VINCENT EGWUCHE v. THE STATE
(2018)LCN/12394(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of March, 2018
CA/A/589C/2017
RATIO
CRIMINAL LAW: THE LAW OF PROOF IN AGREEMENT WITH CONSPIRACY
“The last offence with which the accused persons were charged is that of criminal conspiracy punishable under Section 97(1) of the Penal Code. The Law is settled that the only ingredient of the offence is an agreement to do an illegal act or to do a legal act by unlawful means. The law is also trite that Courts of trial can infer the proof of such agreement from the evidence led as direct evidence of agreement is seldom available. See Gregory Godwin Daboh & Anor. Vs. The State (1977) 5 S.C 122. In the case of Patrick Njovens & Ors. Vs. The State (1973) ALL NLR 371. The Supreme Court per Coker JSC now of blessed memory stated the law on proof of agreement in conspiracy lucidly as follows. ‘the overt act or omission which evidences conspiracy is the actus reus, and actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other’ the gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do act or make the omission complained about.” PER HAMMA AKAWU BARKA, J.C.A.
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“…it is basic that the prosecution has the duty of proving its case beyond reasonable doubt. The case of Afolalu vs. The State (2010) 16 NWLR (pt. 1220) 584, lays down the essential elements which must be established to ground the offence of armed robbery. These include;
a. That there must be robbery or series of robberies,
b. That the robbery or each robbery was an armed robbery
c. That the accused was one of those who took part in the robbery.
All these ingredients of the offence must be proved beyond reasonable doubt as required by the provisions of Section 135 of the Evidence Act 2011. Proof beyond doubt has never degenerated to proof beyond any iota of doubt, but that all the ingredients of the offence be proven as required. See also Dibie vs. The State (2007) 9 NWLR (pt. 1038) 30, Esene vs. The State (2017) 8 NWLR (pt. 1568) 337; Ogudo vs. The State (supra).”PER HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: THE PRINCIPLE OF WITHHOLDING EVIDENCE
“It is the law that the prosecution has the duty to tender all statements made by the accused person in Court during his trial. See Ogudo vs. The State (supra). The principle of withholding evidence is to give room for presuming that the evidence which could be and is not produced could if produced is unfavorable to the person who withholds it, and therefore the invocation of Section 167 (d) of the Evidence Act.” PER HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: RETRACTION OF A CONFESSIONAL STATEMENT
“In the case of Shazali vs. State 12 SC (pt. II) 58, it was held that in determining the weight to be attached to the retracted statement, the tests enunciated in the case of R vs. Sykes (1913) 8 Cr. App. R 233, as approved by WACA in Kanu vs. The King 1952/55 14 WACA 30, and now of general application in the Nigerian legal system, including the case of Gabriel vs. The State (2010) 6 NWLR (pt. 1190) 280 @ 338, Haruna vs. A.G. Federation (2012) 9 NWLR (pt. 1306) 419 @ 446 all cited by the Appellant amongst many others, must be satisfied. See also Idowu vs. The State (2000) 12 NWLR (pt. 680) 48 @ 81. Mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. Thus a confessional statement may be sufficient to ground a conviction not withstanding its retraction by the accused. All the Court will need do is to consider both the confession and the evidence in retraction and decide where the truth lies. See also Musa vs. The State (2017) 5 NWLR (pt. 1557) 43 @ 72, Edamine vs. The State (1996) 3 NWLR (pt. 438) 530, Gira vs. The State (1996) 4 NWLR (pt. 443) 375, State vs. Isiaka (2014) ALL FWLR (pt. 729) 1053.” PER HAMMA AKAWU BARKA, J.C.A.
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGOJustice of The Court of Appeal of Nigeria
Between
VINCENT EGWUCHEAppellant(s)
AND
THE STATERespondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The Appeal is against the decision of A.N. Awulu of the Kogi State High Court of Justice sitting at Ankpa in case No: AHC/8c/2015, wherein appellant and one other, were each sentenced to two years imprisonment for criminal conspiracy and 10 years each for armed Robbery.
The Appellant and one Femi Simon were arraigned before the Kogi State High Court, charged with the offences of conspiracy, rape and armed robbery. The three count charge read to the Appellant and his co-accused, to which they pleaded not guilty are as follows:
1st head Charge
That you, Vincent Egwuche, Femi Simon, and others presently at large, on or about the 5th day of August, 2014 at Igah Ikeje, in Olamaboro Local Government Area, within the Kogi State Judicial Division, agreed to do an illegal to wit: to commit armed robbery and rape on one Asema Titus and his wife Esther Akoh, and that the same acts were done in pursuance of the agreement and you thereby committed an offence punishment under Section 97(1) of the Penal Code.
