TERLUMEN GIKI v. THE STATE
(2018) LCN/4607(SC)
In The Supreme Court of Nigeria
On Friday, the 19th day of January, 2018
SC.235/2014
RATIO
DUTY OF THE PROSECUTION TO PROVE THE GUILT OF AN ACCUSED
The time honoured principle of law is that an accused person is presumed innocent until he is proved guilty. It is not for the accused to prove his innocence before the law Court. The burden of proving the guilt of an accused person squarely rests on the prosecution and such burden does not shift. See Section 138 (1) of the Evidence Act 2011 as amended. Also, the prosecution, in order to obtain conviction must prove its case beyond reasonable doubt. Where there exists any doubt in the prosecution’s case, such doubt must be resolved in favour of the accused person. See Igabele v State (2006) 6 NWLR (Pt 975) 100; Agbo v State (2006) 6 NWLR (pt 977) 545; Miller v Ministry of Pension (1947) 2 AER 372. However, I must state here, that even though the burden of proof of the guilt of an accused person lies on the prosecution, where the prosecution had adduced adequate evidence which shows that the accused person had actually committed the offence charged, the burden of proving that he is innocent shifts to the accused in view of the provisions of Section 138 (3) of the Evidence Act 2011 as amended. See Nasiru vs State (1999)2 NWLR (pt 589) 87 at 89. PER AMIRU SANUSI, J.S.C.
MODES BY WHICH THE PROSECUTION MAY PROVE THE GUILT OF THE ACCUSED
For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely, (a) Through testimony or testimonies of eye witness or witnesses, and/or (b) Through confessional statement, voluntarily made by the accused person; and/or (c) Through circumstantial evidence which clearly point to the sole fact that the accused person and no other person committed the offence charged. PER AMIRU SANUSI, J.S.C.
ELEMENTS THAT MUST BE ESTABLISHED BY THE PROSECUTION TO OBTAIN CONVICTION ON THE OFFENCE OF ARMED ROBBER
For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit (i) that the accused person in the process had committed theft (ii) that the accused person and/or person(s) he was in company of had caused hurt, wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims. (iii) that the acts complained of were done in the process of committing the theft or in order to commit the theft and/or carry away the property obtained by the theft (iv) that the accused person did the acts complained of voluntarily and (v) that the accused person or any one in his company was/were armed with dangerous weapons at the time of committing the offence in question during the robbery. See Abdullahi v The State (2008) 5 SCNJ 2101277. In a nut-shell the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death. See Aruna v The State (1990)6 NWLR (pt 155) 725; Tanko v The State (2009) 2 SCNJ 19; Ani v The State (2009) 6 SCNJ 105; Bozin v State (1985) 2 NWLR (pt 8) 465; Okosi V A.G Bendel State (1989)1 NWLR (pt 100) 442; Nwachukwu v State (1985)1 NWLR (pt 11) 218. PER AMIRU SANUSI, J.S.C.
CIRCUMSTANCE WHERE THE TRIAL COURT MUST CONDUCT A TRIAL WITHIN TRIAL AND THE CONSEQUENCE OF THE FAILURE OF THE TRIAL COURT TO CONDUCT SAME WHERE IT IS REQUIRED
The position of the law is that when an accused person retracts a confessional statement on the ground that it was not voluntarily made by him, the trial Court has a duty to try the issue of the voluntariness or otherwise of such statement through the conduct of a trial within trial. See Gbadamosi v State (1992) 1 NWLR (Pt 266); R vs Onabayo (1936) 3 WACA 42; R v Igwe (1960) SCNLR 158; Olayinka v The State (2007) 4 SCNJ 66-67. Failure of a trial Court to conduct trial within trial where issue of voluntariness of a confessional statement is raised, renders such statement inadmissible. See Obidiozo vs State (1987) 4 NWLR (pt 67) 48; See also Emeka vs The State (2001) 6 SCNJ 267, (2001) 14 NWLR (pt 734) 666 where Ogwuegbu JSC stated as below. “The law is that where an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the Judge to test the confession by conducting a trial within trial in order to determine whether in fact, the statement was voluntarily made. PER AMIRU SANUSI, J.S.C.
