SOLOMON v. STATE (2021)

SOLOMON v. STATE

(2021)LCN/15587(CA)

In The Court of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, December 03, 2021

CA/B/202C/2018

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

UWAJEI SOLOMON APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO DECIDENDI

WHAT IS A CONFESSION?

Section 27 (1) of the Evidence Act (As amended) defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” PER FREDERICK OZIAKPONO OHO, J.C.A.

WEIGHT ATTACHED TO CONFESSIONAL STATEMENTS

On the question of weight to be attached to a confessional statement, the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved? PER FREDERICK OZIAKPONO OHO, J.C.A.

CONTRADICTIONS IN EVIDENCE

On the contention of the Appellant that there were contradictions in the evidence of the witnesses of the Prosecution, the position of the law is that apart from the fact that contradictions must be material, minor variances which occasionally occur between what one witness says and what another has said does not amount to contradictions. In short, it is not every contradiction in the testimony of the prosecution witnesses that are fatal to its case. Where such contradictions are not substantial and fundamental to the main issues in question before the Court, they are not fatal to the prosecution’s case. See NASAMU vs. THE STATE (1979) 6-9 SC 153; KALU vs. THE STATE (1988) 4 NWLR (PT.90) 503. PER FREDERICK OZIAKPONO OHO, J.C.A.

WHEN IS CONSPIRACY COMMITTED?

Mere agreement is enough proof of the offences of conspiracy. See the case of IKEMSON vs. STATE (Supra) on when the offence of conspiracy is said to be committed, while the actual commission of the offence is unnecessary. PER FREDERICK OZIAKPONO OHO, J.C.A.

DEFENCE OF ALIBI

the position of the law is that the burden to investigate the Accused person’s alibi rests squarely on the shoulders of the Prosecution but that the Accused has a corresponding duty to discharge the evidential burden that he was in fact not at the scene of crime at the time the offence was committed and he was somewhere else. He has to lead credible evidence in this direction beginning from his extra judicial statement to the Police. PER FREDERICK OZIAKPONO OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Criminal Division, Benin City, (hereinafter referred to as: “the Court below”) delivered on the 21st day of July, 2017 by J. U. OYOMIRE, J wherein the Court below sentenced the Appellant upon conviction for the offence of Armed Robbery and Conspiracy to commit Armed Robbery to death. The said judgment can be found at pages 36 – 45 of the record of appeal. Brief fact of the case is that the Appellant as the accused person at the trial Court faced a two count charge of Conspiracy to commit Armed Robbery and Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria.

In his defence the Appellant testified for himself and called no witness. In proof of its case, the prosecution called three witnesses and tendered Eight (8) Exhibits, that is, Exhibits A to H. The proceedings culminated in the conviction and sentence of the Appellant to death by hanging upon which the Appellant has appealed to this Court.

ISSUES FOR DETERMINATION:
The Appellant has nominated a sole issue for the determination of this Appeal, thus:
Whether the prosecution in the circumstances of this case has discharged the evidential burden of proof beyond reasonable doubt to warrant the conviction and sentence of the Appellant? (Distilled from Grounds 1, 2, 3, 4 & 5)

On the part of the Respondent, two (2) issues were nominated for the determination of this Appeal thus:
1. Whether the prosecution has proved the case of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt?
2. Whether the Appellant can rely on the extra-judicial statement made by Corporal Awoniyi Tunde of the Nigeria Police Force, Airport Division, Benin City on the 15-09-2010?

It is obvious that the two issues nominated by the Respondent, for the determination of this Appeal are clearly subsumed in the sole issue nominated by the Appellant for the determination of this Appeal as the division of the issues into two has added nothing to change the substance of the sole issue nominated by the Appellant. To this end, this Appeal shall be determined based on the sole issue nominated by the Appellant for the determination of this Appeal.

At the hearing of this Appeal on the 23rd day of September, 2021 learned Counsel for both sides addressed Court extensively citing a plethora of decided cases in support of their arguments. The Appellant’s brief of Argument dated the 6th day of February, 2020 and filed on the same date, but deemed filed on the 5th day of May, 2021. This brief was settled by AUSTIN ODIGIE, ESQ., On the part of the Respondent, the brief of Argument was settled by M. A. CASIMIR ESQ. The Respondent’s brief of Argument dated 26th June, 2020 was filed on the 30th day of June, 2020, but deemed filed on the 23rd day of September, 2021. Learned Counsel, in adopting their briefs of argument urged the Court to decide the Appeal in favour of their sides.

SUBMISSIONS OF COUNSEL FOR THE PARTIES:
APPELLANT:
SOLE ISSUE:
Whether the prosecution in the circumstances of this case has discharged the evidential burden of proof beyond reasonable doubt to warrant the conviction and sentence of the Appellant? (Distilled from Grounds 1, 2, 3, 4 & 5)
Learned Appellant’s Counsel submitted that the prosecution has failed woefully to discharge the evidential burden of proof beyond reasonable doubt to warrant the conviction and sentence of the Appellant. He drew attention to the fact that the Appellant faced a two-Count charge of conspiracy to commit Armed Robbery and Armed Robbery, under Section 1 (2) (a) of the Robbery and Firearms (Special provisions) Act Cap R11, Laws of the Federation of Nigeria. Counsel further submitted that Count 1, had dealt with the offence of conspiracy which the Black’s Law Dictionary (7th Edition) page 305 defines as: “An agreement by two or more persons to commit an unlawful act”.

