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UDOH v. STATE (2020)

UDOH v. STATE

(2020)LCN/15666(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/76C/2018

Before Our Lordships:

Monica Bolna’anDongban-Mensem Justice of the Court of Appeal

MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

ESSIEN EFFIONG UDOH APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

THE GROUNDS OF APPEAL AND PROVING BEYOND REASONABLE DOUBT

In view of my earlier observations a need to reformulate the issues has arisen and having perused the grounds of appeal, it is my firm view that this appeal would be disposed on a lone issue formulated thus:
Whether from the evidence adduced by the prosecution at trial, the alleged offence of armed robbery was established beyond reasonable doubt against the Appellant as to justify his conviction and sentence by the trial Court. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. 

THE STANDARD OF PROOF IS PROOF BEYOND REASONABLE DOUBT

Onus of proof is on the prosecution who must establish the ingredients of the alleged offence beyond reasonable doubts. This principle has constitutional flavor contained in Section 36 (5) of the Constitution of the Federal Republic of Nigeria and has been reinforced in numerous judicial pronouncements.
​Thus where the prosecution fails to discharge the burden of proof on it under the law or there is any lingering doubt, created inthe evidence relied on by the prosecution, such doubt must be resolved in favor of the accused and this will automatically lead to the acquittal and dis To succeed in establishing the offence of armed robbery, the prosecution must prove that there was a robbery or series of robberies, that each robbery was an armed robbery and that the Appellant took part in the said armed robbery. See BOZIN VS STATE (1985) 2 NWLR (PT 8) 465, ANI VS STATE (2003) 11 NWLR (PT 830) 142 at 161 and OKOSUN VS A.G BENDEL STATE (1985) 3 NWLR (PT 12) 283. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. 
The standard of proof is proof beyond reasonable and for the alleged offence this is achieved when all the elements of the alleged offence are so duly proved. See Section 138 of the Evidence Act, UBANI VS STATE (2003) 4 NWLR (PT 809) 51 and NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. 

CONTRADICTIONS ARE SUBSTANTIAL WHERE THEY RELATE TO MATERIAL POINTS

Contradictions are only material where they relate to material points in the case. It is therefore not every discrepancy in the testimonies of witnesses however minute, which would lead to the damnification of their testimonies. See NASAMU VS THE STATE (1979) NSCC 140 and EFFIA VS STATE (1999) 8 NWLR (PT 613) 1.
For an appellant to succeed on grounds of contradiction in the evidence of witnesses for the prosecution, the contradictions must be shown to amount to substantial disparagement of the witnesses concerned making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See ENAHORO VS THE QUEEN (1965) NMLR 265 at281,OGUNYE VS STATE (1995) 8 NWLR (PT 413) 333 at 350 and UBANI VS STATE (supra JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. )

 

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 27th March, 2018 by N. R. OJI, J.

The Appellant and his co-accused were arraigned before the trial Court on count of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 to which they both pleaded not guilty. At trial, prosecution called 3 witnesses consisting of two victims of the alleged robbery and the police investigator. Exhibits tendered included the gun supposedly recovered from the Appellant and his co-accused and their extra judicial confessional statements.

​The case of the prosecution was that after PW1 and PW2 had been robbed, they were invited by officers of the Nigerian Army who had arrested the Appellant and his co-accused among other people, to identify those who robbed them and also identify the stolen items recovered. PW1 and PW2 not only identified the Appellant and his co-accused but equally identified items stolen from them during therobbery. The military then transferred the case to the Police where statements were obtained from them and their recovered items released to them on bond.

The Appellant and his co-accused reportedly made confessional statements which were supported by attestation forms signed before a Superior Police Officer. All these were tendered at trial by PW3, the police investigator who also tendered the arms said to have been recovered as well as the letter from the Army forwarding the case to the Police.

The Appellant gave evidence from the witness box wherein he denied having anything to with the robbery and also distanced himself from the confessional statement attributed to him.

