Edet Asuquo Bassey V. The State (2012)
LAWGLOBAL HUB Lead Judgment Report
BODE RHODES-VIVOUR, J.S.C
The appellant and five persons were arraigned before the Robbery and Firearms Special Tribunal which held at Ikot Epene, Akwa Ibom State, on a two count charge which reads:
STATEMENT OF OFFENCE
Armed Robbery Contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Decree No.5 of 1984
PARTICULARS OF OFFENCE
Etim Edet Oboho, Effiong Etim Sunday, Joseph Edet Ekpo, Etim Asuquo Enobiak, Edet Asuquo Bassey, Okon Dan Osung on or about the 17th day of June, 1993 along Oron Road in Oron Judicial Division while armed with offensive weapons, to wit, matchets, daggers and pen knives robbed Okafor Ndukwe Anya of the sum of N79,995.00 property of one Sunday Ikema.
STATEMENT OF OFFENCE
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984
PARTICULARS OF OFFENCE
Etim Edet Oboho, Effiong Etim Sunday, Joseph Edet Ekpo, Etim Asuquo Enobiak, Edet Asuquo Bassey, Okon Dan Osung on or about the 17th day of June, 1993 along Oron Road in Oron Judicial Division while armed with offensive weapons, to wit, matchets, daggers and pen knives robbed Uche Emde Uba of the sum of N140,289.00 property of one Sunday Ikema. On the 17th of June 1993 PW3, Sunday Ikema sent PW1 and PW2 to Port Harcourt to buy out board engine and crank shaft. He gave PW1 N140,289 and PW2 N29,995. Both of them left Oron and arrived in Port Harcourt, but were unable to purchase the items, because the money on them was not enough. They decided to return to Oron. They entered a car in which there were three ladies already seated. On arriving at Oron near an Apostolic Church, the ladies disembarked.
Before they could continue the journey they were surrounded by about seven men. The appellant was one of them. Their bags containing the money were taken from them. The Robbery occurred in the early evening of the 17th day of June, 1993, and while the robbery was ongoing the driver of the vehicle looked on impassively.
On the 19th day of November, 1996 the Tribunal was informed that the 1st, 2nd and 4th accused persons had died. Their names were struck out from the charge. The surviving accused persons were Sunday Joseph Edet, the appellant and Okon Dan Osung. A fresh plea was taken and no guilty pleas were entered. Four witnesses testified for the prosecution and confessional statements were admitted as exhibits. The appellant testified along with his father DW 4. In a considered judgment delivered on the 26th day of May, 1999 the learned trial judge found that the prosecution proved its case beyond reasonable doubt and sentenced both accused persons to death.
Edet Asuquo Bassey lodged an appeal. It was heard by the Court of Appeal, Calabar. In a well considered judgment delivered on the 2nd day of July, 2008 that court per Akaahs, Omokri JCA affirmed the judgment of the Robbery and Firearms Special Tribunal, but reduced the sentence to 21years imprisonment. Orji Abadua JCA dissented on the ground that the death sentence should be affirmed and restored. This appeal is against the judgment of the Court of Appeal.
Notice of Appeal filed on the 28th day of July 2008 subsequently amended contains four grounds of appeal from which the following three issues were formulated for determination of the appeal in the appellants amended brief filed on the 7th day of October, 2010.
1 Whether the learned Justices of the Court of Appeal were right in holding that Exhibit 7 ,the appellants alleged confessional statement was direct and voluntary, and therefore sufficient to warrant a conviction without any corroborative evidence.
Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the appellant and sentencing him to 21 years imprisonment notwithstanding the fact that there were material contradictions in the evidence of the prosecution witnesses regarding the appellants identity as to whether the robbers were armed or not.
whether the trial at the Robbery and Firearms Tribunal and the subsequent appeal at the court of Appeal, Calabar in this case are a nullity considering the fact that the appellant/applicant was not tried on any charge as the Record of Appeal at the Court of Appeal, Calabar does not disclose any information or charge or statement of offence and particulars thereof against the appellant.
Learned counsel for the respondent adopted the issues formulated by the appellant in its respondents amended brief filed on the 24th day of February 2010 but deemed duly filed on the 11th day of March, 2010.
