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Obinna Uzor V. The State (2016) LLJR-CA

Obinna Uzor V. The State (2016)

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JIMI OLUKAYODE BADA, J.C.A.

This is an appeal against the Judgment of High Court of Justice, Benin Criminal Division of Edo State of Nigeria in Charge No: – B/200C/2010 ? THE STATE VS OBINNA UZOR delivered on the 20th day of February, 2014 wherein the Accused/Appellant was convicted on a two count charge of conspiracy to commit armed robbery and armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act and sentenced to death.

Briefly, the facts that led to this Judgment being appealed against are that the Appellant was charged with the offence of conspiracy to commit armed robbery and armed robbery. In a bid to prove the charge at the trial Court, the prosecution called three witnesses while the Accused/Appellant testified in his defence and called one witness. According to PW1 (who is the husband of PW3 and guardian of PW2) he was informed by PW3 while he was away from home that armed robbers invaded their home on the 19th day of March 2010. He promptly returned home and eventually took PW2 (who was sexually assaulted by one of the robbers) to the

hospital for treatment. On their way back home from hospital, the PW2 recognized the Appellant as one of the robbers that attacked them.

The PW2 testified that the robbers, armed with offensive weapons, invaded their house after 1a.m and eventually took her away to an uncompleted building where one of the robbers who the witness identified as the Appellant sexually assaulted her.

The PW3 gave similar evidence as PW2 at the trial Court and stated further that the robbers dispossessed her of jewelries, handsets and cash in the sum of N43, 500.00

The Appellant in his defence testified and denied the charge against him. The only witness called by the Accused/Appellant testified that the Appellant was with him in his room throughout the fateful night till daybreak when they took their bath, got dressed and left for work.

At the end of the trial, the Accused/Appellant was found guilty as charged and he was convicted on each of the counts. He was sentenced to death.

The Appellant who is dissatisfied with the Judgment of the Lower Court appealed to this Court.

The learned counsel for the Appellant formulated five issues for the

determination of the appeal. The issues are reproduced as follows:-

ISSUE NO. 1

Whether PW2?s identification of the Appellant as one of the robbers who attacked the complainants on the 19th day of March 2010 met the standards required by law. (Distilled from Ground 1)

ISSUE NO. 2

Whether the Appellant validly raised an alibi and if yes, whether same was not sufficient to warrant his discharge and acquittal. (Distilled from Ground 2)

ISSUE NO. 3

Whether the police investigation report which formed part of the proof of evidence filed by the prosecution and now contained at pages 15 ? 18 of the record of appeal does not form part of the case presented before the trial Court. (Distilled from ground 3)

ISSUE NO. 4

Whether the investigation police officer was a vital witness who ought to have been called by the prosecution. (Distilled from Ground 4)

ISSUE NO. 5

Since the Appellant?s conviction for conspiracy was based on the learned trial Judge?s finding that he was one of the robbers that invaded the house of the complainants on the 19th day of March 2010, whether that conviction can be

sustained in the absence of any other evidence linking the Appellant with the offence of conspiracy. (Distilled from Ground 5)

(Issues 1, 2, 3, 4 & 5 are distilled from Grounds 1, 2, 3, 4 and 5 of the Amended Notice of Appeal).

The learned counsel for the Respondent in her own case formulated four issues for the determination of the appeal. The issues are reproduced as follows: –

ISSUE NO. 1

Whether the learned trial Judge rightly came to the conclusion that the evidence of PW2 identifying the Appellant as one of the armed robbers was unimpeachable.

ISSUE NO. 2

Whether the learned trial Judge was right to have held that the defence of alibi did not avail the Appellant.

ISSUE NO. 3

Whether the investigating police officer (IPO) at Ogida Division was a vital witness who ought to have been called by the prosecution (now Respondent).

ISSUE NO. 4

Whether there was sufficient evidence to ground a conviction for conspiracy to commit armed robbery.

