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Raphael Ewugba V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from the judgment of the Court of Appeal, (Benin Judicial Division) which affirmed the decision of a Delta State High Court on 27 May 2015 wherein the appellant as the 2nd accused person and his co-accused person were found guilty of the offences of conspiracy to commit kidnapping, kidnapping and armed robbery.

Trial got underway on 31 July, 2012 after the appellant entered a plea of not guilty to a three count charge which reads:

COUNT 1

STATEMENT OF OFFENCE

Conspiracy to commit a felony to wit: Kidnapping punishable under Section 516 of the Criminal Code Law, Cap C 21 Vol. 1, Laws of Delta State of Nigeria 2006.

PARTICULARS OF OFFENCE:

Saidu Haruna (M), and Raphael Egwuba (M) on or about the 26 of December 2011 at Effurun, within the Effirun Judicial Division, conspired with others now at large to commit a felony to wit: Kidnapping.

COUNT 2

STATEMENT OF OFFENCE

Kidnapping punishable under Section 354(2) of the Criminal Code Law, Cap. C 21 Vol.1, Laws of Delta State of Nigeria 2006.

PARTICULARS OF OFFENCE

Saidu Haruna (M), and Raphael Egwuba (M) on or about the 26 of December, 2011 at Effurun within the Effurun Judicial Division, unlawfully imprisoned one Onoriode Yvonne Asheshe (f) against her will.

COUNT 3

STATEMENT OF OFFENCE

Armed Robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Vol.4, Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

Saidu Haruna (M), and Raphael Egwuba (M) on or about the 26 of December, 2011 at Effurun, within the Effurun Judicial Division, robbed one Onoriode Yvonne Asheshe (f) of her Honda Pilot Jeep, ATM card Jewelleries and Black Berry phone while armed with a gun.

Three witnesses gave evidence at the trial. PW1, the victim of these crimes and PW2 the Investigating Police Officer, an officer attached to the State Securities Service Delta State Command, both gave evidence for the State (Respondent).

The appellant gave evidence in defence, but did not call any witness.

The following items were tendered as exhibits:

Exhibit A: Statement of 1st accused person (not relevant in this appeal).

Exhibit B: Statement

of 2nd accused person.

Exhibit C: Blackberry Phone with Pin. No.3245D4FE.

Exhibit D: Certificate of (Engr.) Saidi Haruna from lovely communication.

On 27 February, 2013 the trial judge adjourned the case to 28 March, 2013 for adoption of written addresses and judgment was delivered on 10 October, 2013. The learned trial judge found the appellant guilty on the three count charge and sentenced him to death on count III.

Dissatisfied with the sentence, the appellant filed an appeal to the Court of Appeal.

That Court affirmed the judgment of the High Court in the concluding paragraph as follows:

The appeal is totally lacking in merit and it is hereby dismissed. The judgment of the Lower Court embodying the conviction and sentence imposed on the appellant in Suit No.A/37C/2012 delivered on October, 2013 is hereby affirmed.

This appeal is against that judgment. In accordance with rules of Court, briefs were filed and exchanged. The appellant’s brief was filed on 14 September, 2015, while the respondent’s brief was filed on 17 December 2015.

Learned counsel for the appellant formulated a sole issue for determination. It reads:<br< p=””

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“Whether having regard to the circumstances of this case and the totality of the evidence on record, the Lower Court was right in upholding the decision of the learned trial judge that the prosecution proved the charges of conspiracy to kidnap, kidnapping and armed robbery against the appellant beyond reasonable doubt.”

Learned counsel for the respondent also formulated a sole issue for determination:

“Whether on the totality of the evidence adduced on record, the Court below was right in upholding the judgment of the trial Court which found the appellant guilty for the offences of conspiracy to kidnap, kidnapping and armed robbery.”

The sole issue formulated by counsel asks the same question, whether the prosecution proved the charges beyond reasonable doubt. I am satisfied with the issue as framed by the learned counsel for the appellant and so his sole issue shall be considered in this appeal. At the hearing of the appeal on 5 October, 2017, learned counsel for the appellant A. Asala Esq., and P. Mrakpor, the Attorney-General of Delta State for the respondent adopted their briefs and had nothing to say in amplification. The appellant’s brief was

filed on 14 September, 2015. Learned counsel for the appellant urged this Court to acquit and discharge the appellant. The respondent?s brief was filed on 17 December 2015. Learned counsel for the respondent urged this Court to dismiss the appeal.

