supra) reminded us not to lose sight of the rider to this principle. This is that proof beyond reasonable doubt is not synonymous to proof beyond every shadow of doubt. It simply means proof with a high degree of probability that the accused committed the offence: ORISA V STATE (2018) LPELR-43896(SC).
It is also important to set out another legal principle that will guide us in navigating through this appeal at the outset. This is that the burden on the prosecution to prove an offence beyond reasonable doubt can be discharged in any one or more of three accepted ways:
(i) Direct evidence;
(ii) Confessional Statement and
(iii) Circumstantial evidence:
ILODIGIWE V STATE (2012); UDOH V STATE (2019) LPELR-47096(CA); ADIO V STATE (1986) 5 SC 194 and ANYASODOR V THE STATE (2018) LPELR-43720(SC)

On Armed Robbery, the contention of the appellant is that the prosecution did not prove this offence beyond reasonable doubt. Both counsel are however agreed with the settled position of the that there are three essential elements of the offence of armed robbery.
See BOZIN V THE STATE (1985) 16 NSCC, PT II, 1087; OSUAGWU V STATE (2009) AFWLR, PT 460, 700; BOTU V STATE (2018) AFWLR, PT 967, 377 AT 400 and KEKONG V STATE (2017) AFWLR, PT923, 68 AT 92. PER PATRICIA AJUMA MAHMOUD, J.C.A.

GROUNDS OF APPEAL: THE FUNCTION OF PARTICULARS IN A GROUND OF APPEAL

The function of particulars in a ground of appeal is merely to elucidate and advance the complaint in the ground, bring to the fore, specify or amplify the errors or mistakes complained of in the ground; explanatory notes as it were. See the cases of: OLORUNTOBA-OJU & ORS V ABDUL-RAHEEM & ORS (2009) 13 NWLR, PT 1157, 83; WAZIRI & ANOR V GEIDAM & ORS (2016) LPELR-40660(SC); VINCENT V VINCENT (2008) 11 NWLR, PT 1097, 35 and ODIGBO V ABUBAKAR & ORS (2018) LPELR-46473(CA)
In the context of grounds of appeal, the settled principle of law is that once a grounds of appeal is rooted in the judgment, arise from or are related to the judgment appealed against, a ground of appeal will be valid if the issues arise from or is related to the judgment. It does not have to be a matter that counsel raised directly in the trial lower Court or make specific reference to. It suffices if the matter arises in the proceedings. PER PATRICIA AJUMA MAHMOUD, J.C.A.

WEIGHT OF EVIDENCE: DIFFERENCE BETWEEN A CRIMINAL APPEAL AND A CIVIL APPEAL

However, having been raised I have a duty to deal with it. Has the ground been abandoned? To answer this question may of necessity involve a consideration of whether the ground is competent. The generally accepted position of the law is that the words: “weight of evidence” are not applicable in criminal appeals. This controversy has been raging but the practice is quite rampant as counsel regularly continue to file this type of omnibus ground as a ground of appeal even in criminal appeals.
In the first Republic, in the case of OKEZIE V QUEEN (1963) 1 ANLR, 1 ADEMOLA CJF held thus:
“The words “weight of evidence” are not applicable in criminal appeals. This Court would like to stress that a criminal appeal on the facts is not quite the same as an appeal on facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence whilst in a criminal appeal, it is that the verdict is unreasonable and cannot be supported having regard to the evidence”
Several years later in 1992, the same Supreme Court, per Ogwuegbu, JSC held in the case of ABASI V THE STATE (1992) 23 NSCC (PT 3) 159 as:-
“I will like to make an observation on the manner ground one of the Grounds of Appeal was couched. A ground of appeal that the decision is all together unreasonable, unwarranted and cannot be supported having regard to the weight of evidence is not a ground of appeal in criminal cases, which are, usually not decided on the weight of evidence or balance of probabilities. Ground of Appeal is incompetent and ought to have been struck out BUT FOR THE SERIOUS NATURE OF THE CHARGE.” (Emphasis Mine). PER PATRICIA AJUMA MAHMOUD, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

KINGSLEY OMAKA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Kingsley Omaka and one other were both arraigned and tried on a two count charge of Criminal Conspiracy and Armed Robbery contrary to and punishable under Sections 6(a) (b) and (c) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap R II Laws of the FRN, 2004.

The case of the prosecution was that the appellant conspired with his co-accused, attacked and robbed one MRS Chinyere Onyebuchi of Mountain of Fire and Miracles Ministry Gwagwa, Abuja on the 14/04/2017 at about 1:00am of the cash sum of N387, 000, three Techno handsets valued at N55, 000, laptop valued at N100, 000 and one plasma television valued at N50, 000 while armed with guns and other dangerous weapons.

In proof of its case the prosecution called two witnesses and tendered four exhibits which were marked as Exhibits P1, P1a, P2 and P2a.

At the conclusion of trial, the learned trial judge, Hon Justice A. O. Ebong of the High Court of the FCT sitting at Zuba in a judgment delivered on the 11th day of January, 2019 convicted the appellant and his co-accused for Conspiracy to commit Armed Robbery and Armed Robbery and sentenced them to death.

