State V. Jimoh (2022)
LAWGLOBAL HUB Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 24th May, 2012 which upturned the decision of S. O. Otu, J. of the High Court of Kogi State sitting at Okene delivered on 13/11/2009.
The facts that led to this appeal are as follows, The Respondent was arraigned on a two-count charge of criminal conspiracy and Armed Robbery contrary to Sections 97 (1) and 298 (c) respectively of the Penal Code. The Prosecution called 3 witnesses and tendered Exhibit “A”. The Respondent testified and called only one witness.
At the end of the trial, Counsel addressed the Court and in a considered judgment, the learned trial judge convicted the Respondent and sentenced him to a term of 12 years imprisonment on 13/1/2009. The Respondent being dissatisfied with the decision of the trial Court appealed to the Court of Appeal; Abuja Division by a Notice of Appeal filed on 5/1/2010. The Counsel for the respective parties filed and exchanged briefs of argument.
The Court of Appeal in its judgment of 24/5/2012 upturned the judgment of the trial Court and in its place entered a verdict of discharge and acquittal in favour of the Respondent. The Appellant being dissatisfied with the decision of the Court below has now appealed to this Court on three 3 grounds of appeal.
The facts adduced by the Prosecution in proof of its case is to the effect that PW1 and PW2 who were Police Officers were on their way from the old Police Barracks to the new Police Barracks at Okene when they were accosted by the Respondent and one other person (hereinafter called the accomplice). The accomplice snatched the handset of the PW2 and ordered the Respondent to show the witnesses what he had with him. The Respondent then opened his shirt and the witnesses saw a pump action gun in his possession. The accomplice also snatched the sum of N25,000.00 from the PW2. The PW2 later slapped the Respondent and the “pump action” gun fell from him. The PW1 then took the gun and hit the accomplice on the head and the accomplice fell down. The PW1 helped PW2 to overpower and subdue the Respondent. The accomplice who had been on the ground all these while stood up and bolted away. The Respondent who had been overpowered was arrested and taken to the Police Station.
The Respondent on the other hand stated on Oath that on the very day of the incident, he went to the bush to get some herbs on account of the fact that he was sick. While there in the bush some boys accosted and robbed him of N25,000. On his way back home through the Police Barracks, he encountered the Prosecution witnesses who alleged that he had robbed them. He denied being a robber and informed them that he too was also a victim of the robbery incident. The Prosecution witnesses slapped him, arrested him and took him to the Police Station at Okene. There the Respondent made Exhibit ‘A’ before his case was transferred to the Criminal Investigation Department at Lokoja.
The trial Court held that the Respondent by his extra judicial statement Exhibit “A” already admitted that he was in possession of a gun and it was unbelievable that the robbers gave him the gun. The Court found that the Respondent’s boss who gave evidence as DW1 did not have any knowledge of what transpired at the time material to the case. Based on the evidence of PW1 and PW2, the Court held that their testimony showed how the Defendant with the accomplice conspired to commit the offence. The Respondent who had pretended to be sick had stayed back at work till 6.00pm in furtherance of the common and agreed criminal plan. The trial Court convicted the Respondent for the reasons given above. The Respondent being dissatisfied appealed to the Court below.
The Court of Appeal adopted the Respondent’s issues. The Court of Appeal held that PW1 did not include in his statement that his handset and N25,000.00 were stolen until at trial stage and that where a victim fails to state at the earliest opportunity to the Police vital information regarding the property stolen or the name of the assailant, the Court should be careful in accepting the story. The Court held further that there were contradictions in the story of the prosecution witnesses regarding how the money was stolen. The Court of Appeal expunged Exh. ‘A’ the statement of the Respondent and held that since the trial Court did not make a specific finding on whether or not the Respondent made Exh. ‘A,’ the exhibit was inadmissible in evidence. The Court below also held that the evidence of the two Prosecution witnesses was unreliable since they could not give account of the stolen items and the exhibits i.e. gun used to rob them.