WHETHER THE BURDEN OF PROVING THE GUILT OF THE ACCUSED BY THE PROSECUTION CAN BE DISCHARGED THROUGH THE TESTIMONY OF A SINGLE EYEWITNESS
By the provision of Section 138 (1) prosecution has the burden to prove its case beyond reasonable doubt. Such burden can be discharged through the testimony of even a single eye witness account of the commission of the crime by an accused person once such testimony is credible and is believed by the trial Court. See Abouge v G P (1959) SCNLR 576; Fatoyinbo vs AG of Western Nigeria (1966) WNLR 4; The State vs Afolabi (2010) 43 NSCQ 256. PER AMIRU SANUSI, J.S.C.
WHETHER THE PROSECUTION MUST TENDER THE OFFENSIVE WEAPONS USED DURING ROBBERY OPERATIONS IN ORDER TO OBTAIN CONVICTION
It is trite law, that failure to tender the offensive weapon used during a robbery operation can not result in the acquittal of the accused person because of the strong possibility of accused person to destroy, throw or do away with the offensive weapons after the commission of the crime in order to exculpate himself from criminal responsibility. See Olayinka v State (2007) 9 NWLR (pt 1040) 561; Okosi vs AG Bendel State (supra). In fact, there is no principle of law, that insists that the prosecution must always tender weapons used during robbery operations in order to obtain conviction. See Olayinka v State (supra) PER AMIRU SANUSI, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
TERLUMEN GIKI Appellant(s)
AND
THE STATE Respondent(s)
AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Division (“the lower Court” for short) delivered on the 12th day of February 2014, which affirmed the decision of the High Court of Cross River State, (the trial Court), convicting and sentencing the appellant to death on the offence of armed robbery on 12th day of October 2009, contrary to Section 1 (2) (a) (b) of the Robbery and Firearms (Special Provision) Act, Cap R 11 Laws of Federation of Nigeria 2004.
The facts giving rise to this appeal as could be gleaned from the record of appeal, are simply as follows. On 15th December 2005 one Victor Ogbaji Ogar, a motor cyclist who testified at the trial as PW1, dropped a passenger at the boundary of Benue State and Cross River State and wanted to head to his home town. On his way home, he suddenly reached a road block mounted by armed robbers which comprised the appellant and three other co-accused persons who were masked and armed with guns and dagger. The gang of armed attacked him and robbed him of a sum of N31,700 after tying his hands to the back with rope
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and later forced him to lead them to Osina Wafe Village for another robbery operations.
On getting to that village, the victim shouted for help and his shouts attracted people around, hence the armed robbers took to their heels firing gun shots in the air and the shot hit and injured a girl called Rosemary Omagu who later testified at the trial as PW2. Unfortunately for the appellant, he was caught or arrested by the villagers and was unmasked. Even though one of the robbers by name, Sunday Makai escaped, two other members of the robbery gang namely Mannasseh Jiwunde and Aondowase Sougo were arrested, hence the appellant and the two others arrested were jointly charged, tried together and convicted of offence of armed robbery.
At the trial, the prosecution called three witnesses and tendered ten exhibits, whereas the appellant, as accused person, testified on his own behalf without calling any witness to testify for his defence. In the end the learned trial Judge found the appellant guilty as charged and convicted him of the offence of armed robbery and sentenced him to death. Naturally aggrieved by his conviction and sentence by the trial Court, he
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appealed to the lower Court which dismissed his appeal and affirmed the conviction and sentence in its Judgment delivered on 12th February 2014. Still dissatisfied with the Judgment of the lower Court, the appellant further appealed to this Court.
Parties filed and exchanged briefs of argument in compliance with the rules and practice applicable to this Court. The appellant’s brief of argument settled by one Chenure Godwin Omoaka Esq. was filed on 20th October 2017 but deemed filed on 26th October 2017. The Respondent herein, upon being served with the appellant’s brief of argument filed his brief of argument on 12th September 2014 which was also deemed filed on the same 26/10/2017. In the appellant’s brief of argument, a lone issue was distilled for determination from the grounds of appeal contained in the notice of appeal which reads thus:-
Was the Court below right to affirm the Judgment of the trial Court on the ground that the prosecution proved its case beyond reasonable doubt”
The above lone issue for determination was adopted by the learned counsel for the respondent as the only issue calling for the determination of this appeal
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without more.
