UGHANWA v. IGP
(2021)LCN/15750(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, January 14, 2021
CA/A/107C/2018
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
OKECHUKWU UGHANWA APPELANT(S)
And
INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT THE OFFENCE OF CONSPIRACY CAN BE PROVED BY CIRCUMSTANTIAL EVIDENCE
Conspiracy as a charge must certainly be proved beyond reasonable doubt.
In the instant case, the proof comes not by way of direct evidence but by circumstantial evidence. Circumstantial evidence is evidence seen in the circumstance that flows irresistibly from established facts. In the case of Adie v. State (1980) 1 -2 SC P. 116, the Supreme Court per Idigbe, JSC, held that:
“Circumstantial evidence is as good as sometimes better than any other sort of evidence and what is meant by it is that there is a number of circumstances which a complete unbroken chain of evidence”.
This was expatiated more by Okoro, JSC, in the case of State v. Sunday (2019) 9 NWLR (Pt. 1676) 115 @ 132 (e) – (f) as follows:
Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with mathematical exactitude and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and point irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground conviction. Circumstantial evidence is as good as and sometimes better than any other sort of evidence. See Ukorah v. The State (1977) 4 SC (Reprint) page 167, (1977) LPELR – 3345 (SC). Peter v. The State (1997) 12 NWLR (Pt. 531) page 1, Adie v. The State (1980) 1 -2 SC page 116 (1980) LPELR – 176. PER ADAH, J.C.A.
WHETHER OR NOT EVALUATION OF EVIDENCE IS THE PRIMARY DUTY OF THE TRIAL COURT
Evaluation of evidence, it is well known is the primary duty of the trial Court. That Court is the one assigned by law to record and receive evidence in the case. In the case of Taiye v. State (2018) LPELR – 44466 (SC), the Supreme Court deliberated on facts upon which an inference of guilty knowledge can be drawn to prove the guilt of receiving stolen property. The Supreme Court had held as follows:
“The law is also trite that where a person is found in possession of recently stolen goods, he is presumed to either be the thief or the one who stole it or that he received it knowing it to have been stolen recently”
This is in line with the provision of Section 167 (a) of the Evidence Act 2011. That law states:
The presumption of the law where a stolen property is found in possession of a person immediately after the Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events/human conduct and public and private business in their relations to the facts of the particular case, and in particular the Court may presume that: (a) A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen/unless he can account for his possession. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja, hereinafter referred to as “trial Court”, coram judice, D.Z. Senchi J., delivered on the 16th June, 2015, in Charge No: FCT/HC/CR/53/2013, convicting the defendant/accused now appellant, (Okechukwu Ughanwa) with other co-accused, for the offences bothering on conspiracy to commit armed robbery punishable under Section 6(b) and armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act LFN 2004. The appellant together his co-accused were thereafter, sentenced to death by hanging.
The three counts charge upon which the appellant together with others were charged reads as follows.
COUNT 1:
That you Felix Ngozi Achi ‘m’, Okechukwu Ughanwa ‘m’, Nancy Okpoh ‘f’ and others now at large on the 25th of October, 2012 at Saint Michael’s Catholic Church Garaku Lafia in the Lafia Judicial Division Triable in Maitama Judicial Division of the Federal Capital Territory Abuja, conspired among yourselves to commit a felony to wit: Armed robbery and thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special provisions) Act Cap. R11 Vol.14 Laws of the Federation of Nigeria 2004.
COUNT 2:
That you Felix Ngozi Achi ‘m’, Okechukwu Ughanwa ‘m’ Nancy Okpoh ‘f’ and others now at large on the same date and place in the aforesaid Judicial Division but triable in the Maitama Judicial Division of the Federal Capital Territory Abuja, robbed one Rev. Father Paul Onah of his Honda CRV with Reg. No. BWR 22 AG valve yet unknown, the sum of N2,700.00 cash, one blackberry phone value yet unknown while armed with guns and other dangerous of the Robbery and Firearms (Special Provisions) Act Cap. R11 Vol.14 Laws of the Federation of Nigeria 2004.
