Joseph Ezirim & Ors V. Attorney-general Of Imo State (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
The Appellants in this appeal were tried on an information which charged them with the offence of robbery with violence contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 308 Volume XXI Laws of the Federation of Nigeria (1990). The particulars of the offence as contained in the information read thus:
“Joseph Ezirim, Ikechukwu Ebo, Simon Okoroigwe, on the 22nd day of August, 1998 at Afor Ibeme in Mbano armed with firearms robbed Mr. Remigius Ezeji of the sum of N48,000.00 including a hand bag valued at N350.00 property of Remigius Ezeji.”
Each of the Appellants pleaded not guilty to the charge. The prosecution called five witnesses. Each of the Appellants testified on his behalf and the 2nd Appellant called one witness who testified for him. The facts of the case as can be gleaned from the records are that: – The 1st and 2nd Appellants, Ikechukwu Ebo and Simon Okoroigwe were charged along with two others; one of them died in Police custody and the other one died shortly after conviction with the offence of armed robbery under section (1) (2) (a) of the Robbery and Firearms (Special Provision) Act, Vol. 22, Cap 398 Laws of the Federation of Nigeria, 1990, an offence which carries capital punishment.
On 22nd August, 1998, the day of the incident, around 9.55 pm. PW1 and members of his family were seated in their parlour watching television when suddenly their door was smashed open, three people armed with gun emerged, one pointed a gun at him and ordered him to surrender all his money or he would be killed.
PW1 and his wife surrendered a total sum of N48,000.00 and a hand bag to the robbers. In the process of the robbery one of them stabbed him (PW1) with a sword on the leg. They (robbers) eventually left,shooting their guns into the air. Some expended cartridges recovered at the scene of the robbery were tendered and admitted in evidence during the trial of the Appellants. The Appellants and the other two who are now late were arrested though not at the scene of the crime. They were prosecuted and in a reserved judgment, the learned trial Judge C. I. Ohakwe (J) held thus:
“For reason earlier stated in this judgment the defence of alibi raised by the 1st, 2nd and 3rd accused persons is false as it is an after thought. It does not avail the accused person (sic). I hold that the prosecution has established the charge of armed robbery against each of the accused persons (sic) beyond reasonable doubt. I therefore find the 1st, the 2nd and the 3rd accused persons guilty of the offence of armed robbery.”
The learned trial Judge sentenced each of the Appellant to death by hanging by the neck till he be dead or to suffer death by firing squad as the Governor of Imo State may direct.
Not unexpectedly, the Appellants were aggrieved with the decision of the lower court. They approached this court and filed a Notice of Appeal on the 18/02/2006 consisting of four grounds.
The grounds shorn of their particulars are as follows:
“(1) GROUND ONE (1) ERROR IN LAW
The learned trial Judge erred in law in convicting the 2nd Accused/Appellant based on the evidence of PW2 Mrs. Victoria Uwalaka that she recognised the 2nd Accused/Appellant as one of the persons that robbed them on 22/08/98.
(2) GROUND TWO (2) ERROR IN LAW
The learned trial Judge erred in law in convicting the 2nd Accused/Appellant without giving adequate considerations to his legal defences raised in his statement to the police and in his oral evidence in Court.
(3) GROUND THREE (3) ERROR IN LAW
The learned trial Judge erred in law in relying on the purported confessional statement of the 1st Accused person (Exhibit C) i.e. Joseph Ezirim implicating the 2nd Accused/Appellant to convict him.
(4) GROUND FOUR (4) ERROR IN LAW
The learned trial Judge erred in law in convicting and sentence the 2nd Accused/Appellant to death when the prosecution did not prove the case against him beyond reasonable doubt.
From the above grounds of appeal, the Appellants, Counsel Mr. E. C. N. Igbokwe, Esq. distilled three issues for determination as set out below:
“3.1 Whether the trial Court was justified by the quality of evidence adduced at the trial to convict the Appellants upon the testimony of PW2, Victoria Uwalaka and the confessional statement of DW1, Joseph Ezirim.