In arguing the lone issue for determination, the learned counsel for the appellant submitted that failure of the Court below to take into consideration the case put forward by the appellant is fatal and should have led to a reversal of the decision of the trial Court. He pointed out that the appellant. testified that on the day of the incident i.e. 15th of December, 2005, he went to Osina to buy palm wine and while he was engaged in discussion with the seller, the vigilante group members pounced on him and accused him of committing robbery. He then argued that the lower Court did not advert its mind to the evidence of the appellant in affirming the trial Court’s finding that PW1 was robbed. He argued that PW1 gave conflicting evidence as to the amount stolen from him as he put the amount variously at #31, 000 and #31,200 in Exhibits 1 and 2 i.e. his statements to the police.
On the evidence as to the time of the robbery, he pointed out that PW1 stated that he was robbed between 10 and 11pm at the boundary between Benue and Cross River States and that it is not possible that the robbers would have asked him to lead them to Osina village
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for another round of robbery operation at about 9pm in Osima village as would have culminated in firing a stray bullet hitting PW2 which the said PW2 stated in her evidence, to have occurred at about 7pm. He argued that the event at Osina was not the subject of the charge but on an earlier armed robbery that allegedly took place in the forest reserve in Ahfokpa and that the appellant was not arrested in connection with that armed robbery that earlier took place, but in connection with the alleged attempted armed robbery that took place in Osina village. He argued that the Court should have invoked Section 167 of the Evidence Act to hold
(i) that the PW1 did not die
(ii) the absence of evidence showing that he sustained injury to his fore head
(iii) lack of medical evidence that he was treated for injury sustained as a result of stabbing clearly suggests that the appellant and his co-accused were not armed.
He submitted that in the absence of any evidence from the prosecution showing clearly that no offensive weapon was found in possession of the appellant and the gang member at the time of their arrest at Osina raised significant doubt as
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to the veracity of PW1’s assertion, that he was robbed by gun wilding armed robbers. He also argued that the appellant did not take part in the robbery because the alleged robbery that took place and the event of Osina vlllage are two different incidents which must be kept separately. He argued that arresting and unmasking the robbers are not pointer that they were the persons who robbed Pw1. He urged this Court to hold that the prosecution has failed to prove the ingredients of the offence of armed robbery and to allow the appeal.
In his response to the above appellants counsels submissions, the respondent’s learned counsel pointed out that in the charge of armed robbery, the following ingredients must be proved by the prosecution in order to obtain conviction, to wit.
(i) that there was a robbery or series of robberies
(ii) that the robbers were armed
(iii) that the accused was one of the robbers or was one who took part in the armed robbery
He submitted that the guilt of an accused person can be established through confession, circumstantial evidence or evidence of eye witness. He referred to the Judgment of the trial
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Court at page 83 and that of the Court below at page 169 of the record and argued that the PW1’s evidence is corroborated by the following circumstances i.e. the recovery of the mask, the appellant being caught at Osina village soon after, in his quest to continue with the robbery as disclosed by PW1 can also be said to be good evidence to be relied upon by the trial Court.
On the issue of conflicting evidence as to how much was stolen from PW1, the learned counsel for the respondent argued that the contention of the appellant’s counsel on this point does not go to the root of the matter and can thus be seen as a minor discrepancy and therefore not fatal to the prosecution’s case. He referred to Section 9(b) of the Evidence Act and submitted that the shooting at Osina village makes the fact of robbery more plausible and probable. He argued also that the appellant did not deny the presence of mark to show that there was a stabbing on PW1’s forehead. He concluded his arguments by submitting that the prosecution had proved all the ingredients of the offence of armed robbery and then urged this Court to dismiss the appeal and affirm the concurrent decisions
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of the two Courts below.
The time honoured principle of law is that an accused person is presumed innocent until he is proved guilty. It is not for the accused to prove his innocence before the law Court. The burden of proving the guilt of an accused person squarely rests on the prosecution and such burden does not shift. See Section 138 (1) of the Evidence Act 2011 as amended.