COUNT 3:
That you Felix Ngozi Achi ‘m’, Okechukwu Ughanwa ‘m’ Nancy Okpoh ‘f’ and other now at Large on the same date, time and in the Judicial Division aforesaid and triable at the Maitama Judicial Division of the Federal Capital Territory Abuja, robbed one Rev. Father Simon Chia Aweli in the sum of N180,000.00 cash, HP Laptop value N30,000.00, Sony Tape recorder value N10,000.00 and other items while armed with guns and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Vol. 14 Laws of the Federation of Nigeria 2004.
After the charges were read and explained to the appellant and others, they pleaded not guilty to the three counts charges. Consequently, trial in the case commenced. The prosecution called a total of four (4) witnesses, and tendered documents. In defence, the appellant testified for himself as DW2 and called no witness while the co-accused testified as DW1 and DW3 respectively and closed their case.
At the close of trial, learned counsel at the trial Court adopted their respective final written addresses filed on behalf of the parties. in a reserved judgment delivered by the trial Court on the 16th June, 2015, the appellant together with the 1st defendant was found guilty of counts one and two, and consequently sentenced death by hanging.
Upset by the finding, conviction and sentence of the trial Court, the appellant appealed to this Court vide Eleven Ground Amended Notice of Appeal dated 14th February, 2018 but filed on the 18th February, 2018. Amended Notice of Appeal was deemed properly filed and served on 8th April, 2020. The record of appeal was transmitted to this Court on the 14th February, 2018.
In line with the rules and practice of this Court, parties filed their respective briefs of argument. Appellant’s brief was filed on 12/05/2020, while the respondent’s brief was filed on the 01/06/2020.
Counsel for the appellant, Adeolu Salako Esq., distilled three issues for determination of this appeal. These issues are:
1. Whether the trial Court was correct to have convicted the appellant on the charge of conspiracy to commit armed robbery and armed robbery when there was no proof that he was among the robbers that invaded the residence of PW4 on the 25th of October, 2012. (Distilled from Grounds 1, 4, 7 and 11).
2. Whether the trial Court properly considered and evaluated the totality of the evidence adduced by parties at the trial before convicting and sentencing the appellant. (Distilled from Grounds 5, 6 and 10).
3. Whether upon a detailed scrutiny of the record in this appeal the trial Court considered the defence of the appellant, which can be gleaned from his extra-judicial statement to the Police, his examination-in-chief and cross-examination, before reaching the verdict of guilty. (Distilled from Grounds 3, 8 and 9).
In response, Chinyere Moneme Esq., counsel for the respondent, adopted the three (3) issues as submitted and argued by the appellant.
The three (3) issues are consequently adopted for the determination of this appeal. I now start with issue one.
Issue One:
This issue is – Whether the trial Court was correct to have convicted the appellant on the charge of conspiracy to commit armed robbery and armed robbery when there was no proof that he was among the robbers that invaded the residence of PW4 on the 25th of October, 2012.
Counsel for the appellant while arguing this issue relied on Section 135(1) of the Evidence Act, Chukwuma v. FRN (2011) 13 NWLR (Pt. 1264) 391 at 408 Paras. D-H, Bassey v. State (2012) LPELR (7813) 1 at 26, Namsoh v. State (1993) LPELR (1937) 1 at 25 – 26, Kalu v. State (1988) LPELR (1654) 1 at 16 argued that the proper approach in considering an information containing conspiracy charge and substantive charge is to deal with the charge for substantive offence first and then proceed to see how far the conspiracy count has been made out in answer to the fate of conspiracy. He cited Osetola v. State (2012) LPELR – 9348 (SC) and submitted that the proof of the offence of conspiracy is generally a matter of inference and that where the substantive offence is established, it can then be inferred that there was conspiracy. He referred the Court to Oduneye v. State (2001) 13 WRN 88, Shodiya v. State (2013) LPELR (2017)-20717 1 at 19, Erim v. State (1994) 5 NWLR (Pt. 346) 522 at 538. Counsel reproduced count charge two, defined Armed Robbery and canvassed that proof beyond reasonable doubt is accompanied by proving the essential elements of the offence charge. He referred the Court to Aruna v. State (1990) LPELR (568) 1 at 14, Eke v. State (2011) LPELR (1133) 1 at 15, FRN v. Usman (2012) LPELR (7818) 1 at 14 and Sani v. State (2018) LPELR – 46741 (CA). He posited that the trial Court desecrated the law when it hugely relied on the evidence of PW1 – PW4 confessional statement of DW1 and DW2 and the circumstantial evidence in reaching its findings and that such finding will smell of judicial sacrilege if allowed to stand.
