Sampson Ebenehi & Anor V. The State (2008)

LawGlobal-Hub Lead Judgment Report

PETER-ODILI, J.C.A.

This is an appeal against the decision of Honourable Justice S. I. Husseni of the High Court of Justice Anyigba. Kogi State dated 4th June, 2004 convicting both 1st appellant and the 2nd appellant for terms of imprisonment of eight years in count 1 for the offence of conspiracy and one year imprisonment or N5,000.00 fine in lieu of imprisonment for the offence of mischief under section 327 of the Penal Code and a term of imprisonment of eight years and N10,000.00 fine each for the offence of Armed Robbery under section 298 of the Penal Code. The terms were ordered to run concurrently.

Statement of Facts:

On the 16th August, 2001 at about 2.00 am, Joel Ibrahim Okolo, Dupe Joel, David Abimaje and Alani Joel were sleeping in their various rooms and houses at Ojiapata village in Dekina Local Government Area of Kogi State when a group of persons who were dangerously armed with short guns and hammers broke into their houses and forced Joel Ibrahim Okolo and other occupants to give them the sum of N130,000.00. also broke the windscreen of a Mercedes Benz car, damaged the video player, television set, tape recorder and an ecolag box all belonging to Joel Ibrahim Okolo, Dupe Joel and other occupants.

The appellants were later arrested in connection with the incidents and taken to Dekina Police Station where they made confessional statements under caution to the effect that they and other accused persons currently at large were responsible for the robbery incident. The trial Judge convicted the appellants for the offences of criminal conspiracy, mischief and armed robbery. The appellants were dissatisfied with the decision of the trial Judge hence this appeal.

The two appellants through counsel filed a joint appellants’ brief on 16/2/07 which was deemed filed on 12/6/07 in which was formulated five issues which are:-

1. Whether from the evidence adduced by the prosecution, PW3 and PW4 had the opportunity to positively identify and actually identified the appellants thereby rendering it unnecessary to organise an identification parade so as to ensure the proper identification of the attackers of PW3 and PW4.
2. Whether from the evidence adduced the learned trial Judge could be said to have properly convicted and sentenced the appellant for the offence of conspiracy and armed robbery upon the evidence of PW6 having relied on exhibits P7- 18 not identified by PW3 and PW4 and despite discharging the 3rd accused person.
3. Whether the trial Judge properly admitted exhibit P5 and P6 and could rely on same to convict the appellants.
4. Whether the appellants’ defence was properly considered by the trial court
5. Whether having regard to the weight of evidence adduced by the prosecution the decision of the trial court is reasonably supported and warranted.

The respondent through their counsel filed respondent’s brief of argument on 16/7/07 and framed two issues which are as follows:-

1. Whether the prosecution proved its case beyond reasonable doubt.
2. Whether the trial court considered and rightly rejected the defence of alibi put up by the appellants.

I have opted to use the issues as couched by the respondent since they are apt and concise for the purpose of the consideration of the facts and circumstances in this appeal.

Issue 1

Whether the prosecution proved it’s case beyond reasonable doubt.

Learned counsel for the appellant contended that it is trite law that in criminal proceedings, the prosecution must prove its case against an accused person beyond reasonable doubt in accordance with section 138 (1) of the Evidence Act and such burden of proof does not shift from the prosecution to the defence. That where the identity of the accused person in relation to the commission of the alleged crime is in doubt the prosecution is under duty to take appropriate steps by identification parade to ensure that the accused person is the person connected with the alleged crime. He referred to Obakpolor v. The State (1991) 1 SCNJ 91 at 108; (1991) 1 NWLR (Pt. 155) 113.

That where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence. He cited Adeyemi v. The State (1991) 2 SCNJ 60 at 71; (1991) 1 NWLR (Pt. 170) 679; Ogoala v. The State (1991) 3 SCNJ 61 at 70; (1991) 2 NWLR (pt.175) 509.