2nd head Charge
That you, Vincent Egwuche, Femi Simon, and others presently at large, on or about the 5th day of August, 2014, at Igah Ikeje, in Olamaboro Local Government Area, within the Kogi State Judicial Division, had formed a common intention with Vincent Egwuche and others at large to commit an offence, namely armed robbery, in furtherance of which you did the following criminal act: while armed with a gun robbed Esther Akoh and Asema Titus of the cash sum of N2,000 and their Toyota Corolla with Reg. No. AH 322 KNE, and two handsets, an offence punishable under Section 298(c) of the Penal Code and you thereby committed an offence punishable under Section 298(c) of the Penal Code read along with Section 79 of the Penal Code.
3rd head Charge
That you, Femi Simon Vincent Egwuche and others presently at large, on or about the 5th day of August, 2014, at Igah Ikeje, in Olamaboro Local Government Area, within the Kogi State Judicial Division, had formed a common intention with Vincent Egwuche and others at large to commit an offence namely rape, in furtherance of which you did the following criminal act: an offence punishable under Section 283 of the Penal Code and you thereby committed an offence punishable under Section 283 of the Penal Code read along with Section 79 of the Penal Code.
Two witnesses testified for the prosecution while Appellant and his co-accused testified in their defense. The Court considered the arguments filed and adopted by Learned Counsel, and in his judgment delivered on the 24/5/2016, concluded that:
The law is settled that an accused person can be convicted based solely on his confession. In the present case, aside the confessions of the accused persons, prosecution witnesses also gave evidence that a robbery took place and that the robbers were armed with a lethal weapon. I hold that the prosecution has proved the offence of armed robbery punishable under Section 298(c) of the Penal Code against both accused persons beyond reasonable doubt. In consequence therefore, I hereby convict the accused persons. Vincent Egwuche and Femi Simon for the said offence of armed robbery.
The prosecution conceded that the offence of rape was not proved. I agree with both counsels on this. The alleged victim of rape i.e. the prosecutrix was not called to testify. Essentially, there was no proof of penetration and lack of consent for the sexual intercourse alleged which her evidence would have sought to prove. In the circumstances, I agree with both counsels that the offence was not proved. Accordingly both accused are hereby acquitted of that charge.
The last offence with which the accused persons were charged is that of criminal conspiracy punishable under Section 97(1) of the Penal Code. The Law is settled that the only ingredient of the offence is an agreement to do an illegal act or to do a legal act by unlawful means. The law is also trite that Courts of trial can infer the proof of such agreement from the evidence led as direct evidence of agreement is seldom available. See Gregory Godwin Daboh & Anor. Vs. The State (1977) 5 S.C 122. In the case of Patrick Njovens & Ors. Vs. The State (1973) ALL NLR 371. The Supreme Court per Coker JSC now of blessed memory stated the law on proof of agreement in conspiracy lucidly as follows. ‘the overt act or omission which evidences conspiracy is the actus reus, and actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy.
It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other’ the gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do act or make the omission complained about.
Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned. I held earlier on in this judgment that Exhibit P1 and P2 were truly made by the accused persons. These statements contain a graphic account of the planning and execution of armed robbery. It is my view and I so hold that the offence of criminal conspiracy has been proved beyond reasonable doubt. I infer the criminal agreement between the accused persons and their partners in crime. Accordingly, I hereby convict the accused persons, Vincent Egwuche and Femi Simon of the offence of criminal conspiracy punishable under Section 97 (1) of the Penal Code.
Dissatisfied with the judgment of the lower Court the 1st accused person appealed his conviction and sentence by filing a Notice of Appeal predicated on ten grounds on the 21/6/2016. The Records of Appeal filed on the 24/9/2017 was deemed filed on the same date pursuant to an order of Court granted on the 25/1/2018. The Appellant’s brief dated the 6th of October, 2017 and filed on the 12/10/17 was deemed filed on the 25/1/18.
The Respondents brief of argument dated and filed on the 19/1/18 was also deemed filed on the 25/1/18. When the appeal came up for hearing on the same 25/1/18, Mr. Maiyaki Theodore Bala, learned counsel for the Appellant, identified the Appellant’s brief settled by him, adopted and relied on same as his submissions, urging the Court to allow the appeal, set aside the judgment of the lower Court and to discharge and acquit the Appellant. H. E. Yusufu, the Learned Deputy Director Public Prosecution, Kogi State who identified the Respondent?s brief settled by him and adopted same in urging the Court to dismiss the Appeal.
The Learned Counsel for the Appellant identified six issues from the 10 grounds of Appeal raised, for the determination of the Appeal. The six issues which can be found from pages 5 to 6 of his brief are as follows:
1. Whether in view of the circumstances and facts of this case, the failure or refusal of the prosecution to tender the statement made by the Appellant at the Kogi State Criminal Investigation Department amounted to an unfair trial and withholding of evidence (Distilled from grounds 5 and 8).
2. Whether the trial Court was right when it convicted the Appellant based on the retracted confessional statement tendered by the PW2 without determining the veracity vel non of such statement (Distilled from grounds 2 and 10).
3. Whether in view of the evidence and circumstances of this case, the prosecution proved the essential ingredients of the offences of conspiracy and armed robbery beyond reasonable doubt, to ground the conviction of the Appellant (Distilled from grounds 4 and 6).