After taking final addresses from counsel, the learned trial Judge gave a considered judgment wherein the Appellant and his co-accused were found guilty as charged and were accordingly convicted and sentenced.

Exercising his right of appeal, the Appellant filed a Notice of Appeal on the 27th April, 2018, containing five grounds.

​At the hearing of the appeal, Mr. Okwulehie, the learned counsel for the Appellant adopted his brief filed on the 24th September, 2018 aswell as the Reply brief filed on the 6th June, 2019 but deemed properly filed and served on the 10th February, 2020 as the arguments of the Appellant in furtherance of his appeal.

Chief Eze, the learned Attorney General of Enugu State adopted the Respondent’s brief filed on the 14th March, 2019 as the arguments of the Respondent in contesting the appeal.
The learned Attorney General drew our attention to his preliminary objection raised and argued in his Respondent’s brief.

In the said objection, the learned Attorney General argued that the issues for determination formulated by the Appellant were proliferated and that this appeal should accordingly be struck out. He referred to various judicial authorities in this regard.

The response of Mr. Okwulehie to the preliminary objection was that there was no rule prohibiting proliferation of issues and that the preliminary objection was incompetent as it was not supported by any affidavit.
​The response of Mr. Okwulehie is to say the least baffling. The Supreme Court has consistently frowned at proliferation or prolixity of issues where a single or very few issues would disposeof an appeal. Two issues cannot be formulated from a single ground of appeal. SeeLABIYI VS. ANRETIOLA & ORS (1992) LPELR-1730(SC), DIN VS. AFRICAN NEWSPAPERS OF (NIG) LTD (1990) LPELR-947(SC) and APATA VS. OLANLOKUN & ANOR (2013) LPELR-20938(SC).
I agree with the learned Attorney General that the issues formulated by the Appellant are grossly incompetent and shall be discountenanced but the interest of justice would be served by either adopting the issues formulated by the Respondent if better or to reformulate the issues entirely instead of striking out the appeal. See LABIYI VS. ANRETIOLA & ORS (supra).
I shall therefore proceed to the substance of the appeal.

The Appellant formulated his six proliferated issues as follows:
i. Whether the Court below considering the evidence before it was right when it held that the prosecution proved the offence of armed robbery beyond reasonable doubt against the appellant through cogent and credible evidence as required by law. (Grounds 2 and 3).
ii. Whether reliance on the contradictory statements of the eye witnesses as pw1 and pw2 and absence of key witness to ground a convictionfor the offence of armed robbery did not occasion miscarriage of justice (grounds 2 and 3).
iii. Whether reliance on the contents of statements recorded by an interpreter to the illiterate-appellant without interpretation to him and the recorder eventually called as a witness in the proceedings did not occasion miscarriage of justice. (Ground one).
iv. Whether the trial Court did not deny fair hearing to the appellant by its failure to order trial within trial to determine the voluntariness of the alleged confessional statement (grounds 1 and 3) evidence which was retracted.
v. Whether the absence of the conductor of the identification parade and the conduct of same at army barracks could ground a conviction of the appellant. (grounds 2 and 4).
vi. Whether the non-evaluation and improper evaluation of material facts before the Court was proper by the Court below (grounds 4 and 5).

The Respondent on the other hand formulated two issues without relating them to the grounds of appeal thus:
i. Whether from the circumstances and admissible evidence in this case, the prosecution proved the offence of robbery against the appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Whether the trial Court was right in relying on the retracted confessional statement of the appellant/defendant in convicting him.

In view of my earlier observations a need to reformulate the issues has arisen and having perused the grounds of appeal, it is my firm view that this appeal would be disposed on a lone issue formulated thus:
Whether from the evidence adduced by the prosecution at trial, the alleged offence of armed robbery was established beyond reasonable doubt against the Appellant as to justify his conviction and sentence by the trial Court.

I shall accordingly consider the entire arguments canvassed by both sides under this lone issue.

For the Appellant, Mr. Okwulehie outlined the ingredients of the alleged offence of armed robbery and submitted that the Respondent as prosecution failed to adduce credible and cogent evidence in support of the alleged offence. He referred toIGABELE VS STATE (2006) 5 NWLR (PT 975) 100.