Learned counsel for appellants further stated that the question of identification is an issue of fact for the trial court to make a finding on. State v. Ogbubanjo (2001) 12 SCNJ 4; (2001) 2 NWLR (Pt.690) 526; Dosunmu v. The State (1986) 5 NWLR (Pt. 43) 658 at 664; Ajibade v. The State (1987) 1 NWLR (Pt. 48) 205 at 210; Ojukwu v. The State (2002) FWLR (Pt. 98) 943 at 951; (2002) 4 NWLR (Pt.756) 80.

Mr. Ameh for the appellants contended that it is important to emphasise that testimony as to the identity of an accused should be considered with caution and so the identity of an accused should be subjected to the closest scrutiny when the opportunity for clear and positive identification is good. He cited Ukpabi v. The State (2004) 18 NSCQR 774; (2004) 11 NWLR (Pt. 884) 439; Bashaya v. The State (1998) 58 LRCN 3596 at 3597; (1998) 5 NWLR (Pt. 550) 351. He referred to the evidence of PW3 and PW4 on their inability to identify the accused persons and they were not caught at the scene of crime and so the learned trial Judge was in error when he said the 2nd accused especially had been sufficiently linked with the robbery Learned counsel further stated that it is trite law that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue and if it is relevant it is admissible and the court is not concerned with how the evidence was obtained and in this there is no difference in principle between a civil and criminal case. He referred to Kuruma v. R (1955) AC 197 at 203; Torti v. Ukpabi (1984) 1 SCNLR 214; Agbahomovo v. Eduyegbe (1999) 2 SCNJ 94 at 102 – 104; (1999) 3 NWLR (Pt. 594) 170; Elegushi v. Oseni (2005) All FWLR (Pt. 282) 1837 at 1857; (2005) 14 NWLR (PI. 945) 348; Sadau v. The State (1968) NMLR 208 at 212; Nsofor v. The State (2005) FWLR (Pt. 153) 271 at 286 – 287; (2004) 18 NWLR (Pt. 905) 292.

Learned counsel for the appellants stated that the trial court admitted exhibits P7 – P18 even though the defence objected, and none of PW1 – PW4 who testified before the trial court identified the items before the court. That the defence had argued that there was no nexus between the accused persons and the exhibits and this gap has not been explained. He referred to the evidence of PW6. He said that there is no endorsement records to show that exhibit 112/2001 identified by PW6 and tendered as exhibits P7 – P18 had an identifying mark which should as nearly as possible be unique and should contain amongst others the name of the suspected person followed by the numbers of the Police case file of the case, the essence of the unique mark is sufficient to prevent a likelihood of duplication by a very remote coincidence. He cited Ahmed v. The State (1999) 5 SCNJ 223 at 240; (1999) 7 NWLR (Pt. 612) 641.

Learned counsel for the appellants said that in so far as exhibits P7 – P18 were not sufficiently unique to make duplication a remote coincidence such pieces of evidence do not establish a nexus between the accused person and the crimes allegedly committed. That the police investigation report, no matter how articulate cannot override or take the place of the real evidence of an eye witness or a victim of the crime. He referred to Alli v. The State (2003) 11 NWLR (Pt. 830) 142 at 168 – 167.

He said that no matter how articulate the evidence of PW6, the evidence of PW6 cannot override or take the place of real evidence of PW3 and PW4 who are the eye witnesses and victims of the crime.

Also that the investigation of PW6 was not conclusive. Learned counsel further stated that the prosecution did not call the said IPO who made the case diary, one Sulaiman from State C.I.D. Lokoja was not called which means the prosecution had something to hide. That where the evidence of the investigating Police officer is very vital and the prosecution fails to call him as a witness, the presumption is that his evidence would have been favourable to the accused and so the prosecution would be taken to have failed to prove the charge against the accused and the accused could be entitled to an acquittal. He cited Oshodin v. The State (2001) 12NWLR (Pt.726) 217 at 234.

Mr. Ameh of counsel said the trial Judge admitted exhibits P5 and P6 as confessional statements made by the appellant and the co-accused respectively. That in so far as the accused persons produced the bloodstained clothes they were wearing on the fateful day in court, the trial court having admitted exhibit TT1 and exhibit TT2 renders their objection as to the voluntariness of their alleged confessional statements valid and accordingly exhibits P5 and P6 ought not to be admitted in evidence. That the statement of the accused persons ought to have been in Igala language and not English as PW6, the investigator did. That the procedure adopted by the prosecution vitiated the admissibility of exhibits P5 and P6 (The confessional statements). He cited Olalekan v. The State (2001) 12 SCNJ 94 at 138; (2001) 18 NWLR (Pt. 746) 793.