Also, the prosecution, in order to obtain conviction must prove its case beyond reasonable doubt. Where there exists any doubt in the prosecution’s case, such doubt must be resolved in favour of the accused person. See Igabele v State (2006) 6 NWLR (Pt 975) 100; Agbo v State (2006) 6 NWLR (pt 977) 545; Miller v Ministry of Pension (1947) 2 AER 372
However, I must state here, that even though the burden of proof of the guilt of an accused person lies on the prosecution, where the prosecution had adduced adequate evidence which shows that the accused person had actually committed the offence charged, the burden of proving that he is innocent shifts to the accused in view of the provisions of Section 138 (3) of the Evidence Act 2011 as amended. See Nasiru vs State (1999)2
8
NWLR (pt 589) 87 at 89.
For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely,
(a) Through testimony or testimonies of eye witness or witnesses, and/or
(b) Through confessional statement, voluntarily made by the accused person; and/or
(c) Through circumstantial evidence which clearly point to the sole fact that the accused person and no other person committed the offence charged.
For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit
(i) that the accused person in the process had committed theft
(ii) that the accused person and/or person(s) he was in company of had caused hurt, wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims.
(iii) that the acts complained of were done in the process of committing the theft or in order to commit the theft and/or carry away the property obtained by the theft
(iv) that the accused person did the acts complained of voluntarily and
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(v) that the accused person or any one in his company was/were armed with dangerous weapons at the time of committing the offence in question during the robbery.
See Abdullahi v The State (2008) 5 SCNJ 2101277. In a nut-shell the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death. See Aruna v The State (1990)6 NWLR (pt 155) 725; Tanko v The State (2009) 2 SCNJ 19; Ani v The State (2009) 6 SCNJ 105; Bozin v State (1985) 2 NWLR (pt 8) 465; Okosi V A.G Bendel State (1989)1 NWLR (pt 100) 442; Nwachukwu v State (1985)1 NWLR (pt 11) 218.
I had in the fore paragraphs of this discourse mentioned the modes of proof in criminal cases by the prosecution. In this instant case, the issue of an extra Judicial statement made by the accused appellant which was tendered by the prosecution in the course of the proceeding was admitted and marked Exhibit 9. It is important to note as shown in the record of proceedings, that when the appellant’s extra judicial statement was tendered during the trial, the defence objected to the admissibility of the said statement on the ground that the appellant, as an accused
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at the trial Court, did not make such statement voluntarily because he was tortured to sign the statement. The defence thereupon urged the trial Court to conduct a trial within trial which said call made by the defence counsel, was not objected to by the prosecution. The learned trial Judge however overruled and rejected the call for trial within trial when he stated thus,
“Court- I had just ruled on the same objection admitting the statement of the 1st accused. For the prosecution to say that he is also out for a trial within trial speaks of lack of understanding. In the result, I recall my earlier ruling and standing by it. I overrule the trial within trial and mark the document EXHIBIT 9.”
(See page 37 of the Record of Appeal)
To support his stance on his refusal to conduct trial within trial, the learned trial Judge further stated at pages 84-87 of the record as follows:-
“Trial within trial is not available at the wishful beck and call of an accused person. It must be predicated on an objective conviction that the confession was manufactured by the police and foisted on the accused person or forced down his throat.”
To my mind, the
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above observation or opinion should have at best, been made after testing the veracity of the allegation that the statement was actually not made voluntarily after conducting trial within trial or mini trial in order to ascertain the allegation that it was really voluntarily made by the accused/appellant. The position of the law is that when an accused person retracts a confessional statement on the ground that it was not voluntarily made by him, the trial Court has a duty to try the issue of the voluntariness or otherwise of such statement through the conduct of a trial within trial. See Gbadamosi v State (1992) 1 NWLR (Pt 266); R vs Onabayo (1936) 3 WACA 42; R v Igwe (1960) SCNLR 158; Olayinka v The State (2007) 4 SCNJ 66-67. Failure of a trial Court to conduct trial within trial where issue of voluntariness of a confessional statement is raised, renders such statement inadmissible. See Obidiozo vs State (1987) 4 NWLR (pt 67) 48; See also Emeka vs The State (2001) 6 SCNJ 267, (2001) 14 NWLR (pt 734) 666 where Ogwuegbu JSC stated as below
“The law is that where an accused person contends that a confessional statement sought to be tendered in evidence was
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not made by him voluntarily, it is the duty of the Judge to test the confession by conducting a trial within trial in order to determine whether in fact, the statement was voluntarily made.