3.2 Whether in the circumstances of this case, the prosecution discharged its burden to prove its case beyond every reasonable doubt and whether the trial Court in evaluating the evidence at the trial gave any consideration whatsoever to the evidence adduced by the Appellants at the trial.
3.3 Whether the Court was justified in rejecting the plea of alibi put up by the Appellants at the earliest opportunity.”
The Respondent’s Counsel I. F. Amadi, Assistant Chief State Counsel, Ministry of Justice, Imo State crystallised two issues for determination to wit:
“(1) Whether the prosecution proved its case i.e. offence of armed robbery beyond reasonable doubt.
(2) Whether the defence of alibi or any other defence avail the Appellants.”
In accordance with the rules of this Court, briefs were filed and exchanged. On the 28th of January, 2009, when the appeal came before us for hearing, learned Counsel for the Appellants adopted his brief filed and dated 04/11/06 as well as his reply brief dated and filed on 28th of November, 2007. He did not proffer any oral argument in an amplification of the said briefs. He urged us to allow the appeal and set aside the judgment of the lower Court.
“Learned Counsel for the Respondent too did not amplify her brief by way or oral argument. She adopted her brief dated 19/12/07, which was deemed validly filed and served via a motion on the 20th November, 2007. She urged us to dismiss the appeal for lacking in merit.
It is instructive to state before delving into the issues for determination that the Appellants’ counsel filed two briefs. The main brief and what he calls a reply brief, spanning over four pages in which an attempt was made to answer the points raised in the Respondent’s brief not fresh points as might have been raised in the same brief.
The purpose for which reply briefs are meant is now well known and that is to answer or respond to new or fresh points raised in the Respondent’s brief. It is not an avenue through which or by which an Appellant should canvass or proffer further or repeat arguments in support of an appeal on the pre of replying on points of law. See Order 17 Rule 5 of the Court of Appeal, Rules 2007 and the case of Adebiyi v serinmade (2004) All FWLR (239) 933 and Shuaibu v Maithoda (1993) 3 NWLR (pt.284) p.748.
A cursory look at the reply brief of the Appellants would reveal the fact that the Appellants have proffered further arguments and in some instances repeated arguments already canvassed in their brief. For this reason, the so-called reply brief is and cannot be regarded as a reply brief and same will therefore be discountenanced in the consideration of the briefs properly filed by the parties to this appeal.
On the issues formulated by the Counsel for both parties, I am minded to state without any hesitation that the issues are basically the same. Issue No. 2 as formulated by the learned counsel for the Appellants is not dissimilar with issue No. 1 as formulated by the learned counsel for the Respondent. Similarly issue No. 3 as formulated by the learned counsel for the Appellant is not dissimilar with issue No. 2 as formulated by the learned Counsel for the Respondent.
It is instructive to state that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. See Ikegwuoha v Ohawuchi (1996) 3 NWLR (pt. 435) p. 146; Aduku v Adejoh (1994) 5 NWLR (pt. 346) p. 582 and Barde Egwa v Moses Ciroma Egwa (2007) 1 NWLR (pt. 1014) p. 71 at p. 86.
In the light of the foregoing, I am minded to say that the appeal under consideration can be disposed of by giving consideration to issue No. 1 as formulated by the Appellant’s Counsel and I adopt it as the only issue calling for determination in this appeal.
Issue No. 1 is whether the trial Court was justified by the quality of evidence adduced at the trial to convict the Appellants (upon the testimony of PW2, Victoria Uwalaka and the confessional statement of DW1, Joseph Ezirim). In arguing this issue, learned counsel for the Appellants contended that the issue raises the question of whether the trial court was justified to rely on the testimony of PW2 and the confessional statement of the DW1 to convict the Appellants, in the light of the clear inconsistencies which were identified in the aforesaid evidence of PW2 and DW1.