On the issue of Robbery and if the Robbery was Armed Robbery, counsel submitted that if evidence of that firearm or offensive weapon was used in the course of robbery makes it to be armed and punishable with death. That Robbery without any firearms, offensive weapon used, makes it not an armed robbery. That to succeed on the second ingredient of the offence of armed robbery, that there is need for some evidence to relate to the items. He relied on Robbery and Firearms (Special Provisions) Act in Akoponawa v. State (2015) LPELR 41713 (CA). He posited that no weapon was tendered during the trial nor was recovered from the appellant. He cited Nwomukoro v. State (1995) 1 NWLR (Pt. 372) 432, Olayinka v. State (2007) 8 SCM 193 and People of Lagos State v. Umaru (2014) LPELR 22466.
On whether the appellant was one of the armed robbers and evidence of PW1, PW2 and PW3, counsel contended that the trial Court desecrated the law when it hugely relied on the testimonies of PW1, PW2 and PW3 in reaching its findings that the appellant was among the armed robbers that invaded the residence of PW4. On the evidence of PW4 and Circumstantial evidence, counsel argued that circumstantial evidence must show that the accused alone had the opportunity of committing the offence and no other had that opportunity. He relied on Ikem v. State (1981) 1 NWLR (Pt. 278) at 386, Eyop v. State (2012) LPELR 20210 (CA). He drew the attention of the Court at pages 175 – 176 of the record and posited that the unchallenged and uncontroverted evidence of PW4 actually supports the case of the appellant that facts and circumstances of the case exculpates him from the robbery incidence. That the trial Court was wrong to use the same testimony and extra-judicial statement of the 1st accused to establish proof by circumstantial evidence against the appellant. That a Court cannot approbate and reprobate. He cited Alake v. State (1992) 11/12 SCNJ 177, Yongo v. COP (1992) NWLR (Pt. 257) 36 and Ozaki v. State (1990) 1 NWLR (Pt. 124) 2 and Section 29 (4) Evidence Act 2011. That the circumstantial evidence on record is not based on evidence that can be accorded probative value. He cited Kadiri v. State (2019) LPELR 47714 (CA), Aigbadion v. State (2000) LPELR 264 (SC). That the circumstantial evidence provided by the prosecution is weak and did not point to the appellant alone as having been responsible for the armed robbery that took place at the house of PW4 on the 25th October, 2012.
On the confessional statement of appellant, counsel defined confession and canvassed that by picking only the aspect of appellant’s statement incriminating him and leaving others exculpating him is suspicions. That a judge is not at liberty to pick and choose any part of a witness statement particularly when he has not made any findings declaring the said statement unreliable. He cited Onuoha v. State (1989) 2 SC (Pt. 11) 115, 235, Ishola v. State (2008) 18 NWLR (Pt. 1119) 285 at 294 – 295, Kalu v. State (1988) 10 – 11 SCNJ 1, 9.
On the issue of conspiracy to commit, counsel reproduced the finding of the trial Court at page 190, lines 21 – 25 of the record and disagreed with the trial Court on the way and manner the Court inferred conspiracy to commit armed robbery. Counsel maintained that there was no independent evidence adduced by the prosecution in proof of charge 1. That the trial Court relied heavily on the statement of the accused and his co-accused to reach decision on the charge of conspiracy. Counsel posited that such is wrong in law and a total aberration to the principle laid down inR v. Skyes (1913) 18 Cr. App 233. That the trial Court in reaching the conviction of conspiracy to commit armed robbery, using appellant’s confessional statement, failed, refused and neglected to find any evidence outside the province of the confession that corroborates it.