The argument of Counsel is that one person cannot commit the offence of conspiracy and cannot be so charged; it must involve two or more persons. Counsel further argued that the 2nd Accused person, Ifeanyi Itegbe, (deceased) before his demise denied taking part in the alleged robbery for which the Appellant was charged to Court but admitted that he took part in another robbery with the Appellant. As far as Counsel is concerned, it is on record that it was only the Appellant that was arrested with the allegedly robbed car and nobody else. Counsel contended that the trite position of the law is that one person cannot commit the offence of conspiracy and cannot be charged for same; that therefore, the Appellant on his own cannot be said to have conspired with himself to commit the crime of Armed Robbery in the instant case.

On Count Two of the Charge preferred against the Appellant, Counsel submitted that the prosecution has also failed to prove convincingly and beyond reasonable doubt the offence of Armed Robbery against him. He submitted that on the identity of the Appellant, he was not properly identified as PW2 the only eye witness did not mention any striking bodily feature(s) of the Appellant that made him identify him as the person that robbed him of his car.

Counsel referred to the PW2’s testimony on record, where he only stated, thus: “I am able to recognize and identify the 1st Applicant (Appellant) because he was the one that threatened to shoot me”. Counsel submitted that it is almost impossible and of course unbelievable for PW2 to have the full concentration of glaring at somebody who allegedly pointed a gun at him to the extent of recognizing such person on any other occasion such as it is in the instant case.

Counsel also contended that the PW1, the I.P.O on his part and on record stated: “No one physically identified the 1st Applicant (Appellant) to me as the person apprehended at the scene”. Furthermore, Counsel argued that the first IPO at the Airport Police Station who had the opportunity of knowing the Appellant is deceased and could not testify in the case and neither were any of the passersby who allegedly assisted in arresting the Appellant called as a witness.

Counsel therefore submitted that there is a great doubt created on the identity of the Appellant, which stands unresolved in the case. It was also submitted that the evidence of the PW2 on the sequence of events at the alleged scene of crime was bereft of material facts, scraggy and contrary to natural human conduct as it orchestrated several questions that were never answered. Consequently, it created a big void in the case of the prosecution. Against the backdrop of this position, took his time to reel out the sequence of events as are contained in the evidence of the PW2, thus:
1. He drove to his compound and stopped to open his gates (this suggests it was a fenced compound though not supplied by the prosecution).
2. He came down, opened his gates and drove into his compound.
3. He came down from the vehicle and went back to lock the gates.
4. He was accosted by the two accused persons who pointed guns at him.
5. He next ran into his vehicle through the driver’s side and ran out through the passenger’s side.
6. He fell down.
7. He ran out of the premises.
8. The accused persons took the vehicle and drove away.

Arising from the foregoing, Counsel urged this Court to pause a while and consider the following unanswered questions arising from the evidence of the prosecution witnesses, thus:
1. What was the distance between the vehicle’s position and the gates?
2. Why would the PW2 run into his vehicle in the face of such danger as against fleeing into the other area of the compound which he definitely had a better knowledge of?
3. He never said they pursued him at any time.
4. How easy was it for the PW2 to hurriedly enter the vehicle (an Audi vehicle which by nature is quite low) and squeeze out through the other side?
5. At what point did the suspects take the keys from him. Was it before he ran into the vehicle or after he ran out through the other door?
6. Considering that Imaghodor drive area of Benin City is in the G.R.A. with very low traffic, how long did it take him to get a motor bike to chase after the thieves?
7. From his evidence, he was inside the compound and the robbers came from outside. How did he get past the robbers who were pointing guns at him i.e. through where did he escape?

Based on the foregoing, Counsel submitted that the sequence of events in this matter is against natural course of human conduct and he urged this Court not to overlook these critical areas in a trial involving life and yet conclude that there are no loop holes in the prosecution’s case. Counsel contended that all these posers were not addressed by the prosecution throughout their case and that the Court unfortunately filled up the gap and held that the prosecution has proved its case as required by law.

Counsel also submitted that it is not at all the duty of the Court to fill up vacuums such as these or to presume that certain things may or could have happened in the absence of any evidence to the contrary. Counsel cited the case of NDIDI vs. STATE (2008) Vol. 6 LRCNCC Page 34 at 39 R7.

On the question of whether the Court can shore up the case of the Prosecution, Counsel submitted that if that is to ever happen then the Court is turned into a persecutor. Learned Counsel also contended that the cardinal principle of trial in criminal cases is that the trial Court must not be seen to appear to look for excuses to shore up the case of the prosecution to get a conviction as that attitude will not portray the Court as anything but a partial arbiter.

Learned Counsel further submitted that from the evidence of PW2, that on seeing the guns, he ran into his vehicle from one side and ran out through the other side before fleeing the scene; that it is very obvious that the PW2 was seriously confused and traumatized and therefore, it was just impossible that he would have recognized the Appellant as the one who pointed a gun at him in his compound.

Counsel further contended that in view of the fleeting nature of the encounter between the PW2 and the Appellant, the Police at the earliest opportunity would have organized an identification parade, more so when considering the fact that the second accused (now deceased) was not even arrested at the scene of the arrest of the 1st accused. On this crucial issue of identification, Counsel relied on the case of NDIDI vs. STATE (Supra) R2.

The submission of Counsel is that in view of the gravity of the charge before Court, there was a legal duty on the trial judge to warn himself on the danger of accepting the evidence of identification and acting on it as in this case. See ratios 4 and 5 of the aforementioned case of NDIDI vs. STATE (Supra).

As a result of the forgoing, Counsel urged this Court to hold that the evidence of identification adduced by the PW2 who did not make a statement to the PW1 (the IPO in this case) was short of the standard required to prove the involvement of the accused person. He said that the alleged incident was very brief and under that agonizing circumstance, the PW2 was not in a position to sufficiently recognize and identify the accused person at the earliest opportunity.