Mr. Ameh stated on that it is trite law that a man may be convicted solely on his confession but that it is desirable to have some evidence of circumstance which make it probable that the confession was true. He cited Ubierho v. The State (2005) 5 NWLR (Pt. 919) 644 at 655.

That it is settled law that the fact that an accused has retracted a confessional statement does not mean that the court cannot act upon it but that the approach to be followed in assessing the quality of a confessional statement to act on by the court whether retracted or not is to ask. ”

(a) Whether there is anything outside the confession which shows that it may be true.

(b) Whether it is corroborated in anyway.

(c) Whether the relevant statement of fact made in it are most likely true as far as they can be tested.

(d) Whether the accused had the opportunity of committing the offence.

(e) Whether the alleged confession is consistent with other facts that have been ascertained and established.

Learned counsel submitted that exhibits P7 – P18 lacked probative value. That where the evidence against an accused person is interwoven closely with evidence against other co-accused persons, the discharge and or acquittal of one of the co-accused persons will necessarily result in the discharge and or acquittal of the remaining accused persons as should in this case. He cited Bolanle v. The State (2005) 7 NWLR (Pt. 925) 431 at 456 – 457 H – D.

Learned counsel said so many flaws including the faulty identification and the improperly obtained confessional statements have created a doubt making it difficult for the court to hold that the case of the prosecution has been proved beyond reasonable doubt.

He cited Shande v. The State (2005) 12 NWLR (Pt. 939) 301 at 320 – 321.

That the decision of the learned trial Judge cannot be supported having regard to the weight of evidence adduced by the prosecution.

In response, learned counsel for the respondent. Mr. Akpan said that it is not necessary that in order to convict an accused person for the offence of conspiracy the prosecution must prove that the accused persons should have concocted the scheme, the subject matter of the charge. Proof of the existence of conspiracy is generally a matter of inference deduced from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them. That it is not necessary that conspiracy must be proved by independent evidence. He cited Clark v. The State (1986) 4 NWLR (Pt. 36) 381 at 394 – 395; Adebayo v. The State (1987) 2 NWLR (Pt. 57) 468 – 481; Njovens v. The State (1973) NNLR 76 at 96 -97.

Learned counsel said that the appellants made confessional statements after they were arrested at the police station Dekina. He referred to the evidence of PW2 in which is to be found corroborative evidence to the statements exhibits P5 and P6. He referred to Gabriel Erim v. The State (1994) 6 SCNJ (PE1) 104 at 115; (1994) 5 NWLR (Pt. 346) 522.

Learned counsel said it is trite law that in criminal prosecution the burden of proving the guilt of an accused person lies on the prosecution and it is proof beyond reasonable doubt. That the charges of conspiracy, mischief and armed robbery and covered under sections 97(1), 327, 298(c) of the Penal Code, the prosecution must of necessity prove those ingredients of those offences as set out in the Notes on the Penal Code Law by S.S. Richardson 4th edition Pp. 76, 233 and 257 to 258. Also referred to are the evidence of PW3, PW4, PW5 which evidence along with the bunch of 3 keys found in possession of the 1st appellant with the statements which are confessional establish that the appellants did vandalise the properties and the armed robbery establishing the ingredients of the offence of 8 armed robbery.

Learned counsel for the respondent said the accused may be convicted solely on their confessional statements as in the case in hand. He cited Umorlu lasa v. The State (1994) 18 LRCN 28 at 31 Nwachukwu v. The State (2002) 11 NSCQR 663 at 686; (2002) 12 NWLR (Pt. 782) 843; Ubierho v. The State (2005) 2 SCNJ 1 at 7 and 8; (2005) 5 NWLR (Pt. 919) 644.

He said the 1st respondent chose to give his statement in English language because he understood English very well and the admissibility of the statements were made after the trial within trial.

That exhibit 9 which PW6 (IPO) recovered from the 1st appellant in the cause of his investigation was the hammer used by the appellants and the others during the robbery incident.

