UDEH KINGSLEY EMEKA V. THE STATE
(2011)LCN/5060(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/C/38/2010
RATIO
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
Between
UDEH KINGSLEY EMEKAAppellant(s)
AND
THE STATERespondent(s)
RATIO
WHETHER OR NOT THE TRIAL COURT CAN RELY ON THE CONCRETE EVIDENCE OF IDENTIFICATION TO CONVICT AN ACCUSED PERSON
Nothing stops the trial court from relying on such concrete evidence of identification to convict the accused on it particularly as there were no material contradictions in the prosecution’s case. Refer to OGUNTOLA VS. STATE (2007) NWLR (Pt 1049) 617; 633; IBRAHIM V. STATE (1991) 4 NWLR (Pt 186) 399. PER MIKA’ILU, J.C.A.
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned before the High court of Akwa Ibom state presided over by Hon. Justice Godwin J. Abraham on a two count charge involving allegations of armed robbery and stealing. The appellant who hails from Anambra state, was a Youth Corper posted to Akwa Ibom State. Some time in 2004 and was to complete his youth service in February, 2005 when he was arrested for his alleged participation in an armed robbery.
It is to be noted that in the course of the trial, the trial Judge who started the trial at Ikono in Ikot Ekpene Judicial division, was transferred to Uyo, the state capital. By the order of the Honourable Chief Judge of Akwa Ibom state the case was assigned to the trial Judge. The trial was therefore concluded at Uyo.
At the end of the trial the judgment was delivered in the matter on the 23rd of January, 2009. The accused was convicted as charged and sentenced to death by hanging. He has therefore filed this appeal against the said conviction and sentence.
Before this court briefs have been filed and exchanged. In the appellant’s brief of argument five issues have been formulated for the determination of this appeal.
They read as follows:-
1. Whether the learned trial judge was justified in convicting the accused person inspite of material contradictions in the testimonies of the prosecution witnesses – GROUND 1
2. Whether the trial Judge rightly convicted the appellant PW 1 not having mentioned the recovery of the appellant’s identity card in his first statement to the police – GROUND 2
3. Whether the evidence of the DW. 3 was properly evaluated and if not whether it did not occasion miscarriage of justice – GROUND 3
4. Whether the P.W. 4 the investigating police officer’s investigation did not leave any lacuna and if it did whether it did not occasion miscarriage of justice – GROUND 4
5. Whether the conviction of the appellant by the trial court was warranted having regard to the totality of the evidence before the court.
On the other hand the issues formulated for determination in the respondent brief of argument read as follows:-
1. Whether the trial court was right in holding that there were no contradictions in the testimonies of the prosecution witnesses in respect of the identity of the appellant as one of the robbers who robbed PW1 and PW2 on 30th November, 2004 and thereby rightly convicted the appellant as charged.
2. Whether the trial court properly considered all the defences put forward by the appellant thereby rightly convicted him as charged.
The appellant counsel has argued that it is trite law that whenever there is a material contradiction in the evidence of a witness the court is not to pick and choose which to believe but to reject the totality of the evidence relying on ONUBOGU V. STATE (1974) 9 SC 1 and IBEH v. STATE (1997) 1 NWLR (Pt 484) 632; 661; 664 – 665.
The averment of the appellant’s counsel is that the most fundamental aspect of this case is the identity card of the appellant and how it was recovered. While the appellant maintained that he lost the said identity card sometimes in the 3rd week of November, 2004 and discovered the loss in the classroom while teaching, the PW1; the complainant, claimed that a wallet fell off the pocket of a robber in the course of the alleged robbery and contained the said identity card. So any evidence in relation to the recovery of the said identity card is very material to this case.
It is the submission of the appellant counsel that the evidence of the prosecution witnesses, particularly the PW1, on how the identity card was recovered was contradictory and therefore unreliable for the purpose of securing conviction in a capital offence.