Aggrieved by this judgment, the appellant by a Notice of Appeal filed on the 10/04/2019 appealed to this Court on the following three grounds with their particulars:

GROUND ONE
The trial Court erred in law and occasioned a miscarriage of justice in convicting and sentencing the Appellant for the offence of Armed Robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, when the prosecution failed to prove beyond reasonable doubt all the ingredients of the offence against the Appellant.
PARTICULARS OF ERROR
(i) For the prosecution to secure a conviction for Armed Robbery it must prove all the ingredients of the offence beyond reasonable doubt.
(ii) The prosecution failed to prove that the Appellant was armed with any offensive weapon at the time of the robbery.
(iii) The prosecution did not lead any evidence to establish that the Appellant participated in the robbery.
(iv) The Appellant was not arrested at the scene of the crime.
(v) The Appellant was not identified by any of the prosecution witnesses as the Court rejected the evidence of PW1 and PW2 for being conflicting and unreliable.
(vi) The Court in convicting the Appellant relied solely on his alleged confessional statement (Exhibits P2 and P2a)
(vii) From the evidence of the Prosecution’s first witness (PW1) the Appellant is an illiterate who could not read nor write and he did not record his statement by himself. His statement (Exhibits P2 and P2a) were recorded by PW1. No evidence was led by the prosecution to establish that Exhibits P2 and P2a were read and explained to the Appellant in the language he understands before was made to sign same.
(viii) The confessional statement relied on by the trial Court had no probative value as it contravened mandatory provisions of the Administration of Criminal Justice Act.
(ix) Exhibits P2 and P2a did not meet the requirements of law for any weight to be attached to them.
GROUND TWO
The trial Court erred in law and occasioned a miscarriage of justice in convicting and sentencing the Appellant for the offence of Criminal Conspiracy punishable under Section 6(a), (b) and (c) of the Robbery and Firearms (Special Provisions) Act, when the prosecution failed to prove beyond reasonable doubt that there was an agreement to commit an offence between the Appellant and other persons.
PARTICULARS OF ERROR
(x) The prosecution did not establish that there was an agreement between the Appellant and other persons to commit armed robbery.
(xi) The Court in convicting the Appellant for conspiracy relied solely on his alleged confessional statement (Exhibits P2 and P2a).
(xii) The prosecution’s first witness (PW1) testified under cross examination that the Appellant is an illiterate who could neither read nor write and it was he (PW1) who recorded the Appellant’s confessional statement.
(xiii) There is no evidence on record that the Appellant’s two confessional statements (Exhibits P2 and P2a) were read and explained to him in the language he understands before he was made to sign them.
(xiv) Exhibits P2 and P2a having not been read and explained to the Appellant as required by law do not have any probative value and the trial Court ought not to have relied on same as establishing conspiracy.
(xv) The confessional statement relied on by the trial Court had no probative value as it contravened mandatory provisions of the Administration of Criminal Justice Act.
GROUND THREE
The judgment is against the weight of evidence.

In prosecuting the appeal, the appellant filed his brief of argument on the 02/07/2019. Upon service on him of the appellant’s brief of argument, the respondent on the 17th of March, 2020 filed a Notice of Preliminary Objection predicated on the following four grounds:
“(1) The complaint set out in particulars vii and viii of ground 1 of the Notice of Appeal is a fresh point or issue raised without the leave of this Honourable Court first sought and obtained.
(2) The complaints set out in particulars xii, xiii, xiv and xv of ground 2 are fresh points raised without the leave of this Honourable Court first sought and obtained.
(3) Ground 3 of the Notice of Appeal has been abandoned by the Appellant in his Brief.
(4) Issue 1 and 2 in the Appellant’s Brief are incompetent for raising and arguing fresh issues without leave.”
Wherein the respondent sought an order of Court:-
1) Striking out grounds 1 and 2 of the appellant’s Notice of Appeal and the two issues formulated therefrom.
2) Striking out the appeal for incompetence, ground 3 having been abandoned by the appellant.

In arguing the Preliminary Objection, MR John Ijagbemi of counsel for the respondent adopted their arguments in support contained at pages 3-5, paragraphs 2.6-3.1 of their brief of argument dated and filed on the 15/04/2020. Counsel submitted that the points canvassed under grounds 1 & 2 of the Notice of Appeal were fresh issues which were raised without the leave of Court. This issue according to counsel is the alleged non-compliance of the appellant’s confessional statement with the Administration of Criminal Justice Act, 2015 (ACJA), particularly Sections 17(3) and (4) thereof. This is in respect of the allegation that the statements were not read or interpreted to the appellant. Counsel argued that these issues were not raised in the trial Court and the appellant is incompetent to raise them now leave of Court not having been sought and obtained. Counsel referred to the cases of AIC LTD V NNPC (2005) 11 NWLR, (PT 973) 563 AT 585-586, DIBIA V THE STATE (2017) 12 NWLR (PT 1579) 196 and GABRIEL V THE STATE (1989)5 NWLR (PT 122), 457.

