Umoh Ekpo V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALINJE, J.S.C.
The appellant was arraigned before the Lagos State High Court on the 15th of May, 2008 charged with armed robbery contrary to Section 402 (2)(a) of the Criminal Code Law Cap.C17 Vol.2 Laws of Lagos State 2003.
The prosecution’s case against the appellant at the trial Court is that on the 5th January, 2006, one miss Ronke Odelana, who testified as PW1 in that Court, and her sister Toyin Odelana were walking towards Idi-Iroko bus stop, Anthony Area of Lagos State at about 6.45a.m when the Appellant and another person, now at large, who were on a motorcycle, accosted them. The Appellant alighted from the motorcycle and pointed an object which PW1 thought at the time to be a gun. The Appellant asked PW1 to handover her bag, wallet and phone. She handed over the items to the appellant who passed them over to the second person. As the appellant was about to mount the motorcycle, PW1 held him and shouted for help. The shout attracted passers-by who came to her help and the appellant was arrested. While this was going on the second person rode off on the motorcycle with the properties belonging to Pw1.
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The Appellant pleaded not guilty to the charge. In order to prove its case, the prosecution called three witnesses and tendered the statement of the Appellant and seven other witnesses as well as a plier. These items were admitted in evidence and marked Exhibits P1-P8 and K respectively. Appellant testified in his defence and called no additional witness.
At the end of the trial, Dada J., in a reserved and considered judgment delivered on the 16th of September, 2010 found the appellant guilty as charged and sentenced him to death by hanging. The Appellant’s appeal to the Court of appeal, Lagos Division was dismissed on the 6th of June, 2014. The instant appeal is against the decision of the Court of appeal. The Appellant’s notice of appeal at pages 217-219 of the record of this appeal, dated and filed on the 4th July, 2014 contains three grounds of appeal. Parties filed and exchanged briefs of argument.
The Appellant’s brief of argument settled by Rotimi Aladesanmi Esq., Learned Counsel for the Appellant is dated 11th December, 2014 and filed on the 12th December, 2014. At page 5 of the said brief one issue is formulated for determination of this appeal as follows:-
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Whether, after a proper and total evaluation of all the evidence on the records, the case against the Appellant could be said to have been proved beyond reasonable doubts.
The Respondents brief of argument settled by Adeniji Kazeem Esq. Learned Attorney-General of Lagos State is dated and filed on the 30th October, 2017. The Learned Attorney-General adopted the only issue formulated by the Learned Appellant’s Counsel.
In arguing the appeal, Learned Counsel for the Appellant submitted that the prosecution failed to prove the case against the Appellant beyond reasonable doubt as required by Law. Learned Counsel predicated his argument upon the following areas:-
- Contradictory statements of PW1, who was the star witness of the prosecution, at Anthony police station and C.I.D. Yaba as well as her testimony in Court:
- The first confessional statement said to have been made by the Appellant Exhibit P7 was not tendered through the police officer that recorded it and there is no name of the officer who recorded the statement on the said exhibit.
- That the anomaly on Exhibit P7 is consistent with the
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Appellant’s testimony that though he made a statement at the Anthony police station, however, PW3 at the State C.I.D. Panti, tore it.
- That Exhibit P3, the alleged confessional statement made by the Appellant at the State C.I.D. was obtained by PW3 after the torture and intimidation of the Appellant.
That the appellant and his Counsel did not know that they were required to raise objection when Exhibit P3 was tendered at the trial Court.
- That when Exhibit P3 is juxtaposed with the entire evidence adduced, the logical inference that can be drawn is that there is some doubt in prosecution’s case, which doubt ought to be resolved in favour of the Appellant.
Learned Counsel finally urged this Court to allow the appeal and acquit the Appellant and discharge him forthwith.
Learned Attorney-General in reply cited a number of authorities and submitted that the prosecution has established beyond reasonable doubt all the ingredients of the offence of armed robbery against the Appellant and that the proper time to object to the admissibility of confessional statement is at the stage of <br< p=””tendering it and not at the appellate Court.
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According to the Learned Counsel whatever inconsistencies that are referred to by Learned Appellant’s Counsel are not so material as to significantly impact on the prosecution’s case as to reverse the concurrent findings of the High Court and the Court of Appeal.
