Joseph Edet Ekpo V. The State (2008)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
Two people (appellant not included) were arraigned before the Special Tribunal constituted pursuant to the provision of Robbery and Firearms (Special Provisions) Decree NO.5 of 1984 as amended sitting at Ikot Ekpene, Akwa Ibom State. They were charged with armed robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provisions) Decree NO.5 of 1984. The particulars of the one Court charge reads “Etim Edet Oboho and Effiong Etim Sunday on or about the 17th day of June, 1993 at Oron in Oron Judicial Division while armed with dangerous weapons to wit matchet and penknife robbed Okafor Ndukwe Anya and Uche Emole Uba of the sum of N220,284.00 (Two Hundred and Twenty Thousand, Two Hundred and Eighty-Four Naira) property of one Sunday Ikema.” See page 1 of the records.
The record shows that on 20/6/94 the Clerk of Court read and explained the charge to the accused persons and each pleaded not guilty thereto. The case was adjourned to 21/6/94 for trial.
On 21/6/94 the Tribunal was informed that three other accused persons in the alleged armed robbery were being tried at the Oron Magistrate’s Court. The Tribunal adjourned to 28/6/94 for trial and ordered that the rest of the accused persons as well as all relevant exhibits be brought before it on the adjourned date. On 28/6/94 six accused persons, including the appellant who appeared as the 3rd accused were brought before the Tribunal. Even though the charge before the Tribunal on 28/6/94 contained the names of 6 accused persons learned Counsel for the prosecution was granted leave to amend the charge to include the 3rd, 4th, 5th and 6th accused persons. It was adjourned to 6/7/94 for plea and trial if possible at the instance of the prosecuting Counsel who sought adjournment to “enable him determine whether or not to proceed against the accused persons on the charge as amended.” On 6/7/94 Mr. Ekong for the prosecution applied under Section 163 of the Criminal Procedure Law to amend the charge by way of substitution. The reasons which the Tribunal said the prosecuting Counsel gave for the amendment were excluded from the records. The Tribunal granted the application. thus:
“Application to amend the charge by substituting a new charge granted and accordingly the charge filed on 13/5/94 is hereby substituted with the new charge filed on 13/5/94 is hereby struck out.” (See page 5 of the records). As the records indicated the new charge was read and explained to the accused persons. Each of the six accused persons pleaded not guilty to each of the two counts of the charge. The Tribunal “adjourned sine die for trial at the next session of the Tribunal.” When the matter was called up on 10/8/94 it was adjourned to 17/8/94 for trial. On 19/11/96 the prosecuting Counsel informed the Tribunal that the 1st, 2nd and 4th accused persons were dead and asked that the surviving accused person take a fresh plea. The Tribunal struck out the names of the 1st, 2nd and 4th accused and the charge was read to the 3rd, 5th and 6th accused each of whom pleaded not guilty to each of the two counts of the charge.
Having read the records of proceedings I have set out the above details in view of issues which will arise in the determination of the appeal. The issues appear to have eluded the Tribunal as well as learned Counsel for the parties even though they have a decisive effect on the appeal. Trial opened on 19/11/96. The State called 4 witnesses and closed its case on 24/6/98. The defence opened its case on 17/5/99. The first accused (now appellant) testified in his defence and called one other witness, his wife, Glory Edet Ekpo, and rested his case on 17/5/99.
At the conclusion of the 3rd accused person’s evidence-in-chief (he was not cross-examined) learned Counsel who appeared for the three accused persons including the 1st accused, now appellant Mr. Uwah, irrespective of the fact that this is a death penalty case, informed the Tribunal in a manner bordering on non-chalance, that “he has no address to offer.” See page 26 of the records. Following this Miss Ekanem prosecuting said that she had nothing to offer by way of reply. The case was adjourned to 26/5/99 for judgment.
In the judgment delivered on schedule the Tribunal concluded as follows:
“On the basis of the evidence adduced by the prosecution in this case, which evidence is largely unchallenged, coupled with the confession (sic) made by the accused persons as contained in Exhibits 4, 7 and 9, I find that the prosecution has proved its case beyond all reasonable doubt and so I find each of the accused persons guilty as charged.”
The Tribunal then sentenced each of the accused including the appellant, to death “in a manner to be determined by the Military Administrator of Akwa Ibom State”. See page 35 of the records.
Dissatisfied with the judgment the appellant, in a notice of appeal dated 26th day of July, 2006 but filed on 18/6/07 by leave of this Court appealed on three grounds from which three issues were distilled for determination in the appellant’s brief of argument. The issues are:
“3.1 Whether the Robbery and Firearms Tribunal was right in convicting and sentencing the appellant to death for the offence of Armed Robbery solely on the alleged confessional statement of the appellant without testing the veracity of the confessional statement.