Counsel submitted that the issues argued in the appellant’s brief were distilled from the ground(s) of appeal and since the grounds are incompetent the issues distilled therefrom are also in competent and liable to the struck out. Counsel argued that since ground 3 has been abandoned and liable to be struck out and grounds 1 and 2 are incompetent there are no grounds to sustain the appeal. Counsel urged the Court to allow the objection and strike out the appellant’s grounds 1 and 2 of the Notice of Appeal and/or the entire Notice of Appeal.

In reply to the Notice of Preliminary Objection, MR Terhemba Gbashima of counsel for the appellant adopted his reply brief filed on the 30/03/2020 as their arguments in answer to the objection. In responding to the respondent’s challenge to particulars (vii) and (viii) of ground 1 and particulars xii, xiii, xiv and xv of ground 2 counsel submitted that a complaint that a ground of appeal is incompetent must be directed at the ground itself and not at its particulars. Counsel referred to the case of NATIONAL INSURANCE COMMISSION V PRUDENTIAL UNION, ASSURANCE PLC (2018) LPELR-45307 (CA) Counsel referred to the cases of ABE V UNIVERSITY OF ILORIN & ANOR (2013) LPELR 20643 (SC) and OMISORE V AREGBESOLA & ORS (2015) LPELR-24803 (SC) to contend that lack of or defective particulars would not render a ground of appeal incompetent. That a ground of appeal will be valid and competent once it arises from or relates to the judgment of the trial Court being challenged. Counsel referred to the case of SBN PLC V NDIC (2006) 9 NWLR (PT 986), 424 AT 432. Counsel urged the Court to dismiss the Notice of Preliminary Objection for lacking in merit.

In arguing the substantive appeal, MR Gbashima adopted their brief filed on the 15th of January, 2020 as their legal arguments in support of the appeal. In it counsel distilled two issues for the determination of the Court:-
1. Whether in view of the totality of the evidence adduced in this case, the prosecution can be said to have discharged the burden of proof beyond reasonable doubt of the offence of Armed Robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act and the trial Court was right in relying solely on the alleged confessional statement of the Appellant (Exhibits P2 andP2a) in convicting the Appellant. (Ground 1).
2. Whether the trial Court was wrong in relying solely on the purported confessional statement of the appellant (Exhibits P2 and P2a) in convicting and sentencing the Appellant for the offence of Criminal Conspiracy punishable under Section 6 (a), (b) and (c) of the Robbery and Firearms (Special Provisions) Act, when the (sic) was nothing outside the alleged confessional statement linking the appellant to the offence charged (Ground 2).

In arguing both issues together counsel submitted that the appellant did not participate in any robbery. That he made Exhibits P2 and P2a out of fear after he saw dead bodies with a threat that he would become a dead body if he did not confess to the commission of the crime. Counsel submitted that the burden of proving a criminal offence beyond reasonable doubt is on the prosecution which burden they have failed to discharge. Counsel itemized the three ingredients of conspiracy and also stated the three elements of armed robbery. Counsel referred to the evidence of PW1, the Investigating Police Officer (IPO) which testified to the fact that he recovered a locally made pistol and the stolen slippers and submitted that the prosecution had an obligation to tender these items in evidence. That failure to tender these items in evidence amounted to withholding evidence. Counsel referred to the case of GANIYU TEWOGBADE V AKANDE (1968) NMLR 404 AT 408. Counsel further argued that the prosecution failed to prove the use of a gun or other dangerous weapon to make the offence one of armed robbery as charged.

On confessional statement, Exhibits P2 and P2a, counsel contended that the confessional statement did not pass the proverbial six way test as laid down in the case of DAWA V THE STATE (1980) 8-11 SC, 147 AT 168. This is:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as for as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) It is consistent with other facts which have been ascertained and have been proved?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel’s contention is that Exhibits P2 and P2a have not passed this test and a conviction premised on them by the trial Court must be set aside by this court.

Submitting further on confessional statement, counsel referred to the case of OKOH V THE STATE (2014) AFWLR, PT 736, 443 AT 460-461, PARAS C-O to show that Exhibits P2 and P2a were not direct and unequivocal to meet the threshold of a confessional statement, one supporting the inference that the appellant committed the offence. Counsel also contended that the confessional statement in Exhibits P2 and P2a are not consistent with other facts ascertained and proved in the case. Counsel pointed to the discrepancy in the amount robbed by the appellant and his co-accused from PW2. That while the PW1 alleged that the money stolen was N317, 000, the charge against the appellant put the amount at N387, 000. Another inconsistency that counsel drew our attention to is the fact that nowhere in Exhibits P2 and P2a was mention made of the use of a gun or some other dangerous weapon to rob the nominal complainant, PW2.

Counsel again submitted that Exhibits P2 and P2a have no probative value as they are in contravention of the mandatory provisions of the ACJA particularly Section 17(3) and (4) thereof. Counsel referred to the case of NWEDE V STATE (2018) LPELR – 43787 (CA). Another salvo on Exhibits P2 and P2a by counsel is that PW1 having admitted that the appellant was an illiterate, there is no evidence that Exhibits P2 and P2a were explained to him in the language he understands before he was made to sign it. That this also questions the probative value of Exhibits P2 and P2a.