At the hearing of the appeal, the learned counsel for the Appellant stated that the appeal is against the Judgment of High Court of Justice, Edo State of Nigeria

which was delivered on 20th day of February 2014. See pages 92 ? 134 of the record. He also referred to the Notice of Appeal filed on 2nd day of April 2014. The amended notice of appeal filed on 4th day of November 2014 and deemed as properly filed on 4/12/2014.

It was also stated on behalf of the Appellant that the Appellant?s brief of argument which was filed on 4th day of November 2014, and the Appellant?s reply brief of argument filed on the 30th day of October 2015 were deemed as properly filed and served on the 29th day of February 2016.

The learned counsel for the Appellant adopted the two briefs as his argument in urging that the appeal be allowed and Judgment of the Lower Court set aside and in its place discharge and acquit the Accused/Appellant.

The learned counsel for the Respondent in her response, referred to the Respondent?s brief of argument filed on 30/6/2015 and deemed as properly filed on 19/10/2015. The said Respondent?s brief was further deemed as properly filed and served on 29/2/2016.

She adopted the said Respondent?s brief as her argument in urging that the appeal be dismissed.

The issues formulated for the determination of the appeal by counsel for the parties have been carefully examined and the issues as formulated on behalf of the Appellant which are tied to the grounds of appeal, are in my view apt and relevant in the determination of this appeal. I will therefore rely on the said issues.

ISSUES FOR THE DETERMINATION OF THE APPEAL

ISSUE NO. 1

Whether PW2?s identification of the Appellant as one of the robbers who attacked the complainants on the 19th day of March 2010 met the standards required by law. (Distilled from Ground 1)

The learned counsel for the Appellant submitted that in order to sustain a conviction in a charge of armed robbery, the prosecution must prove the following ingredients:-

(a) That there was a robbery;

(b) That the robbery was carried out with the use of offensive weapons;

He relied on the following cases:-

– OGUDU VS THE STATE (2011) 18 NWLR Part 1278 Page 1 at 32 paragraphs B ? D;

– BOZIN VS THE STATE (1985) 2 NWLR Part 8 Page 465.

?It was contended that the Lower Court relied on

the evidence of PW2 in finding that the Appellant was properly identified as one of the robbers, but that the question is whether the evidence of PW2 suffices in the eyes of the law.

The learned counsel for the Appellant referred to the evidence of PW2 and other witnesses and stated that the following facts were established:

1. That the incident happened at the wee hours of the night between 1.00am and 3.00am.

2. The PW2 was with her assailants in the uncompleted building for about 2 hours and there was no light in the uncompleted building

3. Prior to the incident PW2 had not had any previous contact with the Appellant or her assailants.

4. PW2 stated that she noticed a person in the room. He was the one that put on the light.

The learned counsel for the Appellant contended that PW2 did not mention in her statement that it was the Appellant who put on the light of their room.

He argued further that the PW2 did not give any other evidence as to what assisted her in identifying the Appellant such as his height, gait, voice and what he was wearing at the material time.

He also referred to Appellant?s statement which

shows that the Appellant is of Igbo tribe. It was also pointed out on behalf of the Appellant that there is no evidence from any quarter in the proceedings to show that the Appellant spoke Urobo language.

He submitted that in view of the foregoing, that a serious doubt was cast on the identification of the Appellant by PW2

He relied on the case of:

– NDIDI VS STATE (2007) 13 NWLR Part 1052 Page 633;

– ALABI VS THE STATE (1993) 7 NWLR Part 307 Page 511 at 521 paragraphs F ? G;

– ABDULLAHI VS THE STATE (2008) 17 NWLR Part 1115.

The learned counsel for the Appellant urged that this issue be resolved in favour of the Appellant.

In her response the learned counsel for the Respondent submitted that the learned trial Judge came to the right conclusion when he held that the evidence of the 2nd prosecution witness in which she identified the Appellant as one of the robbers who invaded their house, was unimpeachable. She went further in her submission that the duty to evaluate evidence and ascribe probative value rests on the trial Judge who saw, heard and assessed the witness. She relied on the cases of:-

– MAFIMISEBI VS

EHUWA (2007) 2 NWLR Part 1018 Page 385 at 433 paragraph B ? C;

– ONIAH VS ONYIA (1989) LPELR ? 2877 SC.