3.2 Whether the prosecution had proved its case beyond reasonable doubt having regard to the material contradiction in the evidence of the prosecution in witnesses in respect of the identity of the appellant.
3.3 Whether there was proof before the Honourable Tribunal that the incident of 17/6/93 was an armed robbery incident.”
Learned Counsel for the Respondent in the Respondent’s brief of argument deemed filed on 28/4/08 by leave of Court, adopted though not expressly, the three issues formulated by the appellant.
Arguing issue 1 in his brief learned Counsel for the appellant quoted copiously from the proceedings of the Tribunal and defined a confession under Section 27 of the Evidence Act Cap. E14 Laws of the Federation of Nigeria, 2004. Relying on YUSUFU V. THE STATE (1976) 6 SC 167 learned Counsel conceded that a confessional statement alone can found a conviction if the Court is satisfied of the truth of the confession. As a matter of practice, argued Counsel, the Court must be satisfied that the confessional statement passes the test enumerated in SHADEV. THE STATE (2005) 1 NWLR (PT. 907) 218 AT 240 PARAGRAPHSH, A-C; IKPO V. THE STATE (1995) 9 NWLR (PT. 421) 540.
He contended that there is nothing outside the alleged confessional statement to show that it is true. He said the tribunal erred by relying in its judgment as uncorroborated confessional statement, the veracity of which was in doubt. He relied on EKUREV. THE STATE (1999) 5 NWLR (pt. 635) 456 AT 458 RATIO4 and NWACHUKWUV. THE STATE (2002) 2 NWLR (PT. 751) 366. Counsel argued that the Tribunal should have considered that the appellant denied the commission of the offence or signing the alleged confession in assessing the probative value of the confession. He relied on EGBOGHONOMEV. THE STATE (1993) 7 N\VLR (PT. 306) 383 AT 434 P. 703 PARAGRAPHS F-G. He argued that the tribunal ignored the fact that the appellant thumb-printed the statement he made to the Police but the alleged confession Exhibit 4 was signed. He argued that the Tribunal erred by not considering the alleged confession along with other evidence before it. He referred to HASSAN V. THE STATE (2001) 15 NWLR (PT. 735) 184; OCHE V. THE STATE (2007) 5 NWLR (PT. 1027) 231 PARAGRAPHS E-G. He argued that the confessional statement which was not read to the appellant at the trial should not have been the basis of his conviction. He urged the Court to discountenance the alleged confession and discharge and acquit the appellant.
On issue 2 Counsel referred to the evidence of Pw2 who said he did not identify any of the three accused persons at the identification parade, nor did he describe any of them in his statement to the Police. He relied on ARCHIBONG v. THE STATE (2004) 1 NWLR (PT 855) 494; NDIDI v. THE STATE (2007) 13 NWLR (PT. 1052) 633 AT 631 PARAGRAPHS E-H and argued that the appellant should have been acquitted as he was not identified by the witnesses, and appellant was not arrested at the scene of crime. He referred to the contradictions in the evidence of Pw1 and Pw2. He noted that Pw1 said he did not identify the accused to the Police and later claimed to have identified the same accused persons, including the appellant, to the Police. He said the Pw2 said he was able to identify the accused at the identification parade but later said that the two people he identified were not among the accused persons in the dock. Relying on CYRIL OPARA v. THE STATE (2006) 9 NWLR (PT. 986) 508, ONUCHUKWU & ORS. v. THE STATE (1998) 4 NWLR (PT. 547) 576 AT 590; STATE v. AJIE (2001) 11 NWLR (PT. 678) 434 AT 449, EDOHO v. THE STATE (2004) 5 NWLR (PT. 865) 17 AT 51; OLALEKAN v. THE STATE (2001) 18 NWLR (PT. 746) 493 AT 717; IKEMSON & ORS. v. THE STATE (1989) 3 NWLR (PT. 110) 455 AT 459 he contended that the Tribunal erred in convicting the appellant on the contradictory evidence of the Pw1 and Pw2. He urged the Court to allow the appeal on ground one in the notice of Appeal.
Issue three is whether or not the incident of 17/6/93 was armed robbery. Counsel referred to TAJUDEEN ALABI v. THE STATE (1993) 7 NWLR (PT. 307) 511, OKEKE v. THE STATE (1975) 4 NWLR (PT. 392) 676 for the constituent elements of armed robbery. Counsel reviewed the evidence led by the prosecution and concluded therefrom that the elements of armed robbery were not proved. He urged the Court to allow the appeal and set aside the judgment of the tribunal.