He argued that the charge omitted the vital point of the time of the alleged robbery while there was no direct evidence of how the Appellant was arrested thereby casting a doubt on the evidenceadduced by the prosecution. He referred to ALHAJI MUSA SANI VS THE STATE (2016) NCC Vol. 12 at 217.

He further submitted that there was no conclusive evidence that the gun tendered at trial was found in possession of the Appellant while the learned trial Judge wrongfully admitted the extra judicial confession already denied by the Appellant and failed to accredit the unchallenged testimony of the Appellant at trial. He referred to ITESHI ONWE VS STATE (1975) 11 SC 16 and AKPABIO & ORS VS STATE (1994) 7 NWLR (PT 359) 635.

The learned counsel further submitted that the testimony of PW3 was largely hearsay and inadmissible while the trial Court failed to observe the laid down procedure for retracted confessional statements. He referred to Sections 27 and 28 of the Evidence Act and KAZEEM VS STATE (2009) ALL FWLR (PT 465) and MUKA VS THE STATE (1998) 1 ACLR 141.

He also submitted that the testimonies of PW1 and PW2 were contradictory and inconsistent on material points and should not have been relied upon by the trial Court. He referred to NWOKEARU VS STATE (2010) 15 NWLR (PT 1215) 1.

​He further submitted that the person who arrested theAppellant was a vital witness and that failure of the prosecution to call him amounted to withholding vital evidence which is fatal to the case of the Respondent. He referred to Section 167 (d) of the Evidence Act and THE PEOPLE OF LAGOS STATE VS UMARU (2014) LPELR-22466 (SC) and OCHIBA VS STATE (2011) 17 NWLR (PT 1277) 663 at 696.

Mr. Okwulehie argued further that the Appellant was an illiterate who never understood the language in which his supposed confessional statement was written and that in the absence of the evidence of an interpreter the said statement ought not to have been used against him to convict him.

He submitted that the retracted confessional statement ought to have been corroborated and that if the said statement was subjected to tests of truthfulness the Court would find that it was undeserving of any evidential weight. He referred to KAZEEM VS STATE (2009) ALL FWLR (PT 465), NSOFOR VS STATE (2004) 18 NWLR (PT 905) 292 at 310-311 and ADIO VS STATE (1986) 3 NWLR (PT 31) 71.

​The learned counsel also submitted that the supposed identification parade was improperly conducted and that the absence of the evidence of the officer whoallegedly conducted the said identification parade was fatal to the case of the Respondent.

He concluded by submitting that the evaluation of evidence made by the trial Court was inadequate and urged the Court to set aside the conviction and sentence of the Appellant.

Contrariwise, Chief Eze equally outlined the essential ingredients of the offence of armed robbery as well as the evidence adduced at trial and submitted that from the testimonies of the prosecution witnesses and exhibits tendered, all the outlined ingredients were established. He referred to KOLAWOLE VS STATE (2015) 8 NWLR (PT 1460) 134 and BUSARI VS STATE (2015) 5 NWLR (PT 1452) 343.

The learned Attorney General further submitted that the extra judicial statement resiled from by the Appellant was only accorded evidential weight by the learned trial Judge after the said statement had been subjected to the test of veracity. He referred to ASIMI VS STATE (2016) 12 NWLR (PT 1526) 414, OLANIPEKUN VS STATE (2016) 13 NWLR (PT 1528) 100, ASUQUO VS STATE (2016) 14 NWLR (PT 1532) 309 and OKEKE VS STATE (2016) 7 NWLR (PT 1512) 417.

He submitted that there was no material contradictionin the case of the prosecution and that all necessary witnesses to establish the alleged offence were called especially as the robbed items were recovered from the Appellant and his co-accused shortly after the robbery incident.

He argued that the issue of interpreter did not arise as Appellant communicated in English language and not through an interpreter and that the circumstances of their arrest with the robbed items precluded an identification parade.
He urged the Court to dismiss the appeal.