The appellants through counsel made a lot of fuss on the fact that the victims of the robbery and mischief could not identity those that attacked them since by their evidence at the time of the incident it was dark. For the appellants’ counsel, that is enough to ensure that a doubt big enough had been created as to the actual perpetrators of the crimes.

The respondent’s counsel disagrees saying there arc enough to connect the accused/appellants to the scene or even the crimes and so the fact that the PW3, Joel Ibrahim Okolo and PW4, Mrs Dupe Joel could not say at the earliest opportunity the identity of those who attacked them made it impossible for the arrest and charge of the accused/appellants to stand especially since no identification parade was conducted.

It is a known practice that an identification parade is not necessary if a witness recognised the accused. Also an identification parade is not required where a suspect is caught at the scene of crime or at a place so closely connected with-the scene of crime. This is because such a parade should not be done for purely cosmetic reasons.

See Obakpolor v. The State (1991) 1 SCNJ 91 at 108; (1991) 1 NWLR (Pt. 165) 113; Adeyemi v. The State (1991) 2 SCNJ 60 at 71; (1991) 1 NWLR (Pt. 170) 679.

In the case in hand, an identification parade is not necessary since PW3 and PW4 who were victims could not identify the suspects at the time the incident took place since by their evidence it was night time and dark and even at some point PW4 had her face covered.

However, this lack of identification had not damaged the case since some hours after the crime the 1st accused/appellant was accosted by some youths who brought him to the house of the PW1 and he was got holding a gun and a bag containing among other things the car keys of the PW3 taken during the robbery incident.

Since the PW1 was not in doubt as to who was brought to his house with these incriminating items, the necessity for an identification parade does not arise. Also the identity of the 2nd accused who was mentioned to the investigating police officer and who was the person very well known to the PW2, the driver who conveyed the accused/appellants to the village where the offence was committed. These situations have discharged the issue of fact upon which the trial court could make a finding on the question of identification, therefore making an identification parade unnecessary. See Olalekan v. The State (2001) 12 SCNJ 4; (2001) 18 NWLR (Pt. 746) 793: Dosunmu v. The State (1986) 5 NWLR (Pt. 43) 658 at 664; Ajibade v. The State (1987) 1 NWLR (Pt. 48) 205 at 210: Bashaya v. The State (1998) 58 LRCN 3596; (1998) 5 NWLR (Pt.550) 351.

The prosecution had anchored most seriously on the confessional statements allegedly made by the accused/appellants which the appellants contend were obtained from them under duress or after much beating or torture. At the trial court, there was a trial within trial which unfortunately was procedurally flawed, the accused/appellants having been made to defend. This is so because at a trial within trial the accused/appellants are to make their assertions and cross-examined thereby then the prosecution defends before the trial Judge makes his finding and not the other way round. That defective procedure having been adopted it is only safe to refuse those statements exhibits P5 and P6 in the court below. However there is enough evidence upon which the accused/appellants are pinned to the incident and the scene as the learned trial Judge found when he said:-

“Going therefore by the evidence of PW3, PW4 PW5 and PW6 coupled with items in evidence as exhibits P14 (a) and (b), P15, P16, P17 and P18 among others which are the items vandalised and recovered from the house of PW3. I have no doubt in my mind that there was violent attack on the person and or property of PW3, PW4 and PW5 on the night of 16/8/2001 by some bandits who are these hoodlums. That is the big question because neither the PW3 nor PW4 nor PW5 who are the victims of the attack recognised any of their attackers that fateful night of 16/8/2001. There is before the court evidence of PW1, the Gaga of Odolu-Efu. I do not subscribe to the submission made by the learned defence counsel that the entire evidence of this witness in this court is hearsay. The fact that the 1st accused was apprehended by the youth of Odolu-Efu and taken to the house of their Gago (PW1) is to my mind direct and positive evidence coming from the mouth of the person in whose house and presence the 1st accused was brought … I am in complete agreement with Mr. Benjie Ogwo of learned counsel for defence that the evidence of PW2 on its own does not link the 1st and 2nd accused persons as committing any offence but that evidence of PW2 reveals in my mind the fact that it was the witness who conveyed the 1st and 2nd accused persons and three other persons with his vehicle and dropped them at Ojuwo – Aneru village at about 9pm on 16/8/2001 on the request of the 2nd accused person. The role played by PW6 is instructive. He took over the 1st accused at Odolu village together with exhibit 7 to P13 which he identified before this court. There are the “Ashasha” bag, four expended cartridges, hammer, 3 bunch of keys, fighter, touch light and the slim of N750.00 respectively all of which the witness also recovered from the 1st accused. The witness had told the court that PW3 and PW5 identified the respective keys to their vehicles as among the 3 bunches of keys recovered from the 1st accused.”

