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UDOFIA v. STATE (2020)

UDOFIA v. STATE

(2020)LCN/15664(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/OW/186AC/2011

Before Our Lordships:

Raphael ChikweAgbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

EMEKA UDOFIA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

THE ROLE OF CIRCUMSTANTIAL EVIDENCE IN A CRIMINAL TRIAL

By the case of Ore-Ofe Adesina (AKA Alhaji) & Anor Vs The State (2012) LPELR — 9722 (SC), it was held that:
“..the role of circumstantial evidence in a criminal trial is to support or provide more potency or to a piece of evidence, which, even if alone would sustain the burden of proof of the crime alleged.”
That is why the law stipulates that, for circumstantial evidence to be capable of establishing offence “it must be cogent and irresistible, pointing to the guilt of theaccused person, conclusively, and to no other person. See Musa vs The State (2018) LPELR — 45262 (CA); Abdu vs State (2016) 1 NWLR (Pt.1494) 557; Usman vs State (2013) 12 NWLR (1367) 76 and Maigari vs State (2013) 17 NWLR (Pt.1384) 425; Enweremadu vs State (2017) LPELR 42488 CA. ITA GEORGE MBABA, J.C.A.


 CONTRARADICTION TO THE TENETS OF NATURAL JUSTICE IS MANIFESTLY UNFAIR

There is no issue formulated from ground 3 which, shorn of its particulars, is “That the trial of the accused person in the peculiar circumstance in this case was manifestly unfair contrary to the tenets of natural justice as envisaged under the Constitution, Federal Republic of Nigeria.”It goes without saying that, this ground 3 having no issue distilled therefrom, is deemed abandoned by the Appellant and should be, and is hereby struck out by the authorities of OGBE VS. ASADE (2009) LPELR–2275(SC); PDP VS. INEC & ORS (2014) LPELR–23808(SC); (2014) 17 NWLR (PT. 1437) 525; MATHEW VS. STATE (2019) LPELR–46930(SC); ABARIBE VS. NWONTA & ORS (2015) LPELR–25701(CA) and AKINSUWA VS. THE STATE (2019) LPELR–47621(SC). IBRAHIM ALI ANDENYANGTSO, J.C.A. 

PRESUMPTIONS OF THE COURT IN RELATION TO HUMAN CONDUCT AND EXPERIENCE
It is trite law and by the provisions of S. 149 (d) of the Evidence Act that the Court can presume the existence of certain facts which are consistent with human conduct and experience.
In fact in the case of OTEKI V. AG. OF BENDEL STATE (supra), Oputa – JSC put it thus:
“…….Although belief is subjective, yet still the Judge before believing, will subject the evidence to objective test of probabilities. Where the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief.Probability is always a safeguard to the sanctuary where the truth resides. As Aristotle once put it “Probability has never been detected bearing a false testimony.” IBRAHIM ALI ANDENYANGTSO, J.C.A. 

FAILURE NOT TO PROVE THE IDENTITY  BY THE PROSECUTION CREATED DOUBT IN THE MIND OF THE COURT

From the above, I hold that the prosecution did not prove the identity of the Appellant as the evidence and the circumstances surrounding the case would create doubt in the mind of the Court, which doubt ought to be resolved in favour of the Appellant, which was not so resolved. IBRAHIM ALI ANDENYANGTSO, J.C.A. 

THE CONFESSION OF ONE PERSON SO CHARGED CAN NOT BE USED AGAINST THE OTHER PERSON UNLESS ADOPTED BY THE PERSON
See also Sumaila vs State (2019) LPELR – 47730 (CA); Attah vs State (2019) LPELR – 48287 (CA) and Yusuf and Anor vs State (2019) LPELR – 46945 (SC), where it was held:
“The law as re-stated by Ariwoola, (JSC) in Jimoh vs The State (2014) 10 NWLR (Pt.1414) 105 at 139 is — that where more persons than one are charged jointly with a criminal offence and a confession made by one of the such (sic) persons in the presence of one or more of the other persons so charged is given inevidence, the Court shall not take such statement to consideration as against any such other persons in whose presence it was made, unless he adopted the said statement by words or conduct. Alarape Vs State (2001) 2 SC 114; (2001) 5 NWLR (Pt. 705)… What this rule lays down is simply that, generally, there can be no confession by proxy.” per Eko JSC. IBRAHIM ALI ANDENYANGTSO, J.C.A. 

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This appeal is brought against the judgment of the High Court of Imo State, Owerri Judicial Division presided over by Hon. Justice. P.O. Nnadi J, (as he then was, now retired CJ Imo State), in Charge NO: HOW/1C/2001, delivered on 26/2/2010, convicting and sentencing the Appellant (among others) to death for the offence of armed robbery under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Vol. XXII, Laws of the Federation of Nigeria, 1990. See pages 146–280 of the Record of Appeal. In this judgment I shall refer to the learned Judge of the trial Court, the trial Court and the Record of Appeal as the “Learned Trial Judge”, the “lower Court” and the “Record” for short, respectively.

​The relevant facts of this case are that on the 1st day of March 1999, at about 1:30 am, a gang of robbers armed with rifles invaded the compound of AnyiamOsuigwe at UmuinyiNkwerre in the Nkwerre Local Government Area of Imo State. Three of the armed robbers entered the living room where Chukwuka Emmanuel AnyiamOsuigwewas sleeping, woke him up, tied his hands behind his back, and one of the armed robbers describing himself as an international armed robber shot him on his left knee. He then fell on the floor and started shouting, which attracted the attention of his mother and sister. When the mother of Chukwuka Emmanuel AnyiamOsuigwe came into the living room, one of the armed robbers hit her with the butt of the gun he was carrying. The armed robbers then ransacked all parts of the building and carted away all the valuable items they got, leaving Chukwuka Emmanuel AnyiamOsuigwe lying in his own pool of blood. Among the items carted away from the house were 5 pump action rifles belonging to Chukwuka Emmanuel AyiamOsuigwe and large sum of money.