4. Whether the trial Court was right in convicting the Appellant in the face of irreconcilable material contradictions in the evidence of the prosecution?s witnesses (Distilled from ground 3).
5. Whether the trial Court properly evaluated the evidence given in this case when it came to the conclusion that the Appellant is guilty as charged (Distilled from grounds 7 and 9).
6. Whether in the totality of the evidence given by the Appellant, the defense of alibi availed him (Distilled from grounds 1).
The Learned Counsel for the Respondent on his part identified three issues in determining this Appeal. They are as follows:
1. Whether from the totality of the evidence adduced before the trial Court the prosecution has proved the case against the Appellant beyond reasonable doubt as required by law. Distilled from Grounds 3, 4, 6, 8 and 9 of the notice of appeal.
2. Whether the defense of alibi avails the Appellant. Distilled from grounds 1 and 7 of the notice of appeal.
3. Whether the Appellant was properly convicted based on his confessional statement. Distilled from grounds 2, 5 and 10 of the notice of appeal.
Let me in brief relate the arguments of the Appellant based upon the issues crafted by him, and also consider the response of the Learned DDPP to the issues in contention before resolving them.
Issue one
Whether in view of the circumstances and facts of this case, the failure or refusal of the prosecution to tender the statement made by the Appellant at the Kogi State Criminal Investigation Department amounted to an unfair trial and withholding of evidence.
It is the submission of the learned counsel for the Appellant that where an accused person makes a statement, be it confessional or exculpatory, same must be tendered in Court and the failure to tender same and not all the statements made amounts to an unfair trial which can result to an acquittal. The case of Ogudo vs. The State (2011) 18 NWLR pt (1278) 1 at 31 was referred to. He submits that Appellant having made two different statements at the Okpo divisional police station, and the State C.I.D, the failure of PW2 who tendered the statement made at Okpo divisional police station, but failed to tender that obtained at the state C.I.D amounted to an unfair trial of the Appellant. The further case of Chibuike vs. State (2011) All FNLR (pt 559) 1172 at 1192 was referred to. He argued that an accused person moving from one police station to another does so with his case file, and the failure to tender the said statement was in breach of Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999.
Furthermore, it is the argument of learned counsel that the failure to tender the said statement amounted to withholding evidence contrary to Section 167 (d) of the Evidence Act 2011. He commended the case of Igeke vs. Emordi (2010) 11 NWLR (pt 1204) 1 at 35 to the effect that:
“In any trial where one party withholds the evidence which it ought to bring before the Court, the presumption is that the evidence which if made available would be against that person. In other words evidence which could be produced but was not produced would, if produced be unfavorable to the person who withholds it.”
He urged upon the further consideration of the cases of Chinekwe vs Chinekwe (2010) 12 NWLR (pt 1208) 374 at 242 – 243 and Zubairu vs. State 2015 (2015) 16 NWLR (pt 1486) 504 to resolve the issue in the Appellant’s favor.
Issue two
Whether the trial Court was right when it convicted the Appellant based on the retracted confessional statement tendered by the PW2 without determining the veracity vel non of such statement.
The learned counsel with regards to this issue complained that the lower Court
failed to look for independent evidence outside what is contained in the retracted statement to establish or prove the offence. He made reference to the case of Gabriel vs. The State (Supra) and numerous other cases in support of the legal position that the Court ought to have gone outside the confessional statement in determining its truth. He alluded to the six way test and submits that the evidence of both the PW1 and PW2 did not in any way link the Appellant to the commission of the offence. He maintained that there was no link between the Appellant and the confessional statement as there were no facts outside the statement upon which the Appellant could be convicted.
Relying on the case of Jeremiah vs. State (2012) 14 NWLR (pt. 1320) 248, Counsel argued that the retracted confessional statement cannot by any stretch of imagination be that of the Appellant given the evidence or testimonies made in the case. He contended that the Appellant?s evidence was inconsistent with the confessional statement, and a meticulous perusal of the evidence shows that the statement is not correct. Insisting that the alleged confessional statement was not of the Appellant, Counsel urged the Court to resolve the issue in favor of the Appellant.
Issue Three
Whether in view of the evidence and circumstances of this case, the prosecution proved the essential ingredients of the offences of conspiracy and armed robbery to ground the conviction of the Appellant.
Learned Counsel submitted that to ground a conviction for the offences of conspiracy and armed robbery pursuant to Sections 97(1) and 298(c) of the Penal Code, the prosecution must prove for conspiracy:
a) That there was an agreement or confederacy between at least two or more persons; and
b) That the agreement or confederacy was to commit a crime or carry out an unlawful act or to carry out a lawful act by unlawful means.