Counsel for the respondent while arguing issue one, stated the trite position of law that the burden of proving any criminal allegation rests squarely on the shoulders of the prosecution. That where the evidence adduced is so strong as to leave only a remote probability in favour of the accused, that the case is proved reasonable doubt. He relied on Bakare v, State (1987) 3 SC 1 or (1982) LPELR (714) 1 at 12 – 13, Anyanwu v. State (2012) 16 NWLR (Pt. 1326) P. 260 paras. D – E, Emmanuel Tometim v. The State (2014) LPELR – 22788 (CA). On Armed Robbery: counsel opined that the respondent has proved this element of the charge. He made reference to the testimonies of PW1 to PW4 as well as the statements of the appellant admitted as Exhibit 2 by the trial Court. Counsel maintained that it was established from the evidence of PW4 Rev. Fr. Paul Onah who in his oral testimony before the trial Court stated that he was robbed by armed men on the 25th day of October, 2012. That the vital ingredient of the offence of armed robbery was proved by evidence and statements of witnesses and more especially that of PW4. That the appellant’s counsel having not cross- examined PW4 on the nature of arms the gang of armed robbers were armed with, accepted the fact that the robbers were armed.
Counsel further contended that the appellant misunderstood the findings of the trial Judge when he concluded that the learned trial Judge required the respondent to tender the weapons used in the robbery, that the trial Judge never said so. That even though the statement of the appellant Exhibit 2 made to the Police was not totally a confession, that the respondent proved that the appellant was one of the armed robbers by circumstantial evidence. On who to call as witness; counsel state that the accused cannot dictate to the prosecution whom it should prosecute or whom it should call as witness(es). He cited Busari v. State (2015) 5 NWLR (Pt. 1452) P. 369 paras. B – C. He maintained that the prosecution did not need to call a host of witnesses having proved its case through circumstantial evidence. That the evidence of PW1, PW2 & PW3 were cogent, credible and based on facts they heard and discovered during the course of investigation especially the evidence of PW3 who stated that the appellant himself informed him that the was called to come and assist the 1st defendant take delivery for Exhibit 6 the CRV Jeep stolen from PW4 Rev. Fr. Paul Onah. That the trial Court was right to have based its decision on the credibility of PW1, 2, 3 & 4. That the case of the respondent was based on circumstantial evidence based on the fact that the stolen Jeep Exhibit 6, was traced to the possession of the appellant and the 1st defendant who failed to account for the possession of the stolen vehicle.
Counsel canvassed further, that circumstantial evidence is sufficient to ground conviction for a criminal offence only when the inferences drawn from the whole history or facts of the case are such that they point strongly and irresistibly to the commission of the offence by the accused and his co-accused to the exclusion of all other person. He referred to Udor v. State (2014) 12 NWLR (Pt. 1422) P. 561 paras. C-D. That when two or more persons intentionally do a thing jointly like the appellant and the 1st defendant herein, that it is the same as if each had done it individually. He cited Lase v. State (2018) 3 NWLR (Pt. 1607) P. 526 paras. F – H. He submitted that the case of the appellant is interwoven and inseparable from that of the 1st defendant at the trial Court and that the evidence which the trial Court relied upon to convict and sentence the appellant was the same with that of the 1st defendant and this Court cannot exculpate the appellant without equally exculpating his co-accused Felix (DW1). That the circumstantial evidence placed before the Court by the testimonies of PW1, PW2, PW3, PW4 DW1 & especially the statement of DW1 and the appellant (DW2) where the appellant described a runs vehicle to mean a stolen vehicle, that his admission under cross-examination and meetings with the other robbers shows that the appellant was one of the robbers who robbed PW4 on the 25/11/2012.