The Facts.

At about 12:30p.m. on 26 December, 2011, Onoriode Yvonne Asheshe, a Magistrate in the Delta State Judiciary was in the process of parking her Honda Sport Utility Vehicle with registration No. DE 387 KTU in front of her house at No. 80 Jakpa Road Effurun in Uvwie Local Government Area of Delta State when three men armed with guns surrounded the car and ordered her to open the doors. She opened the doors and spent some time looking for the keys of the car with the men. The keys were eventually found. She was forced to lie down on the back seat of the car bound hands and feet, blind folded. They drove off.

She was disposed of her handbag, mobile phones (blackberry), ATM Cards, money and jewelry. She had to disclose the PIN number of her ATM card with a warning that if it was found not to be correct she would be killed. After a long ride she was abandoned in the bush in Olukobare village, near

Orerokpe in Okpe Local Government Area of Delta State. She was left in the bush, while they drove off in her car. Eventually she was able to remove the ropes from her legs, hands and free herself completely. She made her way to the highway where a good spirited motorcyclist gave her a ride into town where she reported the incident to the Police.

Her blackberry phone was eventually found with the appellant, but to this day her car has not been recovered.

The sole issue:

“Whether having regard to the circumstances of this case and the totality of the evidence on record the Lower Court was right in upholding the decision of the learned trial judge that the prosecution prove the charges of Conspiracy to Kidnap, Kidnapping and Armed Robbery against the appellant beyond reasonable doubt.”

Learned counsel for the appellant concedes that PW1 was Kidnapped and robbed at gun point on 26 December, 2011, but, contends that the prosecution failed to adduce credible evidence to prove beyond reasonable doubt that the appellant was one of the persons that committed the offences of kidnapping and armed robbery.

The issue at the trial Court and on

appeal was whether the fact that the blackberry phone was traced to the appellant conclusively proved that the appellant participated in the kidnapping and armed robbery. The decision of the trial Court was challenged in the Court of Appeal on these major issues. It is now the duty of this Court to find out if the decision of the Court of Appeal is flawed or correct.

Subsumed in the sole issue for determination are the following issues:

(a) Whether there was proper identification of the appellant as one of the kidnappers and armed robbers.

(b) Whether the prosecution withheld vital documents.

Proof beyond reasonable doubt does not mean proof of a mathematical certainty. It also does not mean proof beyond all possible doubt. A charge is proved beyond reasonable doubt when the facts and circumstances of the case and the quality of the evidence adduced is compelling and reliable to establish the guilt of the accused person. There must be a high degree of probability that the accused person committed the offence. The doubt must be of a reasonable man and the standard must

also be of a reasonable man. See

Egwumi v. State (2013) 2 SC (Pt.iii) p.119

Nwaturuocha v. State (2011) 2-3 SC (Pt.i) p.111

Eke v. State (2011) 1-2 SC (Pt.ii) p.219

Ochiba v. State (2011) 12 SC (Pt.iv) p.79

If the three issues referred to above are resolved in favour of the respondent, the case would be said to have been proved beyond reasonable doubt in the trial Court and the Court of Appeal would be right to affirm that judgment, thereby resulting in the fact that concurrent findings of fact are correct. Conversely the appellant would be entitled to an acquittal and discharge.

(a) Whether there was proper identification of the appellant as one of the kidnappers and armed robbers?

This issue shall be addressed under two sub heads:

(i) The identification parade.

(ii) Visual or eyewitness identification of the appellant by PW1.

Learned counsel of the appellant observed that the identification parade did not meet up with the required standard laid down by judicial pronouncements and as such, the identification parade is unreliable and should be set aside. Reference was made to page 56 and page 63 of the

record of appeal.

