Michael Ebebeniwa V. The State (2008)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J. C. A.
This is an appeal against the judgment of an Ogun State High Court of Justice, Ijebu Ode Judicial Division delivered on the 18th of December 2003 wherein the Appellant was convicted for the offence of Armed Robbery.
Dissatisfied with the decision, the Appellant who was the accused person has appealed to this Court on the notice of appeal dated 5th of April 2005 and deemed properly filed and served on the 6th of March 2006.
The facts of this case by the prosecution briefly are that on the 23rd of October, 2000 about evening period, the Appellant waved down one Paul Umoke (PW1) a commercial motorcycle rider at a place along Itele village and requested P.W1 to take him to Atoyo village. upon reaching the agreed destination along Ijebu-Ife Road, near Atoyo village, P.W1 requested that he be paid his fee but the Appellant refused to pay the agreed fee and alleged that he had not reached his final destination while P.W1 claimed he could not proceed further as the day was far spent. P.W1 who was the victim of the robbery claimed he had taken the Appellant to his (Appellant’s) house. The Appellant claimed he was going in to bring money with which to pay P.W1 his fee, only to return with a matchet with which the Appellant later inflicted matchet cuts on his head, mouth and also lost a tooth. The Appellant then took away the motor cycle of P.W1 and hid it in a bush where it was later recovered by the Investigating Police Officer P.W2 after the Appellant’s arrest.
The Appellant upon his arrest made voluntary statements to the Police which are exhibits A&J. The prosecution called three witnesses and tendered nine exhibits. The Appellant testified in his own defence. He denied committing the offence he was charged with. He claimed P.W1 was the person who first attacked him with the matchet and that he was the one who reported the incident when he took the motorcycle to the Police Station to lodge a complaint. He claimed the incident which took place between him and the P.W1 was a mere fight and that he did not commit armed robbery as alleged.
The learned trial judge rejected the defence of the Appellant and held that the prosecution had proved its case against the Appellant beyond reasonable doubt. Appellant was accordingly convicted for the offence of armed robbery.
The notice of appeal dated 5th of April 2005 and deemed properly filed before the Court of Appeal contained (5) five grounds of appeal. The Appellant formulated two issues for determination from the grounds of appeal as follows:-
(1) Whether the prosecution proved its case beyond reasonable doubt In view of the contradictions in the evidence of P.W1 as to the scene of crime and the none production of the motorcycle at the trial.
(2) Whether what took place on that day was a robbery or a fight
The Respondent adopts the issues as formulated by the Appellant as slightly amended here under:-
(1) Whether the prosecution proved its case beyond reasonable doubt
(2) Whether the interaction which took place on the day of the incident between the Appellant and P.W1 was a robbery or a fight.
Briefs were filed and duty exchanged and learned Counsel to the parties adopted their briefs at the hearing of the appeal.
Learned Counsel for the Appellant on issue one submits in his brief that the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt exists all through the trial. He cited the cases of LORI VS. THE STATE (1980) 8-11 SC at 81. IGHALE VS THE STATE (2006) ALL F.W.L.R (pt. 311) page 1797 at 1820-1821 where the Supreme Court held that the commission of an offence by the accused person must be proved beyond reasonable doubts. The court went further to hold that since it is the prosecution that asserts that the accused person had committed an offence, the burden is on it to prove it. The prosecution in proving its case must not allow any chain of event to create some doubts in the mind of the court. Where doubts exist in the mind of the court, such doubts will be resolved in favour of the accused person. He cited KALU V. THE STATE (1988) 4 N.W.L.R (part 90) at 503, LORTIM VS THE STATE (1997L2 N.W.LR part 490 at 711. He referred to the evidence of P.W1 at page 14 of the record of proceedings, where he said as follows “I cannot remember the date. As we got to the destination, I asked for my money saying that I could not carry him any further as the day was far spent and it was getting late. He then started to matchet me with cutlass” while under cross examination at page 15 P.W1 said that:
“On getting to the house of the accused (the destination) he told me he was going inside to bring money with which to pay my fee but he came out with a cutlass and started to attack me. I refused to take the accused person further on getting to his house and he started to attack me.”
Learned Counsel to the Appellant submits that from the evidence, the Appellant and P.W1 never got to the Appellant’s destination and there was the need for P.W1 to take the Appellant to his destination which P.W1 refused to do due to the time of the day. He urged the Court to accept the proposition. He further submitted that the statement and evidence of P’w1 had material contradiction and incongruous materials particularly as to the scene of crime. It does not accord with the evidence of P.W2 & P.W3 in respect of the scene of crime as to where the motorcycle and other exhibits were found. He contends that the material contradictions have resulted in the miscarriage of justice against the Appellant and the doubts which arose from same should be resolved in favour of the Appellant. He cited ASERIYU VS. THE STATE (1987) 4 N.W.L.R (pt. 67) at page 709 S.C, AKOSILE V. THE STATE (1972) 5 S.C. AT 332 and ONUCHUKWU V. THE STATE (1998) 4 S.C page 49 at 57.