​Many people were arrested, out of whom 8 were eventually charged to Court, tried, and 4 including the Appellant were convicted and sentenced to death by the lower Court and 3 were discharged and acquitted while 1 died in custody. Dissatisfied with the verdict of the lower Court, the Appellant who was the 2nd Accused at the trial, filed a notice of appeal within time on 12th March, 2010 (pages 281–288 of the Record). Thejudgment is contained on pages 246–280 of the Record.

The Record was transmitted to this Court on 12th March, 2018 but deemed properly compiled and transmitted on the 14/1/2019, by an order of this Court granted on the said 14/1/2019. By an order of this Court, the Notice of Appeal was amended, containing 4 grounds which, shorn of their particulars, are as follows:-
“GROUNDS OF APPEAL
GROUND ONE (1)
ERROR IN LAW
The Learned Trial Judge erred in law when he convicted the Appellant of the offence of armed robbery and sentenced him to death.
GROUND TWO (2)
ERROR IN LAW
The Learned Trial Judge erred in law when he held as follows: “from exhibit “D”, it is very clear that the 2nd accused knew the house of the PW1 and PW2, worked as a labourer at the house of PW1 and PW2, was seen measuring his height on the wall of the PW1 and PW2 and knew the 5th accused who ran an errand for him prior to the incident of 1/3/99 of summoning a meeting with the 1st accused, 3rd accused and 4th accused.
When these pieces of evidence contained in the statement of the 2nd accused are considered alongside thecategorical assertion of the PW2 that he saw the second accused at the gate of their house during the incident which was not in any way discredited under cross examination of PW2, will induced (sic) belief in a Court that the 2nd accused was the one whom the PW2 saw during the armed robbery incident… from the above and considering the associated facts of the PW2 seeing the 2nd accused at the gate under the flood light during the incident of the armed robbery and the 2nd accused (sic) admission in his statement that he worked as a hired labourer at the premises of the PW2, was seen measuring his height with the wall of the Pw2 and summoning a meeting with some of the other accused persons about their work at the house of the PW2, leads to the irresistible inference and conclusion that the second accused planned and participated in the armed robbery incident.”
GROUND THREE (3)
ERROR IN LAW
That the trial of the accused person in the peculiar circumstance in this case was manifestly unfair contrary to the tenet of natural justice as envisaged under the Constitution, Federal Republic of Nigeria.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

GROUND FIVE (sic) (4)
The decision of the trial Court is unreasonable and cannot be supported having regard to the evidence before the Court.”

The reliefs sought from this Court are:
“To allow the appeal, set aside the judgment of the Court below convicting the Appellant for armed robbery, quashing the sentence of death and discharging and acquiting the Appellant.”

The Appellant’s Brief of Argument, settled by O. N. Ichie Esq, dated 27th day of February, 2019 was filed on 1st March, 2019; the Respondent’s Brief of Argument settled by K. A. Leweanya, Chief State Counsel, Ministry of Justice, Imo State, Owerri, dated 3rd December, 2019 and filed same date was deemed properly filed and served on 28th January 2020. Upon being served with the Respondent’s Brief of Argument, the Appellant filed a Reply Brief (still settled by O. N. Ichie Esq) dated and filed on 11/2/2020.

​On the 16th day of March, 2020 when this appeal was heard by this Court, O. N. Ichie Esq. appeared for the Appellant, adopted both the Appellant’s Brief and Reply Brief and urged us to allow the appeal, set aside the decision of the lower Court, quash theconviction and sentence of the Appellant, acquit and discharge him.

On the other hand, C. E. Iwueze (Mrs.) P. S. C. with M. I. Osuji (Mrs.) P. S. C. both of the Imo State Ministry of Justice, Owerri, appeared for the Respondent, adopted the Respondent’s Brief of Argument and urged us to dismiss the appeal and affirm the judgment of the lower Court including the conviction and sentence of the Appellant.

Now, from the 4 grounds of appeal, the Appellant formulated 3 issues which were wholly adopted by the Respondent for determination of the appeal thus:
“(1) Whether, having regard to the admissible and usable evidence adduced before the Court, the prosecution discharged the onus of proof placed upon it by law proving all the ingredients of armed robbery, particularly the identity of the Appellant as a particepscriminis beyond reasonable doubt against the Appellant (Ground 1).
(2) Whether the circumstantial evidence relied upon by the trial Court in convicting the Appellant was cogent, direct, convincing, compelling, conclusive and mathematically pointed to the Appellant’s guilt and none other and whether the Learned TrialJudge can in law use the lone, unreliable and doubtful evidence of PW2 to the prejudice of the Appellant as well as the evidence of the 5th accused and his extra–judicial statement (Exhibit “M”) when the same Court in fact discharged and acquitted the 5th accused in the joint trial and did not attach weight to Exhibit “M”, the evidence of the 5th accused. (Ground 2).
(3) Whether the judgment, conviction and sentence of the Appellant is not unreasonable, unwarranted and cannot be supported having regard to the evidence before the court. (Ground 4).”