She contended that in this case, the learned trial Judge did reviewed the evidence before him extensively in relation to the identification of the Appellant. He gave cogent reasons for the conclusion he drew thereon. In particular on page 129 lines 1 ? 6 of the record of appeal, he stated as follows:-

?What is more, the way she identified the accused as the rapist and one of the robbers was so spontaneous that it is simply not possible to doubt her and the time between the incident and her identification of the accused as the culprit was so close in sequence that it was almost like one continuous event.?

The learned counsel for the Respondent further submitted that the findings of fact of a trial Judge who had the privilege of observing the demeanour of the witnesses will not ordinarily be interfered with by the appellate Court, on appeal.

She relied on the following cases:-

– MAFIMISEBI VS EHUWA (Supra);

– EMMANUEL OCHIBA VS THE STATE (2011) LPELR 8245 SC;

– OSUAGWU VS STATE (2009) 1

NWLR Part 1123 Page 523 at 531 ratio 10.

The learned counsel for the Respondent also referred to the evidence of PW3 during examination in-chief, vis–vis the contents of her earlier statement to the police on 19/3/2010. The said statement was admitted in evidence as Exhibit ?D?.

She submitted that the prosecution adduced compelling evidence at the trial to support the inference that the Appellant was one of the two robbers of 19th March 2010 and she urged that this issue be resolved in favour of the Respondent.

The issue for consideration here is whether PW2?s identification of the Appellant as one of the robbers who attacked the complainants on the 19th day of March 2010 met the standards required by law.

It is settled law, as established in a long line of cases that to sustain a conviction in a charge of armed robbery, the prosecution must prove the following ingredients:-

(a) That there was a robbery;

(b) That the robbery was carried out with the

use of offensive weapons;

robbery.

The ingredients mentioned above must be proved

beyond reasonable doubt in order to sustain a conviction.

See ? OGUDU VS STATE (Supra) Page 1 at 32 paragraphs B ? D;

– BOZIN VS STATE (Supra).

At pages 48 ? 49 of the record of appeal, PW2 gave evidence of how she was taken by PW1 to the Ogida Police Division in the morning following the incident and from there to Central Hospital, Benin City for medical attention. She testified further that it was in the process of making their way home from the Central Hospital in the evening of the same day that she saw and recognized the Appellant as the particular robber who had defiled her which prompted her to alert PW1.

At page 129 line 18 ? 21 of the record of appeal, the learned trial Judge stated as follows:-

?From the circumstances of this identification, I am satisfied that it could not have been mistaken. I therefore believe the 2nd prosecution witness that the accused was the robber that invaded their house and raped her.?

The learned counsel for the Appellant stated that ?

– The robbery incident happened in the wee hours of the night between 1am and 3am

– That PW2 was with her

assailants in the uncompleted building for about 2 hours and there was no light in the uncompleted building.

– That prior to the incident PW2 did not have previous contact with the Appellant or her alleged assailants.

– The robbers were more than one in number and they spoke Urhobo language.

In view of the issues highlighted above, counsel for the Appellant submitted that a serious doubt was cast on the identification of the Appellant by PW2.

In evaluating the evidence at the trial Court at page 129 lines 18 ? 21 of the record of appeal the learned trial Judge stated thus:-

The PW2 gave evidence of how she was taken by PW1 to the Ogida Police Division on the morning following the incident and from there to Central Hospital, Benin City for medical attention. She testified further that on their way home from the Central Hospital, Benin City in the evening of the same day that she saw and recognized

the Appellant as the particular robber who had defiled her.?

In THE STATE VS SALAMI (2011) 18 NWLR Part 1279 Page 620, it was held among others as follows:-

Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused, a parade is not necessary, recognition of an accused may be more reliable than identification.?

In my humble view, the evidence of PW2 pointing to the Appellant as the perpetrator of the crime amounted to proof. It is imperative that the Respondent must be linked with the crime by cogent and convincing identification. It is settled law that it is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident as in this present case, a formal identification is unnecessary. See the following cases

– EYISI VS THE STATE (2001) 15 NWLR Part 691 Page 555.