At the hearing of the appeal on the 9th day of February, 2012 learned counsel for the appellant, Ms. O. Aboyade adopted her brief filed on the 7th day of October 2010 and in amplification observed that there was no charge in the Record of Appeal.
Further observing that there are irreconcilable inconsistencies which ought to be resolved in favour of the appellant. She urged this court to set aside the judgment of the Court of Appeal and acquit and discharge the appellant.
Mr. U. Udom, learned counsel for the respondent adopted the respondents amended brief filed on the 24th of February, 2010. On the charge he observed that it was the appellant’s counsel who prepared the Record of Appeal, contending that this is the first time they are complaining of the charge. He submitted that there is a presumption that there was indeed a charge sheet. He urged this court to dismiss the appeal and confirm the conviction and sentence of the Court of Appeal.
Issues 1 and 2 would be taken together. They ask the question whether exhibit 7, the appellants confessional statement was direct and voluntary, and whether the identity of the appellant as one of the robbers was not in doubt.
Learned counsel for the appellant observed, that the tribunal relied on exhibit 7 to convict and sentence the appellant for the offence charged without first testing the truth or otherwise of the alleged confessional statement, further observing that it was signed and not thumb printed as stated by the appellant.
He observed that there is nothing outside exhibit 7 to show that exhibit 7 is true. Reliance was placed on Ikpo v. State 1995 9 NWLR Pt.421 p.54. Learned counsel submitted that notwithstanding the admission of the confessional statement the prosecution still has the duty of proving its case beyond reasonable doubt contending that the prosecution failed in that regard. Reliance was placed on Shande v. State 2005 1 NWLR pt.907 p.218.
Learned counsel observed that the testimonies of the prosecution witnesses are full of contradictions which led to the failure of PW1 and PW2 to identify the appellant as one of the robbers, contending that once there is doubt as in this case such doubt should be resolved in favour of the appellant by the court returning a verdict of acquittal and discharge. Reliance was placed on Azeez & 5 Ors v. State 200b 8 NWLR Pt.927 p.312
Finally, learned counsel submitted that the prosecution failed to prove all the ingredients of armed robbery or robbery beyond reasonable doubt. She urged the court to set aside the conviction and the 21 years imprisonment awarded by the Court of Appeal.
Learned counsel for the respondent observed that exhibit 7 was tendered without objection, contending that it is on appeal that he makes a futile and belated effort to resile from the said statement. He submitted that the appellant had all the opportunity of challenging exhibit 7 now sought to be impugned but failed to do so at the stage of trial. Further submitting that later retraction of the statement cannot vitiate the proceedings. Reliance was placed on Nwachukwu v. State 2004 17 NWLR pt.902 p.262
He submitted that there was no need to have exhibit 7 corroborated by other evidence outside the confession since exhibit 7 was direct and positive as to the guilt of the appellant. Reliance was placed on Odeh v. FRN. 2008 12 NWLR pt.1103 p.1.
Learned counsel observed that the prosecution by evidence of PW1, PW2 and exhibit 7 proved the case of armed robbery against the appellant beyond reasonable doubt as required by Law. On the identity of the appellant as one of the robbers learned counsel observed that the appellant identified himself as one of the robbers in exhibit 7.
Finally learned counsel submitted that the appellant was rightly convicted and sentenced to 21 years imprisonment based on exhibit 7, his confessional statement.
Section 27 (1) of the Evidence Act States that:
“27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
A confession is relevant if it proves beyond reasonable doubt the ingredients of the crime for which the accused person in charged, and the identity of the accused person. See Igbinovia v. State 1981 2 SC p.5 It is now apposite to reproduce exhibit 7 to see if it is a confessional statement. It reads:
“In addition to my statement which I made to the police on 26/11/93 I am now saying that I took part in the armed robbery incident that happened at Oron on 17/6/93 at about 5.pm. I was at Aba Street, Oron, when one man whom I later knew his name to be Mr. Archibong Okon invited me to his house at No. 113 Oron. He started telling me that there is a business which he wants me to carry out with my friends. I went and invited Joseph Ekpo, Victor, surname unknown and it was victor who invited Okon Dan Osung given the number of four persons, we all went to Archibong’s house.
As we reached, he brought another hot drink for us to drink. From there he started telling us that there was a 504 saloon that stopped with Customs at Ikot Umoessin check point. From there herself (sic), Archibong, myself, Edet Asuquo Bassey, Joseph Ekpo, Etim Enubuak and Okon Dan Osung we all went to Anwanessin Junction and wait for the vehicle we were waiting for the vehicle when the vehicle arrived.