Notice of appeal to the Supreme Court was filed on 22nd August, 2013 with two grounds of appeal. The issues distilled by both parties are similar. In my view, the sole issue for determination here is as follows:-
Whether upon a careful perusal of the totality of the evidence of the Prosecution, the Court below was right to have acquitted and discharged the Respondent.
In the Appellant’s brief settled by J. A. Akubo Esq., learned Counsel argued that since the Respondent admitted on oath that he was at the venue of the incident with someone who robbed him at the time of the incident and that he encountered PW1 and PW2, coupled with the fact that the evidence of both witnesses was not discredited during evaluation by the trial Court in its evaluation of the evidence before it.
Counsel cited Akeem Agboola v. The State (2013) 11 NWLR Pt. 1366 Pg. 619 at 641; Adeniyi Adekoya v. The State (2012) 9 NWLR Pt. 1306 Pg.539 at 582.
Counsel also contended that there are no substantial contradictions in the evidence of PW1 and PW2 to render same unreliable and unworthy of belief as the said examples of contradictions are minor, immaterial and inconsequential. Counsel submitted that only material contradictions would affect the case of the prosecution adversely. Counsel cited ISIBOR v. The State (2002) SCNJ 162 at 167; ENAHORO v THE STATE (1965) NSCC (Vol.4) Pg.98 at 113. Learned Appellant’s Counsel argued that the substance of the evidence against the Respondent to wit that he held a gun while his accomplice robbed PW2 of his money and handset is not in issue. The specific denomination of Naira notes carried by the victim is irrelevant. Counsel also submitted that the finding of the Court below that it had to expunge Exh. A from the evidence of the prosecution is perverse.
Counsel argued that the conclusion of the Court below that in the absence of a specific finding by the trial Court on the issue of whether or not Exh, ‘A’ was made by the Respondent, makes Exh. ‘A’ inadmissible is erroneous. Counsel argued that the trial Court gave a considered Bench ruling on Exh. ‘A’, the final address of Respondent’s Counsel at trial did not mention Exh. ‘A’, so no live issue was raised on Exh. ‘A’ regarding its admissibility before the trial Court or the Court of Appeal to warrant any pronouncement on it. Counsel cited FEDERAL MINISTRY OF HEALTH & ANOR V. COMET SHIPPING (2009) 9 NWLR Pt.1145 Pg.193 at 220-221, WILSON v. OSHIN (2000) 9NWLR Pt.673 Pg.442, ODUNAYO v. THE STATE (1972) 8-9 SC.290. Counsel urged this Court to hold that the acquittal and discharge of the Respondent was perverse and unreasonable.
In the Respondent’s brief settled by K.C. WISDOM ESQ., Counsel argued that the Respondent during the trial had stated that Exhibit “A” was not the statement that he volunteered to the Police as he could not sign but thumb printed the document made by him. The Respondent under cross-examination affirmed this fact on page 32 lines 4 of the record. It follows therefore that the Respondent had retracted the statement allegedly made by him. Counsel submitted that where a Defendant retracts an extra-judicial statement allegedly made by him, the Court should admit the statement and determine, in its judgment, whether the statement was actually made by the defendant or not. Counsel cited IKPASA v. Bendel State (1982) NCLR 152 AT 162.
Counsel further argued that the learned trial judge did not at any stage in the consideration of this case advert his mind to the question of whether the Respondent made the statement tendered or not. There was therefore a straight issue of fact which should have been determined by the trial Court. The trial Court in this case did not determine the issue. Counsel argued that in the absence of a specific finding by a trial Court on an essential fact, an appellate Court cannot choose between the two versions in order to make a finding of fact which the trial Court did not make. Rather, the only conclusion an appellate Court can draw from the conflicting evidence in that situation is the one most favourable to the Respondent. Counsel cited EJUREN v. POLICE (1961) ALL NLR 498 AT 501.
Counsel further argued that the failure of PW1 to state categorically in his statement to the Police that he lost his handset and N25,000.00 in the course of the robbery is fatal to the case of the Prosecution. Counsel submitted that where a victim or eye-witness to a crime fails at the earliest opportunity to mention to the Police vital information such as the name of the Defendant or the property stolen by the Defendant, the Court should be careful in accepting his story.