The appellant counsel has argued that on the 30th day of November, 2004, the date of the alleged incidence the PW1 made a statement to the police and therein stated thus:
“They ordered me and passenger to come out of the car. We obeyed. They took the keys of my car a Peugeot 504 (best line) saloon car 2000 series with registration number AKHA 34 from me. One of the assistant then took in my co-traveler Mr. Pius Akpana. Took out the money in his pocket and on the process a purse dropped from his pocket. We recovered the leather purse soon after the robber left with the car.”
That on the 3rd day of December, 2004 the PW1 made another statement wherein he stated as follows:-
“They then took me back to my car but left that off half way to search my co-traveler, Mr. Pius Akpan, money was removed from his pocket, his GSM handset was also removed, a leather purse did drop from his (robber’s) pocket. At this point as God so guided, they took no notice of this.”
The appellant’s counsel has submitted that from the two statements of PW1 aforecited the PW.1 gave the impression of an eye-witness. That he did not state that anybody else told him about the purse. But in the PW1’s viva voce evidence on 28/11/2005 he made a volte face and stated as follows:-
“When we entered the banking hall Pius told me that something fell off the pocket of the attacker who was ordering me about. They drove the car away Pius came with the wallet that fell off and handed over same to me.”
Here the learned appellant counsel argues that the questions that arise are as follows:-
1. Why did the PW1 not mention in his two statements when the incident was fresh in his mind that it was Pius Akpan that told him that something dropped from the pocket of the robber?
2. Why did the PW1 give the impression of an eye witness to the dropping of the purse drop (sis) and if he was indeed so informed why did he fail to state so in his extra judicial Statement?
The learned appellant counsel avers that upon a dispassionate consideration of the situation it is clear that the viva voce evidence of the PW1 contradicted his statement to the police on the issue of recovery of the purse, and by extension the ‘identity card’ since it was said to have been retrieved from the purse.
Also while describing the operation of the robbers the PW1 also contradicted himself. In his statement to the police on 30/11/2004 the PW1 stated thus:-
“They ordered me into their Mercedes Boot I pleaded with them that I would not be able to.”
But in his oral evidence on 28/11/2005 the PW1 stated thus:-
“I was escorted to the boot of the Mercedes Benz. The one escorting me tried to push me into the boot. At this point I could not differentiate between fear and death. I looked at the one who was ordering me move closely and sternly asked him to do whatever he wanted to do that I will not get into the boot.”
The learned appellant counsel queried as to what can be more contradictory than the above two statements. He has submitted that with regard to the two contradictions pointed out above the trial court ought to have rejected both statements as unreliable accounts of the incident.
The appellant counsel has maintained that the trial court had relied on the recovery of the said purse in convicting the appellant since the identity card was said to have been recovered from it. He has submitted that where there should be explanation to explain any contradiction in the testimony of prosecution witnesses it is the duty of the prosecution to do so and not that of the court. He relies on OGUONEZE V. STATE (1998) 5 NWLR (Pt 551) 52.
The appellant counsel had maintained that in the instant case the prosecution admitted the contradictions but claimed that they were not fatal to their case. In the reply by the prosecution to the final written address of the defence counsel she stated as follows:-
“The Defence Counsel’s argument neither here nor there. They raised the issue of contradictions or inconsistencies in the evidence of PW1 and PW2. The contradiction pointed out by the defence is not fatal to the case of the prosecution.”
The learned appellant counsel has maintained that the duty of the trial court in the circumstances was to determine whether the said contradictions were material or fatal to the case of the prosecution. That however the trial Judge rather chose to argue the case of the prosecution by holding that there was no contradiction contrary to the admission of the prosecution.
This in OGUONZEE VS. STATE (1998) 8 NWLR (Pt.551) 521 – 579 the Supreme Court held as follows:-
“where there is no cogent explanation by the prosecution as regard some material contradiction in its evidence, the contradiction should be resolved in favour of the accused.”
The learned counsel had urged this court to resolve the said contradictions in favour of the appellant and to set aside his conviction and sentence on this ground.
It is to be made clear that the trial court rightly convicted the appellant having regard to his identification by PW1 and PW2 as one of the robbers who robbed them on 30th November, 2004 and whose identity as such was proved beyond reasonable doubt at the trial court.