On visual identification of the appellant by PW1 learned counsel for the appellant observed that the encounter between PW1 and the armed robbers was for a very short period, a fleeting encounter under a distressed condition. He submitted that the conclusion of the Lower Court that PW1 had the opportunity to observe the features of her assailants is incorrect and unsupported by the evidence on record. He urged this Court to hold that the identification of the appellant as one of the kidnappers and armed robbers is unsafe and unreliable. Reliance was placed on R. v. Turnbull (1976) 3 ALL ER P.549

Emenegor v. State (2010) ALL FWLR (Pt.511) p.884

Alabi v. State (1993) 7 NWLR (Pt.307) p.511

Learned counsel observed that there was an identification parade which the trial Court and the Court of Appeal found to be regular. He observed that PW1 had the opportunity of seeing the accused persons (appellant included) when they swooped on her and pointed guns at her since the unchallenged evidence is that the offence was perpetuated in broad day light. On the identification parade, learned counsel observed that PW1 was able to identify

the appellant and his co-accused in an identification parade made up of eight persons. He submitted that PW2 never assisted PW1 to identify the appellant, observing that both of them were not confronted with the allegation when they gave evidence. He submitted that since the appellant failed to confront PW1 and PW2 with the allegation it means the testimony of PW1 and PW2 is correct. He further observed that the contention that the appellant was almost half naked when he participated in identification parade is an afterthought as PW1 and PW2 were also not confronted with that piece of evidence, further observing that appellant’s statement, Exhibit B was obtained immediately after the identification parade and he did not complain of any anomaly in the identification parade. Relying on Oladipo v. Moba LGA (2010) 5 NWLR (Pt.1186) p.117.

Agbo v. State (2006) ALL FWLR (Pt.309) p.1380

Ikemson v. State (1989) 3 NWLR (Pt.110) p.455

He urged this Court not to disturb concurrent findings of the two Lower Courts:

PW1 said on oath:

“?The two accused persons are among the three armed men I am talking about. They started looking

for the key. When they found the key within about 2 minutes they were looking for the Key. I took my time to look at their faces and features. After getting the key, they ordered me to lie flat on the back seat.?

Under cross-examination PW1 said:

“I identified the faces of the accused persons on the day of the incident quite clearlyI saw their faces for the first time on the day of the incident. I saw their face i.e. the accused person on the day of the incident and again on the day of the identification parade and now in court again?..?

An identification parade is necessary when the identity of who committed the crime is disputed and the accused person saw the accused for the first time during the commission of the crime. An identification parade is never full proof. Mistakes as to the identity of the accused persons occur repeatedly. Identification parade would not be necessary where the witnesses (or victim of the crime) knew the accused person before the crime was committed. See;

Ikemson v. State (1989) 20 NSCC (Pt.ii) p.471

Orimoloye v. State (1984) 15 NSCC p.654

Otti v. State (1993) 4 NWLR

(Pt.290) p.675.

On the conduct of the identification parade, the Court of Appeal said:

“The appellant had contended that the victim was able to identify him because of the way he was dressed at the identification parade. The uncontroverted evidence is that six persons were scantily dressed and the question that readily comes to mind is why it was the appellant and not any of the others scantily dressed that was identified by the victim, if as argued it was merely on account of his having been scantily dressed that the victim identified him. PW2 equally testified as to the conduct of the identification stating that the appellant was identified by the victim at the identification parade.”

On whether the victim (i.e. PW1) was aided to identify the appellant, the Court of Appeal said:

“……..The appellant in his defence testified that at the identification parade PW2 aided the victim to identify him because PW2 came and stood behind him. Instructively, this fact which goes to the propriety of the identification at the parade was never put to the victim and PW2 in cross-examination. I tend to agree with the Respondent’s submission that it was an

afterthought and that no such thing happened during the identification parade….”

Concluding the Court of Appeal said:

“The evidence adduced as to the conduct of the identification parade was not shaken under cross-examination and there is no reason to interfere with the conclusion of the Lower Court at page 123 of the Records that it was satisfied that the identification parade was genuine and properly conducted.”