The Appellant’s Counsel in his argument of the issues with the leave of this Court argued issues one and two together as they are similar. Citing SUBERU VS. THE STATE (2010) 3 (PT. II) MJSC 47 at 71 paras D–F, PEOPLE OF LAGOS STATE VS. UMARU (2014) 3 MJSC 136 at 167 paras D–F and ALABI VS. THE STATE (1993) 7 NWLR (PT. 307) 511, Ichie Esq. submitted that to secure conviction in a charge of armed robbery, the prosecution, upon whom the onus of proof lies, must prove the following ingredients:
(a) That there was robbery or series of robbery;

(b) That the robbery or each of the robbery was an armed robbery or robberies;
(c) That the accused took part in the armed robbery.

Counsel submitted further that in this case the Appellant denied involvement in the alleged armed robbery with which he was charged, making his identification as a serious and paramount issue; that the prosecution even though called four(4) witnesses, did not prove that the Appellant was involved in the robbery; that reliance by the lower Court on the evidence of PW1 and PW2 who were the victims of the offence was wrong as the prosecution did not prove beyond reasonable doubt the identity of the Appellant as a particepscriminis in the armed robbery of 1/3/1999. He referred the Court to pages 64–68 and 68–71 of the Record and further submitted that PW2 did not mention the Appellant in his statement to the police and so his identifying the Appellant in Court ought not to have been accepted by the Trial Court.

Ichie Esq. highlighted what he termed “three (3) fundamental points/flaws on the identification of the Appellant” which are:-
“(1) opportunity of observation, which has to do withthe length of time the PW2 allegedly observed the Appellant;
(2) general atmosphere/condition of the night, as counsel put it “(gun–wielding, trigger–crazy armed robbers terrorizing and intimidating everyone without exception, with PW1 already shot and bleeding profusely with no one allowed to attend to him), particularly the condition of PW2 who admittedly was said to be bound like others and kept sprawling on the floor of the living room and allegedly used his shoulder to open the cotton (sic) (curtain) to enable him have a peep.”
(3) the distance between the place PW2 was when he peeped to the gate of the compound. The place where PW1 was when he allegedly peeped to the gate and saw the Appellant was their living room where he, PW1 and one Charles were bound and sprawling on the floor of the living room and no other person including the PW1 who testified in Court saw the Appellant on the fateful day other than PW2 (see pages 58–63 of the Records for the evidence of PW1 and 64–71 for the evidence of PW2).”

On the above, learned Counsel submitted that PW1, both eye witness and victim of the offence didnot tie the Appellant to the scene of crime; that PW3 and PW4 (police officers who investigated the case) found nothing incriminating in the house of the Appellant and also the identification parade did not involve the Appellant. Consequently there were two divergent versions of the identification evidence against the Appellant, with one inculpating while the other one exculpating the Appellant as given by PW1 and PW2 respectively.

Learned Counsel submitted, relying on ABUDU VS. STATE (1998) ACLR 423 para 5 and ONUBOGU VS. STATE (1974) Vol. 9 NSCC 358 at 366, that there were contradictions in the evidence of PW1 and PW2 which neither the Court nor Counsel is allowed to pick and choose between the evidence of PW1 and PW2, that the Court ought to have rejected both evidence as unreliable, thereby acquitting and discharging the Appellant, by adopting a more favourable interpretation of the event, fact or surrounding circumstance since they are susceptible to more than one interpretation by the Court, again, relying on ADEYEMI VS. STATE (2012) 9 ACLR 203 at 249–250 paras 35; ALABI VS. STATE (citation not given).

​On issue 3, which learned Counselwrongly referred to as issue 4, it is submitted that the judgment, conviction and sentence of the Appellant is unreasonable, unwarranted and without regard to the evidence before the Trial Judge; that it is trite that in criminal cases the prosecution must prove its case beyond reasonable doubt and most especially prove the ingredients of the particular offence against the Appellant, relying on SALAWU VS. THE STATE (2010) ALL FWLR (PT. 594) 35 at 50 paras C–D and NWANKWOALA VS. THE STATE (2005) ALL FWLR (PT. 266) 1280; that proof beyond reasonable doubt and concomitant judgment sending a man to the gallows must be seen to be the product of logical thinking, based upon admissible and usable evidence, which the facts leading to conviction are clearly founded and the legal deduction therefrom carefully made and cannot be allowed to stand if founded upon scraggly reasoning or perfunctory performances; that this is so in all cases and more so in criminal cases and particularly in capital offences, relying on SALAWU VS. STATE (supra) and NWOSU VS. THE STATE (2004) ALL FWLR (PT. 218) 916. Ichie Esq. invited us to note the entire evidence of the prosecutionagainst the Appellant and to hold that the prosecution failed to prove the guilt of the Appellant as required by law. He then repeated his submissions in paragraphs 5.07–5.27 of his Brief and concluded by inviting us to consider the dictum of the WACA decision in EGBE VS. THE KING (2007) 5 ACLR 565 and Supreme Court inAKINKUNMI VS. STATE (1987) 1 NWLR (PT. 52) 608 at 616, in allowing the appeal, setting aside the judgment, conviction and sentence of the Appellant and discharging and acquiting him for the following reasons:-
“(a) The prosecution did not prove all the essential ingredients of the offence of armed robbery against the Appellant.
(b) The prosecution did not prove that the Appellant took part in the said armed robbery.
(c) The learned Trial Judge erred in law in the judgment of the trial Court as it affects the Accused/Appellant which said errors occasioned manifest and grave injustice against the Accused/Appellant herein.
(d) The learned Trial Judge misdirected himself in law and infact at various portions of the judgment of the Court as it affects the Accused/Appellant and came to wrong conclusion which occasionedmiscarriage of justice against the Appellant.
(e) The judgment conviction and sentence of the Accused/Appellant was reached erroneously and upon irrelevant consideration of facts, non evaluation and/or improper evaluation of evidence before the Learned Trial Judge.
(f) There was serious doubt in the case of the prosecution which doubt the trial Court resolved against the Appellant.
(g) The circumstantial evidence relied on by the prosecution was not cogent, direct, compelling, mathematical and conclusive against the Appellant.
(h The Court employed double standard in the same proceedings to the prejudice of the Appellant.
(i) The poor identification evidence given against the Appellant was not analyzed or evaluated by the Court or properly evaluated (if evaluated at all).
(j) The conviction of the Appellant was based on suspicious and irrelevant materials not based on legally admissible and usable evidence against the Appellant.
(k) The judgment, conviction and sentence of the Accused/Appellant is unwarranted, and cannot be supported in law having regard to the evidence adduced before the learned trial Judge.”K. A. Leweanya, C. S. C. in reply in the Respondent’s Brief of Argument, submitted under issue 1 that the prosecution proved its case beyond reasonable doubt against the Appellant as it has proved the three ingredients of the offence of armed robbery viz a viz:-
(i) That there was robbery or series of robberies
(ii) That each of the robbery or robberies was an armed robbery
(iii) That the accused (appellant) was one of those who participated in the armed robbery.
She relied on BELLO VS. THE STATE (2007) ALL FWLR (PT. 396) (incomplete citation); ISIBOR VS. THE STATE (2001) FWLR (PT. 78) 1077 at 1100 and also the evidence of PW1 and PW2 and submitted that the three ingredients of the offence have been established. On the whole, learned Chief State Counsel submitted and urged us to hold that the prosecution has proved the guilt of the Appellant beyond reasonable doubt, which, as a requirement for conviction in criminal cases, does not mean proof beyond the shadow of doubt, referring to NDIKE VS. THE STATE (1994) 8 NWLR (PT. 360) 33 at 45; NIGERIAN AIRFORCE VS. EX SQN LEADER A. OBIOSA (2003) FWLR (PT. 148) 1224 at 1254 paras C–D. andurged us to resolve issue 1 in favour of the Respondent and against the Appellant.