Learned Counsel outlined the inconsistencies thus:
(1) In her statement to the police made on 02/09/98 (page 8 of the records) PW2 claimed that she recognised two of the robbers and gave their names as Ikechukwu and Samuel.
(2) In her testimony at the trial Court she changed the name of the second robber from Samuel to Simon.
(3) Whilst testifying in Court, PW2 testified that on 23/08/98, she told her husband PW1 that she recognised the robbers.
(4) Under cross-examination PW2 changed her story and said that her husband (PW1) had already made statement to the police before she (PW2) told him about the robbers she recognised (page 43 lines 5 – 10 of the record).
(5) Actually, PW1 made his statements (Exhibits A and B) to the Police on 24/08/98 and 25/08/99 respectively.
(6) In the same cross-examination, PW2 again changed her story to claim that it was on 03/09/98 that she told pW1 about the robbers she recognised.
(7) Finally, PW2 told the Court that it was after her husband (PW1) returned from the Hospital that she told him about the robbers she recognised (page 44 lines 25 – 30 of the records).
It is pertinent to note at this stage that PW1 (her husband) went to the Hospital on 23/08/98 and made his statement to the Police on 24/08/98 but he did not tell the Police that his wife recognised any of the robbers.
On the change of name from Samuel to Simon learned Counsel contended that it was when she realised that Samuel was dead she changed the name to Simon for the sole purpose of securing the conviction of Simon who was alive.
On the inconsistencies highlighted above, learned Counsel argued that the above statements by the PW2 are inconsistent with one another and they all assume to describe the same event. Even the trial Court, he went on, recorded the PW2 as changing her story (see page 44 lines 30 of the records). However, learned Counsel further contended that the trial court failed to caution himself about the use of the testimony of PW2.
It is the contention of the learned counsel that in the face of these inconsistencies, the learned trial Judge ought to have disregarded the entire evidence of pw2. He relied on the cases of Sakure v Bello (2003) 17 NWLR (pt. 848) p. 154 at pp. 170 – 171 paras G – A and Onubogu v The State (1974) ANLR p.561.
Learned Counsel, again contended that the evidence before the court showed that the Appellants carried on their businesses of barbing and welding respectively at A for Ibeme. The Appellants also live in the same vicinity at Afor Ibeme with PW1 and PW2 and their families as well as their landlady. The Appellants are well known in their vicinity to all the persons in the house of the PW1 and that there was evidence that the robbers did not wear any mask on the day of robbery and that there was NEPA light during the incident. Learned counsel further contended that the crucial question the prosecution failed woefully to answer was how come that the PW1, his daughter and the landlady who saw the robbers with PW2 did not recognise them as being the Appellants.
It is the submissions of the learned Counsel that the fact that these other eye-witnesses did not identify the robbers as the Appellants makes the testimony of PW2 very improbable and the trial Court was in error for believing and applying it as the sole evidence upon which the conviction of the Appellants was anchored.
On the 2nd leg of this issue, that is the confessional statement of DW1, learned Counsel opined that their contention against it is threefold. Firstly, it is a confessional statement of a co-accused person, secondly, it is a retracted confessional statement and finally it was obtained in circumstances that cast a huge shadow as to whether it was made voluntarily.
Learned Counsel submitted that by reason of the above points, the trial Judge erred in placing much reliance on the alleged confessional statement of DW1, Joseph Ezirim (Exhibits C and D) and applying the said statement in corroborating the testimony of PW2 to secure the conviction of the Appellants, (page 122 lines 10 – 15) page 124 lines 15 – 35 and page 125 lines 5 – 25 of the records). Learned Counsel further submitted that such a confessional statement can only be used against a co-accused if adopted by him or he was confronted with it and he did not deny it.
He relied on the case of Kasa v The State (1994) 5 NWLR (Pt.344) p. 269 at 288 paragraph 9. We were urged to resolve this issue in favour of the Appellants.