Where a witness testifies on a material point in controversy, in this case that the identification parade was properly conducted, if the appellant does not accept the witness testimony as true, should cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either as in this case the Court can take his silence as acceptance that he does not dispute the fact. In view of failure to cross-examine properly and highlight errors in the conduct of the identification parade, I am satisfied that the identification parade was properly conducted.

Aside from the identification of appellant at a well conducted identification parade, I am also satisfied with the testimony of PW1 when

she said:

“I saw their face i.e. the accused person on the day of the incident. When they found the key, within about 2 minutes they were looking for the key I took my time to look at their faces and features…..”

To my mind when a person is traumatized e.g. attacked by armed robbers or raped, the whole episode remains in the mind of the victim for life. He or She remembers faces vividly, despite trauma which usually sets in after the act. When PW1 was surrounded by armed robbers in broad daylight and bundled into the back seat of her car before being blind folded, such a victim would never forget the face of her assailants.

Once again I am satisfied that the appellant was properly recognized by PW1 as one of the robbers that kidnapped her and stole her Blackberry phone on 26 December, 2011 and the identification parade conducted on 7 March, 2012 was flawless.

(b) Whether the prosecution withheld vital document’s.

Learned counsel for the appellant observed that during trial, the respondent (prosecution) failed, refused and deliberately withheld from the defence the following:

The extra judicial statement

of PW1 made to the police immediately after the incident.

The written complaint by PW1 to the State Security Service.
The first extra judicial statement made by PW1 to the State Security Service before the identification parade.
Bail bonds of sureties who took some of the accused persons on bail.
Signals from the Headquarter of Delta State Security Service directing its office at Warri to track down and arrest one Rukevwe.
The Reply and Report on the findings by the Warri Zonal Office of Sate Security Service on the efforts made to track down Rukevwe.

He contended that the failure by the prosecution to produce this vital documents offends Section 167 (d) of the Evidence Act and amounts to a denial of fair hearing. Reliance was placed on

Emenegor v. State (2010) ALL FWLR (Pt.511) p.884.

Ajie v. State (2000) FWLR (Pt.16) p.2831

Ogudu v. State (2012) ALL FWLR (Pt.629) p.1111

Ekaidem v. State (2012) ALL FWLR (Pt.631) p.1587

In conclusion, he submitted that the prosecution failed to prove the charges against the appellant beyond reasonable doubt in view of the failure of the prosecution to make

available to the defence vital documents upon demand by the defence, contending that in the absence of these vital documents there is serious doubt which should be resolved in favour of the appellant.

Learned counsel for the respondent observed that the appellant did not demand for any document from the prosecution during trial, contending that the appellant could have asked for the documents by Notice to produce or invoking the provisions of Sections 186 and 188 of the Criminal Procedure Law. He submitted that the appellant cannot do on appeal what he failed to do at the trial Court.

He observed that Section 167 (d) of the Evidence Act will only be invoked when the prosecution fails to produce these documents upon the issuance of summons on it by the trial Court. Reliance was placed on Aremu v. State (1991) 7 NWLR (Pt.201) p.1.

He submitted that Section 167 (d) is not applicable. Concluding, he submitted that all the authorities relied on by the appellants learned counsel are not relevant. He urged this Court not to disturb the impregnable concurrent findings of the trial Court and Court of Appeal.

At the trial, the 1st accused

person was represented by C. O. Egwuenu while R. O. Olarenwaju represented the 2nd accused person (the appellant).

The State was represented by the Delta State Director of Public Prosecutions, E.H. Edema.

On 8 October, 2012, learned counsel for the 1st accused person during cross-examination of PW2 made an oral application that the prosecution should produce the following documents:

The petition of PW1, to the State Security Service.
The Bail Bonds of sureties that took the four persons on bail who were arrested in connection with this matter but not charged to Court and
Two signals generated between the State Headquarters of the State Security Services, Asaba and the Warri South Local Government Area office relating to the tracking down of one Rukevwe.

Learned counsel for the prosecution objected on the ground that there was no formal Notice to produce in writing. On 5 November, 2012 the learned trial judge delivered a considered Ruling wherein he refused to grant the application on the ground that no foundation had been laid to warrant the Court making an order for the production of the said documents.