On the issue of conspiracy to commit armed robbery, counsel argued that the appellant was charged with conspiring with on Felix Ngozi Achi, Nancy Okpoh for the offence of Armed Robbery at the trial Court. That where accused persons formed a common intention to commit a crime, that they are all guilty of the crime committed irrespective of which of them actually did the act amounting to the crime. He cited Salawu v. State (2015) 2 NWLR (Pt. 1444) P. 614 paras. D-E. He maintained that the findings of the trial Court that the appellant was guilty of the offence of Conspiracy and Armed Robbery was also based on his observation of the demeanor of the appellant, he reproduced the finding of the trial Court at page 193 – 194 of the Record of Appeal). Counsel urged the Court to rely on the records to hold that the trial Court correctly inferred that the appellant conspired with the 1st defendant (DW1) and others at large to commit the offence of armed robbery on the 25th day of October, 2012. He urged the Court to hold that the respondent proved that the appellant was responsible for the armed robbery and the conspiracy to rob PW4.
The parties have elaborately argued on this issue dealing with the offence of conspiracy to commit armed robbery and armed robbery. Conspiracy as a charge must certainly be proved beyond reasonable doubt.
In the instant case, the proof comes not by way of direct evidence but by circumstantial evidence. Circumstantial evidence is evidence seen in the circumstance that flows irresistibly from established facts. In the case of Adie v. State (1980) 1 -2 SC P. 116, the Supreme Court per Idigbe, JSC, held that:
“Circumstantial evidence is as good as sometimes better than any other sort of evidence and what is meant by it is that there is a number of circumstances which a complete unbroken chain of evidence”.
This was expatiated more by Okoro, JSC, in the case of State v. Sunday (2019) 9 NWLR (Pt. 1676) 115 @ 132 (e) – (f) as follows:
Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with mathematical exactitude and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and point irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground conviction. Circumstantial evidence is as good as and sometimes better than any other sort of evidence. See Ukorah v. The State (1977) 4 SC (Reprint) page 167, (1977) LPELR – 3345 (SC). Peter v. The State (1997) 12 NWLR (Pt. 531) page 1, Adie v. The State (1980) 1 -2 SC page 116 (1980) LPELR – 176.
In the instant case, the appellant from the evidence before the Court was in league with others in the armed robbery committed in this case. He was not caught in action but was involved with the sale of the car robbed in this case. He admitted knowing the vehicle was a stolen vehicle. From the circumstances of this case and the evidence generated, the appellant cannot be freed from this robbery.
I come to the conclusion therefore, that this issue is resolved against the appellant.
Issue Two:
This issue is – Whether the trial Court properly considered and evaluated the totality of the evidence adduced by parties at the trial before convicting and sentencing the appellant.
On issue two, counsel argued that the trial judge misappraised the evidence and equally failed to apply the correct principles of law that are applicable to the facts and circumstance of this case. He relied on Ogidi v. State (2014) LPELR – 23535 (CA), State v. Ayip (2000) 11 NWLR (Pt. 678) 434, Haruna v. AG Federation (2012) 9 NWLR (Pt. 1306) 419 at 438 E- F and Mogaji v. Odofin (1978) 4 SC 91 at 93 – 94. Counsel posited that the particulars of offence charged is at variance with the evidence before the Court and the finding of the trial Court. He submitted that the evidence before the Court all pointed to receiving stolen property and not armed robbery. Moreso, that from the charge sheet, that the appellant was charged for the offence committed on the 25th October, 2012 and his arrest was on 20th June, 2013. Counsel submitted that the time lapse of eight months from the date of committing the offence before charging the appellant to Court was too long to be recent and that it was not soon after the theft of Exhibit 1, the Honda CRV car. He cited Omopupa v. State (2008) All FWLR (Pt. 445) 1648) at 1677 and Hussaini v. State (2011) 3 NWLR (Pt. 1234) 2554. He maintained that the trial Court erred in its finding in convicting the appellant on the charge of conspiracy to commit armed robbery and robbery when the totality of evidence before the Court pointed to receiving stolen property. He relied on the cases of Ibrahim v. State (2015) LPELR 40833 (SC), Raymond Nwokedi v. COP (1977) All NLR 11, Adeosun v. State (1975) 9 – 11 SC 8 – 10, Yongo v. COP (1992) 8 NWLR (Pt. 257) 36 at 74 and Babalola v. State (1989) 4 NWLR (Pt. 115) 264 at 280. He contended that the trial Court failed to satisfy the directory desire of the law and the established principles enunciated in case law when in the quest to compulsorily convict the appellant decided to choose and pick certain part of the 1st accused (DW1’s) extra-judicial statements to the police without proper evaluation of same.