See Eyo vs. The State (2013) 1 NWLR (pt. 1335) 324 at 346, Okashelu vs. State (2016) 15 NWLR (pt. 1534) 126 at 48 and Section 97(1) of the Penal Code. He submits that upon the totality of the evidence adduced, there was no where established that Appellant agreed or that there was a confederacy between the Appellant and any other person. He referred to the lower Court’s holding on the issue, where it stated:
“It is my view and I so hold that the offence of criminal conspiracy has been proved beyond reasonable doubt. I infer the criminal agreement between the accused persons and their partners in crime. Accordingly, I hereby convict the accused persons,” and submitted that there is no plank upon which the inference was made.
On the ingredients of armed robbery, Learned Counsel posits that there must be;
a) That there was a robbery.
b) That the robbery was carried out with the use of offensive weapons; and
c) That the accused person participated in the robbery.
The three ingredients of the offence must be conjunctively proved beyond reasonable doubt. The cases of Esene vs. The State (2017) 8 NWLR (pt. 1568) 337; Eyo vs. The State (supra); Ogudo vs. The State (supra); Afolalu vs. The State (2010) 16 NWLR (pt. 1220) 584 @ 610; and Osetola vs The State (2012) 17 NWLR (pt. 1329) 251@ 277 – 278, were referred to. He argued that the prosecution failed to link the Appellant with the alleged offences as the Appellant gave evidence of where he was at the material time, and his evidence was not contradicted.
He also contended, relying on the authority of Mohammed vs. The State (2014) 2 NWLR (pt. 1390) 44 at 70 that there was no proper identification made, nor was there an Identification parade. He submits that by S. 135 of the Evidence Act, the standard of proof required to convict the Appellant was that of proof beyond reasonable doubt, Okoh vs. The State (2014) All FWLR (pt. 736) 443 at 457. He then contended that the prosecution having failed to prove the ingredients of the offence charged against the Appellant as required by law, the Court should resolve this issue in favor of the Appellant and thereby discharge and acquit the accused person.
Issue Four
Whether the trial Court was right in convicting the Appellant in the face of irreconcilable material contradiction in the evidence of the prosecution witnesses.
It is the submission of Learned Counsel that material contradictions are inherent in the prosecution’s evidence which contradictions are substantial and judgmental to the issue in question as to create doubts in the mind of the Court. He referred to pieces of evidence adduced by the PW1 and PW2 submitting that material contradiction arose on the recovery of the car and the arrest of the Appellant. He posits that the prosecution having failed to utter explanation on the area of contradiction, such should enure in favor of the Appellant.
Issue Five
Whether the trial Court properly evaluated the evidence given in this case when it came to the conclusion that the Appellant is guilty as charged.
It is the contention of Learned Counsel that the trial Court failed to evaluate the evidence given in this case and thereby arrived at a wrong conclusion. He concedes to the trite position of the law that the ascription of probative value thereto, remains within the province of the trial Court as decided in Usman vs. State (2014) 12 NWLR (pt. 1421) 207 at 231, but where the trial Court fails in this primary duty the Appellate Court will interfere with the evaluation of evidence. The case of Usman vs. State (Supra) and Lasisi vs. The State (2013) 9 NWLR (pt. 1358) 74 at 94-96 were referred to. He posits that the trial Court having failed to properly evaluate the evidence led before it, this Court should interfere with the evaluation and thereby resolve the issue in the Appellant’s favor.
Issue six.
Whether in the totality of the evidence given by the Appellant, the defense of Alibi avails him.
It is the submission of the learned Counsel that the defense of Alibi avails the Appellant. He argued that where the defense of alibi is raised, the onus lies on the prosecution to investigate and failure to do so is detrimental to the prosecution’s case. Uche vs. The State (2015) 11 NWLR (pt. 1470) 380 @ 396 – 397; Sunday vs. The State (2010) 18 NWLR (pt. 1224) 223 @ 242. He argued that the prosecution failed to investigate the defense of alibi even where the accused person gave them particulars, and also raised the defense timeously. He posits that in the light of the decision of the Supreme Court in the case of Agboola vs. The State (2015) ALL FWLR (pt. 795) 197 @ 214 ? 215, Counsel urged the Court to resolve the issue in the Appellant’s favor.
I have earlier stated that the learned Counsel for the Respondent in opposing the appeal formulated three issues for the resolution of the instant appeal.
With regards to the first issue formulated by him; whether from the totality of the Evidence adduced before the trial Court, the prosecution has proved the case against the Appellant beyond reasonable doubt as required by the law. The learned Counsel submitted in line with Section 135 of the Evidence Act, 2011, and the cases of Obiakor vs. The State (2002) SCNJ 193 @ 202, and Aibangbee vs. The State (1988) SC (pt. 1) 96 @ 132 – 133 that in criminal trials the onus of proof lies on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He submits that the prosecution before the lower Court adduced sufficient evidence in proving the ingredients of armed robbery as established in the case of Afolalu vs. The State (2010) 16 NWLR (pt. 1220) 584 against the Appellant. He then referred to the evidence rendered by the PW1, PW2 and Exhibit P1 the confessional statement of the Appellant and submitted that the prosecution proved the offence of armed robbery against the Appellant as required by law.