Archibong directed us to go to the front of the vehicle that any bag we saw there that we should snatch it, it contains money. It was Joseph Ekpo who snatched the bug that contain money, we all ran away through spring Road, Oron to Archibongs house while Archibong join Oron Road. In Archibong’s house, we handed the bag to him after entering bedroom and he came out and told us that the money was N150,000.00 (one hundred and fifty thousand Naira). He then gave four of us N50,000.00 (fifty thousand Naira)
Okon Dan Osung collected the money we went to Convent Primary School Oron and shared the money as Follows: Myself received N10,000.00 Joseph Ekpo N15,000.00, Okon Dan Osung N15,000.00 while Etim Enubak received N10,000.00. I used my own N10,000.00 to obtain a shade (sic) at Ibaka Town to trade second handed cloth. I opened the shade (sic) on 24/6/93. The name of my Landlord was one Patrick Akansor. It was on 7th of July fire entered into my shade and destroyed all my goods.
That is all.”
Armed Robbery simply means stealing plus violence used or threatened. While robbery is stealing without violence. Before there is a robbery the suspect must steal something capable of being stolen. Any person in company of a person armed, or aiding or abetting in the commission of the offence is also guilty of armed robbery. See Okosun v. A.G. Bendel State 1985 3 NWLR pt.12 p.283 Nwachukwu v. State 1985 3 NWLR pt.11p.218. Exhibit 7 reproduced above reveals that there was a robbery on the 17th of June 1993, planned and executed by one Archibong, the appellant and his co-accused. Sums of money was stolen and the identity of the appellant as one of the robbers is firmly established. The Court of Appeal quite rightly in my view held that exhibit 7 is a confessional statement in which the appellant admitted to have participated in the robbery. It is clear that exhibit 7 is a confessional statement made by the appellant and it is clear that the appellant took part in the a robbery. Now, in law can the appellant be convicted on exhibit 7 alone.
When an accused person confesses to a crime in his extra judicial statement but in court, he retracts or resiles from his confession, prudence and the well laid down practice is that before such an accused person is convicted on the said confessional statement the court looks for some evidence outside the confession which would make the confession probable. See Kopa v. State 1971 1 ALL NLR p.150Paul Onochie & 7 Ors v. The Republic 1966 NMLR p.307 ,R. Kanu 1952 14 WACA p.30
Where the confession is found by the court to have been made voluntary and it is true but inconsistent with the accused persons evidence in court it is safe to convict. See R. V. Walter Sykes 19181 8 CAR 233 Queen v. Obiasa l962 2 SCNLR .402 Mumuni v. State 1975 6 SC p.79 Akpan v. State 1992 6 NWLR Pt.248 p.439
Where on the other hand the accused person confesses to robbery in his extra judicial statement and had no objection to the statement being tendered and admitted in evidence, and did not resile in his testimony in court there would be no need to look for evidence outside the confession anymore. Afterall the accused person is in the best position to say if he committed the offence. Exhibit 7 was admitted with no objection from Mr. Uwah counsel for the appellant. See pages 24 and 25 of the Record of Appeal. The appellant never denied making statements to the Police (see evidence in – Chief of the appellant on page 29 of the Record of Appeal.
My lords the fact that exhibit 7, the appellants confessional statement was tendered without objection means that the appellant was in full agreement with everything in the statement. In the absence of a denial or retraction there is no need to look for independent evidence to corroborate the statement. I am satisfied that exhibit 7 is clear and unequivocal, and. anyone reading it would easily conclude that the appellant was one of robbers who robbed PW1 and PW2 on the 17th of June 1993.
I agree with both courts below that exhibit 7, the confessional statement of the appellant was direct and voluntary and the id entity of the appellant was clearly established.
PROOF BEYOND REASONABLE DOUBT
Section 138 (1) of the Evidence Act States that:
“If the commission of a crime by a party to any proceeding is directly in issue any proceeding civil or criminal it must be proved beyond reasonable doubt.”
Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling evidence which is conclusive. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify, rather the court is only interested in the testimony of a quality witness.