These findings by the learned trial Judge are buttressed by the evidence before him and I am impressed with his evaluation and summation save for the confessional statements which had to go as I said on account of irregularity in the procedure of the trial within trial. That rejection of the confessional statements have not significantly affected the weight of evidence or credibility of the witnesses. On this issue I find for the respondent.

Issue 2

Whether the trial court considered and rightly rejected the defence of alibi put up by the appellant? Learned counsel for the appellant said the finding of the learned trial Judge that the main issue raised by the accused person is on the issue of alibi is misconceived. That the accused persons do not need to plead their innocence as the burden rests on the prosecution to prove the guilt of the accused persons. That the trial Judge did not evaluate the prosecution’s case and did not need to consider a defence as the accused persons are presumed innocent until they are found guilty. He cited The State v. Ajie (2000) 7 SCNJ at 13 – 14; (2000) 11 NWLR (Pt. 678) 434.

Learned counsel for the respondent said it is not in all cases where the police fail to investigate an alibi that accused persons are entitled to an acquittal. This is so because the story of the alibi may break down under cross-examination or the accused unable to produce cogent evidence in support of the alibi. He stated on that the defence of alibi cannot be considered in isolation from the evidence of participation in the crime charged. He cited Esangbedo v. The State (1989) 7 SCNJ 12 at 22; (1989) 4 NWLR (Pt. 113) 57.

Learned counsel said the evidence PW2 who carried the 2nd appellant in his vehicle scuttled the alibi. In the case of 1st appellant his alibi was disturbed by DW1, his father. Also that the appellants, did not raise the defence of alibi at the first opportunity but rather at the trial and so the trial court was right to have rejected the alibi. He cited Dogo v. State (2001) 6 SCNJ 54; (2001) 3 NWLR (Pt. 699) 192; (2001)3 NWLR (Pt. 699) 192; Gachi v. The State (1965) NMLR 333.

From the submissions on either side, the learned counsel for the appellant clearly had a misconception on the duty of the appellants on raising an alibi and at what point. Instead the learned counsel for the appellants rested the burden on the respondent that is the prosecution on the ground that accused persons are presumed innocent until they are found guilty. It is not a matter for debate that an accused should raise and make available the necessary details in an alibi to enable the police investigate to support the alibi or debunk it. I rely on Dogo v. State (2001) 6 SCNJ 54; (2001) 3 NWLR (Pt. 699) 192; Gachi v. State (1965) NMLR 333.

From the surrounding circumstances, the defence of alibi was not established as the evidence of PW2, the commercial vehicle driver saying he dropped the appellants at Ojuwo-Aneru village around 9.pm on the day of incident without seeing the broken down vehicle which the 2nd appellants claimed was why they hired him. That among other pieces of evidence, and PW6, the police officer did all that was necessary and the fact that the initial IPO was not called is of no moment since an investigative report does nor cease to exist or have the necessary weight or probative value merely because the IPO was not called. Supposing the IPO had died before the testimony or deployed out and not within reach. The provisions of the law and what is needed in proof of a charge are not these stringent impractical requirements put forward by appellant counsel.

Therefore, since the accused/appellants have been pinned at the scene of crime the issue of alibi cannot stand.

Nothing is available to change the substantial finding of the learned trial Judge that indeed the three count charge had been proved beyond reasonable doubt. I see no reason to allow this appeal which I dismiss for lacking in merit while I affirm the decision, conviction and sentences of the learned trial Judge.

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Other Citations: (2008)LCN/2621(CA)