On the offence of conspiracy, learned Counsel referred to Section 97 (1) of the Penal Code and the cases of Omotola vs. The State (2009) 37 NSCQR (pt. 2) 963 @ 1011; Nwosu vs. The State (2004) 15 NWLR (pt. 897) 466 @ 486; Chia vs. The State (1996) 6 NWLR (pt 455) 465 @ 476 and Erim vs The State (1994) 6 SCNJ 104 @ 117 to posit that the prosecution had by credible evidence established the ingredients of criminal conspiracy.
On material contradictions alleged in the prosecution’s evidence, Counsel contended that no material contradiction can be found in the prosecution’s case. He referred to the case of Stephen John vs. The State (2011) 12 SCNJ 718 @ 738 which is to the effect that any contradiction to be considered as being material, it must be capable of rendering the evidence unreliable, and must also relate to the material ingredients of the offence charged. Further referring to the case of Emeka vs. The State (2001) NWLR (pt. 734) 666 @ 683 and Igri vs. The State (2012) 37 WRN 1 @ 36 with regards to the method of proving crime, learned Counsel argued that the prosecution proved its case by the confession of the accused person and circumstantial evidence which strengthened the confession made. He urged the Court therefore upon this premise to resolve the issue against the Appellant.
On issue two; whether the defense of alibi avails the Appellant, it was contended for the respondent that the Appellant had the primary duty of raising the defense of alibi promptly and properly. In doing so, he must furnish information as to his whereabouts at the material time to enable the prosecution to investigate it. It must be made during the period of investigation and not during trial. It is his contention that the Appellant failed to raise the defense in his statement, but raised it rather during his trial, and at that stage there is no duty on the prosecution to investigate the alibi raised being an afterthought. The case of Otunba F.E. Sowemimo & 1 Or vs. The State (supra) was referred to. He maintained that the trial Court properly evaluated the evidence placed before it and this Court has no business substituting its views for that of the trial Court. The judgment not being perverse is supported by evidence and did not occasion a miscarriage of justice. He urged the Court to resolve the issue against the Appellant.
On the issue whether the Appellant was properly convicted based on his confessional statement; learned Counsel submits that an accused person can be properly convicted upon his confessional statement alone. He submits that the criteria established in the case of Stephen John vs. The State (supra) was satisfied, and the lower Court was right to have convicted the Appellant. He further referred to the cases of Akpan vs. The State (2000) 12 NWLR (pt. 682) 607 at 622, and Joseph Idowu vs. The State (2000) 12 NWLR (pt. 680) 48 at 81 to the effect that mere retraction of a voluntary statement by an accused person does not render it inadmissible or worthless or untrue in construing his guilt. He submits that the learned trial Court Judge duly evaluated the evidence before him before arriving at the conclusion that the statement was true. Further submitting, Counsel argued that the need for corroboration of a retracted statement though desirable is not mandatory, and where a confession is direct and positive, the Court should accept same without much ado. He urged the Court not to be guided by technicalities, but to be guided by the authority of CBN vs. Dinneh (2005) LPELR 11349 CA, and thereby resolve the issue in favor of the Respondent.
I have carefully studied the submission of learned Counsel on the various issues thrown up for resolution. In the resolution of this appeal, my intention is to adopt the issues crafted by the Appellant, considering the same in the order in which it was argued.
The first issue contended upon by the Appellant touches on the respondent’s failure or refusal to tender the statement made by the Appellant before the Kogi State Criminal Investigation Department. Appellant relying on the case of Ogudo vs. The State (supra) argued that the none tendering of the said statement amounted to withholding evidence resulting to an unfair trial the consequence of which is an acquittal.
The Apex Court is said to have held in the case of Ogudo vs. The State (supra) that:
“The prosecution is expected to tender all the statements made by an accused person to the police whether at the time of his arrest or subsequently. In other words, the prosecution has a duty to tender any statement made by an accused person during the investigation of the offence with which he is charged whether or not it is in his favor. This must be so in order to avoid the invocation of the provisions of Section 149(d) of the Evidence Act (now Section 167(d) of the Evidence Act) against prosecution where it fails to tender the statement.”
The learned DDPP, in his response to the issue, opined that though the statement in issue was not tendered in evidence, the said statement can be seen at pages 9 – 11 of the records annexed to the application for leave to prefer a charge filed on the 21st of April, 2015. He also referred to the holding of the lower Court at page 66 of the record, urging the Court to uphold the decision of the lower Court and to eschew technicalities.
The lower Court faced with the issue whether the failure of the prosecution to tender the said statement breached Appellant’s right of fair hearing, held the view that:
“It is the duty of the defense to apply for the production of statements made at Lokoja if these were supportive of their defense and yet no such application. it is my view that a case of unfair trial will only arise where such application is made and refused or where the prosecution fails or refuses to produce the statements’ indeed the accused knew what they stated in the statements and if they felt the statements are supportive of their defense, an application for the prosecution (sic) should have been promptly made….accordingly I hold that there has been no infraction of the right to fair hearing as guaranteed by the Constitution.”