Counsel referred to the case BISI V STATE (2018) LPELR – 44281 (CA) to contest the identity of the appellant as one of the robbers. Counsel argued that the appellant was not arrested at the scene of crime or anywhere proximate to the scene. That the only evidence of his identity was the testimony of PW2 who claimed to have recognized him by the slippers he wore which belonged to her daughter. That this piece of evidence was controverted under cross examination when PW1 admitted that there was nothing peculiar about the slippers allegedly owned by PW2’s daughter as same could be bought in the market. Counsel submitted that the trial Court erred in convicting the appellant when his identity was not proved.

On conspiracy counsel submitted that the trial court was in grave error in convicting the appellant for conspiracy when the prosecution did not prove beyond reasonable doubt that there was an agreement to commit an offence between the appellant and other persons. Counsel referred to the case of ADEYEMI V STATE (2017) LPELR – 42584 (SC) to submit further that to prove conspiracy the prosecution is under a duty to prove the following:-
1) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
(3) Specifically, that each of the accused individually participated in the conspiracy.

Counsel urged the Court to hold that the prosecution has failed to prove the offences of Armed Robbery and Conspiracy against the appellant. Counsel urged the Court to allow this appeal and set aside the judgment of the trial Court.

In opposing the appeal, MR Ijagbemi of counsel for the Respondent adopted their brief of argument, particularly pages 5 – 23 paras 3.2–6.7 as their legal arguments in opposition to this appeal. In it counsel formulated a sole issue for the determination of court thus:-
“Whether the Respondent proved the offences of Criminal Conspiracy and Armed Robbery against the appellant beyond reasonable doubt so as to sustain his conviction and sentence by the trial Court?”

Counsel conceded that the burden of proof in criminal cases or trials which is beyond reasonable doubt is on the prosecution. He however referred to the case of DAIRO V STATE (2018) AFWLR PT 928, 81 AT 108, PARAS E-F to contend that this standard of proof does not mean proof beyond every shadow of doubt.

On armed robbery counsel referred to the cases of KEKONG V STATE (2017) AFWLR, PT 923, 68 AT 92 PARAS G-H and BOTU V STATE (2018) AFWLR, PT 967, 377 AT 400 (among several cases cited by counsel contained in the brief) to set out the three elements of the offence of robbery:-
1) That there was a robbery
2) That the robbery was an armed robbery
3) That the accused person was the robber.

Counsel submitted that there is no doubt that a robbery occurred on the 14th of April, 2017.

On the contention of the appellant that failure of the prosecution to tender the gun and the slippers was fatal to proving the second element of Armed Robbery, counsel referred to the cases ofELEWANNA V STATE (2019) LPELR – 47605 (CA) and OGU V COP (2017) LPELR – 43832 (SC) to contend that failure to tender the weapon used in committing an offence is not always fatal. Counsel also submitted that the testimony of PW2 was unimpeachable that the robber woke her up with a gun. That the learned trial judge made a finding of fact at pages 112-113 of the record which findings were not appealed against. That the only way the appellate court can interfere is where there is evidence that shows that this finding is perverse. That since this is not the case; the appellant’s unfounded complaint should be discountenanced.

On the propriety of convicting on a confessional statement alone, Counsel referred to the cases of TOPE V STATE (2019) LPELR 47837 (SC); FATAI V STATE (2013) LPELR – 20182 (SC) and a host of other authorities to affirm the settled position of the law that the court can convict on the confessional statement of the accused person once the confession is voluntary, free, positive and direct. Counsel argued that the voluntariness of Exhibits P2 and P2a was never challenged by the appellant. That it therefore remains subsisting, binding, valid and correct. Counsel referred to INTERDRILL (NIG) LTD V UBA (2017) AFWLR PT 907, 1177 AT 1198. Counsel referred to the testimony of PW1 where he stated that one of the stolen phones was used to track down the appellant.

On identification, counsel submitted that the appellant having by his confession fixed himself at the scene of crime, there is no need for further identification evidence. Counsel referred to the case of ADEYEMI V STATE (2014) 13 NWLR PT 1423, 132.

On the discrepancy in the stolen amount, counsel submitted that it is an immaterial contradiction. He relied on the case of GOLIT V IGP (2018) LPELR 46188 (CA).

Counsel urged the Court to discountenance this submission.

The respondent’s counsel in responding to the issue of conspiracy submitted that evidence in support of conspiracy is usually circumstantial. That evidence of conspiracy is usually a matter of inference from surrounding circumstances and facts of the case. Counsel referred to case of OSAREREN V FRN (2018) LPELR – 43839 (SC) and GOLIT V IGP (2018) LPELR – 46188 (CA).