On issue 2, Mrs. Leweanya C. S. C. submitted that the lower Court did not rely only on circumstantial evidence in convicting the Appellant; that in criminal cases the prosecution can prove its case by direct evidence of an eye witness, confessional statement of the accused and/or circumstantial evidence; that in the instant case there was an eye witness account of the participation of the Appellant in the armed robbery incident of 1/3/1999 through PW2 at pages 67 and 70 of the Record; that the PW2 had an encounter with the Appellant before the robbery and so recognized him during the incident, relying on EMENEGOR VS. THE STATE (2010) ALL FWLR (PT. 571) 884 at 890 and WAKALA VS. THE STATE (1991) 8 NWLR (PT. 211) 552; that in the instant case, the PW2’s evidence overwhelmingly fixed the Appellant to the scene of crime and his recognition by PW2 certainly dispelled any scintilla of doubt about the participation of the Appellant in the commission of the offence.

​As to non evaluation of the evidence by the learned trial Judge, learned Chief State Counsel submittedthat the learned trial Judge critically evaluated the evidence of the prosecution witnesses and arrived at the decision that the Appellant was properly identified as one of the robbers who robbed the AnyiamOsuigwe compound, referring to pages 271 and 272 of the Record.

On the discharge of the 5th accused in the joint trial with the Appellant and reference to Exhibit “M”, Learned Chief State Counsel submitted that the fact that the 5th accused was discharged does not mean the Appellant must be so discharged; that the learned Trial Judge attached the necessary weight to Exhibit “M” and that even though Appellant’s Counsel relied heavily on Exhibit “M” he did not annex it as part of the Record of Appeal; that the trial Judge properly evaluated the evidence of the prosecution witnesses at page 276 of the Record as it concerns the 5th accused person giving reasons before discharging him; that neither pw1 nor pw2 stated that they identified the 5th accused unlike their evidence in respect to the Appellant, referring to page 277 of the Record for the conclusion of the judgment in respect to the 5th accused. LearnedCounsel then urged us to resolve this issue in favour of the Respondent and against the Appellant.

On issue 3, Mrs. Leweanya, C.S.C. submitted that the judgment of the lower Court was fully supported by credible evidence and that the prosecution proved its case against the Appellant beyond reasonable doubt as its evidence against the Appellant was unchallenged; that no doubt has been created in the mind of the lower Court warranting resolution of same in favour of the Appellant; that there is no any contradiction in the evidence of PW1 and PW2; that while PW1 narrated how he was shot at on the left knee by one of the robbers, the PW2 peeped at the gate, saw and recognized the Appellant, thereby fixing him at the scene of crime; that the argument of the Appellant in this regard has no basis, referring to ADEKOYA VS. STATE (no citation given); that the PW1 did not exonerate the Appellant; that the evidence of the prosecution remained unchallenged; that the alleged contradictions (if any) do not go to the root of the case of the prosecution; that it is not true that the Appellant’s name was not mentioned at Nkwerre Divisional Police Headquarters, asAppellant’s Counsel failed to refer this Court to the Statement at Nkwerre in the Record where PW2 failed to mention the name of the Appellant; that it is not true that the PW2 only mentioned the Appellant for the first time at the State CID several days after the robbery incident as an afterthought; that the robbery incident occurred on 1/3/99 while the PW2 made his statement to the State CID on 5th March 1999, referring to page 17 of the Record.