It is obvious from records that the accused person did offer a statement before the State CID Lokoja as evident at page 9 to 10 of the records. It is not in dispute either that the said statement was not tendered in evidence by the prosecution before the lower Court. It is the law that the prosecution has the duty to tender all statements made by the accused person in Court during his trial. See Ogudo vs. The State (supra). The principle of withholding evidence is to give room for presuming that the evidence which could be and is not produced could if produced is unfavorable to the person who withholds it, and therefore the invocation of Section 167 (d) of the Evidence Act.
The learned Counsel for the Appellant now argued that the failure of the prosecution to tender the statement of the accused person made before the State CID Lokoja breached Appellant’s right to fair hearing. I note that the statement in question is at pages 9 to 10 of the records. This same issue was made in the case of Aremu vs. The State (1991) 7 NWLR (pt. 201) 1. The issue raised before the Apex Court, was whether the failure of the prosecution to tender the alleged Appellant’s statements at Idiroko Police Station was fatal to the case of the prosecution.
The Apex Court held that there was no subpoena on the prosecution to produce the statements and they were not so produced. The defense was entitled to call for the statements if they existed, and that the presumption arises when it is shown that the adverse party has suppressed a document which has been proved to be in its possession and which it has refused to produce after service of the notice. This Court in the case of Adekoya vs. The State (2010) LPELR 3604 (CA) per Ikyegh JCA, held that:
“The compiled record does not show any demand for the statements by the defense, and the refusal of the prosecution to make them available to the defense. A demand had to be made first. The refusal to honor the demand must be established before the presumption of withholding evidence under Section 149 (d) of the Evidence Act may be invoked against the party withholding the document.”
In the instant case, though the statement in issue can be seen on the records, to which the defense was privy to, it never deemed it necessary to ask for the production of the said documents. The learned counsel for the respondent, and indeed the lower Court was right in resolving that the Appellant having failed to request for the production of the said statement, cannot complain that his right to fair hearing was breached. I resolve the issue against the Appellant.
On issue two, Appellant complained that the lower Court convicted him on the retracted confessional statement tendered without determining the veracity of such statement.
Flowing from the decision of Egboghonome vs. The State (1993) 7 NWLR (pt. 306) 383, and numerous other cases, where an extra judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker retracted it altogether at the trial. The position of the law remains that a confessional statement does not become inadmissible merely because there is a subsequent retraction by the maker. The further statement of the law is that the Court in the circumstance is bound to consider the statement along with other evidence available and believed from all the circumstances of the case, in determining the truth of the statement. In the case of Shazali vs. State 12 SC (pt. II) 58, it was held that in determining the weight to be attached to the retracted statement, the tests enunciated in the case of R vs. Sykes (1913) 8 Cr. App. R 233, as approved by WACA in Kanu vs. The King 1952/55 14 WACA 30, and now of general application in the Nigerian legal system, including the case of Gabriel vs. The State (2010) 6 NWLR (pt. 1190) 280 @ 338, Haruna vs. A.G. Federation (2012) 9 NWLR (pt. 1306) 419 @ 446 all cited by the Appellant amongst many others, must be satisfied. See also Idowu vs. The State (2000) 12 NWLR (pt. 680) 48 @ 81.
Mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. Thus a confessional statement may be sufficient to ground a conviction not withstanding its retraction by the accused. All the Court will need do is to consider both the confession and the evidence in retraction and decide where the truth lies. See also Musa vs. The State (2017) 5 NWLR (pt. 1557) 43 @ 72, Edamine vs. The State (1996) 3 NWLR (pt. 438) 530, Gira vs. The State (1996) 4 NWLR (pt. 443) 375, State vs. Isiaka (2014) ALL FWLR (pt. 729) 1053.
The lower Court appreciated this duty when at pages 68 to 69, it considered the issue. The lower Court took into consideration the evidence of the PW2, who stated that Appellant testified and took him to where the stolen car was parked, and also recovered the two handsets belonging to the two victims and a gun. The said statements were equally said to have been endorsed by the Divisional Crime Officer of the PW2. He also referred to the viva voce evidence of the Appellant under cross-examination, which tallied with the contents of Exhibit P1, and was satisfied that Exhibit P1 was truly made, by the Appellant. I have no cause to depart from the holding of the lower Court, having studied the evidence led before it. I agree that the evidence fully corroborated the contents of P1, and this issue is likewise determined against the Appellant.
On the Appellant’s issues three, four, five and six considered together, it is basic that the prosecution has the duty of proving its case beyond reasonable doubt. The case of Afolalu vs. The State (2010) 16 NWLR (pt. 1220) 584, lays down the essential elements which must be established to ground the offence of armed robbery. These include;
a. That there must be robbery or series of robberies,
b. That the robbery or each robbery was an armed robbery
c. That the accused was one of those who took part in the robbery.