Therefore, by refusing to conduct trial within trial in the circumstance of this instant case, the trial Court was wrong and it was also wrong for it to admit the statement in question in evidence.
Now the next question to consider is whether the prosecution had adduced credible and cogent evidence in proof of the offence of armed robbery against the accused/appellant independent of or apart from the confessional statement wrongly admitted This question is apt because even if there is no confessional statement relied on in proof of its case against an appellant, the prosecution can still rely on other evidence, be they eye witness account or circumstantial evidence. See Onyenye v State (2012) LPELR 7866 (SC) ; Emeka v State (supra).
There is no gain saying, that in the present case the prosecution had called and relied on the testimonies of PW1, PW2 and PW3. PW1 and PW2 are eye witness to the commission of the offence of armed robbery by the accused/appellant
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and his fellow co conspirators.
By the provision of Section 138 (1) prosecution has the burden to prove its case beyond reasonable doubt. Such burden can be discharged through the testimony of even a single eye witness account of the commission of the crime by an accused person once such testimony is credible and is believed by the trial Court. See Abouge v G P (1959) SCNLR 576; Fatoyinbo vs AG of Western Nigeria (1966) WNLR 4; The State vs Afolabi (2010) 43 NSCQ 256.
In his testimony, for instance, PW1 revealed how he was attacked by five masked armed men on his way back home at the boundary between Cross River and Benue States, where his money i.e. N31,000,000 was robbed from him, after of course, he was thoroughly beaten and stabbed with a knife. That attack according to him, took place at around 10pm. Then, PW2 testified that she was injured by a stray bullet at Osina when she came out after she heard the alert shouts that some robbers were within the vicinity. She said the incident took place at around 1.30hrs even though she said she was not wearing her wrist watch. PW1 further testified that he was forced by the robbers to accompany them to Osina
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village some distance away from the place he was robbed, for further operations. Evidence abounds that when alarm was raised, the appellant was arrested and unmasked. PW1 and indeed all other persons who arrested the appellant had duly identified the appellant, hence his identity was not of any doubt at all. Moreover, PW1 had a long encounter with the robbers (including the appellant) hence the appellant’s identity was not in dispute at all. It is my firm view therefore that the appellant was really fixed at the scene of the crime. Also the minor disparity on the actual time and the place the armed robbery took place are not material contradictions as would raise some dust on the prosecution case hence the trial Court’s finding rightly been endorsed or affirmed, by the lower Court.
The learned counsel for the appellant tried to raise some reservations on what had happened at the border of Cross River and Benue States, where the pW1 was robbed and on what happened at Osina village, stating that no robbery operation took place at Osina village. I think the learned counsel had misconceived the entire episode because it is not in doubt that the PW1 was robbed
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at the border and was injured. He was taken hostage and forced to lead them to Osina village where the appellant was arrested. To my mind therefore, the robbery operation became a continuous process right from the border up to Osina village since PW1 remained a captive until when the appellant was finally arrested at Osina village. The argument that there was no robbery at Osina village is of no moment and is a ruse.
It is also not in dispute that during the robbery operation one or some of the robbers were armed with guns and other dangerous weapons. The learned appellant’s counsel then frowns at the prosecution’s failure to tender the weapons used during the robbery operation as fatal to the prosecution’s case. Such view held by the learned appellant’s counsel is misplaced. It is trite law, that failure to tender the offensive weapon used during a robbery operation can not result in the acquittal of the accused person because of the strong possibility of accused person to destroy, throw or do away with the offensive weapons after the commission of the crime in order to exculpate himself from criminal responsibility. See Olayinka v State (2007) 9 NWLR
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(pt 1040) 561; Okosi vs AG Bendel State (supra). In fact, there is no principle of law, that insists that the prosecution must always tender weapons used during robbery operations in order to obtain conviction. See Olayinka v State (supra)
A dispassionate and close consideration of the testimonies of the evidence adduced by the prosecution in my opinion were not controverter or contradicted or challenged in any material, particular as would be fatal to the case presented by the prosecution at the trial Court. The pieces of evidence adduced had duly proved beyond reasonable doubt that the appellant did commit the offence of armed robbery of which he was charged, tried, convicted and sentenced. The evidence adduced through the three witnesses called by the prosecution had really established the guilt of the appellant beyond reasonable doubt and he was therefore rightly convicted by the trial Court. The lower Court had also rightly affirmed the conviction and sentence of the accused/appellant with their unperverse findings of the two lower Courts. This Court is therefore hesitant to disturb, or reverse those findings since they are not perverse and there
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was no misapplication of law shown. See Alh Isah Tsokwa vs Joseph Dakukpougbo & Ors (2008) 33 NSCQR 612.