– EDAMINE VS THE STATE (1996) 3 NWLR Part 438 Page 530 at 538 paragraph G.

It is trite that the duty to evaluate evidence and to ascribe probative value rests on the trial Judge who saw, heard and assessed the witness.

See the following cases:-

– MAFIMISEBI VS EHUWA (Supra) Page 433 Paragraphs B ? C

– ONIAH VS ONYIA (Supra)

In his review of the evidence before the Court, relating to identification of the Appellant, the learned trial Judge on pages 124 to 129 of the record, gave cogent reasons for his conclusion. In particular, on page 129 lines 1 ? 6 he held as follows:-

It is also settled law that the findings of fact of a trial Judge who had the privilege of observing the demeanour of the witnesses will not ordinarily

be interfered with by an appellate Court on appeal except in certain circumstances like ?

(a) Where there is insufficient evidence to

sustain the judgment, or

(b) Where the trial Court failed to make proper

use of the opportunity of seeing, hearing and observing the witnesses, or

cannot be regarded as resulting from the evidence.

(d) Where the trial Court has drawn wrong

conclusion from accepted evidence or has taken erroneous view of the evidence adduced before it, or

(e) The trial Court?s finding are perverse in the

sense that they do not flow from accepted evidence or are not supported by evidence before the Court.

See ? MAFIMISEBI VS EHUWA (Supra)

OSUAGWU VS STATE (Supra)

In this case under consideration, none of the above mentioned circumstances exists.

In conclusion on this issue, I am of the view that the identification evidence given by PW2 against the Appellant as one of the robbers was unimpeachable.

This issue is therefore resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 2

Whether the Appellant validly raised an alibi and if yes, whether same was not sufficient to warrant his discharge and acquitted.

The learned counsel for the Appellant referred to Exhibit ?E? i.e. the statement of the Appellant at Ogida Police Station. The statement was made upon his arrest on the 20th day of March 2010. He stated as follows:-

?On 18/3/2010 I didn?t go anywhere, I slept in my home at the above address and woke up on the following day being the 19th day of March 2010 at about 0600 hours. I pass night with my elder brother called Chinedu Uzor from 18th ? 19th day of March 2010?

The statement of the Appellant above was corroborated by the DW1 in his statement to the Police on 21st day of March 2010. (See pages 26- 27 of the record of appeal)

The learned counsel for the Appellant also referred to the evidence at page 58 of the record where DW1 testified as follows:-

?I know the accused, He is my brother, on 18th March 2012, my brother did not go out. He stayed with me in my room and we slept together in my room. The following morning being 19th we bathed got dressed for driving

work, I went for my electrician work?

It was contended on behalf of the Appellant that a valid alibi was raised, but that the Investigating Police Officer was not called to testify. He relied on the following cases:-

– IKUEPENIKAN VS STATE (2011) 1 NWLR Part 1229 Page 449 at 465 ? 466 Paragraph H ? A;

– SHEHU VS THE STATE (2010) 8 NWLR Part 1195 Page 112 at 132 ? 134 Ratios 13 and 14;

– EKE VS THE STATE (2011) 3 NWLR Part 1235 Page 587 at 606 Paragraph E;

– ONAFOWOKAN VS STATE (1987) 3 NWLR Part 61 Page 538.

The learned counsel for the Appellant submitted that there is no greater or more convincing contrary evidence from the prosecution in the instant case as to neutralise the Appellant?s Alibi. He relied on ? ABUDU VS THE STATE (1985) 1 NWLR Part 1 at Page 55

He therefore urged this Court to resolve this issue in favour of the Appellant.

The learned counsel for the Respondent in her response stated that the first statement made by the Appellant to the police on 20/3/2010, was not tendered in evidence. Exhibit ?F? which was tendered through the Accused/Appellant under

cross-examination is the statement of the Appellant made on 2/4/2010 at the SARS Office, Police Headquarters, Benin City.

She stated that the earlier statement made by Accused/Appellant was not tendered in evidence but it is contained on pages 28 to 29 of the record of appeal.