Counsel therefore submitted that in criminal matters of this magnitude, the proper identification of the culprit is of paramount importance to the course of doing justice. See ABUDU vs. STATE (1998) 1 ACLR 411 AT 412 RATIO 3. It was further submitted on that the two-fold aim of Criminal Justice ordaining that the guilty should not be allowed to escape while the innocent not be allowed to suffer, applies with sufficient force in this case. Counsel cited the case of CORPORAL BONNY AIKHADUEKI vs. THE STATE (2014) 227 L.R.C.N. 180 AT 188 RATIO 8.

Counsel contended that the objects found on/with the Appellant were an Iron Rod and a live Cartridge which were on Pages 56 admitted in evidence in this case and marked Exhibits “A” and “B” while in the testimony of PW2 he testified that the robbers brought out guns from their jeans trousers and that when he saw the guns, he quickly ran back to the car. The submission of Counsel here is that there is an obvious contradiction or inconsistency between the objects of crime; that before this Court on record Exhibits “A” and “B” found on the Appellant and the alleged object of crime (guns) by PW2, the only eye witness are not the same.

Counsel submitted that this contradiction is germane to the course of doing justice in this case as Exhibits “A” and “B” simpliciter cannot qualify as dangerous weapons for the committal of the offence (Armed Robbery) in question. Based on the foregoing, Counsel submitted that in order to secure a conviction for Armed Robbery, the prosecution must prove that the accused person was armed with an offensive/dangerous weapon and that the prosecution failed woefully to prove this in the instant case. See BABARINDE & ORS vs. THE STATE (2014) 231 LRCN 124 AT 13 RATIO 9.

Again, on the issue of contradiction, it was contended that the learned trial judge at page 103 held in his judgment that the case of the prosecution was not contradictory in any manner hence it is sufficient to convict the accused person. The argument of Counsel here is that this statement is untrue and that it goes to show the extent to which the Court covered up the lapses in the prosecution’s case. Against the backdrop of this position, Counsel drew attention to the PW1’s testimony on the 9th of July, 2013 where the PW1 stated as follows:
“I know the applicants, Albert Obazee and Osaretin Obazee. On 15/9/10, I was on duty at SARS Office, Benin City. On morning duty when a case of conspiracy and armed robbery was transferred from Airport Police Station to my office together with the CIF, the applicants and the exhibits, one rod and one live cartridge. The matter was transferred for my investigation. I recorded Free statements from the Complainants.
The PW2 in his evidence in Chief stated as follows:
“I later became ill as I dislocated my arm when I fell down during the robbery. I was taken to the village for trado medical attention before the case was transferred to SCID, Benin City. I was unable to report to the SCID Benin City to make a statement as I had to travel out of the country thereafter”.

The further contention of Counsel is that PW2 concluded by saying that he returned to Nigeria in November, 2013 when the case was already in Court. As far as Counsel is concerned, there is no way the statement of the PW1 that the Complainants made statements to him on the 15/9/2010 could be married with the PW2’s statement that he never went to the SCID, Benin City at any time because he was ill and eventually travelled out of the Country. He said that contrary to the evidence of the PW1, PW2 said he never made statement at the SCID, Benin City.

Counsel therefore submitted that these contradictions go to show that the story of the prosecution is not straightforward as presented by the trial judge but rather, the prosecution’s case is ambiguous and no attempt was made to resolve this conflict by the prosecution. Counsel equally submitted that it was not the duty of the Court to resolve this conflict but that of the prosecution.

Still on contradictions, Counsel drew attention to the fact that; whereas the PW1 later claimed that the only reason he could not get the PW2 (the complainant) to make statement was that the PW1 was critically ill and receiving treatment in the village. On the other hand, Counsel argued, that the PW2 in his evidence said the reason he did not make statement to the police was because he travelled out of the Country.

Arising from the foregoing, the submission of Counsel is that in an armed Robbery case involving a sentence of death, the conflicting evidence was a clear case of ineptitude in investigation such that for no clearly definable reason, the investigating police officers failed to take a statement from the major complainant before arraigning the suspects in Court. Counsel therefore urged this Court to hold that this ineptitude is scandalous and has left more holes in the case of the prosecution. See the case of DAMINA vs. STATE (1998) 1 LRCNCC page 159 at 166 R8.

Learned Counsel further contended that the confessional statement of the Appellant is not corroborated by any cogent, credible evidence except by the hearsay evidence of PW3. Counsel enthused that in its hurry to convict the accused person, the trial Judge made use of and relied on the attestation form Exhibit ‘D’ tendered by the prosecution. The contention of Counsel here is that Exhibit ‘D’ is fraught with conflict and contradictions, which the prosecution did not resolve in any way and yet the Court accepted and relied on it. According to Counsel, a careful look at Exhibit ‘D’ shows that it was made on the (Page 16) 15th day of August, 2010. Counsel argued that the dates 15th August, (Lines 3 and 7) 2010 appeared not just once but twice on the attestation form i.e. lines 3 and 7 of the said attestation form. He said that at the bottom of the same form, another date appeared i.e. 15/9/2010.

The further contention of Counsel is that the lower Court was presented with an attestation form Exhibit ‘D’ claiming on the one hand that the statement was made in August, 2010 i.e. one month before the alleged incident and in another breath claiming to have been made in September, 2010. Counsel therefore submitted that the trial judge relied on the attestation form Exhibit ‘D’, which he claimed was made contemporaneously with the accused person’s statement Exhibit ‘C’.