In the result, I adjudge this appeal to be unmeritorious. It is accordingly dismissed by me. I affirm the Judgment of the Court of Appeal which had earlier affirmed the conviction and sentence of the appellant of the offence of armed robbery. Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I read in draft the leading judgment delivered by my learned brother, Sanusi JSC. I agree that the Court of Appeal was correct to affirm the judgment of the trial Court, which convicted and sentenced the appellant to death for armed robbery, contrary to Section 1(2) (a) of the Robbery and Firearms Act.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to register my support I shall make some remarks.
This is an appeal against the decision of the Court of Appeal, Calabar Division or Court below or lower Court delivered on 12th February, 2014 in which the Court below affirmed the judgment of the Cross-River
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State High Court, Ogoja Division per Michael Edem J which convicted the accused/appellant of the offence of armed robbery and sentenced him to death.
BACKGROUND FACTS
At about 1.30 am on 15th day of December, 2005, the appellant and three others while armed with offensive weapons – two locally made pistols and a dagger were alleged to have robbed one Ogbaji Pius Ogar (PW1) of the sum of N31,700.00 at Alifokpa in Yala Local Government Area of Cross-River State.
Ogbaji Pius Ogar, a motor Cyclist, went to drop a passenger at Wuese, a village located on the boundary between Benue and Cross River State. On his way back, he came across a road block allegedly mounted by the appellant and the three co-accused persons.
As PW1 was about to reverse his motor cycle, the robbers emerged from the bush armed with pistols and a dagger. They robbed PW1 of the sum of N31,700.00, tied his two hands behind his back and ordered him to accompany them to Osina, some thirty minutes away, for further robbery operations.
On getting to Osina village, PW1 raised an alarm. The villagers came to his aid and rescued him from the robbers who fled into the bush.<br< p=””
</br<
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In the process of trying to escape, the robbers shot indiscriminately. As a result, a stray bullet hit a girl, PW2 (Rose Omagu) on the forehead. She was injured and had to be rushed to the local hospital for treatment.
The robbers were eventually arrested even though one of them, Sunday Makai managed to escape arrest.
The appellant and two of the robbers, Manaseh Jiwunde and Aondowase Songo were jointly charged and tried for the offence of armed robbery contrary to Sections 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R, 11, Laws of the Federation of Nigeria, 2004 (“L.F.N.”) (“the Robbery Act”).
Manaseh Juwunde was the first accused person at the trial. The appellant was the second accused while Aondawase was the third accused.
The appellant denied the charge in every respect. In response, he said that he went to buy palm wine in Osina for the burial of a classmate. As he was making enquiries about the palm wine, he was accosted by a vigilante group, beaten, arrested and handed over to the police on suspicion of stealing.
In proof of the case at the trial the prosecution called three witnesses and
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tendered 10 Exhibits while the appellant testified for himself. At the end the learned trial judge convicted the appellant of the offence of armed robbery and sentenced him to death. Dissatisfied the appellant approached the Court below on appeal which appeal was dismissed and further aggrieved the appellant has come before the Supreme Court to ventilate that grievance.
Learned counsel for the appellant, Chinwe Godwin Omoaka on the 26/10/17 date of hearing, adopted the brief of the appellant filed on 20/10/17 and deemed filed on the 26/10/17 in which was identified a sole issue for determination, viz:
Was the Court below right to affirm the judgment of the trial Court on the ground that the prosecution proved its case beyond reasonable doubt.