Now the Law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 135(1) and (2) of the Evidence Act 2011, Adamu v. A.G. Bendel State (1986) 2 NWLR (Pt.22) 284; Akpan v. The State (1990) 7 NWLR (Pt.160) 101.
Section 36 (5) of the Constitution of Federal Republic of Nigeria 1999 provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. The burden of proof is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally
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guaranteed to the accused person. This burden of proof on the prosecution does not shift. See Alabi v The State (1993) 7 NWLR (Pt. 307) 511 at 531 paragraph A- C, Solola v the State (2005) 5 SC (Pt.1) 135. Where the prosecution fails to prove its case beyond reasonable doubt, the accused must be discharged and acquitted.
In the instant case, the Appellant was charged, tried and convicted for an offence of armed robbery contrary to Section 402(a)(a) of the Criminal Code Law Cap C.17 Vol.12 Laws of Lagos State.
For the prosecution to succeed in proving the offence of armed robbery, it must through credible evidence prove the following ingredients:-
(1). That there was robbery or series of robberies
(2). The robbers were armed
(3) The accused person was the one or one of those who committed the robbery.
PW1 is the star witness of the prosecution and the victim of the robbery. Her evidence is so short, I can afford to reproduce it as follows:-
“On 5th January, 2006, it was a Thursday, I was going to the bus stop with my sister who was seeing me off…at that Idiroko Bus stop, then two men came
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across us on a bike and told us to kneel down and then the rider and the Accused person told me to hand over.
The Accused was the passenger who was holding the gun, he dispossessed me of my things, he handed over my phone to the rider. I started begging him to handover my identity card and sim card. Then I just held on to his trouser it was at the police station that we discovered that what he was holding was a metal and not a gun but he was using it to scare people. One man just came around and hit him on the head with a stone. None of my belongings was returned to me.
At the Anthony Police Station, where the incidence was first reported PW1 volunteered a statement to the police.
This statement is at page 145 of the record of this appeal. I reproduce part of the statement as follows:-
“My sister and I just got to K – 1 junction when these two men came down from Okada and attacked us. They collected my bag, and took my money (N710) and my phone Nokia 2650, of a vmobile sim no 08026561437 and gave it to the Okada rider while still searching my bag and my wallet. I begged them to give me my NYSC identity card but he was annoyed
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and jumped down from the back of Okada to beat us. When we were begging him a bus emerged and I started screaming with my sister for people to help us and the man came down from the bus and ran after him, he came down from the back of Okada to attack everybody and he was directing his gun to us. Everybody started running away and the driver of the bus summoned courage and threw stone and everybody started throwing stone at him and he used the gun to hit my sister at the head and she lost her balance and fell down. All the people around there rushed him back and they started stoning him and he fell and we immediately dragged him to the nearest police station.”
At the State C.I.D. Yaba, PW1 also volunteered a statement to the police, part of that statement reads:-
“…. two men on a bike way laid us and threatened us with a half adjusted pliers as a gun. We were so frightened ……… we knelt down begging him, but he turned a deaf ear. They collected my bag with my wallet inside and he took the wallet which contained my I.D. card and some amount of money (N710) and took my handset Nokia 2650 which I bought N16350 and gave it to the Okada rider to hold while searching
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whether my sister has a handset too. When they wanted to take off I begged him for my I. D. card and the sim card he refused to give me the sim but he took the money inside the wallet and give me back the wallet with the I.D. card in it. I summoned courage and I held him at the waist he was so annoyed and he jumped down from the back of the bike to attack us my sister knelt begging him not to shoot while I took off and started screaming. People came out from nook and cranny to our aid and we all ran after him with stone, but the Okada rider left him with my handset, Nemesis caught up with him because we were able to overpower him and we handed him over to the nearest Police station.”
I have deliberately reproduced the testimony of PW1 and her statements to the police because these pieces of evidence are the bones of contention by the Learned Counsel for the Appellant who does not believe that a person of the caliber of PW1 is capable of apprehending an armed robber with a gun. Learned Counsel went on to highlight some discrepancies in the statements of PW1 and her evidence in Court and urged this Court to disbelieve her story.
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In a further argument, learned counsel submitted that neither the phone which was said to have been stolen nor the receipt evidencing ownership of the phone was tendered in evidence to conclusively establish that the phone belongs to PW1.