Learned counsel for the

appellant at no time during trial demanded for any document from the prosecution, neither did he adopt the demand/submissions of learned counsel for the 1st accused person.

When does Section 167(d) of the Evidence Act apply?

The rule in Section 167(d) of the Evidence Act is contained in the maxim “omnia praesumuntur contra spoliatorem.” Where a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted.

The withholding of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it. So where the prosecution is served with Notice to produce evidence that the defendant needs for his defence and the prosecution willfully refuses to produce the said evidence, the Courts would act on the natural inference that the evidence is held back because it would be unfavourable.

Section 167 (d) of the Evidence Act states that:

167(d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.

The above complaint was not raised at the trial Court by learned counsel

for the appellant.

The defence is entitled to demand for documents it considers relevant for its defence and this is done by serving a subpoena/Notice to produce on the prosecution to produce the documents.

The presumption in Section 167 (d) arises and the Court is entitled to presume that documents in possession of the prosecution would be unfavourable to the prosecution’s case if the prosecution after service of Notice to produce still refuses to produce the documents. See Queen v. Itule (1961) 1 ALL NLR P.462; Aremu v. State (1991) 7 NWLR (Pt.201) p.1.

No demand for documents was made either orally or in writing by the appellant and no process was served on the respondent to produce documents. In the absence of Notice to produce on the appellant, Section 167 (d) of the Evidence Act does not apply.

Once again this complaint was not raised at the trial Court by learned counsel for the appellant. It must be elementary now that an appeal is a rehearing. It is the duty of an Appeal Court to examine the Record of Appeal to see if the judgment of the trial Court is correct of flawed. New issues can only be raised an appeal with leave. Where

leave was not obtained, nothing new would be heard on appeal. It follows naturally that a party must be consistent in stating his case in the trial Court and on appeal. He will not be allowed to present a case at trial and present a different case on appeal. He will never be allowed to shift ground on appeal as it suits his fancy.

I am satisfied that complaining about the respondent withholding documents/evidence was never the appellant’s case in the trial Court. It is wrong and is not worth considering on appeal. This is clearly an afterthought by the appellant that is futile in the extreme. The prosecution did not withhold evidence.

Finally on this point, It is learned counsel for the appellant’s case that learned counsel for the respondent deliberately withheld six items.

At trial, he never raised this issue. It was learned counsel for the 1st accused person who asked for only three items to be produced.

This brings into focus and is further evidence, that this issue on appeal is clearly without foundation. The prosecution once again did not withhold evidence from the appellant since at no time in trial Court did his counsel ask orally or

formally for any document to be produced by the respondent.

Learned counsel for the appellant observed that the appellant explained to the State Security Service in his extra judicial Statement how he came in possession of the blackberry phone. He submitted that the explanation that is expected of an accused person to displace presumption of guilt is on balance of probability and once the explanation is reasonable the onus is discharged.

Reliance was placed on-

State v. Nnolim (1994) 5 NWLR (Pt.345) p.394

Salami v. State (1988) 3 NWLR (Pt.85) p.670

He observed that the blackberry phone was sold to the appellant by the 1st accused person. He urged this Court to hold that the appellant gave reasonable explanation that he brought the blackberry phone from the 1st accused person, contending that the doctrine of recent possession relied on by the two Lower Courts is displaced by this evidence and totally inapplicable in this case.

Learned counsel for the respondent observed that the learned trial judge examined the defence of the appellant and held that the

testimonies of the appellant in his extra judicial statement and on oath were full of material contradictions, thus making the oral testimony of the appellant as well as his extra-judicial statement unreliable and not worthy to be relied upon. Reference was made to page 123 (line 3 – 13) and 215 lines 15 -19) of the Record of Appeal.

He urged this Court to disturb concurrent findings of fact of the two Lower Courts and to hold that the doctrine of recent possession was correctly applied by the trial Court and affirmed by the Court of Appeal.

Section 167 (a) of the Evidence Act states that:

“167. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume that –

(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.

Before this presumption applies, the following factors must be present:

(a) the goods must be goods capable of being stolen.

(b) the goods were recently stolen.