The Attorney – General of Cross River State, Joseph Oshie Abang of counsel for the respondent, adopted the brief of the respondent settled by Attah Ochinke Esq, the then Attorney General which brief of argument was filed on 12/9/2014 and deemed filed on 26/10/17. He equally adopted the single issue as crafted by the appellant.
SOLE ISSUE
This question as taken on by the counsel on either side and
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which I see as comprehensive and I shall use it to ask if the Court below was right to affirm the judgment of the trial Court on the ground that the prosecution proved its case beyond reasonable doubt.
Learned counsel for the appellant contended that the Court below was wrong primarily because its finding of guilt on the appellant was not supported by the evidence and therefore manifestly perverse. That the prosecution had failed to prove beyond reasonable doubt the ingredients of the offence of armed robbery. He cited Bozin v State (1985) 2 NWLR (pt. 8) 465; State v Salawu (2011) 8 NWLR (Pt. 1279) 580; Bello v State (2007) 10 NWLR (Pt. 1043) 564.
That in evaluating the evidence, the Court below failed or omitted to completely consider the evidence adduced by the appellant which is an obvious misdirection and this failure is fatal and warrants the setting aside of the decision of the Court below. He referred to the cases of Umar v Bayero University (1988) 4 NWLR (Pt. 86) 85; Oyo State v Fairlakes Hotels Ltd (No 2) (1989) 5 NWLR (Pt. 121) 255.
Learned counsel for the appellant contended that in the absence of any evidence from the prosecution
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showing that no offensive weapon was found on the appellant and his gang at the time of their arrest at Osina, it raised significant doubt as to the veracity of PW1’s assertion that he was robbed by gun wielding armed robbers. That it is important to note that the robbery subject of the charge is separate and distinct from the later incident at Osina and must be kept as such. He stated that the events that took place at Osina cannot be the basis for convicting the appellant of the offence charged as the alleged robbery of the appellant and the Osina events are two separate incidents and must be kept in separate compartments. That the offence had not been proved beyond reasonable doubt. He cited Agbacham v State (1970) 1 ALL NLA 69; Okpulor v State (1990) 7 NWLR (Pt. 164) 581; Alabi v State (1993) 7 NWLR (Pt. 307) 511 at 523.
In response, learned counsel for the respondent stated that the prosecution proved all the ingredients of the offence of armed robbery beyond reasonable doubt. That even from the evidence of the appellant as 2nd accused, he was caught in the act and was among the five-man gang that robbed PW1 in the bush while armed and then took him
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to Osina village for him to hire other victims for more robbery. He cited Section 9 (b) of the Evidence Act, 2011; Ugwanyi v FRN (2012) 7 NCC 105; Olayinka v State (2007) 2 NCC 505; Gbadamosi v State (1992) 9 NWLR (Pt. 266) 464 at 480.
In a nutshell, the appellant posits that the prosecution failed to prove any of the three ingredients of the offence of robbery and therefore failed to prove the commission of the offence beyond reasonable doubt. That posture the respondent rejects stating that the prosecution discharged the burden of proof beyond reasonable doubt.
The Court below per Otisi JCA stated thus:
“Having regard, therefore to the evidence of the prosecution witnesses and in particular to the direct unchallenged evidence of PW1, the victim, I hold that the prosecution had proved the offence of armed robbery as charged against the appellant beyond reasonable doubt.”
In refreshment of the memory to what has become trite in law that in criminal trials the guilt of an accused person can be established by any or all of the following:
(a) Confessional Statement of the accused,
(b) Circumstantial evidence
(c) Evidence of
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an eye witness. See State v Usman Isah (2013) 8 NCC 320 at 325; Igabele v State (2006) 5 MJSC 96 at 100.
In this case, the PW1 testified and stated in evidence that he was robbed of N31,700 by the appellant and his co-accused persons and that was not controverted. Also the other parts of PW1’s evidence was corroborated by facts of the surrounding circumstances such as the block of wood sighted by PW3 when he visited the scene of crime which was allegedly used by the accused persons in blocking the road. Again to buttress the testimony of PW1 is the mask, Exhibit 6 obtained from the appellant by the villagers when he was arrested by them and his identity disclosed. Also to be noted as part of the confirming circumstances is the appellant being caught at Osina soon after, in the quest to continue the robbery operation as stated by PW1 and the PW1 said in evidence that he looked at the faces of the culprits when they were unmasked and they were the 2nd and 3rd accused and the 2nd accused being the appellant.