The trial Court found the evidence before it credible in the following words at page 85 of the record thus:-
“The evidence before the Court is both direct and positive as well as circumstantial. It is cogent, complete and unequivocal. It is compelling and leads to the irresistible conclusion that it is the accused and no other person committed the crime.
The Lower Court reluctantly affirmed the decision of the trial Court on the ground that the convict is a young man.
I have noted the discrepancies highlighted by learned counsel for the Appellant. It is not every contradiction in the prosecution’s case that will result in upsetting a trial Court’s judgment. For a contradiction to upset a judgment, it must be of such magnitude as to warrant interference with the conclusion reached by the trial Court. In other words, for a contradiction to upset the judgment of the trial Court, such contradiction must go to the root of the case and if allowed will lead to a miscarriage of justice. See Ejeka v. State[2003] 7 NWLR (Pt. 819) 408, Gidado Iyanda v.
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The Queen (1960) SCLR 595, Ikemson v The state (1989) 3 NWLR (Pt.110) 455 at 466. Indeed, a witness who experienced what PW1 went through will be suspected of having been tutored if he gives three different stories without some discrepancies.
PW1 was consistent in her testimony that those who attacked them came on a motorcycle and that it was the convict who attacked and collected her bag, money and handset. The issue of whether she was incapable of stopping an armed robber from escaping is a hypothetical statement. I therefore find no contradictions in the two statements of PW1 to the police and her evidence before the Court that will warrant me to interfere with the judgment of the trial Court. In his evidence, the Appellant did not deny that there was armed robbery on the day in question. However he admitted passing through Idiroko bus stop to repair someone’s generator when the crowd pounced on him. The Appellant’s extra judicial statement is at pages 164 -169 of the record of this appeal.
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In the statement, the appellant narrated several robbery operations in which he took part and ended up admitting that he participated in the robbery for which he was charged in this case as follows:-
“It was during the second operation that took place on the 5/01/2006 at Idiroko bus stop along Ikorodu Road by Anthony that luck ran against me. Between 6:30 – 700a.m my partner and I were waiting on my motorcycle for our would be victim. We then saw two ladies coming to the bus stop and I immediately punched (Sic) on them and brandishing a half adjusted pliers at them as if it was a gun.
I then search them and recovered one handset and the sum of N710.00 on them. As they were begging me to release their handset to them. I threw the handset to my partner and as I was going to climb my motorcycle one of them held me and shouted for help and help came their way when some people came and gripped me and handed me over to the Police at Anthony village police station.”
The Appellant’s statement and the plier were admitted in evidence. Even though the Appellant was represented by counsel, there was no objection to admission of his
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statement on the ground that same was made under duress. Learned Counsel for the Appellant’s argument that the appellant’s statement was obtained under torture at this level of the case is a misplaced argument. The appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence so that voluntariness or otherwise would be determined before it is admitted in evidence or rejected. See Nwachukwu v. State (2002) 12 NWLR (Pt.782) 543.
The evidence before the trial Court shows clearly that at the time of the robbery operation the victims were frightened at the sight of what the appellant held and pretended that it was a gun. The plier therefore was a weapon in the con of the provision of Section 402(2)(a) of Criminal Code of Lagos State. By the confessional statement of the Appellant, there is no doubt that Appellant actively participated in the robbery for which he was charged, tried and convicted.
On the issue raised by Learned Counsel for the Appellant that the first confessional statement of the Appellant that was admitted and marked Exhibit P7 was not tendered through the police officer that recorded it, I find nothing wrong with
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that procedure. By virtue of Section 83(2)(a) of the Evidence Act 2011, the Court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, admit a statement in evidence notwithstanding that the maker of the statement is available but is not called as a witness.
Exhibit P7 was a statement made to the police and PW3 through whom the statement was tendered is a police officer. It is therefore presumed that he had sufficient knowledge of the document that was tendered through him.
For the reasons, I have set out in this judgment, I am convinced that there is no reason to disturb the concurrent findings of the High Court and the Court of Appeal. The sole issue formulated for determination of this appeal is resolved against the appellant. Having done so this appeal shall be and it is hereby dismissed. The decision of the Lagos High Court which was affirmed by the Court of Appeal is further affirmed by me.
SC.605/2014