For his part, learned Counsel for the Respondent argued that, in a case of Armed Robbery it is the duty of the prosecution to prove the ingredients of the offence which he listed as follows:
“(1) There was robbery or series of robberies.
(2) Each robbery or series of robberies was with violence.
(3) That the accused (Appellants) were involved.
He referred us to the case of Bozin v The State (1999) 1 ACLR page 1 at p. 2 as well as Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act Cap. 398 Vol. 22 LFN 1990.
It is the submission of the learned Counsel that evidence abound that there was an armed robbery in the house of PW1 and PW2 and that the Appellants were identified by PW2 as those who participated in the commission of the offence. Learned Counsel further submitted that a community reading of the evidence of PW1 and PW2 shows that there was actual armed robbery attack on the PW1 and his family on 22nd of August 1998 and that it was the Appellants that actually committed the offence. He urged us to so hold.
Learned Counsel made copious reference to the evidence of PW3 who was instrumental to the arrest of the 1st accused, who mentioned the rest of the accused persons who were rounded up and arrested. Learned Counsel submitted that his (PW3) evidence was never controverted nor discredited through cross-examination and the court, she further submitted was entitled to use it.
Again, on the evidence of PW3, learned Counsel argued that PW3 narrated how he saw first accused, now late and through inquiry from his conduct, the first accused told him how he and the appellant in this appeal robbed PW1. The Appellant as earlier stated were subsequently arrested within the area, the sword with which they stabbed PW1 was eventually recovered from the pillow of the 2nd appellant. Learned Counsel once more contended that that it is trite that when the evidence of a party or witness is uncontroverted and undiscredited through cross-examination the Court is entitled to act on it. He referred us to the case of Leadway Assurance Ltd. Zeco Nig. Ltd (2004) 18 NSCQR Vol. 18 (Pt.1) 394 to buttress his submission on this point.
It is the submission of the learned counsel that the unchallenged pieces of evidence adumbrated (supra) corroborated the confessional statement of the 1st Accused in which he mentioned the appellants as his co-accused in the commission of the offence. Learned counsel further submitted that it is immaterial that the other accused did not confess in so far as the first accused confessed and there is corroboration from other facts.
It is also the submission of the learned Counsel that the Appellants acted in concert and were party to the commission of the crime. He referred us to Section 7 of the Criminal Code, Cap. 30 Vol. II Laws of Eastern Nigeria 1963 applicable to Imo State and the case of Alagba v. R (1950) 19 NLR 128. He further submitted that where it is proved that two or more persons acted in concert when the act or omission which constituted the offence was actually done or made, it is not necessary to show which of them did or made the act or omission. The Appellants, he further submitted, acted in concert and had common intention to commit the act of armed robbery for which they were charged and convicted. We were urged to resolve this issue in favour of the Respondent and dismissed the appeal as lacking in merit.
Let me begin my consideration of this issue by stating that the law is now settled beyond peradventure that where a witness has made a statement before trial which is inconsistent with the evidence he gives in Court, and he gives no cogent reasons for the inconsistency, the Court should regard his evidence as unreliable.
It is also the law that where a witness is shown to have made a previous statement inconsistent with his evidence at the trial, the correct approach is that the Court should not merely be directed that the evidence given at the trial be regarded as unreliable, but should also be directed that the previous statement, whether sworn or unsworn, does not constitute evidence on which the court can act.
See the cases Kasa v The State and Onubogu v The State (supra).
Now, having stated the law and all that, I now proceed to examine the inconsistencies in the evidence of PW2 as adumbrated elsewhere in this judgment. Lest I forget, the trial Judge had placed a lot of premium on the evidence of this witness in convicting the Appellants. The questions to be asked at this stage are whether the trial Judge was right to believe the evidence of PW2 hook, line and sinker. And was he also right to act upon such evidence without also finding out whether her testimony was in consonance with the natural tendencies in the circumstance of this case?