On the nature of burden of proof in criminal trials, Counsel submitted that the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused and that failure to do so will automatically lead to the discharge of the accused. Counsel added that the burden never changes and that even where an accused in his statement to the Police admitted committing the offence (just as it is in the instant case), the prosecution is not relieved of that burden. See AWOSIKA vs. STATE (2010) 9 NWLR (PT. 1198) 49 AT 52; AIGBADION vs. STATE (2000) 7 NWLR (PT. 666) 686; NWOSU vs. STATE (1998) 8 NWLR (PT. 562) 433.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> Learned Appellant’s Counsel took time to reproduce the testimony of the Appellant, where he stated thus; “on 11/9/10 at about 4pm, I was at Oba Ewuare G/S Central Road, Benin City where there was a football match. Policemen came to the place on a raid. I was arrested in the raid in company of others. I asked to know why I was being arrested. When he gave me no reason for my arrest, I began to struggle to free myself. A fight ensued between us. I did not know that he was a Policeman as he was not in Police Uniform and did not show me an I. D. Card. I had to stop the fight when I heard a gunshot at the time I stopped; I had inflicted injuries on the man. The men then introduced themselves to me as Policemen. They began to beat me the other person they held was shot on the leg when he tried to escape. We were taken to Airport Police Station. I was later taken to the back of the station and beaten mercilessly. I was asked to make a statement which I recorded myself. The I.P.O tore it to pieces and brought out a statement which I was asked to sign under torture. I was never confronted with the issue of armed robbery. The statement that I was asked to sign was not written by me…”

The submission of Counsel that followed is that the testimony of the Appellant in paragraph 3.29 supra amounted to an: “Alibi” which the prosecution did not investigate and rebut. Counsel submitted that once an “alibi” has been raised, the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt. Further submitted that the defence of “alibi” is a radical one and simply means that the accused was somewhere else at the material time an offence was committed and could not possibly be at the scene of the crime to partake in it. Thus, he contended that once an accused person has pleaded “alibi” and stated where he was at the time of commission of a crime and the person he was in company of, the burden of disproving same is on the prosecution to investigate and prove its case beyond reasonable doubt; that failure to do so is an admission of the story of the accused. For his plea to be destroyed the prosecution must adduce sufficient evidence to fix the Appellant at the scene of the Crime. See KABIR ALMU vs. THE STATE (2009) 172 LRCN 105 AT 109 – 110 RATIO 1.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> Counsel further contended that in criminal trials the Court has the duty to consider: “any defence” put up by or available to the accused person(s) in the case before its final decision. Counsel argued that the defence, no matter how weak; frivolous or even stupid it might otherwise appear, must be adequately considered or treated by a Trial Court as the failure to consider a defence raised by or available to the accused person(s) would entitle him or them to be discharged for the denial of a fair hearing in the case. According to Counsel, in the instant case the lower Court did not consider the defence of “alibi” raised by the Appellant and did not give reasons for rejecting same. See SHAFFU ATIKU vs. THE STATE (2010) 4 NWLR (PT. 1199) 241 AT 254.

Learned Appellant’s Counsel further contended that the prosecution has indulged in the suppression of evidence as the statement made by the Appellant at the earliest opportunity i.e. at the Airport Division of the Nigeria Police was not produced before the Court. He argued that the Appellant told the Court that he made a statement to the police at the Airport Road Division on the day he was arrested i.e. 11th September, 2010 whereas the PW1 stated in evidence that the case came to the state C.I.D, Benin on the 15th of September, 2010. Counsel informed the Court that the same IPO agreed that he was informed by the (Lines 15 & 16) Appellant that he had earlier made a statement at the Airport Division.

Against the backdrop of the foregoing, Counsel submitted that the Police have no right to withhold from the Court any statement made by the Appellant in the course of investigation. Counsel cited the case of OGUDO vs. STATE (2011) VOL. 202 LRCN PAGE 1 AT PAGE 12 RATIOS 6, 7 and 8, where the apex Court held that it is forbidden for the prosecution to hold back from the Court any statement made by the accused person and forming part of the investigation of the police.

The contention of Counsel is that it is a denial of natural justice as the Appellant was denied the privilege of using the said statement to substantiate his case especially where the said statement contains facts, which are irreconcilable with the facts stated by the prosecution. He further contended that as exactly as the prosecution withheld this crucial document from the Court, they also withheld vital witnesses from coming to testify in this case. As a result of this position, Counsel refer to the proofs of evidence handed previously to the defence Counsel (filed as supplementary records) where one CPL AWONIYI TUNDE with telephone No. 08056929833 made a statement dated 15/9/2010. According to counsel in the said statement, he made several key points, which he urged this Court to consider viz:
1. That he was in the team at the Airport Police Division that investigated the case and arrested the late second accused.
2. That they went to the house of the 2nd accused where they picked up the rod that was tendered in Court as Exhibit ‘A’.

The argument of Counsel is that the PW1 said the rod was found on the first accused at the scene of the arrest at Airport Road Junction of Oko Central Road, Benin City.
3. He (CPL Awoniyi Tunde) stated that the incident involving the stolen vehicle occurred at Oko Central because the PW2 who was riding on a motor bike, caught-up with the vehicle at that junction and started shouting: “thief,” “thief” which made the 1st accused to panic and used the vehicle to hit another vehicle.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> Learned Counsel reminded the Court of the piece of evidence of the PW1 and 2 which was to the effect that the PW2 met the Appellant running away from the accident scene and only then did he raise the alarm.
4. The said police officer in page 2 of his statement used the following expression. “We went with page B1 and eventually he (2nd accused) was arrested. We carry out investigation to page B2’s house which we now recover one iron rod which look like gun”.