Though the confessional statement was expunged the Court below had no difficulty in finding that the other pieces of evidence were overwhelming and
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the trial Court right to convicted for robbery. That in the face of what the Court below did not to accept as discrepancies material enough to shake the weight of evidence proffered by the prosecution and so the conviction was supported by the material evidence on ground that there was a robbery. I rely on Adekoya v State (2012) 7 NCC 1 at 9; Basil Akpa v State (2008) 2 NSCQR 1250 at 1271.
On the matter of whether or not the robbers were armed, the evidence of PW1 in that regard corroborated by the testimony of PW2 and seen in the scar or wound sustained by her when the appellant and co-accused fired in the air at Osina village where they had taken their victim PW1 in continuation of the robbery operation even though nothing occurred at Osina where they were accosted and arrested. In this regard the prosecution’s case is supported by Section 9(b) of the Evidence Act, 2011 as amended which provides thus:
“Facts not otherwise relevant are relevant if (b) by themselves or in connection with other facts they make the existence or non-existence of any facts in issue or relevant fact probable or improbable.”
Anchoring on Section 9(b) of the Evidence
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Act, 2011 as stated above it is safe to say that the shooting in the air at Osina village makes the fact of the robbery more plausible and that the robbers were armed more probable. Probability induces belief while improbability points to an untruth. See Oteki v State (1986) ALL NLR 371 at 392.
I am at one with the submission put across by the respondent that PW1 need not be dead from the stab wounds or show proof of severe injury to be done him or also proof of medical treatment received for the offence of armed robbery to be proved. It is correct that it is enough to establish that there was a robbery done with violence and the persons were armed. In this, it suffices to establish armed robbery with damning evidence even if the weapon is not produced in evidence. See Olayinka v State (2007) 2 NCC 505; Gbadamosi v State (1992) 9 NWLR (Pt. 266) 464 at 480.
The appellant’s attempt to persuade the Court to hold that it is unsafe to rely on the evidence of PW1 who was sole witness to the offence gathered no moss as it is now settled law that Courts can convict on the evidence of a single witness provided his testimony is cogent and unequivocal and
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believed by the Court. That is the situation to this case in hand particularly where the testimony of the appellant in his defence that he was in Osina to buy palm wine when arrested by the vigilante on a suspicion of stealing was dismissed by the Court below rightly as not having “the ring of truth” placed side by side the evidence of PW1 and other witnesses of the prosecution. I rely on Adelumola v State (1988) 1 NSCC 165.
In conclusion and reiteration, the prosecution needs not prove beyond the shadow of doubt but rather beyond reasonable doubt and that is precisely what the prosecution/respondent has done here in its proof of all the ingredients of the offence of armed robbery. SeeUgwanyi v FRN(2012) 7 NCC 105.
From the foregoing and the better and fuller reasoning in the lead judgment, I find no merit in this appeal and I too dismiss the appeal.
I abide by the consequential orders as made.
CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother Sanusi, JSC just delivered. I agree that the appeal is lacking in merit and I also dismiss same in terms of
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the lead judgment of my brother.
Appeal is dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.
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Appearances:
Chinwe Godwin Omuaka, Esq. with him, Deinma Kalama For Appellant(s)
Joseph Abang Oshie (Hon A.G. Cross River State) with him, Greg Okem (D.P.P), Godwin Onah, Richard Akpanke, Fidelis Bisong, Ekok Okpokam, Florence Nso and Nehemiah Abang For Respondent(s)
Appearances
Chinwe Godwin Omuaka, Esq. with him, Deinma Kalama For Appellant
AND
Joseph Abang Oshie (Hon A.G. Cross River State) with him, Greg Okem (D.P.P), Godwin Onah, Richard Akpanke, Fidelis Bisong, Ekok Okpokam, Florence Nso and Nehemiah Abang For Respondent