In issue one in his brief learned Counsel for the Respondent argued that the Tribunal considered the statement of the appellant, tested same before relying on it in its judgment, adding that the confession was verified before a superior Police Officer. He relied on OGUNGE V. STATE (1999) 5 NWLR (PT. 604) 548. Also he relied on ALARAPE V. STATE (2001) 5 NWLR (PT. 705) 7 which he said the Tribunal followed in determining the guilt of the appellant. On the authority of ALOR V. STATE (1997) 49 LRCN 942 he contended it does not matter that the appellant, a member of armed robbery gang, was not armed himself. He urged the Court to dismiss the appeal on ground 2 from which the issue was formulated.
In issue two learned Counsel impugned the argument that there were contradictions in the evidence of identity of the appellant. He referred to the evidence of Pw2 who said he identified the appellant by the aid of electric light. As if this was relevant to the identification of the appellant learned Counsel submitted that “the accused persons identified by Pw2 during the identification parade were not the ones in the dock because they were among those that died … ” He argued that the fact that the Pw2 said he did not identify the appellant at the identification parade is no contradiction, bearing in mind that the Pw2 said he identified the appellant at the scene of the incident. He said that the Pw1 gave positive and credible evidence as to the identity of the appellant who attacked the Pw1 and Pw2 on 17/6/93. He urged the Court to resolve the issue in favour of the Respondent.
In issue three learned Counsel contended that there was a robbery, that the incident was armed robbery and that the appellant was the robber. He relied on the evidence of Pw1, PW2 and Pw3 to the effect that the Pw1 had a wound on his face and the wound was inflicted during the robbery. He relied on BARARE v. THE STATE (1987) 1 NWLR (PT. 52) 579 and MILLER v. MINISTER OF PENSIONER (sic) (1947) 2 All ER 373 in his argument that the case against the appellant was proved beyond reasonable doubt, adding that if indeed there are doubts “they are financial and imaginary ones which the respondents, do not have to contend with the appellant.” He urged the Court to dismiss the appeal.
There is need to point out that errors abound in the respondent’s brief. Further the issues and argument in the brief are mixed up.
I will assume that there was a valid trial leading to the judgment giving rise to this appeal, just for the moment.
In issue one the alleged confessional statement which formed the major plank upon which the appellant was convicted and sentenced to death Exhibit 4 is on page 39 of the records. It is dated 4/11/93 below the name of the appellant “Joe Edet Ekpo.” Appellant said he thumb-impressed the statement he made to the Police at Oron That would be the statement dated 21/10/93. There is also the one dated 2/11/93. Each of the three Statements had the name of the appellant written as “Joe Edet Ekpo” above the date of its making. There is indication that each of the statements made on 2/11/93 and 4/11/93 was recorded, and signed by Mbuk Edet. The one of 21/1 0/93 was recorded and signed by a Police Inspector. Though the name of the appellant was written under the cautionary words and at the end of each statement there is no evidence that he thumb-imprinted or signed any of the statements, even though he claimed he thumb-imprinted the statement he made at Oron In addition to the above observation it was submitted for the appellant that the truth of the confessional statement ought to have been tested in the light of all the circumstances of the case. I think the point is well taken. Pw2 said he could identify the appellant by the light of a vehicle and electric power on at the time and place of the incident. But he admitted he did not identify the appellant to the Police at the identification parade. It was not suggested that the appellant was not in the line at the parade. If the Pw2 saw and identified the appellant at the scene of the alleged crime through car head lamps and electric power supply he should have identified him at the parade. The alleged identification of the appellant at the scene was not to any third party or the Police. The Police was not at the scene and there is no evidence that the appellant evaded arrest at the scene.
Appellant said he was arrested in his house on the night of 17/6/93 in the presence of his family. This was confirmed by Pw2, his wife. Who then directed the Police to the appellant since the Pw2 could not identify the appellant at the identification parade. Pw4 on page 16 of the records said “on 29/10/93 I was on duty at the S.I.I.B. Office, Uyo when a transferred case file of suspected robbery at Oron was given to me and Corporal Matthew Uzo for investigations.” This is more than four months from the date of the alleged robbery – 17/6/93. Why was the officer who arrested the appellant on 17/6/93 and handled the investigation before it was transferred not called to testify? There is a break in the chain of events as the witnesses had not identified the appellant to the Police either at the identification parade or elsewhere. On this point alone the presumption in Section 149(d) of the Evidence Act 2004 should have been invoked to the advantage of the appellant. It was not the case of the Respondent that the evidence of the arrest of the appellant and Police investigation at Oron did not exist. The sums of money given as the proceeds of the robbery in Exhibit 4 differ from the sum of money allegedly snatched from the Pw1 and Pw2.