(d) the accused person failed to account for his possession of the goods. See

Idan v. C.O.P. (1964) NMLR P.103

State v. Aiyeola (1969) ANLR p.293

Omopupa v. State (2008) ALL FWLR (Pt.445) p.1648.

The presumption could arise if the Court is satisfied that the person in possession of the stolen goods was the thief or that the person in possession of the stolen goods received the goods knowing them to have been stolen.

The accused person is required to explain how the goods came into his possession. If the Court is satisfied with his explanation, the presumption is rebutted. In Idan v C.O.P (supra) the accused person was charged with being in possession of stolen goods. He was convicted. On appeal, he was able to satisfy the Court that although he was in possession of the goods he did not know that they were stolen. The appeal was allowed.

The presumption in Section 167 (a) of the Evidence Act cannot be drawn in the absence of evidence. Facts are presumed from

the common course of events. Section 167 (a) thus applies to the given facts.

According to the appellant (2nd accused person) he bought the blackberry phone from the 1st accused person.

The learned trial judge did not believe the appellant. His lordship said:

“Furthermore Exhibit ‘C’ is among the properties she was robbed of and the said Exhibit ‘C’, a blackberry handset was recovered from 2nd accused person who claimed to have bought it from 1st accused person. An account that 1st accused person originally admitted but turned around during the trial to change when he contended that Exhibit C was not the phone he sold to 2nd accused person.

A new line of defence that destroys the defence of both the 1st and 2nd accused persons.”

Concluding his findings on the blackberry phone his lordship said:

“The testimonies of 1st accused in his extra judicial statement, Exhibit ‘A’ and on oath were full of material contradictions that I find them unreliable and not worthy to act upon. I disbelieve him when he stated that the phone was given to him by Rukevwe. I also disbelieve the 2nd accused person who claimed the same fictitious Rukevwe as his

friend who lives in the same area with him, I do not believe that 2nd accused bought Exhibit ‘C’ from 1st accused. Rather I believe the testimony of PW1 that 1st and 2nd accused were among those who kidnapped her and robbed her of her Jeep and other valuables including exhibit ‘C’.”

The trial Court applied the doctrine of recent possession in convicting the appellant.

Agreeing with the trial Court, the Court of Appeal said:

“…….It has to be remembered that even though the appellants’ co-accused testified that he did not know the appellant before, he sold the blackberry phone to him, the appellant himself testified that he had been seeing his co-accused for about three years before the incident and that he knew his house. He further stated that even though they were not enemies, they were also not friends, so at least they were acquaintances. The appellant also testified that he knew that his co-accused person does not sell phones. This notwithstanding he claimed to have bought a blackberry phone from him for which he was not issued any receipt. The source of the said blackberry phone according to the co-accused of the appellant was one

Rukevwe, who most conveniently it was claimed had been shot dead by the police when he went for a robbery operation. The appellant in his extra judicial statement Exhibit ‘B’ stated that the said Rukevwe lived in the same area as him.

Notwithstanding the claim that the said Rukevwe had been shot dead, investigation activities were still carried out, as testified to by PW2 a view to tracing the said Rukevwe but that the name and address was fictitious as no one knew him in the area where it was claimed that he lived. Doubtless, the law is that the doctrine of recent possession is displaced even though the Court may not be convinced of the truth of the explanation but it is imperative that the explanation proffered as to how the stolen property came into possession of an accused person might be reasonably true: State v. Nnolim (supra). Where the explanation might not be reasonably true, there can be no question of the presumption being displaced. In the peculiar circumstances of this case, the fact that the source of the blackberry phone traced by the appellant and his co-accused was revealed by investigations to be a non-existent person clearly shows

that the explanation proffered by the appellant might not be reasonably true. Therefore, the Lower Court rightly applied the doctrine of recent possession to accept and believe the testimony of the PW1 that the appellant was among those who kidnapped the PW1 and robbed her of her vehicle and other valuables, including the blackberry phone, Exhibit C.”