It was also submitted that a defence of alibi crumbles completely in the face of compelling evidence to the contrary that fixes the accused person at the scene of crime.

She relied on the following cases:

– IKECHUKWU SUNDAY VS THE STATE (2010) 18 NWLR Part 1224 Page 223.

– CHRISTIAN NWOSU VS THE STATE (1976) 6 S.C. (Reprint) Page 72.

She finally urged on this Court to hold that since the learned trial Judge was satisfied that the evidence of identification of the Appellant was credible that this is enough to dispel any doubt as to the identity of the Appellant as the robber who robbed and defiled PW2.

She urged that this issue be resolved in favour of the Respondent.

In his reply brief of argument, the learned counsel for the Appellant submitted that there are certain circumstances where an appellate Court will be in as good a position to evaluate

evidence. He relied on the cases of:-

– ODUTOLA VS MABOGUNJE (2013) 7 NWLR Part 1354 Page 522 at 548

– LAWAL VS DAWODU (1972) 8 ? 9 S.C. Page 3

– FASHANU VS ADEKOYA (1974) 6 S.C. Page 83

– BALOGUN VS AKANJI (1988) 1 NWLR Part 10 Page 301.

He urged this Court to i.e. evaluate the evidence of PW2 and allow the appeal.

In this appeal under consideration, the Appellant raised an alibi by denying being at the scene of crime on 19/3/2010 in his first statement to the police dated 20/3/2010, a copy of which is contained on page 28 ? 29 of the record of appeal. The said statement was not tendered in evidence.

Although the statement does not constitute documentary evidence before the trial Court because it is not regarded as statement of the witnesses but merely summaries of the witness statements sufficient to guide a Judge in coming to a conclusion that there is prima facie evidence to support the charge. See ? FEDERAL REPUBLIC OF NIGERIA VS SENATOR WABARA & OTHERS (2013) LPELR ? 20083 (S.C)

?But the said statement although not tendered in Court is among the proof of evidence which constitutes

documentary evidence before the trial Court, and therefore an alibi was raised at the earliest opportunity. See ? PATRICK IKEMSON & OTHERS VS THE STATE (1989) 3 NWLR Part 110 Page 455.

Also in Exhibit ?E? which was made on 2/4/2010 by the Appellant at the SAR?s Office Police Headquarters Benin City, the Appellant also raised an alibi.

The police thereafter on investigation executed a search warrant on the apartment of DW1 on 20/3/2010, DW1 also made statement to the police on 21/3/2010.

The defence of alibi would avail the accused person if it is raised at the earliest opportunity as done in this case by the Appellant. And that was why the police investigated it and carried out search warrant on the residence of DW1 and also obtained a statement from him.

However, a defence of alibi crumbles completely in the face of compelling evidence to the contrary that fixes the accused person at the scene of crime. In other words, if the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the Court accepts, any plea of alibi raised by the accused

naturally collapses.

In this case under consideration, the PW2 stated among others in her testimony at the Lower Court as follows:-

?…I saw them with a gun and saw. As they were running with me, a man came out and tried to stop them, they pointed the gun at him and he ran back into house. They took me to the uncompleted building and had sexual intercourse with me. It was one of them that did. He is in Court. He is the accused in the dock. He said if I refuse to submit, he would kill me. I pleaded with him to leave me that I have not done it before. He started to dip his hands into my private part. My stomach started to turn and I started to bleed. He said I should take a message to my brother?s wife that when they first came, she refused to open the door and also refused to open the door this time, he said if they come the third time and she refuses to open the door, they would kill her. They now let me go and I went home.

The bleeding by then was so severe that my uncle?s wife called my uncle to report and he came and took me to Ogida Police station to report. Police told him to take me to Specialist Hospital for treatment. After treatment at the Specialist Hospital, we came out around after 5.00pm. As we were looking for a vehicle, I saw the accused, looking at him, he bowed down his face. I drew my uncle?s attention but he ran away across the road, my uncle was shouting thief, thief. People assisted us to catch the accused and hold him. As my uncle stated what happened, the agberos (motorpark touts) there intervened, saying the boy was one of them and seized him from my uncle. We then went to report to Ogida police station what happened. Police gave my uncle a letter to the agbero people to hand over the boy, I mean the police sent a letter to them. The next day, my uncle told me that the boy had been handed over to SARS. I went to Ogida Police Station and SAR?S Office to make statement …?