Counsel cited ABDULLAHI v. STATE (2008) 17 NWLR Pt. 1115 Pg.203 AT PG. 216. Counsel argued that the identity of the person who took the handset and the money is very material in this case and in the absence of contradictory evidence regarding that fact, any doubt was rightly resolved in favour of the Respondent by the Court below.
OPINION
My Lords, I would not go as far as to call Exhibit “A” “a confessional statement” as the two lower Courts and the parties have done, I must say that Exhibit A is not a truly confessional statement in that as improbable as it is, it is not a direct and positive confession to the crime of conspiracy and armed robbery by the Respondent. In Exhibit A, the maker states that he was robbed and the robber gave him the gun and he pursued the robber into the Police Barracks to return the gun and encountered the victims who arrested him. He denied the robbery. It is apt to set out the contents of Exhibits A;
I wish to state that I finished my primary school education from NA Primary School, Okene in the year 2002 and I have been learning Welding since then. My father is in Ogaminana while my mother Is in Idogido. Throughout this week we have been very busy at the shop welding some windows and doors and I was getting sick so I did not go to work yesterday. At about 1830 hours I came to the back of Otutu Secondary school so that I can cut mango tree back so that I can use it for herbs as one woman advised me. I did not carry cutlass to cut the tree back. When I got to the mango tree two boys whom I did not know but can recognize ambushed me and collected the sum of two hundred and fifty naira from me. One of them was with a gun. He gave it to me to hold and was walking into the Police Barracks. I told him that I can’t hold the gun so I was pursuing him to give it back to him. The other one remained in bush. When I followed the other one into the Barracks, I was hiding gun under my shirt. I saw that he collected handset from one person inside the Barracks. The person was struggling with him that was when I got there and asked him to collect the gun. He did not collect it. Then the gun fell on the ground. I began to go because I know that trouble must come. That was when one short officer held my shirt and hit my face. I fell on the ground and they arrested me. Then I was brought to the station by some people who were around. The other boy ran away. I don’t know the two boys before. I am not a thief. I don’t belong to any gang. I am a welder. Everybody knows me at Inike where I work. This is all my statement.
In any event, at the point of tendering the statement, the Respondent’s Counsel objected to its admissibility on the basis that the Respondent did not sign the statement he made to the Police but thumb printed whereas the statement sought to be tendered was signed. This Court had reiterated the settled position of the law on several occasions. There are two ways of retracting an extra judicial statement in a criminal trial whether confessional or not. The first is by the Defendant and/or his Counsel admitting at the point of the statement being tendered by the prosecution that indeed the Defendant made the statement BUT was forced by threats, violence to his person, inducement etc. to make same by the Police. At that point, Defence Counsel must state categorically according to his brief whether it was by threats, violence or inducement of any gain etc. that the Defendant was made to confess. The onus being on the Prosecution at all times to prove the guilt of the Defendant, the prosecution must discharge the onus of proof that indeed the Defendant volunteered the statement since an involuntary statement extracted by threats, inducement etc. from a Defendant contravenes Section 29 of the Evidence Act, and would be inadmissible for all purposes in evidence. To prove the voluntariness of the statement, the Court calls for and conducts a trial within trial to determine whether or not the statement sought to be admitted by the Prosecution was voluntarily made. The second instance of retraction of a confessional statement is where the confession is wholly retracted, that is where the Defendant denies making the statement at all, denies the signature on the statement, claims he was forced to sign a statement he never made at all, or as in this case agreed he made a statement but says the statement sought to be tendered is not the one he made at all, etc. The possibilities of a full retraction are endless. In such an instance, there is no question whether or not the statement/confession is admissible. The law is that it is admissible as evidence of an event which had occurred in the course of Police investigation into the charge and the Court is entitled to decide as a matter of fact whether in the circumstances, the Defendant actually made the statement or not. It is my view, that there need be no formal statement of the finding so long as the circumstances in which the offence was committed and the contents of the statement are considered to enable the Court make a just finding on its credibility. Also, whether the statement is true in so far as it can be ascertained by other undisputed evidence. That is the probability test or credibility test. The Court then decides what weight to be attached to such a statement. See: BASIL AKPA v. THE STATE (2008) 14 NWLR Pt. 1106 Pg.72 at Pg. 98-99. The trial Court held thus, on Pg. 42 of the record:-
“Even though the accused denied robbing the victims or belonging to a gang, a careful scrutiny of exhibit A shows its confirmation of the evidence of PW1 and PW2. It is beyond comprehension that a victim of robbery will be given a gun by the robber who has just robbed him and walk away calmly to the Barracks. It is even more weird that the victim, the accused in this instance, will hold onto the gun, put it under his shirt and go after the robber with intention of giving the gun back to that robber. I have no doubt in my mind that while attempting to deny the allegation against him, the accused person has merely enmeshed himself more into the culpability net. I have no doubt therefore that the accused himself has admitted being in possession of a gun on the day of incident when he was arrested and so the non-tendering of the gun cannot be fatal to the case of the prosecution.”
