Sunday Ehimiyein Vs The State (2016)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, JSC

The Appellant was tried along with one Folorunsho Alufohai by the High Court of Edo State sitting in Benin City on a two count charge of conspiracy to commit armed robbery and armed robbery both punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria 1990.

At the end of the trial, the Accused persons were convicted on both counts and on the armed robbery sentenced to death by hanging by the trial judge, M. I. Edokpayi (as he then was) on 26/9/2005. The Appellant aggrieved appealed to the Court of Appeal or Court below sitting in Benin which Lower Court affirmed the conviction and sentence of the Appellant.

Further dissatisfied, the Appellant has come before this Court vide a Notice of Appeal filed on the 2nd May, 2013. BACKGROUND FACTS:

The concurrent finding of facts of the trial Court and the Lower Court is that on 5th January, 1998, a gang of armed robbers invaded the residence of one Rev, Raphael Aggi (late) armed with offensive weapons including a gun, cutlass and acid and robbed him of a Video Machine (Exhibit A), a Video Rewinder (Exhibit B) and a 14′ colour television and in the process poured acid on his daughter’s face. Rev. Aggi’s daughter, Ige Aggj testified as PW1.

While PW3, the late Rev. Aggi’s wife and her late husband. Rev. Aggi were making their statements at the Police Station at dawn on the day of the robbery attack, PW4 who was the Investigating Police Officer (IPO) arrived at the station with the Appellant and the 2nd Accused person with Exhibits A and B. PW3 and her late husband spontaneously identified the Appellant and the 2nd Accused person on sighting them as the armed robbers who robbed them in their house that morning. They also informed the police that one Emmanuel or Emma who had worked for them in their house was the third member of the gang, he, it was who held the gun during the robbery operation and was not with the police at the time in the Police Station. Both PW3 and late Rev. Aggi Identified Exhibits A and B as their properties that were stolen by the Appellant, the 2nd Accused person and Emma.

Prior to the robbery, PW4 had received Information that the Appellant and some other persons were planning to dispose of some used electronics to PW4’s Informant. Based on the information, PW4, and another policeman by name Sunday and who is now late laid ambush as early as 4.00 am on the way to the Informants house on the day he was to take delivery of the electronics.

Barely an hour of waiting, the appellant, the 2nd Accused person and one Emma or Emmanuel strolled along the way carrying with them Exhibits A and B and the 14′ colour television for disposal to the Informant. It was at this point that PW4 and his team swooped on them and arrested the Appellant and the 2nd Accused person with Exhibits A and B while Emma escaped with the Television. While Emma remains at large, the Appellant and the 2nd Accused persons were charged to Court. At the conclusion of the trial, they were convicted and sentenced to death by hanging for the offences of conspiracy to commit armed robbery and armed robbery.

The case of the Appellant in his testimony in Court was a denial of involvement in the armed robbery. At his trial, the

Appellant denied that he committed the offences and stated that it was his co-worker, one “Bushman” who led PW4 and another policeman to his house to arrest him while he was preparing to resume work in the morning of 5 January, 1998, the day of the armed robbery operation. However, in both of his extra-judicial statements made respectively at the Ekiadolor Police Station on the 5/1/1998 and at the State Crime Investigation Department (C.I.D) on 12/1/98 (Exhibits E and G respectively), the Appellant voluntarily confessed to the commission of the offences as charged.

On the 14th day of April, 2016 date of hearing, Emmanuel Achukwu of counsel for the Appellant adopted his Brief of Argument filed on the 12/4/16 and deemed filed on the 14/4/16. Also, adopted is the Appellants Reply Brief filed on 12/4/16. Learned counsel distilled three issues for determination which are viz:-

1. Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant on the basis of the doctrine of recent possession.
2. Whether the Court of Appeal was right in upholding the conviction and sentence of the Appellant on the basis of the purported confessional statement of the Appellant.
3. Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the Prosecution did prove the guilt of the Appellant beyond reasonable doubt.

Adewale Atake, learned counsel for the Respondent adopted the Respondent’s Brief of Argument filed on the 14/11/13 and deemed filed on the 13/5/2015 and adopted the three issues for determination raised by the Appellant.

The issues as crafted are in my humble view best taken together and so I shall answer the questions posed in that manner. The issues recast are thus:-

1. Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant on the basis of the doctrine of recent possession (Ground 2 of the Grounds of Appeal);
2. Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant on the basis of the confessional statement of the Appellant (Ground 3 of the Grounds of Appeal); and
3. Whether the Court of Appeal was right in affirming the decision of the trial Court in holding that the Prosecution proved the guilt of the Appellant beyond reasonable doubt (Ground 1).

Canvassing the point of view of the Appellant, Mr. Achukwu of counsel contended that the Court below holding that the Appellant and co-accused failing to account for their possession of Exhibits W and ‘B’ led to the logical inference that they were amongst those who robbed the house of PW1 and PW3 on the day of incident. That the Appellant denied being in possession of the said stolen property and since his evidence was not discredited by the Prosecution under cross-examination, the Court below ought to have first determined whether or hot the Appellant was actually in possession of the alleged stolen property thereby rendering that failure on the part of the Court below fatal to the finding relied upon by the Courts, below. That the prosecution having failed to discredit the evidence of the Appellant then, it cannot be proved conclusively that he was in possession of Exhibits A and B at the time of arrest.