In his Reply brief, Mr. Okwulehie reiterated his earlier arguments and urged the Court to set aside the decision of the trial Court.

As earlier stated, the Appellant was charged with the offence of armed robbery. Onus of proof is on the prosecution who must establish the ingredients of the alleged offence beyond reasonable doubts. This principle has constitutional flavor contained in Section 36 (5) of the Constitution of the Federal Republic of Nigeria and has been reinforced in numerous judicial pronouncements.
​Thus where the prosecution fails to discharge the burden of proof on it under the law or there is any lingering doubt, created inthe evidence relied on by the prosecution, such doubt must be resolved in favor of the accused and this will automatically lead to the acquittal and discharge of the accused person. See NNOLIM VS STATE (1993) 3 NWLR (PT 283) 569 and JOHN IKHANE VS COMMISIONER OF POLICE (1977) 6 SC 119 at 122.

To succeed in establishing the offence of armed robbery, the prosecution must prove that there was a robbery or series of robberies, that each robbery was an armed robbery and that the Appellant took part in the said armed robbery. See BOZIN VS STATE (1985) 2 NWLR (PT 8) 465, ANI VS STATE (2003) 11 NWLR (PT 830) 142 at 161 and OKOSUN VS A.G BENDEL STATE (1985) 3 NWLR (PT 12) 283.
The standard of proof is proof beyond reasonable and for the alleged offence this is achieved when all the elements of the alleged offence are so duly proved. See Section 138 of the Evidence Act, UBANI VS STATE (2003) 4 NWLR (PT 809) 51 and NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1.

​The witnesses called by the prosecution included PW1 and PW2 who were not only eye witnesses to the said robbery but were also the victims. Their testimonies were direct, based on what they personally sawand experienced. They were ad idem in identifying the Appellant and his co-accused as those that robbed them. They both corroborated themselves on the weapons held by the Appellant and his co-accused at the time of the said robbery. Their accounts of how they were invited to identify their recovered items as well as those who robbed them were in tandem. There was no contradiction in their testimonies on any material issue contrary to the submissions of Mr. Okwulehie.

Contradictions are only material where they relate to material points in the case. It is therefore not every discrepancy in the testimonies of witnesses however minute, which would lead to the damnification of their testimonies. See NASAMU VS THE STATE (1979) NSCC 140 and EFFIA VS STATE (1999) 8 NWLR (PT 613) 1.
For an appellant to succeed on grounds of contradiction in the evidence of witnesses for the prosecution, the contradictions must be shown to amount to substantial disparagement of the witnesses concerned making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See ENAHORO VS THE QUEEN (1965) NMLR 265 at281,OGUNYE VS STATE (1995) 8 NWLR (PT 413) 333 at 350 and UBANI VS STATE (supra).

The remaining prosecution witness was the Police Investigator who received the Appellant and his co-accused from the military officers who arrested them and gave direct testimony of his activities in the case.
It was contended for the Appellant that the testimony of this witness amounts to hearsay. Evidence of a statement made to a witness by a person who is not himself called as a witness will be hearsay and inadmissible if it seeks to establish the truth of what is contained in the statement. But if the sole purpose is to establish by the evidence the fact that it was made, then it is not hearsay and is admissible. See VICTOR OJIAKO VS THE STATE (1991)2 NWLR (PT 175) 578 at 584 and ABADOM VS STATE (1997) 1 NWLR (PT 479) 1.

​I do not agree with Mr. Okwulehie that the testimony of PW3 was hearsay. His testimony was direct as to what he did and through him the prosecution tendered the extra judicial statement and the attestation from which the Appellant resiled. His evidence provided substantial corroboration for various aspects of the testimonies of PW1 and PW2 as he not onlytendered the weapon earlier referred to by them but also the bond with which their recovered items were released to them.