The Court below held as follows on page 109 of the record:
In the instant case, the learned trial judge did not at any stage during the consideration of this case advert his mind to the question of whether the Appellant made the statement under consideration. It is therefore my view that in absence of a specific finding on the issue stated above on the issue whether or not exhibit “A” was made by the Appellant, this Court as an Appellate Court cannot choose between the two versions in order to make finding of fact which the trial Court failed to make. In the circumstance, it is my view that the Appellant did not make the statement and it is hereby expunged from the Record.
I cannot bring myself to agree with the finding of the Court below to the effect that the trial Court made no specific finding on whether or not the Respondent made Exh. A. I cannot also bring myself to agree that the trial Court made no specific finding on the credibility and the probative value to be attached to Exhibit A. I am of the view that it is very clear on the record that the trial Court found the story of the Respondent in Exhibit A improbable and that its improbability supports the case of the Prosecution in all material particulars. That much was made clear in the judgement of the trial Court. I am of the view that the Court below was wrong to expunge Exhibit A from the evidence of the Prosecution as it was properly admitted, and a finding was made on it by the trial Court. There is no doubt that the onus is on the Prosecution throughout to prove the case beyond reasonable doubt as required by Section 135 (1) of the Evidence Act. See: ANI v. THE STATE (2009) 16 NWLR (Pt.1068) 443 AT 457; STATE v. AIBANGBEE (1988) 7 SC (Pt.1) 96 AT 132-133; AMINU TANKO v. THE STATE (2009) 16 NWLR (Pt.1114) 597 AT 636.
I agree with the contention of the Appellant’s Counsel that the function of evaluation of evidence is essentially that of the trial judge. When he satisfactorily performs this duty, an appellate Court should not interfere. Ordinarily, an appellate Court will not interfere with the decision of a trial Court where so much of it turns on the credibility or reliability of the witnesses on the rational that ascription of probative value to such evidence is the primary function of the trial Court which saw, heard and assessed the witnesses. The Appellate Court will not interfere merely for substituting its view for the view of the trial Court where the trial Court has properly evaluated the evidence and made findings of fact. See: ALHASSAN MAIYAKI v. THE STATE (2008) 15 NWLR (Pt.1109) 173 AT 202 & 211; OCHUKO TEGWONOR v. THE STATE (2008) 1 NWLR (Pt.1069)630 AT 654-655; DOKUBO-ASARI v. FRN (2009) 37 NSCOR (Pt.11) 1146 AT 1173)19; JOSEPH OYEWOLE v. KARIMU AKANDE & ANOR (2009) 15 NWLR (Pt. 1163) 119 at 143.
To prove armed robbery the Prosecution must adduce evidence that:
a) That there was robbery;
b) That the robbery was committed while the accused person was armed with offensive weapons;
c) That the accused person participated in the robbery.