Counsel contended that the trial Court relied on Exhibits P2 and P2a, the voluntary confessional statements of the appellant to infer the agreement of the appellant and his co-defendant to commit the substantive offence. Counsel contended that the appellant did not object to the admissibility of his statement at the point it was being tendered by the prosecution and that none of the issues being canvassed now on appeal were raised at the trial Court. That the appellant was represented by counsel throughout the trial and there was no complaint that the statement was not read or interpreted to him by the police. That appellant’s silence at the trial must be taken as admission. Counsel referred to the case of ADEWALE JOSEPH V STATE (2010) AFWLR, PT 539, 1106 to submit that it is now too late in the day to complain. Counsel argued that the attempt of the appellant to impugn his confessional statement on the ground that it was not read or interpreted to him as required by Section 17(3) and (4) of the ACJ, 2015 is an afterthought. That any issue(s) that the appellant did not raise in the trial Court, he is not entitled to raise them here. Counsel referred to the case of PML (NIG) LTD V FRN (2018) 7 NWLR (PT 1619) 448 AT 476. Counsel urged the Court to resolve the sole issue raised in favour of the respondent and to dismiss the appeal.

I would for obvious reasons consider the Notice of Preliminary Objection first. The notice is predicated on four grounds. Ground 4 is a summary of grounds 1 and 2 so a resolution of one will be a resolution of the other. Counsel’s contention on Ground 3 states that the appellant has abandoned the ground. I am unable to see how abandoning a ground of appeal becomes an issue for a Notice of Preliminary Objection. However, having been raised I have a duty to deal with it. Has the ground been abandoned? To answer this question may of necessity involve a consideration of whether the ground is competent. The generally accepted position of the law is that the words: “weight of evidence” are not applicable in criminal appeals. This controversy has been raging but the practice is quite rampant as counsel regularly continue to file this type of omnibus ground as a ground of appeal even in criminal appeals.
In the first Republic, in the case of OKEZIE V QUEEN (1963) 1 ANLR, 1 ADEMOLA CJF held thus:
“The words “weight of evidence” are not applicable in criminal appeals. This Court would like to stress that a criminal appeal on the facts is not quite the same as an appeal on facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence whilst in a criminal appeal, it is that the verdict is unreasonable and cannot be supported having regard to the evidence”
Several years later in 1992, the same Supreme Court, per Ogwuegbu, JSC held in the case of ABASI V THE STATE (1992) 23 NSCC (PT 3) 159 as:-
“I will like to make an observation on the manner ground one of the Grounds of Appeal was couched. A ground of appeal that the decision is all together unreasonable, unwarranted and cannot be supported having regard to the weight of evidence is not a ground of appeal in criminal cases, which are, usually not decided on the weight of evidence or balance of probabilities. Ground of Appeal is incompetent and ought to have been struck out BUT FOR THE SERIOUS NATURE OF THE CHARGE.” (Emphasis Mine).
Based on this authority and this being a capital offence I hold that the defect in this ground is waived. This is perhaps as it should be since the primary essence of a ground of appeal is to give adequate notice to the respondent and the appellate Court of the complaint of the appellant against the decision of the trial Court. OSASONA V AJAYI (2004) 5 SC PT 1, 88 AT 96; MINJIBIR & ANOR V MINJIBIR & ORS (2008) LPELR-4486(CA); OFUNWA V OBA AGBABIAKA & ORS (2015) LPELR-25595(CA). This position should not be mistaken as a sanction or encouragement of the lack of industry and scholarship that has devilled the appellate Courts in recent times. Criminal appeals are replete with “weight of evidence” as part of the omnibus ground of appeal. This highly embarrassing situation should be addressed before legal practitioners indirectly push the responsibility of defending their clients to the Court that should at all times even in criminal matters remain an impartial arbiter. The import of this is that this ground of appeal is competent and it will read to mean: “The decision is against the evidence.” This ground queries the evaluation of evidence. Evaluation of evidence is implicit in issue (1) as seen in the body of the written address of counsel. Granted that the appellant’s counsel failed to write ground 3 against either of his two issues but even the respondent’s counsel made submissions on evaluation of evidence in his sole issue. It is therefore an open secret that the issue of proof beyond reasonable doubt can hardly be discussed without recourse to evaluation of evidence. Many counsel have also formed the habit of treating the omnibus ground of appeal as they treat the omnibus prayer in an application on notice; that it is just there as security for a lapse in stating a prayer in a motion! Like I pointed out earlier, this is due to lack of industry on the part of counsel; Period. Having determined ground 3, I will go the other grounds of appeal as raised by counsel.