All these ingredients of the offence must be proved beyond reasonable doubt as required by the provisions of Section 135 of the Evidence Act 2011. Proof beyond doubt has never degenerated to proof beyond any iota of doubt, but that all the ingredients of the offence be proven as required. See also Dibie vs. The State (2007) 9 NWLR (pt. 1038) 30, Esene vs. The State (2017) 8 NWLR (pt. 1568) 337; Ogudo vs. The State (supra).
Proof beyond reasonable doubt undoubtedly does not stretch to mean beyond a shadow of doubt, for otherwise, a greater percentage of criminals will walk our streets with their heads held high and with ignominy, for that standard of proof may be difficult to attain, but where evidence is strong against an accused as to leave only a remote possibility in his favor which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is said to have been proved beyond reasonable doubt. See, State vs. Ekanem (2017) 4 NWLR (pt. 1554) 85 @ 105.
The lower Court considered this head of the offence from pages 62 to 64 of the records. It has been pointed out by the learned Counsel for the respondent that the evidence of the PW1 established the fact that himself and his wife were on the 5th of August, 2014 robbed of sums of money, handsets and the motor vehicle, a Camry car belonging to the PW1. There was evidence also that the robbers were armed with a gun. This can be deduced from the evidence of the PW2, who testified to the effect that they were led by the Appellant and his co-accused to an uncompleted building where they recovered the gun. I do agree that the pieces of evidence adduced established that there was in fact a robbery, and that the robbery was armed robbery. In the determination of whether the Appellant was one of the robbers or the robber, the evidence of the PW1 and PW2, taken together with Exhibit P1, established the fact that Appellant was indeed one of the robbers. There was ample evidence pointing to the fact that the 2nd accused person who was arrested first in time, took the security operatives to the uncompleted building where the Appellant was hiding. It was at the said uncompleted building that the two handsets stolen from the PW1 and PW2 the victims of the robbery and the gun allegedly used during the robbery were recovered. The evidence proceeds to state that Appellant and co-accused took the security operatives to where the stolen vehicle was parked. I have earlier agreed with the lower Court on the truth of Exhibit P1 the confessional statement made by the Appellant, and having admitted therein his participation in the said armed robbery, the lower Court was on solid ground, when it relied on same to convict him for the offence of armed robbery.
I now take on the issue of conspiracy. The question is whether Appellant conspired with any other person to commit the offence of armed robbery. In other words, from the evidence before the Court, can we say that the trial Court was right having convicted the Appellant of the offence of conspiracy and armed robbery? This leg of the argument was treated by the trial Court from pages 70 to 71 of the records. It is trite that conspiracy is an agreement between two or more persons to do an unlawful act. It lies in the bare agreement and association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether the accused persons had knowledge of its unlawfulness. See the recent case of Adesina Kayode vs. The State (2016) LPELR SC.83/2012 per Ariwoola JSC. See also Ikechukwu Okoh vs. The State (2014), Clark vs. The State (1986) 4 NWLR (pt 35) 381. The trial Judge dutifully appraised the evidence before it and arrived at the inevitable finding that the offence of conspiracy was established against the Appellant. I agree with him.
The Appellant’s other complaint relates to his defense of alibi, having stated that he was somewhere else, at the material time when the offence was being committed. It was correctly argued that where the defense of alibi is raised timeously, with particulars, the duty lies on the prosecution to investigate the alibi, and failure to do so would be detrimental to the prosecution’s case. See Uche vs. State (supra), the simple reason being that a plea of alibi where found to be true, amounts to a complete defense which absolves the accused person from the crime alleged. See Agu vs. The State (2017) 10 NWLR (pt. 1573) 171 @ 200, Osuagwu vs. The State (2013) 5 NWLR (pt. 1347) 360. In response to the Appellant’s complaint, the learned DDPP contended that Appellant failed to raise the issue of alibi in his statement Exhibit P1, but only raised it at trial. He posits that at that stage there was no obligation on the prosecution to investigate. Let me with reverence, quote Nwokedi JSC, in the case of Aremu vs. The State (1991) 7 NWLR (pt. 201) 1, where he stated:
“Alibi is a defense that places the accused at the relevant time of crime in a different place from the scene of crime and so removed there from as to render it impossible for him to have committed the offence. Being a matter peculiarly within his knowledge, the accused has a duty to disclose it to the police at the earliest opportunity and before trial begins for it to be investigated. Proffering a defense of alibi for the first time in the witness box during examination in chief is bad enough; doing so under cross examination makes it a huge joke, a hoax. There is nothing in it. It is worthless. It becomes more irrelevant when not proffered as a defense during a counsel’s address. I cannot readily think of a situation where a Court of law will discharge and acquit an accused person solely on the defense of alibi proffered for him for the first time from the witness box and under cross examination.”