In the case of The State v Aibangbee (1988) 7 SC (pt. t) p. 96 at pp. 142 paragraphs 25 – 35, the apex Court per Oputa, JSC held thus:
“… It is within the province of a trial Court to believe or disbelieve the witness, it had the privilege of seeing and hearing and whose demeanour it watched. Such belief or disbelieve must however, be in consonance with the general drift of the evidence and the probabilities which on the totality of the evidence it is natural to expect.(Underlining supplied for emphasis)
It is noteworthy to observe that the most natural and probable step any person in PW2’s shoe would have taken was to inform PW1, PW3 and the entire mob at the earliest opportunity that she recognised the Appellants as the robbers. Having failed to do so, I am of the considered view that her testimony that she recognized the Appellants at the scene of the crime is an afterthought that was made ten days after the offence was committed when she made her statement to the Police on 02/09/98.
It is pertinent to state at this juncture that the Supreme Court has severally laid down the steps any Court ought to take when confronted with inconsistencies in the testimony of any prosecution witness as in the instant case. In Nwubueze & Ors v. The State (1988) 4 NWLR (pt. 86) at p.27, the apex Court per Kawu, J.S.C. held that:
“I am of the view that if the learned trial Judge had given proper consideration to the inconsistency in the evidence of PW2 and pW3 and their previous statements, he would have come to the conclusion that it would have been unsafe to convict them on such evidence. Where as in this case, there are inconsistencies in the prosecution’s evidence such as to cast reasonable doubt on the guilt (sic) of the accused person such accused person should be given the benefit of the doubt.”
In the case in hand, I am of the considered opinion that had the trial Judge directed his mind to the above judgment of the Supreme Court, he would have also come to the same conclusion that it was unsafe to convict the Appellants on the evidence of PW2 because of the numerous material inconsistencies in her evidence as adumbrated (supra). In the light of the foregoing, the two questions posed a while ago must be answered in the negative.
In other words, the trial Judge was wrong to believe the evidence of PW2 hook, line and sinker and he was not right to act upon such evidence.
Again, taking a hard look at the circumstances of the case under consideration, one is tempted to say that PW2 had a special interest to ensure that the Appellants are convicted for the offence charged and she should be regarded a tainted witness and her testimony scrutinised closely. In the case of Ishola v The State (1978) NSCC p.499, Idigbe, JSC (of blessed memory) held thus:
“… it is proper to confine this category of witnesses to one who is either an ‘accomplice’ or by the evidence he gives (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve.”
The learned Author Nweze C. C. in his book Contentious Issues and Responses in Contemporary Evidence Law in Nigeria Vol. 2 p. 145 underline the requirement as follows:
The practical effect is that the testimony of such a witness must be approached with considerable caution if possible, it has to be attended to fastidiously with the finery of a toothcomb. Hence, the Judge should be very careful in arriving at a verdict of guilt on the uncorroborated evidence of such a witness.”
Let me pause a little at this juncture and observe that the learned trial Judge failed completely to heed the above advice but rather chose to find corroboration for the said testimonies in the confessional statement of DW1 (1st Accused).
On the confessional statement of the first accused person (DW1), the law is trite that, the confessional statement of an accused person if admitted in Court is evidence only against the maker and not against his co-accused. Section 27 (2) of the Evidence Act provides thus:
“Confessions, if voluntary, are deemed to be relevant facts against the persons who make them.” And Section 27 (3) of the Evidence Act provides as follows:
“Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court, or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
The provisions of the Section reproduced (supra) are unambiguous and self-explanatory and no aid is needed for their interpretation. It is very clear from the said Section that confessional statement of an accused person can only be evidence against a co-accused if the said co-accused adopted the confessional statement as his own or he was confronted with it and he did not deny it. See Kasa v The State (supra).