As far as Counsel is concerned, the obvious importation here is that more than one person was involved in the arrest and interrogation of the 2nd accused along with the 1st accused since both of them were arrested and made statements the same day i.e. 11/9/2010.

The submission of Counsel therefore, is that the only reason the Police declined to put in any of the officers from the Airport Division to testify and tender the very first statement made by the Appellant on the 11th day of September, 2010 is that the said statement contained crucial issues now hidden from the eyes of the Court, which would have been made public in the heat of cross examination.

Counsel queried whether this Court could safely hold that the instrument tendered as the weapon of crime Exhibit ‘A’ was actually recovered from the Appellant when the IPO quoted above has confirmed that he was not on the team that picked up this said rod in the house of the second accused as against the scene of arrest? Counsel further queried whether the trial Court was right to have justified the refusal of the prosecution to call those Police officers who acting as a team according to CPL Awoniyi recovered the iron rod in a location several kilometres away from the scene of the arrest of the vehicle?

The submission of Counsel is that the failure of the Police to tender the statement of the Appellant as well as the failure to invite those who arrested the second accused and recovered Exhibit ‘A’ was the failure to produce very vital document and witness in a robbery trial such as this. Counsel once again relied on the definition preferred by the Supreme Court in the case of OGUDO vs. STATE (Supra) R8 on who a vital witness is AND the effect of failure to call same.

Furthermore, Counsel submitted that the failure to call a vital witness raises the presumption under Section 167(d) of the Evidence Act, that had he been called, the evidence he would have led would have been unfavourable to the prosecution’s case. Counsel therefore urged this Court to call in aid the provision of Section 167(d) of the Evidence Act and to hold that producing the said statement would have been inimical to the case of the prosecution.

Learned Counsel further submitted that the Appellant’s right to fair hearing has been arrantly breached in this case. He said that from the Appellant’s arguments and submissions hitherto presented in this Brief there are doubts, inconsistencies highlighted which are improper identification of the Appellant as the culprit, the objects/ articles of crime found with the Appellant (iron rod and live cartridge) being not offensive and dangerous weapons usable for armed robbery, failure/neglect of the prosecution to investigate the Appellant’s plea of “alibi” among others. He argued that the law that in criminal trial the standard of proof is proof beyond reasonable doubt and that where there exists, any doubt, just as in the instant case, the same “must” be resolved in favour of the accused person. See ABDULLAHI vs. THE STATE (2008) 164 LRCN 96 AT 101 R. 6. Counsel finally urged this Court to allow the Appeal and set aside the decision of the Court below.

RESPONDENT:
In arguing its issue one, learned Counsel began by submitting that from the totality of evidence before the Court, the Prosecution proved its case against the Appellant beyond reasonable doubt as required by law in Section 135 (1) of the Evidence Act, 2011. He further argued that proof beyond a reasonable doubt is not the same thing as proof beyond a shadow of doubt and that proof will suffice where there is enough evidence to leave out the probability of the innocence of the Accused. See EKECHI & ANOR vs. EKAH (1993) 1 NWLR (PT. 267) 34.

Counsel further submitted that the evidence of the Prosecution witnesses established the three (3) elements of the crime of armed robbery to the satisfaction of the Court. He also argued that the evidence of the three prosecution witnesses was corroborated by the confessional statement of the Appellant (Exhibit C). According to Counsel, the Prosecution called three (3) witnesses and tendered 8 Exhibits in proof of its case. Counsel submitted that the evidence of the Prosecution witnesses are consistent, corroborative and confirmatory of each other.

Counsel submitted that PW2, the victim in this case, testified that he was robbed of his Audi vehicle by the Appellant along with another and that they were armed with guns; that the Appellant drove his Audi vehicle away while the other man was in the passenger seat; that PW2 got on a motorcycle after he had been dispossessed of his car and followed the robbers who were in his car; that at Gapiona Street, the Appellant let the other man out of the car, while he continued on his journey; that PW2 followed the Appellant up to the Airport Road; that at the Airport Road, the Appellant collided with a bus that blocked the road and that the collision resulted in pulling off one of the tyres of the car; that the Appellant jumped out of the car and ran, while PW2, joined by persons around gave the Appellant pursuit and caught up with him; that the Police was called after the Appellant had been apprehended. Right there, the Appellant confessed in the presence of the PW2 that himself and one other robbed PW2 of the car at gunpoint. The Appellant then gave the Police the name of his gang member and when the Appellant was searched, a live cartridge was recovered from him.

According to learned Counsel, the testimony of PW2 was corroborated completely by the Appellant in his statement (Exhibit C). Counsel therefore submitted that the clear evidence of PW2 provided more than sufficient eye witness evidence to convict the Appellant. He added that the confessional statement of the Appellant was the required icing on the cake of the Prosecution’s case against the Appellant. Counsel enthused that there was no way the trial Court could have come to any other conclusion.

On the submission of the Appellant at page 4 of his brief that he was arrested alone with the robbed vehicle and so he should not have been charged with conspiracy, Counsel contended that PW2 testified that the Appellant was in company of another while he was robbed of his car. Counsel further contended that the fact that the Appellant and another robbed PW2 together raises the presumption that they both conspired to commit the offence. Counsel referred to Section 167 of the Evidence Act, 2011, on the power of the Court to presume the existence of any fact which seems likely to have happened, while regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case. Learned Counsel further contended that the fact that the Appellant was arrested alone does not prevent him from being charged with the offence of Conspiracy.