On issue of observation raised by the Appellant’s Counsel, learned Chief State Counsel submitted that PW2 properly identified and recognized the Appellant in his statement to the police and his testimony in the Court, therefore there is no issue or question of mistaken identity.

On distance between the living room and the gate, learned Chief State Counsel submitted that the proximity between the living room and the gate was such that the PW2 saw the Appellant very well and recognized him because they had known each other before the 1/3/1999 robbery incident; that if the defence had any issue with the distance they would have cross examined PW2 on it or led evidence to rebut the assertion. Hereferred us to OKOSI VS. STATE (1998) 1 ACLR 281 at 295 paras 22–32; that the gamut of the evidence of PW2 on the identity remains unchallenged; that the Appellant’s reference to the evidence of Mrs. Obanye and Mrs. Ogbale in respect of the form of light being only torch lights on that day was baseless as the women were inside the house when the armed robbers came, and not outside; that the women did not say there was no flood light at the gate; that in any event the said statements of the women did not form part of this case by way of exhibits and so cannot be relied upon as part of the trial. Counsel referred us to page 15 of the Record and submitted that it is not true that there was no light that day; that the failure of the defence to call further evidence to rebut that of the prosecution in respect to the lighting of the premises has rendered their contention and submission naught; that the prosecution did not withhold any evidence but called four witnesses to prove their case and so were not bound to call any particular number of witnesses before they can secure conviction, relying on UDORU VS. STATE (2006) ALL FWLR (PT. 337) 456 at 467;that the Appellant can be convicted on the testimony of one witness as the offence does not need corroboration, referring to Section 200 of the Evidence Act, 2011 (as amended) to submit that the accused/appellant does not have to be convicted on the testimony of many witnesses; that there is no requirement that a particular number of witnesses are to be called before the prosecution can prove its case against the accused, referring to EGBEYOM VS. THE STATE (2000) 4 NWLR (PT. 654) 559; AKINYEMI VS. STATE (1999) 6 NWLR (PT. 607) 449 at 461; that it is not open to the defence to dictate the number of witnesses the prosecution is expected to call during criminal trials, and which ones it should not call.

On Exhibit “E”, the learned Chief State Counsel referred to the argument of the Appellant, to the effect that same cannot raise a presumption of guilt, having been retracted and submitted that the position adopted by the Appellant’s Counsel was wrong, relying on N. M. ALI & ANOR VS. THE STATE (1988) 1 ALL NLR 1 at 21; that Exhibit “E” was tendered without any objection and that it is trite that where Accused retracts hisstatement while testifying in Court, it does not affect the situation once the Court is satisfied as to the truth of it and can rely on the statement in grounding conviction, relying on NWACHUKWU VS. THE STATE (2007) ALL FWLR (PT. 390) 1380.

As to the perversity of the judgment, Respondent‘s Counsel submitted that the judgment of the lower Court is not in any way perverse and that the prosecution has proved its case against the Appellant; that there is no any miscarriage of justice in this case; that findings of fact would not be disturbed where there is sufficient evidence to support them especially where there is no miscarriage of justice, relying onEMMANUEL BEN VS. THE STATE (2006) 7 SCNJ 217; that the learned trial Judge fully analyzed the evidence before arriving at its decision which was neither perverse nor occasioned a miscarriage of justice but emanated from credible evidence, referring to pages 247–280 of the Record. Learned Counsel then urged us to resolve this issue in favour of the Respondent.

In summary learned Counsel stated that:-
(1) The prosecution proved all the ingredients of armed robbery against theAppellant.
(2) The PW2 properly recognized and identified the Appellant when he fixed him at the scene of crime.
(3) The learned trial Judge properly evaluated the evidence of the prosecution witnesses which never occasioned any miscarriage of justice.
(4) There was no doubt in the prosecution case which goes to the root of the matter that would warrant a discharge of the Appellant.
(5) The lower Court did not rely on circumstantial evidence, there was an eye witness account, the circumstantial evidence was only added advantage to the prosecution’s case.
(6) The identification evidence was properly analyzed by the trial Judge and evaluated before arriving at a decision.
(7) The Court never employed double standard as the liability of Appellant is not the same as that of the 5th accused. Appellant was identified by PW2. The Appellant was not in any way jeopardized.
(8) The prosecution successfully and satisfactorily discharged the evidential burden placed on it.

In conclusion, learned Chief State Counsel urged us to dismiss the appeal and affirm the judgment of the lower Court.The Appellant, as earlier indicated, filed a Reply Brief on 11/2/2020. I have carefully perused the Reply Brief and it is obvious that it restates all the points argued in the Appellant’s Brief and responded to in the Respondent’s Brief of Argument. The Reply Brief also repeated all the submissions made in the Appellant’s Brief including the authorities referred to by learned Counsel.
This is obviously not what a Reply Brief is intended to achieve as it is clearly an attempt to re–argue the issues already argued. See MAMONU & ANOR. VS. DIKAT & ORS. (2019) LPELR–46560 SC; AZUBUIKE VS. THE STATE (2019) LPELR–48238 CA. Thus I need not waste the precious judicial time considering the Reply Brief. It is hereby discountenanced.

It is also observed that the Appellant’s issues are donated from Grounds 1, 2, and 4. There is no issue formulated from ground 3 which, shorn of its particulars, is “That the trial of the accused person in the peculiar circumstance in this case was manifestly unfair contrary to the tenets of natural justice as envisaged under the Constitution, Federal Republic of Nigeria.”It goes without saying that, this ground 3 having no issue distilled therefrom, is deemed abandoned by the Appellant and should be, and is hereby struck out by the authorities of OGBE VS. ASADE (2009) LPELR–2275(SC); PDP VS. INEC & ORS (2014) LPELR–23808(SC); (2014) 17 NWLR (PT. 1437) 525; MATHEW VS. STATE (2019) LPELR–46930(SC); ABARIBE VS. NWONTA & ORS (2015) LPELR–25701(CA) and AKINSUWA VS. THE STATE (2019) LPELR–47621(SC).