The main grouse of the respondent is that the particulars of the grounds of appeal are incompetent and render the grounds incompetent. In quickly responding to this contention, I will without hesitation uphold the submission of the appellant’s counsel that defective particulars would not necessarily render the ground itself defective. A complaint that a ground of appeal is incompetent must primarily be directed at the ground itself and not at its particulars. This no doubt is the clear purport of ORDER 7(2)(2) and (3) of the Rules of Court, 2016:
“(2)2 Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(2)3 The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
There has been judicial affirmation of this provision in the case of ONAFOWOKAN V WEMA BANK (2011) 45 NSCQR. This point was well amplified by Nweze JSC in the case OMISORE V AREGBESOLA (SUPRA) in a long holding as follows:-
“The answer to the objectors invitation is predictable. The current mood of this Court to technicalities has been depicted above. Consistent with this liberation trend, the position now is that it is not every failure to attend to grounds of appeal with the fastidious details prerscribed by the rules of this Court that would render such a ground incompetent. This is particularly so where such sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded UKPONG & ANOR. VS COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT & ANOR (2006) LPELR-3349, 2006 19 NWLR (PT. 1013) 187.
Citing HAMBE VS. HUEZE (2001) 4 NWLR (PT. 703) 372 (2001) 5 NSCQR 343,352. . Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. DAKOLO & ORS VS. DAKOLO & ORS (2011) LPELR-915; (2011) 16 NWRL (PT. 1272) 22. Hence a bad or defective particulars in a ground of appeal would not, necessarily render the ground itself incompetent. PRINCE (DR) B. A. ONAFOWOKAN & 2 ORS VS. WEMA BANK PLC (2011) 45 NSCQR-1 (2011) 12 NWLR (PT. 1260) 24 ………
……….. Put differently, since the essence of particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they flow.”
There is also merit in the contention of the appellant’s counsel that in the instant case, the complaint is only in respect of some and not all the particulars to grounds 1 and 2. I agree with learned counsel that even if those particulars complained of are expunged, there are still particulars upon which to predicate the grounds of appeal. This is especially so in this case where the grounds of appeal are clear, unambiguous and leaves one in no doubt as to the specific complaint(s) against the decision of the lower Court by the appellant. The function of particulars in a ground of appeal is merely to elucidate and advance the complaint in the ground, bring to the fore, specify or amplify the errors or mistakes complained of in the ground; explanatory notes as it were. See the cases of: OLORUNTOBA-OJU & ORS V ABDUL-RAHEEM & ORS (2009) 13 NWLR, PT 1157, 83; WAZIRI & ANOR V GEIDAM & ORS (2016) LPELR-40660(SC); VINCENT V VINCENT (2008) 11 NWLR, PT 1097, 35 and ODIGBO V ABUBAKAR & ORS (2018) LPELR-46473(CA)
In the context of grounds of appeal, the settled principle of law is that once a grounds of appeal is rooted in the judgment, arise from or are related to the judgment appealed against, a ground of appeal will be valid if the issues arise from or is related to the judgment. It does not have to be a matter that counsel raised directly in the trial lower Court or make specific reference to. It suffices if the matter arises in the proceedings. I have gone through the record as well as the particulars that the respondent allege is a new issue.
I reproduce particular (xii) of ground 2:
“The prosecution’s first witness (PW1) testified under cross examination that the Appellant is an illiterate who could neither read nor write and it was he (PW1) who recorded the Appellant’s confessional statement.”
and also part of the testimony of PW1 in XX at page 72.
”….. yes I am the person that recorded all the Defendant’s statement but with their permission.
They said they could neither read nor write, that is why they asked me to record it for them”
How this particular can be said not to arise from this evidence on record beats my imagination. The point must be made that the whole essence of a ground of appeal is to notify the Court and the adverse party that the complaint of the appellant is in respect of the decision appealed against. The respondent is not in doubt (as borne out of the comprehensive brief filed in answer to the appeal) of the appellant’s complaint in the two grounds that he challenges. The preliminary objection fails and I accordingly dismiss it

The appellant formulated two issues for determination which were argued together. The respondent on its part distilled a sole issue from the grounds of appeal. I find that the sole issue of the respondent is mere salient and constructive. For this reason and to avoid the repetitions that the two similar issues argued together by the appellant has created in his brief, I will determine this appeal on the sole issue distilled for resolution by the respondent.

The sole issue is whether the respondent proved the offences of Criminal Conspiracy and Armed Robbery against the appellant as to sustain his conviction and sentence by the trial Court.

In proof of this offence, the prosecution relied on the testimony of PW2 who was not only an eye witness but was the victim of the crime. Her testimony was that she was that on the 14/04/2017, she was woken up from sleep by the robbers who were with a gun. That they robbed her of a 42inch plasma TV set, two laptop computers and three mobile phones all at gun point. PW2 was cross examined by the appellant’s counsel. In spite of her direct evidence that she was robbed at gun point, counsel never crossed examined her on the use of a gun in the robbery. This failure is fatal. In the case of OLUDAMILOLA V STATE (2010) 8 NWLR. PT 1197, 565, the Supreme Court per OGBUAGU, JSC held thus:
“Where a party fails to cross-examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Oforlete V State (supra) at 2098 – 2099… the trial Court was right in accepting the evidence of PW2 and PW5 which were unchallenged under cross examination… A party who fails to cross – examine a witness will not be entitled to invite the Court to disbelieve the witness on the evidence he gave.” See also the cases of GAJI V PAYE (2003) 8 NWLR 823, 583; BABALOLA V STATE (1989) 4NWLR, PT 115,264; IGHALO V STATE (2016) 17 NWLR, PT 1540, 1 and ISAH V STATE (2018) 8 NWLR, PT 1621, 346.