It is instructive that in the case we have in hand, the two Appellants denied the confessional statement of the DW1 from the very moment they heard it both in their statements to the police and the Court. I am of the considered view that the Court ought not to have applied the said confessional statement to the case of the Appellants at all because the Appellants did not adopt it. The question that must be asked and answered at this stage is, was there any ground in the Appellants’ case that warranted the application of the said statement? In other words was there any corroboration of the confessional statement of DW1 to warrant the application of the statement as envisaged by Section 27 (3) of the Evidence Act? In the case of Iko v The State (2001) 14 NWLR (Pt.732) p.221 pp.241 paras A – A and para C, the Supreme Court held concerning “corroboration” as follows:
“Evidence in corroboration must be independent testimony which affects the accused by connecting him or tending to connect him with the crime. In other words, it must be evidence which implicates him that is which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it…”
It is on record that a sword or a long knife or dagger was found under the floor of the 2nd Appellant in his room with blood stains. Learned Counsel for the Respondent has made heavy weather of that finding and submitted that, that amounted to corroboration of the statement of DW1, needed to secure conviction of the Appellants.
As can be gathered from the records, the 2nd Appellant in whose room Exhibit S was found repeatedly denied having committed the offence for which they were convicted and also denied using any sword or long knife or dagger to stab the PW1 on his leg. Though a knife, sword or dagger was found in his room containing blood stains, the question that comes to mind is whose blood stain was on the said Exhibit? Let me at this juncture pause and say that the case against the Appellants was not thoroughly investigated by the Police. The blood stains found on Exhibit S, should have been subjected to thorough examination with a view to finding out whose blood stain was on the Exhibit.
Though Exhibit S was found in the room of the 2nd Appellant, the blood stains found on it could either be that of the 2nd Appellant or of another person or not even blood stains of a human being. It is now settled beyond peradventure that once there is any doubt in a criminal trial, the benefit of that doubt must be resolved in favour of an accused person. See the case of Ngwo Kalu v The State (1988) 10 – 11 SC p. 19 at pp. 28 where the Supreme Court held thus:
“However, it is a very fundamental principle of our system of criminal justice that an accused person is presumed innocent until prove guilty. The standard of proof in criminal matters is proof beyond all reasonable doubt. Any lingering doubt must be resolved in favour of the accused person. This is certainly a case in which the doubt ought to have been resolved in favour of the Appellant.”
In the light of all that has been said, this lone issue is resolved in favour of the Appellants and against the Respondent.
It is trite that an appellate Court will not interfere with the trial Court’s finding of fact where the findings are borne out of the evidence before the trial Court. An Appellate Court will interfere with the findings of a trial Court only when such findings have been made on legally inadmissible evidence or they are perverse or not based on any evidence before the Court. See the cases of Sele v The State (1993) 1 NWLR (Pt.267) p.276 at p.282 and Iyaro v The State (1998)1 NWLR (Pt.69) p.256.
Now, applying the above principle of the law as enumerated in the cases (supra) to the case in hand, one cannot but interfere with the findings of the learned trial Judge for the following reasons:
“1. The evidence of PW2 and DW1 relied upon by the trial Court to convict the Appellants is manifestly unreliable and ought not to have been relied upon by the trial Court to convict accused persons facing a very serious capital offence as in this case.
- The prosecution’s case as presented in Court was filled with many lingering doubts and it would have been difficult for any reasonable Tribunal to convict the Appellant based on such a doubtful case. The prosecution failed to discharge the evidential burden placed on it in respect of this case.
- The trial Court failed to properly use the opportunity of seeing the prosecution witnesses directly to determine whether they were reliable witnesses or not. The trial Court failed to properly scrutinise the testimony of PW2 seeing she was an interested party and had reason to mislead the Court.
- The trial Court failed to properly consider the whole evidence adduced by the Appellants at the
trial and failed to properly evaluate the evidence produced at the trial.”
In the result, with the lone issue having been resolved in favour of the Appellants, the appeal succeeds and is hereby allowed by me. The sentence and conviction of the Appellants dished out by the lower Court is hereby set aside.
The Appellants are discharged and acquitted forthwith.
Other Citations: (2009)LCN/3483(CA)