Counsel argued further, that the trial Court went outside the evidence when he concluded that the PW4 wrote the petition to the IGP when he got a call from the Vehicle Inspection Officer (VIO) and the lawyer to one Nwachukwu Oliver. He stated the trite position of the law, that a Court decision must be anchored and based on the evidence before it and that where the Court goes outside the evidence adduced, such a decision will not be allowed to stand. He referred the Court to Unoka v. Agili (2007) LPELR – 8554 (CA); 2008 All FWLR (Pt. 423) 1349 at 1372. He urged the Court to hold that the trial judge misappraised the entire evidence before the Court and also failed to apply the correct principles of the law that are applicable to the facts and circumstance of this case. He invited this Court to re-evaluate the entire evidence as contained in the record of appeal the bedrock of appeal and come to an appropriate decision and accordingly set aside the judgment of the trial Court. He referred the Court to Awopejo v. State NWLR (Pt. 745), Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211.
Counsel for the respondent, on this issue two, submitted that the trial Court properly evaluated the entire evidence adduced by both parties at the trial Court and even went further to comment on the demeanor of the appellant and the 1st accused at the trial Court before convicting them for the offences of conspiracy and armed robbery respectively. That the determination of guilt where circumstantial evidence is relied on is a question of fact. He cited Anyanwu v. State (2012) 16 NWLR (Pt. 1326) P.284 – 285) paras. H – A and Adesina v. Ojo (2012) 10 NWLR (pt. 1309) Pp 579 – 580 paras. G – C. That it is only where and when the trial Court fails to evaluate the evidence or properly evaluate same that the appellate Court can intervene and evaluate such evidence. He cited NBC v. Edward (2015) 2 NWLR (Pt. 1443) P. 225 – 226 paras. G -C. Counsel posited that in the absence of direct evidence linking the defendant to the theft, that once evidence has been adduced to satisfy the conditions and the defendant does not offer an acceptable explanation for being in possession of the goods soon after the theft. That the presumption of being the thief will be invoked against him. He referred the Court to Botu v. State (2014) All FWLR (Pt. 741) 1460 @ 1480. That the discrepancies in the statement of the appellant and his testimony in Court attest to the fact that the appellant was lying.
Counsel further canvassed that after the robbery of PW4 around midnight at Garaku, in fast Jeep like the Honda CRV Jeep and with no go slow at that time of the night, that the 1st defendant testified that the men gave him a plate number which he used so that Police will not disturb him on the way and told the police that the appellant was the link between himself and the two who sold the Honda CRV Jeep to him. He maintained that the trial Court convicted the appellant for the offences of conspiracy and armed robbery as the totality of the evidence irresistibly pointed to the appellant and the 1st defendant as one of the robber who planned, robbed PW4’s residence and disposed of the CRV Jeep.
On the reliance on the extra judicial statement of the 1st defendant being contrary to Section 27 of the Evidence Act, 2011, counsel submitted that the trial Court was empowered to do so by the exceptions provided by the apex Court in the case of Salawu v. State (2015) 2 NWLR (Pt. 1444) P. 613 Paras. A – E. He posited that the charge before the trial Court was not at variance with the evidence. That while there was no direct eyewitness of the appellant’s participation in the crime, that same was inferred vide circumstantial evidence. He stated the trite position of the law that a conspiracy consists not only the intention of two or more persons but in the agreement of two or more persons to do an unlawful act by unlawful means. He relied on Oladejo v. State (2018) 11 NWLR (Pt. 1630) Pp. 246, paras. F-G, 246 – 247, paras. H – A. He posited that the evidence shows that there was a meeting of the minds of the appellant, the 1st defendant and others to illegally procure and dispose of PW4’s Honda CRV. That what is so clear is that there was an agreement to do an unlawful act which is the procurement of the Honda CRV Jeep by unlawful means, i.e armed robbery. That the trial Court discharged the 3rd defendant when it found that she was a victim of circumstance whilst the appellant was part of the robbery and assisted in the procurement and disposal of the vehicle.