On the Appellant’s submission that he was not properly identified by PW2, Counsel argued that PW2 followed the Appellant right from the scene of crime to where he was apprehended and at no time was the Appellant out of the sight of PW2 all the while. Counsel added that PW2 did not have to describe the Appellant in his statement as the Appellant was caught practically at the scene of crime.

On the Appellant’s submission that the sequence of events as testified by the statement of the PW2 was contrary to natural human conduct, Counsel submitted that the evidence of PW2 was very clear as to the events of that day and that it is not correct to say that they were contrary to the course of human conduct. Counsel disagreed that there was any ambiguity or gray areas and therefore no vagueness of whatever kind. He argued that there were no questions raised and therefore no answers required and that there were no gaps anywhere for the trial Court to fill. In this connection, Counsel denied that the Court below shored up the case of the Prosecution in any way as the case of the Prosecution was rock solid on its own.

On the Appellant’s submission once again that the PW2 had a fleeting encounter with the Appellant and so the Police should have conducted an identification parade, Counsel relied on the case of CHIJIOKE UGWU vs. THE STATE (2020) Legalpedia (Se) 2684r2, where the apex Court held that an identification parade was practically unnecessary in all situations. Counsel also used this opportunity to debunk the submission of the Appellant that PW2 had a fleeting encounter with the Appellant, when in fact it is on record that the Appellant was followed by PW2 after he was dispossessed of his car and until the Appellant was physically apprehended. The contention of Counsel on this issue, was that there was no break whatsoever in PW2’s observation of the Appellant from the crime scene to where the Appellant was caught. Counsel further disagreed that in an instance of this nature an identification parade was highly unnecessary if at all.

On the submission of the Appellant dealing with alleged contradictions in the evidence of the Appellant between the Iron rod (Exhibit A) and the live cartridge (Exhibit B) that were recovered in the possession of the Appellant and the evidence of PW2 that the Appellant and another robbed him armed with guns; Counsel argued that PW2 testified that the Appellant and another robbed him of his vehicle with guns, while the Appellant drove the vehicle away, dropped his gang member at Gapiona Street before he was apprehended at Airport Road and that under cross examination, PW2 stated that the Appellant admitted to the Police that the guns that were used were with the boy he dropped off at Gapiona. Counsel therefore submitted there was no contradiction whatsoever as PW2 and the Appellant have provided a very clear picture of what happened on that day. In respect of the submission of the Appellant that PW1’s testimony that he recorded a statement from Obazee the complainant is contrary to PW2’s testimony that he did not make a statement at SCID because he travelled abroad due to ill health, Counsel submitted that this submission is based on a lack of understanding of Police procedure. He insisted that Albert Obazee (PW2) made a statement at Airport Division as the victim and was therefore the complainant there. He added that due to PW2’s absence at the time the matter was transferred to SARS, his father Osaretin Obazee (PW3) made a statement and he became the complainant. He emphasized that there is therefore no contradiction of any kind.

In assuming but not conceding that there is a contradiction, Counsel relied on the case of UGWANYI vs. FRN (2010) 14 NWLR (PT. 1213) 397 AT 412 PARAS E – G, in contending that it is not every trivial inconsistency or contradiction in the evidence of the prosecution witness or witnesses that is fatal to its case, but only when such contradiction is substantial and fundamental to the main issue in question before the Court and thereby engenders of creation of some elemental of doubt in the mind of the trial Court that an accused is entitled to benefit there from. Also see ATTAH vs. STATE (2009) 15 NWLR (PT. 1164) 284 AT 304 PARAS C – D. Counsel further submitted on this issue that even if a contradiction exists, it is trivial and not fatal in any way whatsoever.

In respect of the Appellant’s submission that the confessional statement of the Appellant is not corroborated by any credible evidence, Counsel argued that this was not correct as the testimony of PW2 corroborates the Appellant’s confessional statement on all points. On the dates on the Attestation Form (Exhibit D), Counsel contended that even though it had two dates, 15/08/2010 and 15/09/2010, the most important thing is that PW2 testified that he was robbed on 11/09/2010, while the Appellant was arrested and taken to Airport police station. And that the case was thereafter transferred to SARS where the Appellant made another statement, which was attested to. Counsel argued that there is no way the Attestation Form could have been filled on 15/08/2010 which is before PW2 was robbed. Counsel urged this Court to note this as an error. He further argued that a careful look at the Attestation Form will show that the ASP who attested to the Appellant’s statement and the Appellant himself both wrote the correct date of 15/09/10. Moreover, the Appellant’s statement (Exhibit C) was made on that same 15/09/10.

On the Appellant’s submission that his testimony amounts to an Alibi that was not investigated, Counsel submitted that a good look at the Appellant’s statement (Exhibit C) will show that no alibi was raised in it, but merely raised for the first time in Court while the Appellant was testifying. Counsel cited the case of UDO EBRE vs. STATE (2005) 4 LRCNCC 212 AT 223 on Alibi in support of the lateness of the plea and how ineffective it is to do so late in the day. Even at that, Counsel submitted that the Appellant’s “alibi” was considered and disregarded entirely by the trial Court.

On the allegation of the suppression of evidence levied against the Prosecution as it relates to the Appellant’s statement made at the Airport Police Division, Counsel argued that PW3, (the victim’s father) testified on the 24/02/2014; while the matter was then adjourned to 17/03/2014. Counsel said that the Court did not sit on the 17th and the matter was further adjourned to 14/04/2014; when the Prosecution informed the Court that the IPO from Airport Division was involved in an accident, which had his legs severely injured and that the Court was also informed that the IPO was receiving treatment at a home in his village; that the case was then adjourned to 26/05/2014 and that the Court was subsequently informed on the 09/05/2016 that it was unable to persuade the IPO to come to Court and decided to close its case. Counsel contended that it is only the IPO from Airport Road, Division that could have tendered the Appellant’s statement made there.