To my mind, both Courts below were right not to believe the explanation of the appellant as to how the blackberry phone came into his possession. His explanation has always been that he bought the blackberry phone from his co-accused for N14,000.00. This was confirmed by his co-accused when he gave evidence on oath. (see page 56 of the Record of Appeal), but when the co-accused was shown the blackberry phone in Court, he examined it and said it was not the phone he sold to the appellant (see page 57 of the Record of Appeal). This was never resolved together with the many contradictions in testimony, eventually linking a non-existing person by name Rukevwe with the blackberry phone. Both Courts below were in the circumstances right that the doctrine of recent possession applies to this case since the appellant

explanation as to how he came to possess the blackberry phone is not true. The presumption that the appellant is the thief is believable and sustained.

The appellant was charged with conspiracy under Section 516 of the Criminal Code, Kidnapping under Section 364 (2) of the Criminal Code and Armed Robbery under Section 1(2) (a) of the Robbery and Firearms (Special Provisions Act).

Learned counsel for the appellant observed that the reasons adduced by the Lower Court for upholding the findings by the trial Court that the prosecution proved the charges against the appellant beyond reasonable doubt are not sustainable having regard to the evidence on record.

On the other side, learned counsel for the respondent observed that the evidence on record is that the appellant and his fellow conspirators swooped on Onoriode Yvonne Asheshe brought out guns, threatened to shoot, got into the victims car, took her to the bush and stole her belongings, submitting that this could only have been done by persons because they had conspired to do so. Reliance was placed on Busari v. State (2015) LPELR ? 24279 (SC).

The appellant was charged and convicted for

conspiracy contrary to Section 516 of the Criminal Code, Kidnapping contrary to Section 364(2) of the Criminal Code and Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms Act.

There is a conspiracy when two or more persons agree to do an act which is unlawful. They do not necessarily have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. Once there is a meeting of the minds of the conspirators to commit an offence and this is easily inferred by what other person does in furtherance of the offence of conspiracy.

In all cases of conspiracy, the Court is to ascertain evidence of complicity of the accused person in the offence. See

Adejobi v. State (2011) ALL FWLR (Pt.588) p.850

Shurumo v. State (2011) ALL FWLR (Pt.568) p.864

State v. Salawu (2011) 18 NWLR (Pt.1279) p.580

Posu v. State (2011) 3 NWLR (Pt.1234) p.393

The offence of conspiracy was committed on 26 December, 2011 when the appellant in company of other persons, armed, surrounded the appellant’s car, bundled her into the back seat of the car and drove off with her, bound and blindfolded, and

later dumped in the bush. Then driving off once again, and to this day, the respondent’s car has not been recovered. It is easily inferred that the appellant and his co-accused persons conspired to steal the respondent’s car. The complicity of the appellant in the offence of conspiracy is established and the charge of conspiracy is proved beyond reasonable doubt.

Kidnapping contrary to Section 364 (2) of Criminal Code. When a person is detained unlawfully, the offence of kidnapping is established. The offence of kidnapping is proved beyond reasonable doubt when the appellant and his co-accused persons bound and blindfolded the respondent and dumped her in the back seat of her car and drove off. The charge of kidnapping contrary to Section 364(2) of the Evidence Act was proved beyond reasonable doubt.

Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act.

For the prosecution to succeed in a charge under Section 1(2)(a) of the Robbery and Firearms Act, the prosecution must proved beyond reasonable doubt that:

(a) there was a robbery.

(b) the robbers were armed

</br<

Eke v. State (2011) 3 NWLR (Pt.1235) p.589

Ogudo v. State (2011) 18 NWLR (Pt.1278) p.1

John v. State (2011) 18 NWLR (Pt.1278) p.353.

My lords, it is no longer in doubt that there was a robbery on 26 December, 2011 when the appellant and his co-accused stole PW1’s car, her blackberry phone and some of her possessions. The robbers were armed, since evidence of PW1 that the appellant and the other persons who stole her car were armed is unchallenged. Finally the appellant was recognized by PW1 and positively identified at a well conducted identification parade. On these undisputed facts, I am satisfied that the charge of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act was proved beyond reasonable doubt.

It is for all that I have been saying that I find no merit in this appeal.

Appeal dismissed.

SC.480/2015

Raphael Ewugba V. The State (2017) LLJR-SC

Raphael Ewugba V. The State (2017)

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