RESOLUTION
I hold the firm view that this appeal can be determined based on issue one formulated by the Appellant and adopted by the Respondent as contained in their Briefs of Argument, which I hereby adopt and reproduce hereunder:-
“Whether, having regard to the admissible and usable evidence adduced before the Court, the prosecution discharged the onus of proof placed upon it by law proving all the ingredients of armed robbery, particularly the identity of the Appellant as a particepscriminis beyond reasonable doubt against the Appellant (Ground 1).”

This issue is an attack on the conviction, and sentencing of the Appellant to death for the offence of armed robbery contrary toSection 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Vol. XXII, Laws of the Federation of Nigeria, 1990.

Now, what is robbery and what is armed robbery? The BLACK’S LAW DICTIONARY, 10TH EDITION at page 1526 defines robbery thus:-
“The illegal taking of property from the person of another, or in the person’s presence, by violence or intimidation… armed robbery, Robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used…”
This definition has received judicial pronouncement from our Apex Court in several cases, one of which is USMAN SAMINU (aka DANKO) VS. THE STATE (2019) 11 NWLR (PT. 1683) 254 at 258 Ratio 3 wherein it was held:-
“Robbery is the illegal taking of property from the person of another by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.”
See alsoAGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) 619.
​Now, for the prosecution to secure a conviction or establish the offence of armedrobbery, the following ingredients are required to be proved, and proved beyond reasonable doubt:-
(a) that there was in fact a robbery or series of robberies;
(b) that the robbery was an armed robbery
(c) that the accused person was the armed robber or one of the armed robbers.
See BOZIN VS. STATE (1985) 2 NWLR (PT. 8) 465; ALABI VS. STATE (1993) 7 NWLR (PT. 3071) 551; OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561; OSETOLA VS. STATE (2012) 17 NWLR (PT. 1329) 251 and SAMINU VS. STATE (2019) 11 NWLR (PT. 1683) 254 at 270 paras B–C.

In the instant case, both parties are ad idem that the first two ingredients have been proved. But the 3rd ingredient is what is disputable. The State says the Appellant was one of the robbers who robbed the family of one Chukwuka Emmanuel AnyiamOsuigwe (Osigwe) on the 1st day of March, 1999 at UmuinyiNkwerre in Nkwerre Local Government Area of Imo State, while the Appellant says he was not one of the armed robbers and did not participate in the robbery operation. Therefore, the narrow issue is the identification of the Appellant at the scene of crime on 1/3/1999.The Learned Appellant’s Counsel has forcefully submitted that the 3rd ingredient has not been established against the Appellant while the Learned Respondent’s Counsel submitted to the contrary that the prosecution has proved this ingredient against the Appellant beyond reasonable doubt.

The Respondent depends or relies on the evidence of the PW2 who stated that he had known the Appellant prior to the commission of the crime because the Appellant once applied to him for driving job and he interviewed the Appellant, though the Appellant did not get the driving job, however he was engaged as a labourer at the building site of the PW2; that on the day of the incidence he, the PW2, saw the Appellant standing under a floodlight at the gate and collecting the booties from the house by the armed robbers who entered the house. PW2 stated that he opened the curtains and saw the Appellant as there was light everywhere in the compound that night. See the evidence of PW2 at pages 64–68 of the Record.

​The learned Trial Judge reviewed the case against the Appellant at page 255 of the Record in respect of this ingredient. The relevant portion of the lower Court’s judgmentis contained at pages 269–272.

The learned Trial Judge relied principally on the evidence of PW2 and Exhibits “D” and “E” to find that ingredient No. 3 has been established against the Appellant.