From this testimony PW2 has through unchallenged and uncontroverted evidence established two of the three stated ingredients of the offence of armed robbery. These are that there was a robbery and it was armed. Did PW2’s testimony prove that the appellant was one of the robbers? The appellant was the 1st defendant at the trial. The evidence in chief of PW2 that relates to him is contained at pages 73-74 of the record thus: “They also took three phone handsets, a 42-inch TV, two laptops and one slippers, that was later found with the 1st defendant………..A few days later the police called me when I got there; they lined up about 15 people. This was at Gwagwa Police Station. When I checked through that line up, I saw Kingsley the 1st defendant. Because I had seen him very clearly on the night of the robbery as there was light everywhere in the house. He had even run back into the house to take my daughter’s slippers. The following day the Gwagwa police took us to command. There at command, Kingsley was wearing exactly that slippers he took from my house so I went to him and confronted him saying, “I thought you are denying coming to rob me, is it my daughter’s slippers your are wearing on your legs”. He agreed immediately and they handed us over to SARS. It was at SARS that he mentioned the names of the other people that were part of the robbery operation. The SARS officers then went to arrest the 2nd defendant and one other person. But they could not find the other two people. The slippers that Kingsley was caught with I know that it was my daughter’s slippers because she bought it newly and sewed it to make it tight on her leg”.

Under cross examination, PW2 stated in respect of the 1st defendant at page 76 as follows:
“The 1st defendant was arrested through tracking of our stolen phones. ……………….. I do not know how the police tracked the defendant but I know that when the police called the phone line, it was Kingsley that came out and was arrested. It is not true that I used my daughter’s slippers to identify Kingsley. The first time I saw him during the identification parade at Gwagwa police station I told the police he was one of the robbers that attacked us in my house but he Kingsley denied it. Kingsley’s brother who was there then joined in the denial saying that their generation is not into robbery stealing. At Gwagwa police Kingsley was barefooted, but when we got to command, I now saw him wearing my daughter’s slippers and went to confront him to challenge him over the slippers, it was then that he admitted the offence and his brother who had been defending him there and then ran away.
It is correct that there are other similar slippers like the one they stole from my daughter but I could identify that particular one because the peculiar mark we put on it, i.e the sowing”.

The testimony of PW2 was cogent, direct and unequivocal. It has proved all the ingredients of the charge. PW2 clearly proved that there was a robbery on the night of 14/04/2017. That this robbery was an armed robbery. PW2 was never cross examined on these two elements of the offence. I have already found in this judgment that the position of the law where a party fails to cross examine a witness on a particular matter is that he accepts the truth of that matter as led in evidence.

The third element is the identity of the appellant. The evidence of PW2 in this regard is cogent. The witness was categorical that she picked the accused person out in an identification parade. Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances:
1) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
2) Where the victim or witness was confronted by the offender for a very short time;
3) Where the victim due to time and circumstance, might not have had the full opportunity of observing the features of the accused: UKPABI V STATE (2004) 11NWLR, PT 884, 349; EBRI V STATE (2004) 11NWLR, Pt 885, 589; DAIRO V STATE (2017) LPELR-43724(SC) and CHUKWUDOZIE V STATE (2019) LPELR-47164(CA).

The appellant never questioned the identification evidence. The identification evidence was strong and from all the testimony of PW2 both in chief and in cross examination, she was emphatic that the light was good and she saw the appellant very clearly in the night in question. She also recognized her daughter’s slippers which she alleged the appellant ran back to collect on the night of the robbery as the slippers had a special a special mark which was also identified. This evidence was not shaken in cross examination. The learned trial judge was therefore right to have accepted and acted on the evidence of PW2 as he did on page 104 of the record. This evidence alone was sufficient for the trial judge to have competently convicted the appellant.

In addition, the prosecution also established this evidence by a second mode, the confessional statements of the appellant, Exhibits P2 and P2a. I reproduce them:
Exhibit P2:
“I am single; presently I live in Jiwa village FCT. I can remember that on the 14/04/2017, I was in ECWA in JiWa in the front of the where they sold drink and suya meat. One Laso who is my casual friend who live in Lagos Street Gwagwa called me on my telephone line and he, China and Kashim came to me in my joint , it was about 8.00pm. they meet me and told me that they want to go and carry something. I asked them where is the place? They said Gwagwa. We used leg to treack (sic) to Gwagwa from Jiwa at after 11pm. When we got to the house Laso said that I should be a washman (sic) for the robbery work which we want to do. I was warshing (sic) when I saw Laso hold two handsets, Chinna hold Plasma T.V. Black and Kashim hold laptop and they went to Police signboard side and I and Laso follow back to Jiwa…..On 15/04/2017 at about 5 Am – 6 Am, Laso went out and came back around 9.00am. Later Shina and kashim came back empty handed and I was given N25,000…….. I was arrested on the 27/04/2017 in Jiwa, and they tooked (sic) me to Gwagwa Police Station and I denied that I did not follow to robbed (sic) the woman her properties. But when they tooked me to SARS I confessed that I follow robbed the woman in her house in Gwagwa”.
Exhibit 2a:
“……I also joined armed robbers because I did not money. I joined the armed robbers on April, 2017. My armed robber leader is Laso who live at Tesha 1 Gwagwa Area FCT. It was he that get gun that we are using. I have follow laso to operate two times. (1) at Jiwa at about 7-8 pm. We went and stoled (sic) one Plasma T.V. only (2) On April 14/04/2017 I and Laso, Kashim and Chinna went to one woman house at Mountain of Fire Ministry Quarters and robbed the woman of her properties (1) Plasma T.V (2) 2 laptops, three mobile handsed (sic) , sander (sic) and cash N370, 000 and I was giving (sic) the total N25,00….”