Learned Counsel to the Appellant also contends that none production of the motorcycle at the trial also created doubt in the prosecutions case. The Appellant was charged for robbery of a SUZUKI MOTORCYCLEFR 50 while the Appellant at page 42 of the records said it was a Honda Motorcycle. P.W1 said that the motorcycle is of Suzuki 50 model. The prosecution instead of producing the motorcycle tendered Exhibit H the application for the release of the motorcycle. He submits that the Appellant was misled by the non-production of the motorcycle. He urged the court to resolve issue one in favour of the Appellant.
Learned Counsel to the Respondent on issue one submits that the prosecution has established the guilt of the Appellant in respect of the offence charged by discharging the onus imposed on it by law. She submitted that there was robbery, the robbery was an armed robbery and the Appellant was the person who committed the robbery. Learned Counsel cited the case of MARTINS VS. THE STATE (1997) 1 N.W.L.R part 481 page 355 at 365 paras. F-H. The Prosecution in discharging the burden of proof called three witnesses and tendered nine exhibits. She submitted that P.W1’s evidence does not create doubt in the mind of the Court as the learned trial judge held that he found consistency in the evidence of the PW1 throughout the testimony Learned Counsel refers to lines 14-15 of page 58 of the record of proceedings. She submits that there was no contradiction whatsoever in the evidence of P.W1 as to the scene of crime. She contended that it is only material contradiction that will be fatal to the prosecution’s case. She cited the case of DIBIE VS. THE STATE (2004) 4 N.W.L.R PART 893 page 257-280 paras. A-C Learned Counsel submits further that the non production of the motorcycle was not fatal to the prosecution’s case and that section 149 subsection (d) of the Evidence Act is not applicable to the facts of this case since the prosecution accounted for the where about of the motorcycle vide the content of Exhibit H it tendered during trial. Learned Counsel to the Respondent urges the Court to resolve issue one in favour of the Respondent.
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. This is by virtue of Section 36 Sub-section 5 of the 1999 Constitution of the Federal Republic of Nigeria. I will now consider issue one which is based on the contradiction in P.W1’s evidence as to scene of crime. For the sake of clarity and to put the issue beyond any controversy let me reproduce the evidence of P.w1 in question, the statement of the Accused/Appellant and the findings of the learned trial Judge,
At page 15 lines 5-9 P.w1 stated thus “The incident happened at Atoyo along the Express at Ijebu-Ife. The motorcycle had not been licensed at the time of the incident because I had just purchased it. The motorcycle is Suzuki 50 model. The incident happened at Atoyo, a village after Itele”.
Under cross-examination on the same page 15 lines 22-26 he stated thus “On getting to the house of the Accused (the destination) he told me he was going inside to bring money with which to pay my fee but he came out with a cutlass and started to attack me. I refused to take the accused person further on getting to his house and he started to attack me”.
The Accused/Appellant in his confessional statement i.e. Exhibit J before the court at page 6 lines 21-23 of the record stated thus -” On the 22/10/2000, I saw one motorcyclist at Ijebu-Ife and asked him to carry me to Ajegunle area Itele where I reside with my friend to collect some money, he took me to the house and collected money and a matchet”
The learned trial Judge at pages 57-58 reproduced the evidence of P.W1 in chief and his cross-examination and at page 58 lines 14-15 stated thus. “I therefore find a consistency in the evidence of the P.W1 throughout his testimony”.
I have perused this evidence several times and I have seen no material not to talk of any contradiction in the evidence of P.W1 as to the scene of crime. For a statement to be contradictory, it should be direct opposite of what was earlier stated or spoken. See the case of DAGAYYA V. THE STATE (2006) ALL F.W.L.R PART 308 PAGE 1212 AT 1235-1236. As a matter of fact, P.W2 at page 18 lines 31- 33 stated thus “The accused person also took me to the scene of crime at Atoyo area near Itele where I recovered ”
The Supreme Court has analysed contradictions in a plethora of cases. In the case of AYO GABRIEL V. THE STATE (1989) 5 N.W.L.R PART 122 AT 457 particularly at 468 the court had this to say” A piece of evidence contradicts another when it affirms the opposite of what other evidence has stated not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains some minor differences in details.” If every minor difference in details in evidence of witnesses before the court in the face of the overwhelming evidence will vitiate a trial, nearly all prosecutions will fail. Human faculty may miss some minor details due to lapse of time .and error in narration order of sequence. See NASAMU V. THE STATE (1979) 6-9 S.C AT 153, OGOALA VS. THE STATE (1991) 3 SCNJ PAGE 61 AT 72. Also in the case of SELE V. THE STATE (1993) 1 S.C.N.J PAGE 15 AT 22-23 Belgore JSC (as he then was) held that if the contradiction does not touch on a material point or substance of the case, it will not vitiate a conviction once the evidence is clear and it is believed or preferred by the trial court”.