Indeed the defense of alibi cannot be found in Exhibit P1, his statement before the police. Learned Counsel feebly wants this Court to take it that the defense was raised in the statement Appellant gave, but was substituted with Exhibit P1. That has never been the case for the Appellant, and counsel’s address can never qualify as evidence no matter how sugar coated it may be. It is incumbent on the Appellant to raise the defense promptly and at the earliest time, supplying the accused person’s where about at the time of the commission of the offence in question. This includes stating the place, the time, the person or persons he was with, so as to give a lead to the prosecution in its investigation. This Appellant failed to do, and he cannot hold the prosecution liable for not investigating the untimely alibi. At best, it was now for the Appellant to call evidence in proof, and to convince the lower Court that he was indeed elsewhere, other than the scene of the crime. Having failed to do that, it is late in the day, and the defense of alibi can not avail him.
On whether the trial Court was right in convicting the Appellant in the face of irreconcilable material contradictions in the evidence of the prosecution witnesses, it is the law that where the prosecution’s case on the facts is riddled with material contradictions and or inconsistencies, the Court will be slow to rely and to convict the accused person. See Emeka vs State [2014] LPELR- SC 347/2011, Omogodo vs. State [1981] 5 SC 5, Agbo vs. State [2006] 6 NWLR {pt 977} 545 @ 563, Abogede vs. State (1996) 5 NWLR (pt 448) 270 @ 279, Onubogu v State {1974} 9 SC 1. However, for such contradictions to gain the notoriety of being materially contradictory, it must go to the substance of the case. The Apex Court in Adonike vs. State (2015) LPELR ? SC.168/2013, stated;
“It is settled law that a material contradiction must go to a material point that is to the root of the charge against the accused person. Therefore where there are differences in the narration of events by prosecution witnesses, especially as to recounting or recollecting the dates of events, which are mere discrepancies that would not avail the accused person, because some of such discrepancies are expected as being natural.” See Dibie vs. State [2007] 3 SCNJ 160 @ 170, Ogbu vs. State [2007] 2 SCNJ 319 @ 334, Jeremiah vs. The State (supra), Okashetu vs. The State (2016) 15 NWLR (pt. 1534) 126 @ 148.
Some instances have been cited by the Appellant as being materially in conflict. The alleged contradictions highlighted by the Appellant relates to instances in the evidences rendered by prosecution witnesses. I have given serious thought and reflected on the areas highlighted, and I cannot but agree with the respondent counsel that no such contradiction running to the root or substance of the accusation against the Appellant can be found. In other words, I am unable to agree with the Appellant that the prosecution’s evidence is riddled with contradictions materially as to affect the quality of the evidence adduced, and I so hold. Although the law is that material contradictions in the prosecution?s case is fatal as same creates doubt in the mind of the Court, which invariably benefits the accused person, See Mohammed vs. The State (2012) All FWLR (PT 621) 1564 at 1579, Omogodo Vs. The State 1981 5 SC 5, Emeka Vs. The State (2014) LPELR SC 347/2011, for such contradictions or inconsistencies to be fatal to the case of the prosecution, it must go to the substance of the case and not minor or trivial. They must be fundamental, amounting to the disparagement of other pieces of evidence adduced. See Agbo Vs. The State (2006) 6 NWLR (Pt 977) 545, Udosen Vs. The Sate 4 NWLR (Pt. 1023) 125 at 161, Uwaekweghinya Vs. The State (2005) 1 NWLR (pt 930) 250 Per Galadima JSC.
The Appellant having failed to show such material contradictions worthy of creating doubts in the mind of the Court, the issue must be resolved against the Appellant.
It is now trite that the evaluation of evidence is primarily the duty of the Court of trial, and where the trial Court without question carries out its duty diligently and justifiably appraises the facts, then this Court as an appellate Court will resist the temptation of substituting its own views for that of the trial Court. See, Woluchem vs. Gudi (1981) 5 SC 291, Igago vs The State (1999) 10 ? 12 SC 64. Having carefully and dispassionately appraised the evidence led before the lower Court, I am satisfied that the lower Court rightly evaluated the evidence before it and arrived at a correct decision. In the event, this Court finds no reason to interfere and I so hold. All the issues having been resolved against the Appellant, the appeal fails for want of merit and it is hereby dismissed by me. In consequence thereof, I affirm the decision of A. N. Awulu of the Kogi State High Court, in suit No. AHC/8C/2015, The State vs. Vincent Egwuche and one other, delivered on the 24th of May, 2016; I also affirm the conviction and the sentence imposed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the Judgment delivered by my Learned brother HAMMA AKAWU BARKA, JCA. He has carefully dealt with the Six (6) Issues raised by the Appellant in this Appeal. I also resolve all the issues in this Appeal against the Appellant. I agree that the Appeal is unmeritorious. I also affirm the conviction and sentence of the Appellant.
BOLOUKUROMO MOSES UGO, J.C.A.: My learned brother HAMMA AKAWU BARKA J.C.A. availed me in advance his lead judgment in this appeal and I agree with his reasoning and conclusion. I also dismiss the appeal.
Appearances:
Maiyaki Theodore BalaFor Appellant(s)
H. E. Yusufu (DDPP), Kogi StateFor Respondent(s)