If the court convicts on the extra judicial confessional statement of an accused person, proof beyond reasonable doubt would be achieved if and only if the statement was made voluntary and the a accused person did not retract from his confessional statement when he gave evidence in court on oath.
Exhibit 7 the appellants confessional statement was tendered and admitted in evidence without any objection whatsoever from the appellant’s counsel. The appellant did not retract from his confessional statement when he gave evidence on oath in court. Accordingly there was proof beyond reasonable doubt for the offence of Robbery.
ISSUE 3
Learned counsel for the appellant observed that the charge upon which the appellant and two others were tried, convicted and sentenced to death is not in the Record of Appeal. He submitted that since this was the case the entire proceeding at the trial court and the Court of Appeal are nullities since the appellant was not tried on any charge or information. Reliance was placed on Macfoy v. UAC 1962 AC p.153
Joseph Edet Ekpo v. The State Appeal No.CA/C/113/2007 Judgment delivered on 30/6/08.
Learned counsel for the respondent observed that throughout the process of arraignment, amendment, pleas, trial and conviction the appellant never raised the issue of the charge or information not being before the trial Tribunal, contending that the appellant was properly arraigned under a proper charge that he pleaded to. He urged this court to dismiss the appeal and affirm the conviction and sentence of the appellant to 21 years imprisonment.
The live issue is whether the appellant was tried on a charge.
The well laid down position of the law is that an accused person is arraigned.
under section 187(1) of the Criminal Procedure Code (applicable in the North) and Section 215 of the Criminal Procedure Act (applicable in the South). Both legislations stipulate that:
The accused person shall be brought before the court unfettered unless the judge otherwise directs (e.g. if the accused person becomes violent the judge may direct that he be brought before the court fettered).
The charge shall be read and explained to the accused person in the language he understands
The accused person shall then be called upon to plead instantly.
Failure to comply with any of the above renders the entire proceedings no matter how well conducted a nullity. See Kajubo v. State 1988 1 NWLR pt.73 p.721
Eyoyo Koromo v. State 1979 6-9 SC p.3
Once the charge is amended section 164 of the Criminal Procedure Act stipulates, that the amended charge must be read to the accused person and a plea must be entered to the amended charge. Section 164 of the Criminal Procedure Act is mandatory and failure of the accused person to plead to the amended charge renders the proceedings a nullity. See R. V. Eronini 1953 14 WACA p.366 Princent v. State 2002 12 SC (pt.1) p.137
Relevant extracts from the Record of Appeal must be examined and reproduced if necessary to see if there was compliance with Section 764 and 215 of the Criminal Procedure Act. On page 6 of the Record of Appeal is a one count charge of Armed Robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree R v. Eronini 1953 L4 WACA p366 No.5 of 1984. Those charged were Etim Edet Oboho and Effiong Etim Sunday.
On the 20th of June 1994 the clerk of the court read and explained the charge to both of them. They both entered not guilty pleas. (See page 7 of the Record of Appeal.
On the 21st of June 1994, the Tribunal was informed that there are three other accused persons who were being tried before the Oron Magistrates court. The Tribunal ordered that they should be brought before the Tribunal to face trial.On the 28th of June 1994, Mr. I.J. Ekong for the State applied to amend the charge to bring in, as he put it 3rd, 4th, 5th and 6th accused, persons.
There was no objection by the appellant or any one. The Tribunal granted the application. The accused persons before the Tribunal now were the following:
1.Etim Edeth
- Effiong Etim Sunday
- Joseph Edet Ekpo
- Etim Asuquo Enobiak
- Edet Asuquo Bassey
- Okon Dan Osung
Records of the Tribunal on page 10 (ie 6/7/4) of the Records of Appeal runs as follow:
Tribunal 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 5/7/94. The old charge filed on 13/5/94 is hereby struck out.
Clerk of court reads and explains the charge to the accused person. The accused person, one after the other pleaded not guilty.
On the 19th of November, 1996 the Tribunal was informed that the 1st, 2nd, and 4th accused persons had died. The proceedings for that day relevant to this issue reads:
Court: On the presentation of the death certificate of the 1st, 2nd and 4th accused persons thus proving that they are deed, the names of the 1st, 2nd and 4th accused are hereby struck out from the charge.
Charge read and explained to the 3rd, 5th and 6th accused persons and each of the 3rd, 4th and 6th accused persons pleads not guilty to each of the two counts.