ISSUE TWO:
Whether the Appellant can rely on the extra-judicial statement made by Corporal Awoniyi Tunde of the Nigeria Police Force, Airport Division, Benin City on 15/09/2010?
Learned Counsel, in arguing this issue referred the Court to the submission of learned Appellant’s Counsel as it relates to the statement made by the IPO from Airport Division (Cpl Awoniyi Tunde) on the 15/09/2010, wherein Appellant’s Counsel made and referred to several parts of the said statement. The submission of Counsel here is that this Court cannot look at the extra-judicial statement of the said IPO from the Airport Division, as he neither testified in the trial nor was he cross – examined and his statement, consequently not tendered. Counsel emphasized that his statement is therefore not a part of the evidence in this matter and that the Court below did not take his statement into consideration when it evaluated the evidence in the case. For this reason, Counsel contended that this Court has no business looking into the said statement as it is not part of the record of appeal.

Learned Counsel also submitted that the Appellant asking the Court to look at the statement of the Airport Divisional Police IPO amounts to raising a fresh issue on appeal that was not raised at the trial Court. Counsel cited the case of KOOTE & ANOR vs. NAMON (2019) LPELR- 46454 (CA), further submitted that the general rule is that an Appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court. See ATTORNEY GENERAL OF OYO STATE vs. FAIRLAKES HOTEL LTD (1988) 5 NWLR (PT. 92) 1.

All in all, Counsel contended that the iron rod is not a relevant issue in this case as the Appellant was not charged with robbing the PW2 with an iron rod; rather that he was charged with robbing PW2 with a gun, which the Appellant corroborated in his statement (Exhibit C.) ditto: that the Appellant was not charged with being in possession of an iron rod. He therefore argued that the iron rod saga is and is most irrelevant and of no moment whatsoever.

On the contention that the Airport Divisional IPO was not called to hide crucial evidence in the Appellant’s first statement, Counsel argued that there was no intention to hide or suppress the Appellant’s first statement and that if the Appellant felt so strongly in bringing in the Airport IPO to testify, there was nothing stopping him from calling him to testify on his behalf. Counsel cited the case of FRIDAY UZIM vs. THE STATE LPELR (2019) SC. 877/2015. Counsel finally urged this Court to dismiss the Appeal and affirm the judgment of the Court below.

RESOLUTION OF APPEAL
The question of the voluntariness and the veracity of the confessional statement of the Appellant admitted as Exhibit C and the attestation by a Superior Police Officer admitted as Exhibit D at the Court below was one of the issues vigorously canvassed in this Appeal, alongside the question of the accuracy and/or reliability of the identification of the Appellant vis-à-vis the eye-witness accounts of what transpired on the fateful date in question. The offence of conspiracy also took centre stage as the Appellant’s Counsel contended that except where there are more than one person, conspiracy as an offence can never take place.

These issues were of course subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law. Learned Appellant’s Counsel who had rooted for a verdict of an acquittal had contended that the trial Court’s decision had occasioned a miscarriage of justice.

In resolving this Appeal, there may be the need to state the facts of this case, which are largely uncontested between the parties as the foundation of the analysis about to be made by this Court to foster a better appreciation of the issues raised between them. The Appellant as Accused person was charged with the offences of conspiracy and armed robbery punishable under Sections 1 (2)(a)(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, VOL. 14 Laws of the Federation of Nigeria, 2004. The case of the Respondent against the Appellant is that on 11th September, 2010 the PW2 drove his Black Audi A6 Saloon Car with Registration Number AZ155USL to his Residence at Imadhodor Drive, Off Oba Eweka Street, G.R.A. Benin City. When he alighted from the car to lock his gate he was accosted by someone who later on turned out to be the Appellant and one Ifeanyi Itegbe. They both snatched the car from him at gun point.

The car was driven away and the driver later dropped off Ifeanyi Itegbe, and subsequently ran the car into a ditch in an attempt to overtake another car. Meanwhile, PW2 at this time was trailing his car on a Motor Cycle and when the car fell into a ditch, PW2 informed the passers-by that the car was his and that he had just been robbed of it. As the car driver came out of the car and tried to escape from the scene, he was apprehended while someone in the crowd called the Police. A Police patrol team came and arrested the driver. When questioned by the passersby, the driver claimed that the live Cartridge recovered from him, belonged to the other person who had alighted from the car at Gapiona Street as he was the one who had the gun which they used.

The driver was taken to the Airport Road, Police Station from where he was transferred to S.A.R.S, Benin City. At S.A.R.S the PW1 John Akodogbo was detailed to investigate the case against the driver, who is the Appellant in this Appeal. Transferred along with the Appellant and the case file were an iron rod and a live Cartridge. The PW1 recorded the statements from the PW2 and PW3 and the matter was eventually charged to Court.

The Appellant’s defense consisted of the usual refrain in matters of this nature. It was the Appellant’s denial that he did not make the confessional statement voluntarily and that although he was arrested at the scene of the crime, he was not one of the robbers. The evidence of the Respondent’s witnesses and the Exhibits tendered, however fixed the Appellant to the scene of the crime and to the commission of the crime. In the course of the trial, the learned trial Judge subjected the confessional statement of the Appellant to a trial-within-trial, at the end of the learned trial judge held that the statement was voluntarily made and admitted same as Exhibit “C”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of Armed robbery rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as amended and the plethora of decided authorities on the subject. What should perhaps, be stated here as a corollary to the above, is the fact and from which the prosecution gets a modicum of succor that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;

a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001) 14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.