The learned Trial Judge has this to say at pages 269–271:-
“The PW2 in his statement to the police as well as in his evidence in Court stated that he saw the 2nd accused at the gate of their house under the flood light and recognized him as somebody who had once applied to him for a driving job and identified him as the 2nd accused.
The 2nd accused in his statement to the police tendered as Exhibit “E” denied any involvement in the armed robbery and in his evidence in Court raised the issue of alibi which his counsel submitted was not investigated by the police and relied on the evidence of his sister (DW2) and mother (DW3) on the plea of alibi. The prosecution urged the Court to treat the plea of alibi set up at the state of trial only as an after-thought and a non issue. This Court has earlier in this Judgment held that for a plea of alibi to be valid and sustainable, it must have been raisedat the earliest opportunity to enable the police investigate same and for the prosecution to rebut same. In so far as the 2nd accused did not raise the issue of alibi in his extra judicial statement and most importantly at the earlier opportunity; the police is not bound to investigate it and the prosecution is not bound to rebut it. I therefore hold that the issue of alibi presented and raised by the 2nd accused at the stage of trial and the evidence of the DW2 and DW3 in that regard go to no issue and will not avail the 2nd accused.
On the nature of the statement of the 2nd accused, this Court of the firm view that since no objection was raised to its admissibility and the defence did not cross examine prosecution witnesses on its involuntariness and/or genuineness, it will be too ate at the trial to seek to impugn or dislodge its admissibility. In this case, I find that the 2nd accused made the statement to the police tendered as Exhibit “D”. from Exhibit “D”, it is very clear that the 2nd accused knew the house of the PW1 and PW2, worked as a Labourer at the house of the PW1 and PW2, was seen measuring his height on the wallof the PW1 and PW2 and knew the 5th accused who ran an errand for him prior to the incident of 1/3/99 of summoning a meeting with the 1st accused, 3rd accused and 4th accused.
When these pieces of evidence contained in the statement of the 2nd accused are considered alongside the categorical assertion of the PW2 that he saw the 2nd accused at the gate of their house during the incident which was not in any way discredited under cross examination of the PW2, will induce belief in a Court that the 2nd accused was the one whom the PW2 saw during the armed robbery incident. It is trite law and by the provisions of S. 149 (d) of the Evidence Act that the Court can presume the existence of certain facts which are consistent with human conduct and experience.
In fact in the case of OTEKI V. AG. OF BENDEL STATE (supra), Oputa – JSC put it thus:
“…….Although belief is subjective, yet still the Judge before believing, will subject the evidence to objective test of probabilities. Where the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief.Probability is always a safeguard to the sanctuary where the truth resides. As Aristotle once put it “Probability has never been detected bearing a false testimony.”
From the above and considering the associated facts of the PW2 seeing the 2nd accused at the Gate under the flood light during the incident of the armed robbery and the 2nd accused’s admissions in his statement that he worked as a hired Labourer at the premises of the PW2, was seen measuring his height with the wall of the PW2 and summoning a meeting with some of the other accused persons about their work at the house of PW2, leads to the irresistible inference and conclusion that the 2nd accused planned and participated in the armed robbery incident. This is strengthened by the fact that the defence did not deny that there was flood light at the Gate of the premises of the PW1 and PW2 which enabled the PW2 to see and recognize somebody at his Gate.
Furthermore, the issue of the prosecution not calling other witnesses has been taken care of and the resolution of the Court that the prosecution is not bound to call other witnesses provided as in this case, he has adducedcredible evidence on all vital points under consideration, applies in this case of the 2nd accused. I find that the prosecution has proved his case against the 2nd accused beyond reasonable doubt.”

From the above the learned Trial Judge stated:-
“I find that the prosecution has proved his case against the 2nd accused beyond reasonable doubt.”

However, as I earlier pointed out the bone of contention is the identification and linking of the Appellant with the commission of the robbery of the 1st March, 1999.

It is in evidence that the robbery was carried out between the hour of 1:30 am and 4:30 am of the day. PW1 and PW2 stated that there was light in the compound and so they saw the armed robbers who invaded their premises at that time. However PW1 did not in his evidence say he saw the Appellant and did not identify him as one of the robbers.

PW2 in his evidence at pages 64–68 stated these:-
“…I do not know the accused persons except in connection with this case and for one of them whom I recognize as someone who had applied for a driving job with me in the month of February 1999. He is the 2ndaccused….I heard names like Obinali, Chinchi, Okey, Marshall, Ugochukwu, Peter, Paul and others. I recognized them very clearly particularly the three that were inside the house. The fourth one I saw as they were leaving the house…The fourth one I recognized as the young man that applied to me for a driving job and I saw him as they were living (sic). I opened the curtain in the parlor very slightly and saw him standing at the gate under the flood light. He was helping them collect some of the bags others were carrying. He did not have a shirt on at that time. This person is the 2nd accused and is in Court…”

​Under cross examination PW2 inter alia stated:-
“…I saw the 2nd accused receiving bags from the other robbers at the gate of the compound. I don’t know how many people were outside. I saw several people outside the gate but I saw the one receiving the bags from the robbers. At the state I looked through the window, my hands were still tied behind me. After I had seen the 2nd accused and the others at the gate by shifting the curtains with my shoulders, my hands were untied. I believe my sister whosehands were not tied untied my hands. No identification parade was conducted to enable me identify the 2nd accused…”

As earlier indicated, the nexus between the Appellant and the commission of the crime principally is the evidence of the PW2. Therefore same deserves some closer scrutiny. PW2 stated that the “4th one” he saw when they were leaving the house…. “The 4th one I recognized as the young man who applied for a driving job and I saw him while they were leaving. I opened the curtain in the parlor slightly and saw him standing at the gate under the flood light. This person is the 2nd accused….”

​In resolving the issue of the identification of the Appellant these factors should be considered.
(a) The opportunity of observation by the witnesses:-
Here, the emphasis should be on the length of time PW2 observed the Appellant during the robbery operation.
It is in evidence on record that the operation lasted from 1:30am to 4:30am. Within this period of about 3 hours the PW2 said he saw the Appellant at the gate under the flood light when the robbers had finished their operation and wereleaving. At first PW2 stated that he saw the Appellant when the robbers were leaving the house but later said he saw the Appellant standing under the floodlight at the gate collecting the bags from the other armed robbers when the gate was forced open by the armed robbers. PW2 also added that the armed robbers kept firing shots as they were leaving the compound, spraying their bullets on anything they could not take away.
Naturally under the hazardous condition the AnyiamOsuigwes found themselves it would be their safety and security which would be paramount. The PW2 stated that his hands were bound behind him while he was sprawled on the ground.
If anything, the observation of the PW2 would just be a fleeting moment.
(b) The general atmosphere or condition of the night which had been shattered and terror stricken. It is on record in the evidence of PW1 and PW2 that the house was filled with armed robbers some of whom were trigger–crazy, firing indiscriminately, terrorizing and intimidating the entire family, having shot PW1 on the left knee, bound PW2 and Charles’ hands at their back; the armed robbers continued to drag the PW2,Charles and their sister along with them while ransacking their rooms and carting away money and other valuables. The question here is: could the PW2 under this condition be in a position to look long enough to be able to recognize the Appellant while the robbers were leaving the house and again to see him standing at the gate under the flood light collecting the booties from the armed robbers who carried out the operation in the house? This question arises in view of the evidence of PW1 and PW2 at pages 59–60 and 65–67 of the Record respectively.
(c) The distance from where PW1 and PW2 were to where the Appellant was while the armed robbers were leaving the house in the first place and secondly the gate where the Appellant was standing under the floodlight and collecting the bags being carried by the armed robbers from the house after the robbery operation, is another factor for consideration. There is no evidence as to the distance between these points.