Another issue the tribunal should have considered is the evidence of the appellant as Dw1 and his wife as Dw2. See page 23 for the evidence-in-chief of the appellant. He was not cross-examined and so his testimony denying the charge was not challenged and so deemed accepted by the prosecution.
It is not disputed that an accused person can be convicted solely on his confessional statement as was decided by the Supreme Court in IKEMON V. STATE (1989) 1 CLRN 1 AT P. 22 PARAGRAPH C and SAIDU V. STATE (1982) 4 SC 41. However it was decided in the case (Ikemson’s case) (supra) that it is desirable to have outside a confession, some evidence of circumstances which make it probable that the confession was true. In this case the circumstances do not point to the probability of the confession being true but rather create a serious doubt not only as to the truth, but also of the fact of the making, of the alleged confession. I resolve the issue in favour of the appellant. Issue 2 revolves on the evidence of Pw1 and Pw2 who testified as eyewitnesses. Pw1 was recorded as saying that he could not identify the accused persons to the Police in one breath and in another breath he claimed to have identified the accused persons to the Police. Only the Policeman who arrested the appellant could have cleared the doubt created by the Pw1 but he was not called and no reason was given for failure to call him. Pw2 said he was able to identify the accused (meaning the appellant and his co-accused) to the Police at the identification parade. He later changed to say that the two people he identified during the parade were “not among the accused persons standing here.” There is a serious doubt as to whether anyone actually identified the appellant at the scene or during the identification parade. The arresting Police Officer who could have cleared the doubt one way or the other was not called. I resolve the issue in favour of the appellant.
In issue 3 it is not the case of the appellant that the incident of 17/6/93 did not take place. The question is, was it a robbery? If the answer is in the positive was it armed robbery? Section 15(1) of the Robbery and Firearms (Special Provisions) Act 1984 defines robbery as “stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
See also BALOGUN v. A-G OGUN STATE(2001) 14 NWLR (PT. 733) 336. Pw1 said one of the accused persons threatened to kill him if he did not release his bag. He said that on seeing the matehet brought out by the 5th accused he released his bag to the accused persons. Pw2 said one of the accused persons held a matchet and another one held a pen knife and that one of the accused used the matchet on Uche Emole, Pw1. The above evidence of the Pw1 and Pw2 was not challenged as the defence was not that the incident did not take place as described but that the accused persons were not the perpetrators.
The evidence remains unchallenged and based on same I accept that the incident of 17/6/93 at Oron was not only a robbery but armed robbery. I resolve the issue in favour of the respondent. However, in view of my conclusions on issues 1 and 2, this is a Pyhrric victory for the Respondent. I allow the appeal, set aside the judgment of the Tribunal and discharge and acquit the appellant.
However, I determined the appeal on the merit just in case I erred in what follows below. The question of whether or not the appellant was in fact tried on a charge before the Tribunal was not raised in the appeal, but the settled record speaks for itself.
The only charge contained in the record is Charge No. RFT/1/94, a one Court Charge of armed robbery against Etim Edet Oboho and Effiong Etim Sunday. The Charge allegedly amended on 28/6/894 to include the 3rd accused (i.e. appellant, 4th, 5th and 6th accused persons) is not in the records of the tribunal.
On 6/7/94 the Tribunal granted an order to substitute the charge allegedly filed on 13/5/94 with a new charge filed on 5/7/94. The only charge in the file was not dated and appellant was not involved. Also the charge from which three of the accused were deleted as dead, leaving only the appellant as 1st accused and two others is not in the records. The charge upon which the appellant and two others were arraigned to which they pleaded, on which they were tried, convicted and sentenced to death was not in the records. The records contained on various pages Charge No. RFT/1/94 The State v. Etim Edet Oboho & 5 Ors including the appellant as 3rd accused but there is no record that the Tribunal was informed of the Charge by the Attorney-General on behalf of the State or that the statement of the offence and particulars thereof were disclosed at any point in the proceedings in the Tribunal. The information containing the charge or charges is the basis of the entire proceedings, and should have been included in the settled records. It cannot be stated with certainty that the appellant was tried on any charge as the record does not disclose any information, any charge or statement of offence and particulars thereof against him.
In the circumstances the proceedings leading to and including the judgment, conviction and sentence of death passed on the appellant are a nullity. Further, the appeal against the said judgment is incompetent and is hereby struck out.
In summary the records do not disclose the information containing the charge, the statement and particulars of the charge. The proceedings are void, and are hereby set aside and appellant discharged. In the circumstances I order that the appellant should not be arrested and or tried on the same facts.
In the alternative I allow the appeal and set aside the judgment, conviction and sentence of death passed on the Appellant. In either case it is hereby ordered that the appellant, Joseph Edet Ekpo, be released from death-row and prison custody forthwith.
Other Citations: (2008)LCN/3067(CA)
