EHIS ERAGHA v. THE STATE
(2019)LCN/13880(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/B/361C/2016
RATIO
CRIMINAL LAW AND PROCEDURE: BURDEN OF PROOF IN CRIMINAL MATTERS
It is settled that the legal and evidential burden of proving the guilt of an accused person is placed on the Prosecution and the Prosecution must discharge this burden beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence. That burden does not shift.
It is a trite law that there are three ways to prove the commission of a criminal offence to wit:-
(a) By testimony of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c)Through circumstantial evidence which clearly point to the fact that the accused and no other person committed the offence charged.
See Ibrahim Kamila v. The State (2018) LPELR-43603; Emeka v. The State (2001) 6 SCNJ 267.
The prosecution in discharging the burden of proof placed on him, which must be beyond reasonable doubt must ensure that any or all of these modes are employed in proving the ingredients of the offence which the accused was charged with in order to establish his guilt. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL LAW AND PROCEDURE: ARMED ROBBERY: DUTY TO PROVE A CASE OF ARMED ROBBERY BY PROSECUTION/ INGREDIENTS TP PROVE ARMED ROBBERY
It is an essential duty on the Prosecution at trial to prove the ingredients of the offence of armed robbery wherein the Appellant was charged and these are:-
a. That there was a robbery or series of robberies;
b. That the robbers were armed with offensive weapons; and
c. That the accused was among the robbers.
These three ingredients must co-exist and they must be proved beyond reasonable doubt. See Sunday Ehimiyein v. The State (2016) LPELR-40841 SC; Ogudo v State (2011) 18 NWLR (Pt. 1278) 32; Bozin v The State (1985) 2 NWLR (Pt. 2) 378. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL LAW AND PROCEDURE: WHETHER CONFESSION IS ENOUGH TO CONVICT A PERSON
It is a settled law that a Court can convict on the confessional statement of an accused person alone without any corroboration. See Ogudo v. State (supra).
The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt. 1103 Pg 1, per Musdapher JSC (as he then was) stated thus:
The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the Court is satisfied with its truth.?
See Fabiyi v. State (2015) LPELR-24834 (SC); Ikpasa v. State (1981) 9 SC 7; Achabua v. State (1976) 12 SC 63.
CONFESSION: HOW TO VERIFY A CONFESSIONAL STATEMENT
In Ogudo v. State (Supra) the Supreme Court reiterated six tests for the verification of confessional statements before any evidential weight can be attached to it as follows:-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
See Kanu & Anor v. King (1952) 14 WACA P. 30; Mbenu v State (1988) 3 NWLR Pt. 84 P. 615; Stephen v. State (1986) 5 NWLR Pt. 46 Pg. 978; Nwachukwu v. The State (2007) 12 SCM Pt. 2 Pg. 447 at 455. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: EFFECT OF CONTRADICTORY EVIDENCE
I cannot say that Exhibit D is consistent with other facts that have been ascertained and proved in the circumstances of this case due to the material contradiction in the evidence of PW1 and PW2 which must be resolved in favour of the Appellant. See Usen v. State (2012) LPELR- 20063 (CA); Amadi v. State (1993) 11 SCNJ 68; Nasamu v. State (1979) 6-9 SC 153; Nwosu v. State (1986) 2 NWLR Pt. 61 Pg. 364; Opayemi v. State (1985) 2 NWLR Pt. 5 Pg. 101.
It is settled that material inconsistencies in the evidence of a prosecution witness goes to the credibility of that witness. The significance does not end there. The Court is not allowed to pick and choose between two versions of the evidence of a witness. The several versions must be rejected and none can be taken as the truth after any form of rationalization by the Prosecution or the judge. Doubt as to the veracity of a statement of a material witness must be resolved in favour of the accused. Also where two witnesses for the prosecution give contradictory evidence on material issues, the Court cannot choose who is telling the truth and must reject the evidence of both witnesses.