I am of the firm view that the story of the PW2 about recognizing the Appellant is speculative, based on suspicion, which no matter how strong, cannot take the place of legal evidence.See ABIEKE VS. STATE (1975) LPELR–8042; ABACHA VS. THE STATE (2002) 11 NWLR (PT. 779) 437.

From the above, I hold that the prosecution did not prove the identity of the Appellant as the evidence and the circumstances surrounding the case would create doubt in the mind of the Court, which doubt ought to be resolved in favour of the Appellant, which was not so resolved.

I resolve this issue in favour of the Appellant and against the Respondent. Accordingly, I hereby allow the appeal of the Appellant, set aside the judgment of the lower Court, quash the conviction and the sentence imposed on the Appellant. I also hereby acquit and discharge the Appellant and order that he be set free from custody forthwith.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree

ITA GEORGE MBABA, J.C.A.: I had the privilege to read the lead judgment by my learned brother, I.A. Andenyangtso, JCA just delivered and I adopt my reasoning and conclusions in Appeal NO. CA/OW/116C/2018, which is applicable to this Appeal, being a sister Appeal against the judgment of the trial Court in Charge NO. HOW/1C/2001.

I think the entire case of the prosecution against Appellant was founded on suspicion by PW2 (the victim of the Robbery) against the Appellant, who had worked (with other persons) as labourer at the premises of PW2, before the incident of the robbery. The Police appeared to have concentrated on this suspicion and opted to scouting for evidence and procuring the 5th Accused (a young child of 15 years and junior brother of the 3rd accused), to set him up against Appellant, deceitfully and unprofessionally. This case exposes some of the unprofessional conducts of some unscrupulous elements in the Police, who rather perpetuate crimes, instead of fighting same. The law does not expect any Police Personnel (or Security Officer) to fish for and/or procure evidence against an accused, Or to set up an accused person, to please the complainant.

​The learned trial Judge was also wrong, to have relied on the purported statement of 5th Accused (Exhibit M) to convict the Appellant. By law, even where or when a co-accused makes a statement or gives evidence to incriminate a fellow accused person, the Court is enjoined to treat such statement or evidence as suspect. And even aconfessional statement by an accused person (in a trial Of more than One accused) is only admissible against the said accused person who made it, and cannot apply to the other accused persons, unless the others adopted the said statement. See Section 29(4) of the Evidence Act, 2011, and the case of The State Vs Sani Ibrahim (2019) LPELR — 47548 (SC):
“…where more than one person is charged with a Criminal Offence, a confessional statement by one of the accused is only admissible against the maker, unless any of the other accused persons in whose presence the confession was made, adopts the statement by words and conduct.“ per Kekekre-Eun JSC.
See also Sumaila vs State (2019) LPELR – 47730 (CA); Attah vs State (2019) LPELR – 48287 (CA) and Yusuf and Anor vs State (2019) LPELR – 46945 (SC), where it was held:
“The law as re-stated by Ariwoola, (JSC) in Jimoh vs The State (2014) 10 NWLR (Pt.1414) 105 at 139 is — that where more persons than one are charged jointly with a criminal offence and a confession made by one of the such (sic) persons in the presence of one or more of the other persons so charged is given inevidence, the Court shall not take such statement to consideration as against any such other persons in whose presence it was made, unless he adopted the said statement by words or conduct. Alarape Vs State (2001) 2 SC 114; (2001) 5 NWLR (Pt. 705)… What this rule lays down is simply that, generally, there can be no confession by proxy.” per Eko JSC.

The trial Court therefore was wrong to invoke circumstantial evidence in the circumstances of this Case, and placing reliance on evidence of PW2, founded on speculation, and on Exhibit M made by 5th Accused, on the speculation, even when the said 5th Accused, himself, was discharged and acquitted.
By the case of Ore-Ofe Adesina (AKA Alhaji) & Anor Vs The State (2012) LPELR — 9722 (SC), it was held that:
“..the role of circumstantial evidence in a criminal trial is to support or provide more potency or to a piece of evidence, which, even if alone would sustain the burden of proof of the crime alleged.”
That is why the law stipulates that, for circumstantial evidence to be capable of establishing offence “it must be cogent and irresistible, pointing to the guilt of theaccused person, conclusively, and to no other person. See Musa vs The State (2018) LPELR — 45262 (CA); Abdu vs State (2016) 1 NWLR (Pt.1494) 557; Usman vs State (2013) 12 NWLR (1367) 76 and Maigari vs State (2013) 17 NWLR (Pt.1384) 425; Enweremadu vs State (2017) LPELR 42488 CA.

For this and other more elaborate reasons in the lead judgment, I too therefore, allow the Appeal, set aside the judgments in Charge No. HOW/1C/2001 against the Appellant. I abide by the consequential orders in the lead judgment.

Appearances:

O. N. Ichie Esq.For Appellant(s)

C. E. Iwueze Principal State Counsel Ministry Of Justice Owerri, Imo State.For Respondent(s)