On the issue of jurisdiction, counsel submitted that the trial Court had the jurisdiction to entertain the suit irrespective of the fact that armed robbery occurred in Garaku. That where an offence comprises of different element and the different elements take place in different jurisdiction, that any of the jurisdiction in which an element occurred has the jurisdiction to try the accused. He relied on Dariye v. FRN (2015) 10 NWLR (Pt. 1467) P. 352 — 353 paras. F – B. Counsel maintained that the trial Court properly evaluated the case of the parties to find the appellant guilty as charged. He urged the Court to resolve this issue in favour of the respondent and hold that the trial Court properly evaluated the evidence adduced by parties in this suit.
Evaluation of evidence, it is well known is the primary duty of the trial Court. That Court is the one assigned by law to record and receive evidence in the case. In the case of Taiye v. State (2018) LPELR – 44466 (SC), the Supreme Court deliberated on facts upon which an inference of guilty knowledge can be drawn to prove the guilt of receiving stolen property. The Supreme Court had held as follows:
“The law is also trite that where a person is found in possession of recently stolen goods, he is presumed to either be the thief or the one who stole it or that he received it knowing it to have been stolen recently”
This is in line with the provision of Section 167 (a) of the Evidence Act 2011. That law states:
The presumption of the law where a stolen property is found in possession of a person immediately after the Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events/human conduct and public and private business in their relations to the facts of the particular case, and in particular the Court may presume that: (a) A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen/unless he can account for his possession.
In the instant case, there was armed robbery. A vehicle was robbed. The vehicle was sold out and when the buyer wanted to register the vehicle, she was arrested and from there all those in connection with the robbery were listed out, appellant in the process of evaluating the evidence before the Court was found to be involved in the robbery. There is therefore, clear and tangible presumption that the appellant was involved in the robbery in concert with others. The trial Court therefore, properly considered and evaluated the totality of the evidence adduced by the parties. I am convinced that the trial Court did a thorough evaluation in this case. This issue is resolved in favour of the respondent.
Issue Three:
This issue is – whether upon a detailed scrutiny of the record in this appeal the trial Court considered the defence of the appellant, which can be gleaned from his extra-judicial statement to the Police, his examination-in-chief and cross-examination, before reaching the verdict of guilty.
Counsel for the appellant while arguing this issue, relied on Section 135(3) of the Evidence Act, 2011 (as amended), also on the cases of Akinmoju v. State (2000) 6 NWLR (Pt. 662) 608 at 629, Arogundade v. State (2009) 6 NWLR (pt. 1136) 165, Ezeugo v. State (2013) LPELR – 19984 (CA), Eyo v. State (2016) 17 NWLR (Pt, 1510) 183, Hassan v. State (2017) LPELR 41994 (CA), Tometim v. State (2014) LPELR 22788 (CA) and Ada v. State (2008) 13 NWLR (Pt. 1103) 149 and argued that the Court has obligation and duty to consider all possible exculpatory evidence in favour of the accused. He contended that from the records, that is quite obvious that the trial Court did not fairly and impartially consider and evaluate appellant’s defence and deal with it. Instead, that the trial Court was quick to eliminate all exculpatory aspects of appellant’s evidence and chose to pick the segment that are incriminating which a Court ought not to do in a sensitive case that carried capital punishment. He emphasized that the trial Court failed, neglected and refused to evaluate appellant’s defence. Counsel drew that attention of this Court to page 134 of the record regards to the appellant’s ipse dixit as ‘I do not know a gang of armed robbers that terrorized Garaku and Mararaba area’ and posited that the appellant made this testimony in light of the fact that he is only involved in transactions leading to the sale of Exhibit B. That the appellant never knew wo carried out the robbery throughout the length and breadth of the record. That there is nowhere the above testimony of the appellant was contradicted. That even the PW4 gave corroboration of the innocence of the appellant concerning the armed robbery that took place at his residence on 25th October, 2012.