The vital evidence in respect of issue No.1 as formulated by the respondent is that PW1 and PW2 properly identified the appellant as one of the robbers who robbed them at gun point on 30th November, 2004. They had ample opportunity and so were in proper position to do so since according to their evidence they recovered a wallet containing an ID card belonging to the appellant at the scene of the crime, which ID card carried a clear photograph of the appellant PW 1, based on this, recognized and identified the appellant to the police when the appellant was arrested in his house and PW based on that fact, too, also recognized and identified the appellant in court. Nothing stops the trial court from relying on such concrete evidence of identification to convict the accused on it particularly as there were no material contradictions in the prosecution’s case. Refer to OGUNTOLA VS. STATE (2007) NWLR (Pt 1049) 617; 633; IBRAHIM V. STATE (1991) 4 NWLR (Pt 186) 399. This issue is therefore resolved in favour of the respondent.
The 2nd issue is whether the trial court property considered all the defences put forward by the appellant and thereby rightly convicted him as charged. It is trite that court has the mandatory duty to consider all the defences put up by the accused person in the course of his trial as canvassed by the appellant under issues No. 3, 4 and 5 of his brief.
Having read the argument of the learned counsel for the appellant and the augments of the learned counsel for the respondent, and having gone over the available record of the trial court I am satisfied that this appeal ought to be dismissed following reasons:-
1. There is no doubt or conflict arising from or regarding the recovery of the appellant’s ID Card at the scene of the robbery in this case because the appellant has not controvered or successfully challenged the evidence of PW1 and PW2 on how they recovered his ID Card.
2. There were no contradictions at all in the testimonies of the prosecution witnesses in this case. The prosecution properly proved the ingredients of the offence charged.
3. The trial court adverted its mind to and considered the effect of what the appellant inappropriately termed contradictions in this case and decided that they were not contradictions in law and thereby satisfied the requirements of the law in this regard.
4. PW1 and PW2 properly identified the appellant as one of the robbers who robbed them at gun point on 30th November, and based on the appellant’s ID Card recovered by them at the scene of the robbery, PW1 and PW2 properly identified the appellant both to the police and in court.
5. The prosecution proved its case beyond reasonable doubt in this case and there was no defence available to the appellant that was not given due consideration by the trial court.
6. The appellant did not loose his ID Card in the 3rd week of November, 2004 as such submission of the appellant is different from what he stated in his extra-judicial statements to the police and which statements were properly admitted and used in evidence by the trial court.
7. The Appellant, in some, was duly identified and fixed to the commission and locus of the crime charged, by PW1 and PW2 who physically saw him as the person who robbed them on 30th November, 2004.
8. Section 91(3) of the Evidence Act does not apply to this case as it applies only to civil proceedings.
In the final conclusion, this appeal lacks merit and it is dismissed. The judgment of the trial court convicting and sentencing the appellant to death is hereby affirmed.
Appeal dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft the judgment just read by my learned brother, Ja’afaru Mika’ilu, JCA in this appeal. I agree with it and for the reasons and conclusion reached therein, I also find no merit in the appeal lodged by the appellant herein. Thus, I too would dismiss the appeal and affirm the decision of the trial High Court.
KUMAI BAYANG AKAAHS, J.C.A.: I agree with the judgment just delivered by my learned brother, Mikailu, JCA, which I had the privilege of reading in draft. The so called conflict between the statements made by PW1 on 30/11/2004, 3/12/2004 and his oral evidence are not material. lt is the identity card of the appellant which dropped at the scene of the crime that gave him away. Pius Eyo Akpan who testified as PW2 saw when the wallet dropped from the appellant’s pocket as he was trying to pocket the money he removed from him. He was consistent in his evidence and was not shaken under vigorous cross-examination. The Appellant was rightly convicted of the armed robbery. The appeal lacks any merit and it is accordingly dismissed. However since no life was lost as a result of the recovery, I would recommend that the death sentence imposed on the appellant be commuted to 21 years imprisonment in accordance with section 1(1) of the Robbery & Firearms (Special Provision) Act.
Appearances
F. A. ONUZULIKE, ESQ.For Appellant
AND
EKPENONG NTEKIM, ESQ.For Respondent