It was learned counsel for the appellant who compiled the Record of Appeal after obtaining an order from the court for departure from the Rules to prepare the said process.
There is a presumption that the Record of Appeal compiled by counsel is correct and that presumption becomes irrebutable when counsel who prepared the Record never challenged it. It is desirable and to be expected that the amended charge is in the Record of Appeal but there has been no miscarriage of justice because the amended charge was read and explained to the appellant before he entered a not guilty plea. (See page 12 of the Record of Appeal). Relevant extracts from the Record of Appeal show that the amended charge was read and explained to the appellant. This satisfied the requirement of Sections 164 and 215 of the Criminal Procedure Act. The proceedings in the trial court and Court of Appeal were very much in order notwithstanding the fact that the amended charge/s the appellant pleaded not guilty to cannot be found in the Record of Appeal.
Finally on the issue of whether there was a charge, learned counsel for the appellant said in paragraph 4.77 on page 27 of the appellants amended brief.
“The charge was read to the 3rd, 5th (appellant) and 6th accused persons who pleaded not guilty to the two count charge, pursuant to which the trial of the appellant and the other two surviving accused persons (Joseph Edet Ekpo and Okom Dan Osung commenced on 19th November, 1996.”
By learned counsel for the appellant’s own admission above there was a charge, and it was read to the appellant and he pleaded not guilty.
This once again lays to rest the fact that there was complete compliance with sections 164 and 215 of the criminal Procedure Act.
The Court of Appeal reduced the sentence of death passed on the appellant to 21 years imprisonment. PW1 is Uche Enule Uba, PW2 is Okafor Ndukwe Anya. PW1 was robbed of the sum of N140,289. See Count No.2 while PW2 was robbed of the sum of N79,995. See count No 1. PW1 said in his statement recorded on 26/10/93, Exhibit 1 that 7 men emerged from both sides of the road with matchets and daggers in their hands and ordered myself and my brother, Okafor to surrender everything that was in our hands.
On the other hand PW2’s statement was recorded on 4/11/93 Relevant extracts from his statement runs as follows:
“When the driver stopped the vehicle Uche’s bag was inside the booth. I asked him to go and carry the bag out of the booth for the women not to mistakenly carry it away. As Uche Uba went it was the time this seven men came and started struggling with Uche and his bug, they throw him on the ground and snatched away his bag. Three men among my own bag, all ran away, as they snatched the two bags. I did not see any matchet or pen knife on them.”
This is what the Court of Appeal said:
“…I find that there is a material contraction between PW2’s statement and. his testimony on the crucial point on whether the robbers were armed or not. No explanation has been given on this clear contradiction which must be resolved in favour of the appellant ….it cannot be said with any degree of certainty that the accused were armed with any offensive weapons. The robbery therefore was therefore a simple robbery and not an aggravated robbery.”
I am in complete agreement with the above reasoning. Evidence contradicts another evidence when it says the opposite of what the other evidence has stated, and not when there is just a minor discrepancy between them. See Gabriel v. State 1989 5 NWLR pt.122 p.460
Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.
PW1 and PW2 were robbed on the 17th day of June 1993. They were the only eye witnesses to the robbery. Their evidence is thus vital in determining the role played by the appellant. PW1 and PW2 both say that they were attacked by seven men and their bags containing their money taken away by them. PW1 stated that the seven men were armed with matchets and daggers, while PW2 said “I did not see any matchet or pen knife on them. This is a contradiction on a material fact and it must be resolved in favour of the appellant. That explains why the sentence of death was reduced to 21 years imprisonment.
There is no evidence better than eye witness evidence, and when such evidence is inconsistent on material facts as in this case the benefit of the doubt must be given to the appellant. In the light of the above the Court of Appeal was correct to reduce the sentence to 21 years imprisonment.
This reasoning is correct in view of the contradiction in the testimony of eye witnesses.
The evidence that was established was that there was Robbery simpliciter and that carries 21 years imprisonment.
The conviction of the appellant was based on Exhibit 7, a confessional statement. The appellant also made Exhibit 6 and 8. Reading these Exhibits it becomes clear that the appellant was very aware and took part in the Robbery for which he was charged and convicted. Appeal dismissed. Judgment of the Court of Appeal is confirmed.
SC.298/08