On the other hand, an accused in a criminal trial may throw up several versions of the incident and several defences. That is not to say that the Court would reject any plausible story on which a defence is based just because the Accused had told an inconsistent one in the course of the proceedings. The attitude of the Courts to the different or inconsistent evidence of the Accused is quite different from the attitude of the Court to the contradictory evidence or discrepancies in the evidence of Prosecution Witnesses. Of course the different contradictions or discrepancies in the evidence of the Accused goes to his credibility but the Court can take and accept a version or the more truthful version of the story in order to arrive at a finding on the innocence or guilt of an accused. Since a lie by the accused cannot relieve the prosecution of its duty to prove the offence. See Ogidi v The State (2005) 1 SCNJ 67; Okpere v. The State (1971) 1 All NLR 1 at 5; Woolmington v. Director of Public Prosecutions (1935) AC 462. The inconsistency rule is restricted to witnesses as said earlier. It ise not applicable in respect of the evidence of an accused vis-a-vis his extra judicial statement. See Ogudo v. The State (supra). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
EHIS ERAGHA Appellant(s)
AND
THE STATE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, delivered by Honourable Justice S.A. Omonua on 21/4/2016 wherein the Appellant was convicted and sentenced to death.
The Appellant was brought before the High Court of Edo State for trial in Charge No B/91C/2010 on a two count charge of conspiracy and Armed Robbery and the trial commenced on the 21st day of January, 2013.
The counts are set out below:-
COUNT 1
That you Hillary Igbinowaya (m) and Ehis Eragha (m) on or about the 30th October, 2008 at about 12:15 hours. At Welder Street, Urura Quarters, Benin City in the Benin Judicial Division conspired among yourselves to commit felony to wit: Armed Robbery and thereby committed an offence contrary to Section 6(b) punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria, 2004.
COUNT 2
That you Hillary Igbinowaya (m) and Ehis Eragha (m) on or about 30th October, 2008 at about 12:15 hours at Welder Street, Urura Quarters, Benin City in the Benin Judicial Division did rob the following: (1) Nokia handset valued at N6, 000.00 (2) Recharge cards valued at N15, 000.00 (3) physical cash N4, 000. 00 total valued N25, 000.00 properties of one Miss Osolaese (F) and as at time of the offence you were armed with offensive weapon to wit: broken bottle and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria, 2004.
The Appellant pleaded not guilty to the two counts.
In proof of its case, the Prosecution now Respondent called the Investigating Police Officer (IPO) from Ikpoba Hill Division, Emmanuel Bauta as PW1 and the Investigating Police Officer from the State Anti-Robbery Section (SARS), Sergeant Bukola Akinola as PW2. Exhibits A- G was also tendered in support of the Prosecution?s case.
An attempt to tender in evidence an extra-judicial statement credited to the Appellant by the Respondent?s counsel was objected to on the ground of involuntariness of the said statement. Trial within trial was conducted and at the end of the trial within trial, the Court admitted the statement. The extra-Judicial statement of the Appellant was admitted in evidence and marked Exhibit ?D?. The Appellant then gave evidence in his own defence.
Upon the conclusion of evidence in this case, parties filed their respective final written addresses as ordered by the Court and the case was adjourned to 21st of April 2016 for Judgment. The trial Court delivered judgment and found the Appellant guilty and accordingly sentenced him to death.
Dissatisfied, the Appellant filed a Notice of Appeal on 28/4/16 and an amended Notice of Appeal was filed on 15/9/16 and deemed filed 1/11/17. Record of Appeal was transmitted on 9/9/16. The Appellant filed his brief of argument on 15/9/16 and deemed filed on 1/11/17. Appellant?s reply brief was filed on 3/11/17. The Respondent?s brief was filed on 31/5/17 and deemed filed on 1/11/17.
Mr. Olayiwola Afolabi Esq. who settled the Appellant?s brief identified two issues for the determination of the appeal to wit:
1. Having regard to the serious nature of the charge against the Appellant punishable with a death sentence whether the trial judge was right to have convicted the Appellant of the offence of conspiracy to commit armed robbery and armed robbery when the evidence adduced by the prosecution was riddled with serious material contradiction and coupled with the failure of the prosecution to call the purported victim of the alleged armed robbery
2. Whether the learned trial judge was right when he convicted the Appellant on extra-judicial confessional statement when the said statement is at variance with the police investigation report of PW1 and the evidence of the said PW1 called by the prosecution and despite the fact that the said confessional statement lacks necessary corroboration.
The Respondent in the brief settled by G.E. Adekanmbi Esq, Director of Public Prosecution, Edo State; Mrs. A.O. Aigbavboa Esq, Assistant Director, Edo State; Mrs. F.N. Edokpolor Esq, Chief State Counsel, Edo State and Imonitie I. Omokhodion E