The learned trial judge found consistency in the evidence of P.W1 throughout his testimony. The learned trial Judge at page 61 lines 6-13 stated thus “From the evidence before the court, I am satisfied that both Atoyo and Itele are contiguous settlements. I find no variance in the particulars in the charge and the evidence of the prosecution as to the venue of the crime. Even if it is conceded to the accused that there is a variance, in my opinion, the variance does not relate to a material fact and the accused was not in any manner misled or confused See ONAKOYA VS. FEDERAL REPUBLIC OF NIGERIA (2002) 11 N.W.L.R PART 779 AT 595”. There is no contradiction in the instant appeal as to the scene of crime to warrant a reversal of the judgment. The contradiction to warrant a reversal of judgment must be shown to amount to substantial disparagement of the witnesses concerned making it dangerous or likely to result in a miscarriage of justice. See OMISADE V. THE QUEEN (1964) 1 ALL N. L.R AT PAGE 233, ENAHORO V. QUEEN (1965) 1 ALL N.L.R AT 125 and DAGAYYA VS THE STATE (2006) ALL F.W.L.R PART 308 PAGE 1212 AT 1235 paragraphs B-D.
On the issue of the non production of the robbed motorcycle, the evidence before the trial court showed that
- the Appellant while armed with an offensive weapon i.e matchet dispossessed P.W1 of his motorcycle on the day of the incident.
- That the robbed motorcycle was recovered from the Appellant and
- All prosecution witnesses testified that it was an unregistered Suzuki FR SO.
- Exhibit H shows that P.W1 had a motorcycle which was in Police custody as a result of this charge against the Accused/Appellant.
- That the same motorcycle was released to P.W1 upon his application in Exhibit H. P.W1 stated that the make of his motorcycle Suzuki FR50 and P.W2 confirmed transferring same to Abeokuta with the case file see page 22 lines 16-18 of the Record
The learned trial Judge held that there was no doubt as to the object of the robbery and that the Appellant was never in any way misled or prejudiced by the fact that the robbed motorcycle was not tendered. See lines 21-25 on page 61 of the Record of Proceeding. I agree with the learned trial Judge for the right finding of fact that the Appellant was not misled by the non production of the motorcycle. The prosecution accounted for the whereabout of the robbed motorcycle vide the content of Exhibit ‘H’ it tendered during the trial. Issue one fails and it is hereby resolved against the Appellant.
Issue 2
Learned Counsel to the Appellant submits that the substance of the defence put up by the Appellant was that what took place on that day was a fight and not a robbery incident. He contends that the finding of the learned trial Judge on the issue was wrong. He submits further that the finding of the learned trial Judge from the evidence of P.W2 and P.W3 was that the case was not reported by the Appellant but one Charles Umoke. He urged the Court to reject that finding of fact and hold that it was the Appellant who reported the case at the Police Station. If it was the Appellant who reported the case at the Police Station, then the contention of the Appellant that what happened on that day was not a armed robbery but a fight is given additional impetus.
Learned Counsel to the Respondent in her reply to issue 2 submits that the overwhelming evidence before the Court showed that P.W1 was dispossessed of his motorcycle after the Appellant had inflicted several matchet cuts on him. The Appellant made confessional statements after his arrest in which he confessed to committing the offence and gave detailed description of what took place on the day of the incident. The confessional statement was contested and same was subjected to trial within trial before it was admitted in evidence as Exhibits ‘A’ and J. She submits that the learned trial Judge rightly made a finding of fact on this issue and urged the Court not to disturb the finding because it is not perverse. She referred to the case of AHMED VS. THE STATE (1998) 9 N.W.L.R part 566 page 389 at 401 paragraphs F-G.
From whatever angle one looks at this appeal, even from the best angle for the Appellant, it is clear that the Appellant while armed with an offensive weapon inflicted several matchet cuts on P.W1 and dispossessed him of his motorcycle on the day of the incident. This piece of evidence was further corroborated by P.W3’s evidence to the effect that when P.W1 was visited at the hospital during investigation, there were matchet cuts on his head and that he even lost a tooth, See page 35 lines 21-26 where P.W3 stated thus “At the hospital, we met P.W1 in an unconscious state, his condition was very critical. There were matchet cuts on his head and mouth, he even lost a tooth”.