My Lords, in this appeal, the victims who were Policemen stated their encounter with the Respondent on that day. The Respondent in his own evidence on Oath admitted that on that day he actually, encountered the Policemen while he was on the road – Barracks Road where the Policemen were robbed. The only difference is that he claimed to have also been robbed by two boys prior to his encounter with the policemen and denied robbing the Policemen. In my view this boils down to a case of Oath against Oath.
The strenuous point made by the Respondent relates to when precisely the handset and N25,000.00 of PW2 were stolen. Heavy weather was made by the Respondent on the issue of fact of whether the money was taken by the accomplice from PW2 or PW2 gave up the money after he was threatened with the gun being held by the Respondent.
It is pertinent to note that PW1 and PW2 are ad idem in their evidence without contradictions that it was the Respondent herein who was in possession of the gun that was used by him to threaten the victims while the accomplice was the one who collected the handset and money of PW2 and ran away with them. The trial Court which saw and heard them believed their evidence in that regard. The fact that PW1 and PW2 were able to establish in their uncontroverted evidence that they met two boys of whom the Respondent is one and the 2nd one at large shows that a case of criminal conspiracy and armed robbery had been proved by the Appellant against the Respondent herein.
I do not agree with the lower Court that in this case it is material whether PW1 gave the accomplice the money before or after he was threatened with a gun or whether or not the one victim knew the denomination of the money taken from the other victim. The record at the trial Court does not show that these issues were contested and that they constituted material contradictions. In ISIBOR v. THE STATE (2002) 2 SCNJ 162 at 167, this Court held that:
It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant. The contradictions must be shown to amount to a substantial disparagement of the witness or witness or witnesses.”
The most important issue raised against the credibility of the Prosecution witnesses was the failure of PW1 to state at the earliest opportunity that he lost his handset and the sum of N25,000.00 was taken from him by the Respondent’s accomplice. My Lords, the case of ABDULLAHI v. THE STATE (2008) 17 NWLR Pt.115 Pg.203 and cases in like ilk relied upon are not really relevant in the circumstances of this case. In ABDULLAHI v. THE STATE; relied on by the Respondent, the Defendant was not arrested at the scene of crime and the identity of the armed robbers was a live issue at trial. Also in that case, the victims of the armed robbery said in their evidence that they knew the armed robbers before the date of the armed robbery incident but failed to mention their names at the earliest opportunity when they reported the case to their neighbors and the community leader as well as in their statements to the Police.
The law on this point by this Court is as stated by KATSINA-ALU JSC (as he then was) inABDULLAHI v. STATE SUPRA as follows:
The position of the law is this. Where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the Police at the earliest opportunity, that would detract from what-ever credibility the trial Court may wish to ascribe to his evidence. In addition, he should describe the clothes the accused wore at the scene of crime. Surely this is common sense and failure to adopt this commonsense approach would inevitably result in the acquittal of the accused”.
However, in the instant case, the Respondent was arrested at the scene of crime or caught in the course of committing the offence of armed robbery. The items stolen are known in the instant case. The handset and money were stolen by the accomplice of the Respondent, while the gun was found in possession of the Respondent who used it to threaten PW1 and PW2.
Finally, the failure of the Police to tender the gun is not fatal to the Prosecution’s case. The witnesses (victims) stated that the case was later transferred to the CID Lokoja. No issue was made at the trial of the absence of the gun. The circumstances when the failure to tender the gun would adversely affect the case of the prosecution is absent here. There was no controversy about the existence of a gun. There was no controversy about the type of gun used. There was no issue of ballistic report in contention to warrant absolute certainty about the model of the gun or the type of bullets used. The Respondent said on oath that he was also robbed by some boys carrying a gun.
There is no reason to interfere with the findings of the trial Court relating to the credibility of the prosecution witnesses, the proper probative value to be placed on Exhibit ‘A’ which I agree lent credence to the evidence of the Prosecution witnesses which proved the charge against the Respondent beyond reasonable doubt.
In the circumstances, this appeal succeeds. The Judgment of the Court of Appeal delivered on 24/5/2012 is hereby set aside. I restore the conviction and sentence of the Respondent for conspiracy and armed robbery.
Appeal Allowed.
SC.376/2012