Counsel further argued that the prosecution did not lay any contrary evidence as to the trade and profession of the appellant and could not adduce any previous conviction or offence that he committed, yet the trial Court disregarded the said evidence and held him to be a liar and thereby convicted him of an offence that was not proved. He submitted that even if the appellant told lies to wriggle out of trouble that, that does not change or reduce the burden of proof squarely and constitutionally placed on the prosecution to establish the guilty of the accused person beyond reasonable doubt. He relied on Orisa v. State (2018) LPELR- 43896 (SC).
On the whole counsel submitted from the totality of evidence adduced by prosecution, that there is no proof that the appellant was involved in the armed robbery that took place at PW4’s residence on the 25th October, 2012 and that circumstantial evidence has not pinned him to the commission of the crime of conspiracy to commit armed robbery.
Counsel for the respondent while arguing this issue three, contended that a finding of fact involves both perception and evaluation. He stated the trite position of the law an appellate Court should respect the trial Court that saw and heard the witnesses. He cited Hassan v. State (2016) LPELR – 42554 (SC). That in the instant case, the trial Court evaluated the case mostly from its perception of the credibility of the witnesses and in addition, that the Court equally considered the defense raised by the appellant because it is essential principle of criminal trial that a defence however, fanciful, stupid, unreasonable or doubtful deserved consideration. He cited Edoko v. State (2015) 9 NWLR (Pt. 1465) P. 488 D – E and Achuku v. State (2015) 6 NWLR (Pt. 1456) P. 456 Paras. C – F. He reproduced the oral testimony of the appellant as contained at pages 132 — 133 of the record and argued that from the narration that the appellant was involved in the transaction. That when a witness makes a statement in Court which is inconsistent with his extra judicial statement, that such evidence will be treated as unreliable aimed at exculpating the accused person from blame. He relied on Edoko v. State (2015) supra. He maintained that the trial Court rightfully considered and disregarded the evidence of the appellant as being unreliable and inconsistent. He prayed the Court to disregard the appellant’s argument that PW4 corroborated the appellant’s innocence.
On the contention of the appellant that the trial Court leaned towards the incriminating aspect of the appellant’s statement and failed to give effect to the exculpatory aspects of his statement, counsel disagreed and submitted that the trial Judge evaluated the statement on its merits and did not base his finding on the incriminating aspects of appellant’s statement but on the evidence elicited from him under cross-examination. He maintained that the trial Judge thoroughly disbelieved the evidence of the appellant based on the lack of credibility of the appellant at the trial Court. That in matters pertaining to the credibility of the witness, the trial Court is in the best position to evaluate same and the appellate Court ought not to substitute its findings for that of the trial Court. He relied on Adisa v. State (2013) 14 NWLR (Pt. 1375) P. 580 paras. E – F, FRN v. Borishade (2015) 5 NWLR (Pt. 1415) P. 176 and Amadi v. Attorney General of Imo State (2017) LPELR – 42013 (SC). He urged the Court to disregard the appellant’s argument in this regard and hold that the trial Court properly evaluated the evidence of the appellant as well as that of the other parties in the trial Court.
In the instant appeal, the learned trial Judge took time to look into the case of the prosecution and the appellant. The learned trial Judge from page 179 of the record of appeal, took time to consider the defence and the evidence linking up the appellant with the charge and effectively convicted the appellant. It is my candid view, that the assessment of the trial Court cannot in this wise be impugned.
This issue is accordingly resolved in favour of the respondent.
From the foregoing therefore, I am of the view that this appeal is lacking in merit. The appeal is accordingly dismissed. The judgment of the trial Court delivered on the 16th day of June, 2015; in Charge No: FCT/HC/CR/53/13, is hereby affirmed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA and I am in agreement with his reasoning and conclusion arrived at therein.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I was privileged to have read in advance the lead judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.
I am in complete agreement with the reasoning and conclusion to the effect that the appeal is lacking in merit and ought to be dismissed.
I also affirm the judgment of the trial Court delivered on the 16th day of June, 2015, in Charge No: FCT/HC/CR/53/13.
Appearances:
ADEOLU SALAKO, ESQ., with him, CHIAMAKA ECHEOZO, ESQ. For Appellant(s)
CHINYERE MONEME, ESQ. For Respondent(s)