The apex Court has set up the six-way test in the case of DAWA & ANOR V STATE (supra) in ascertaining the weight to be placed on confessional statements:
1) Is there anything outside the confession to show that it is true?
2) Is it corroborated?
3) Are the relevant statements made in it of facts true as far as can be tested?
4) Was the prisoner one who had the opportunity of committing the crime?
5) Is his confession possible?
6) Is it consistent with other facts which have been ascertained and have been proved?
From the unchallenged testimony of PW2 I uphold the submission of the appellant’s counsel that Exhibits P2 and P2a have satisfactorily passed these tests. In all the authorities from this Court and the apex Court the settled law is that it is irrelevant whether or not the confessional statement was retracted as alluded to by the appellant’s counsel. I am therefore in agreement with the learned judge that after a thorough evaluation of the evidence he found at page 111- 112 of the record that Exhibit P2a has met all the conditions to sustain the conviction of the appellant. I see no reason to disturb this finding of fact and the learned counsel to the appellant has not given me any.

I should also put it on record that I agree with the respondent’s counsel that the appellant who never alleged involuntariness when Exhibits P2 and P2a were being tendered cannot be heard to complain of lack of interpretation of the statement, pleading illiteracy and noncompliance with Section 17(3) and (4) of the ACJA all in a bid to attack the confessional statement. All these arguments are being posited as distractions and they do not constitute real defence or substantive argument on behalf of the appellant. In respect of the allegation of being an illiterate for example, I refer to page 78 of the record. The appellant gave evidence as DW1 and speaks English Language. They have not impeached this record which they transmitted to this Court. I hold that the appellant has failed to show that he does not understand English language. There is nothing on record to prove that the appellant was denied fair hearing and he has not alleged such.

What remains for consideration is whether the respondent proved conspiracy beyond reasonable doubt. Was conspiracy not proved as alleged by the appellant?

Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do: NWOSU V THE STATE (2004) 15 NWLR, PT 897, 466. Conspiracy consists not merely in the intention of two or more persons but rather in the agreement of two or more persons to do an unlawful act, or to do a lawful act by lawful means; ODUNEYE V THE STATE (2001) 13 WRN, 88. The Courts generally rely on circumstantial evidence to infer the agreement of the conspirators. See: OSAREREN V FRN (2018) LPELR-43839(SC); GOLIT V IGP (2018) LPELR-46188(CA). I agree with the respondent’s counsel that in this instance the learned trial judge correctly relied on Exhibits P2 and P2a, the confessional statements of the appellant to infer the agreement of the appellant and his co-defendant to commit the substantive offence. His lordship was on firm legal footing in his findings at page 117:
“In the instant case, I have already found that Exhibits P1 and P2a are the true confessions of the defendants in this matter. A perusal of the exhibits shows that all the elements of the crime are present. Exhibit P2 documents how the 1st defendant was invited and he in fact joined in the plan already formed by the 1st defendant (sic) and others to rob PW2. It further shows how they all participated in carrying the plan into effect by attacking and robbing PW2 and her family on the 14/04/2017. Exhibit P1 also confirms that the two defendants and other persons at large acting in concert, had robbed PW2 on the 14/04/2017. Both confessions have in effect corroborated each other to establish the offences alleged in the charge.”

I am satisfied from the finding of his lordship that he has properly evaluated the evidence and made the correct inferences from the confessional statements of the defendants to reach the inevitable conclusion that the prosecution established conspiracy against the appellant.

The contention of counsel to the appellant’s argument that the alleged gun used in the robbery was not tendered as well as the slippers allegedly recovered by the police is of no moment in this appeal. The settled and indisputable position of the law is that where there is overwhelming evidence as in this case, the instrument or weapon used in the commission of the offence need not be tendered in evidence to secure a conviction: ELEWANNA V STATE (2019) LPELR-47605 (CA) and OGU V COP (2017) LPELR-43832 (SC)

In sum I resolve the sole issue against the appellant and in favour of the respondent. The two count charge against the appellant was proved beyond reasonable doubt and the trial judge rightly convicted and sentenced him.

I hold that this appeal is completely unmeritorious. It fails and I accordingly dismiss it. The judgment of the lower Court is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I have read the lead judgment delivered by my learned brother PATRICIA AJUMA MAHMOUD, JCA in APPEAL NO. CA/A/440C/2019.

I agree with the reasoning and conclusion therein.

FOLASADE AYODEJI OJO, J.C.A.: I had the of reading before now the draft of the judgment just by my learned brother, PATRICIA AJUMA MAHMOUD, JCA. His lordship has admirably considered and resolved all pertinent issues for determination in this appeal. I agree with my learned brother that this appeal is completely devoid of merit and should be dismissed. It is accordingly by me. I also affirm the Judgment of the trial Court.

Appearances:

Terhemba Gbashima For Appellant(s)

Mr. John Ijagbemi with him Messers Vincent Adodo and Mayowa Adetoye For Respondent(s)