Learned Appellant’s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would be recalled however, that Exhibits “C” was in the course of trial admitted as confessional statements of the Appellant after the conduct of a trial within trial. Section 27 (1) of the Evidence Act (As amended) defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

It is further provided in sub-section 2 that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case, it is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case?

The learned trial judge at pages 105 to 106 of the printed records had this to say on the subject of what the Court believed to have confirmed the story in the confessional statement;
“The positive identification of the Accused person by the PW2 corroborated the confession of the Accused person that he and the late 2nd Accused person robbed the PW2 at Gunpoint. This shows there is something outside the confession that makes it probable and possible that it is true. The confession was made at the earliest opportunity and probably when the conscience was most pricked. The retraction was made at the trial after the accused person had reconsidered his position and framed plausible answers. The confession was admitted after a trial within trial and can, therefore be relied upon in determining the charges against him. The retraction is without merit as the confession made by the Accused person is of probative value. His story that he was arrested at Oba Ewuare Grammar School while watching football match during a Police raid was an afterthought designed to pull wool across the eyes of the Court …moreover the recovery of the car from the accused person, the consequential discovery of cartridge in his pocket upon arrest and the fact that the PW2 claimed that he was robbed by two persons reinforced the probability that the confession was true. This is abundant evidence outside the confessional statement Exhibit C to link the accused person with the commission of the crime charged”.

On the offence of conspiracy and for which learned Appellant’s Counsel generated a lot of furor and in which Counsel contended that the Prosecution did not succeed in establishing against the Appellant, it is important to note that the authorities are fairly well settled on the question of conspiracy as an offence in Nigeria. In defining the offence of conspiracy, the practice has been to draw guidance from the Common Law which defines it as an agreement by two or more persons to do or cause to be done an illegal act or act which is not illegal by illegal means. Usually, one of the many emphasis is that there cannot be a conspiracy unless two or more persons are involved who have acted either by agreement or by concert. The most important thing is that the persons know of the existence and the intention or purpose of the conspiracy. That would suffice in law.
The purpose here is that the direct positive evidence of the plot between conspirators is hardly capable of proof. The reason for this is that crimes are mostly hatched in secrecy by desperate criminally minded individuals who would stop at nothing to conceal their tracks. It is precisely for this reason that the Courts are allowed to draw reasonable inferences from the overt acts of the conspirators so as to establish whether there was a conspiracy or not. See the cases of ODUNEYE vs. THE STATE (SUPRA); DABOH vs. THE STATE (1977) 5 SC 197 and a host of other decided cases on the subject. The question to therefore address at this stage is whether there were any overt acts of the Appellant and from which a reasonable degree of conspiracy can be inferred in this Appeal?

The fact that the Appellant was not alone in the course of committing the offence cannot be denied at this stage. It is copiously on record that the Appellant committed the offence of armed robbery with the deceased 2nd Accused person when they jointly robbed the PW2 of his car at gun point. This establishes the elements of the offence of conspiracy. See also the case of IKEMSON vs. STATE (1989) NWLR (PT. 110) 455 on when the offence of conspiracy could be said to have been committed.
Mere agreement is enough proof of the offences of conspiracy. See the case of IKEMSON vs. STATE (Supra) on when the offence of conspiracy is said to be committed, while the actual commission of the offence is unnecessary. But, again in this case, the accused gave vivid account as to how they planned and executed the robbery and the weapon they went with during the robbery. Conspiracy, therefore, is as an offence, which is more of a matter of inference drawn from other proven criminal acts. See the case of FRIDAY vs. STATE (2016) Vol. 258 LRCN Page 3 ratio 1. Against the backdrop of the foregoing, this Court finds it unable to fault the lower Court’s finding that the Prosecution proved the offence of conspiracy against the Appellant beyond a reasonable doubt.

On the defense of alibi put up by the Appellant, the position of the law is that the burden to investigate the Accused person’s alibi rests squarely on the shoulders of the Prosecution but that the Accused has a corresponding duty to discharge the evidential burden that he was in fact not at the scene of crime at the time the offence was committed and he was somewhere else. He has to lead credible evidence in this direction beginning from his extra judicial statement to the Police. In the instant Appeal, where the Appellant lead evidence of his alibi only while he was in the witness box leaves much to be desired. Apart from the fact that the Prosecution has not been given any opportunity to investigate the alibi, there is overwhelming evidence which fixes the Appellant at the locus criminis.

This Appeal is clearly without substance as it is moribund and it is accordingly dismissed. The judgment of the High Court of Justice (Criminal Division) Coram: J. U. OYOMIRE, J and delivered on the 21st day of August, 2017 is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The lead judgment anchored by my learned brother, Frederick O. Oho, JCA, dismissing the appeal as lacking in merit is based on the evidence rightly relied upon at the trial Court to convict.
The appeal is dismissed in concurrence with my brother, Frederick O. Oho, JCA’s lead judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded in advance a copy of the leading judgment just delivered by my lord Dr. Frederick Oziakpono Oho JCA, and I am in complete agreement with the lucid reasoning and the impeccable conclusions reached therein. I adopt it as mine and I have nothing more useful to add.

Appearances:

AUSTIN ODIGIE, ESQ. For Appellant(s)

M.A. CASIMIR, ESQ. (Senior State Counsel, Ministry of Justice, Edo State) For Respondent(s)