The learned trial Judge admitted the retracted confessional statement and subsequently subjected it to the test of validity. These steps accords with the extant position of the law. A trial within trial happens where the accused admits making the statement but under some form of coercion not where he denies having anything to do with it. The test of veracity requires that the learned trial Judge evaluates the retracted confessional statement by considering as follows:
1. Whether there is anything outside the confession to show that it is true;
2. Whether the statement is corroborated, no matter how slightly;
3. Whether the facts contained therein, so far as can be tested, are true;
4. Whether the accused person had the opportunity of committing the offence;
5. Whether the confession of the accused person was possible; and
6. Whether the confession was consistent with other facts, which have been ascertained and proved. See ALARAPE VS STATE (2001) 5 NWLR (PT 705) 79 at 107 –108, EGBOGHONOME VS. STATE(1993) 7 NWLR (PT 306) 383, IBINA VS. STATE (1989) 5 NWLR (PT 120) 238 at 248 and NWOSU VS. STATE (1998) 8 NWLR (PT 562) 433 at 442.

The Appellant further complained that the extra judicial statement was not interpreted to the Appellant. This is a point that has nothing to do with the disclosed facts herein. As well noted by the learned trial Judge in the judgment now on appeal, the Appellant took his plea in English language without the assistance of an interpreter and in the presence of his counsel. No issue of interpretation arose throughout the trial.

The Appellant raised issues on the failure of the prosecution to call the Army officer who reportedly arrested the Appellant and his co-accused, invited PW1 and PW2 and subsequently handed the case to the Police. The position of the law however is that there is no obligation under the law on the prosecution to call all listed witnesses or call a particular witness. All the prosecution need do is to call enough material witnesses in order to prove its case and in doing so it has a discretion in the matter. See SAMUEL ADAJE VS THE STATE (1979) 6-9 SC 14.

​In this case, the Respondent asprosecution called evidence which established beyond reasonable doubt that there was a robbery witnessed by PW1 and PW2 who were victims and lost valuable items to the robbers identified positively by them as the Appellant and his co-accused. PW1 and PW2 gave evidence of the arms carried during the robbery which included a gun tendered as exhibit P3 at trial.

I find evidential basis for the conviction and sentence of the Appellant by the trial Court and I see no justifiable basis to interfere therewith.
I therefore resolve the lone issue for determination in favour of the Respondent and against the Appellant.
I find no merit in this appeal and I accordingly dismiss it.
The judgment of the trial Court convicting and sentencing the Appellant is hereby affirmed.
There shall be no order as to cost.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA dismissing this appeal.

​The Prosecution proved its case beyond reasonable doubt when it established all the ingredients of the offence of armed robbery against the Appellant. The ingredients of theoffence of armed robbery were expounded in the case of OGOGOVIE V. THE STATE (2016) LPELR-40501(SC) thus;
“At the risk of repetition of what has become trite, to succeed in a charge of armed robbery the prosecution had the duty to prove beyond reasonable doubt the essential ingredients of armed robbery which are well stated in the cases of Ikemson v. The State (1998) Vol. 1 ACLR 80 at 103; Bozin v. State (1998) Vol. ACLR 1 at 11 to be thus:
(a) That there was a robbery or series of robberies.
(b) That each robbery was an armed robbery.
(c) That the accused person or appellant was one of those who took part in the armed robbery.” Per PETER-ODILI J.S.C.

In the circumstance, I agree with the lead Judgment which I hereby adopt wholly as mine. I too hereby dismiss this appeal and endorse all the orders made in the lead Judgment.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI OYEWOLE, JCA. I agree that the appeal has no merit. I too dismiss the appeal.

Appearances:

Mr. I. V. E. OkwulehieFor Appellant(s)

Chief M. E. Eze, Hon. Attorney General of Enugu State, with him, T. A. Ngene, Esq., (Deputy Director, Ministry of Justice, Enugu State), Dr. A. Edeh (Chief Legal Officer), S. Madu, Esq., (Chief Legal Officer), U. E. Nebo, Esq., (Chief Legal Officer), O. Ogbonna (Principal Legal Officer) and B. I. Aneke (Legal Officer)For Respondent(s)