The defence or suggestion of the Appellant that what took place on that day was a fight and not an armed robbery was an after thought. Confession-like admission in civil procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. He knows what he did. Is there any need for any further proof since the Appellant confessed of committing the offence and gave detailed description of what took place on the day of the incident? I think so as it is desirable to have outside the confession some evidence of circumstance no matter how slight which makes it probable that the confession was true especially where the accused retracted from the statement.
The learned trial Judge considered other pieces of evidence outside exhibits A&J which render the statements i.e Exhibits A & J probable and true. These are the discovery and recovery of the motorcycle in the bush where the Accused/Appellant had concealed it, the recovery of Exhibit ‘B’ the cutlass used by the accused to attack P.W1, the hospitalization of p.w1 following injuries received from the attack by the accused all tend to show that the contents of Exhibit A&J in so far as they consist of confessions are true and probable.
The evidence given by the Appellant in Court that he fought back with bare hands while P.W1 inflicted matchet cuts on him was only a cock and bull story to cover up his sinister act. I, too hold that what actually took place on 23rd of October, 2000 was an armed robbery and not a mere fight.
The finding of the learned trial Judge that the Appellant was not the one who reported the case at the Police Station can not be faulted. If he was the one, why did he not take the motorcycle to the Police Station. Why did he have to hide the motorcycle in the bush? An appellate court will not naturally interfere with the findings of a trial court unless they are perverse or erroneous in substance or procedural law. See the cases of SANYAOLU VS, STATE (1976) 6 S.C at 37, WANKEY V STATE (1993) 5 N.W.L.R PART 295 AT 542, AMUSA VS. STATE (2002) F.W.L.R PART 85 AT 382, UBANI V. STATE (2002) F.W.L.R PART 9.5 AT 211, AGBO V. STATE (2006) ALL F.W.L.R PART 309 PAGE 1380 AT 1412 paragraphs B-C. See paragraphs 1 and 2 on page 117 of the record of proceedings issue 2 also fails and it is also resolved against the Appellant.
The duty of the prosecution is to prove the guilt of the Accused/Appellant beyond reasonable doubt and as such he has to prove that:
(i) There was a robbery involving P.W1 as the victim
(ii) That the robbery was armed robbery
(iii) That the Accused/Appellant was the person who committed the armed robbery
P.W1 told the court how he was operating his commercial motorcycle on the day of the incident and the accused person asked him to take him i.e. (Accused/Appellant) to Atoyo. On getting to Atoyo, Accused/Appellant went to his house, brought out a matchet and inflicted cuts on him i.e. (P.w1) with the cutlass, took away the motorcycle of P.W1 and hid it in a bush where it was later recovered by the Investigating Police Officer P.w2 after the Appellant’s arrest. P.w2 & P.W3 told the court that they visited P.W1 at the hospital where he was receiving treatment.
He gave evidence that the Accused/Appellant committed the offence. Exhibits A & J also corroborate the evidence of P.W1 that the Accused/Appellant committed the crime. Where an accused is sufficiently identified by the victim of the robbery and there are other pieces of evidence that corroborate the evidence of the witness, there would be no need for an identification parade. See ANYANWU VS. THE STATE (1986) 5 N.W.L.R PART 43 AT PAGE 612, See also MWACHUKWU VS. A.G. IMO STATE (2003) 6 N.W.L.R PART 816 AT 218. The confessional statements of the Accused/Appellant Exhibits A & J which were subjected to trial within trial before they were admitted in evidence are sufficient to link the Accused/Appellant with the commission of the offence.
The trial court has determined the issue as to whether or not the case against the accused person was made out or established beyond reasonable doubt by considering the totality of the evidence before the court. See the cases of OBUE VS. STATE (1976) All N.L.R at page 139. See also ORJI VS. STATE (2008) 10 N.W.L.R page 1094 at page 31 particularly at 60 paragraphs E-H.
Setting aside findings of fact of a trial court is a very serious appellate function which an appellate court cannot exercise for the fun of it, but rather for valid legal reason or reasons. An appellate Court cannot fault the findings of fact of a trial court when the appellate court does not find or see any fault. See IDEOZU VS. OCHOMA (2006) All F.W.L.R part 308 page 1183 particularly at 1209 paragraphs A-B.
From the overwhelming evidence in the records including the confessional statement of the Appellant, I hold that the appeal is unmeritorious and it is hereby dismissed.
Accordingly, I affirm the decision of the trial court.
Other Citations: (2008)LCN/2965(CA)