The learned trial Judge while reviewing the evidence before the Court, (and in accepting

the testimony of PW2) held among others on pages 128 lines 17 to 20 of the record of appeal as follows:-

?In the present case. The 2nd Prosecution witness … had ample opportunity to have identified the accused, considering the time she spent with her attackers and the discussion she had with her rapist.?

On the issue of identification of the Appellant, the learned trial Judge on pages 124 to 129 of the record of appeal stated the reasons for the conclusion he drew from the evidence before him. On page 129 lines 1 to 6 he stated as follows:-

?What is more, the way she identified the accused as the rapist and one of the robbers was spontaneous that it is simply not possible to doubt her and the time between the incident and identification of the accused as the culprit was so close to sequence that it was almost like one continuous event.?

My humble view is that the defence of alibi raised by the Appellant crumbled completely and fell apart like pack of cards in the face of the evidence of PW2.

The evidence of PW2 dispelled

any doubt as to the identity of the Accused/Appellant as the robber who defiled her. The evidence really fixed the Accused/appellant at the scene of the crime.

This Issue No. 2 is therefore resolved in favour of the Respondent and against the Appellant.

ISSUE NOS 3 AND 4 (Taken together)

(3) Whether the Police investigation report which formed part of the proof of evidence filed by the prosecution and now contained on pages 15 ? 18 of the Record of Appeal does not form part of the case presented before the trial Court.

(4) Whether the investigation police officer was a vital witness who ought to have been called by the Prosecution.

The learned counsel for the Appellant submitted that the Police Investigation Report upon being filed in Court is part of the proof of evidence thereby became part of the case of the prosecution against the Appellant and formed part of the record.

It was also submitted on behalf of the Appellant that Police Investigation Report having become a part of the record of the Court and a document in the Court?s file ought to be considered by the learned trial Judge in giving the Appellant the

benefit of doubt. He relied on the following cases:-

– UZODINMA VS IZUNASO (NO 2 ) (2011) 17 NWLR Part 1275 Page 30 at 75 F ? H

– ABIODUN VS A.G. FEDERATION (2007) 15 NWLR Part 1057 Page 359 at 411 Paragraph C ? D.

The learned counsel for the Appellant urged that this issue be resolved in favour of the Appellant.

Concerning Issue No. 4, the learned counsel for the Appellant stated that the Appellant did raised an alibi upon being arrested by police which alibi was corroborated by DW1.

It was contended that the prosecution ought to have called the Investigating Police Officer to testify on how the alibi was investigated since the identity of the Appellant was in issue. The counsel for the Appellant argued that there is every reason to invoke the presumption created under Section 167(d) of the Evidence Act 2011. He relied on the case of ? OGUDU VS STATE (Supra) Act Pages 31 ? 32 Paragraph G ? B, Ratio 13

He therefore urged that this Issue No. 4 be resolved in favour of the Appellant.

In her Response, the learned counsel for the Respondent submitted that the Investigating Police Officer was not a

vital witness. She relied on the case of ? EMMANUEL OCHIBA VS THE STATE (2011) LPELR 8245 (SC)

It was also submitted that the report or opinion of Investigating Police Officer cannot take precedence over the opinion or decision of the Court. She relied on the following cases:-

– S.C.O.A. NIG LTD VS J.A. KEHINDE & SONS LTD (2004) 8 NWLR Part 874 Page 87 at 98 Paragraph G.

– NKWOCHA VS MTN NIG COMM LTD (2008) 11 NWLR Part 1099 Page 439 at 457 Paragraph E

– EJIOFOR VS OKAFOR (2008) 3 NWLR Part 1073 Page 85 at 92 Paragraph F.

The learned counsel for the Respondent submitted that the Police Investigation Report from Investigating Police Officer of Ogida Division not being in evidence therefore it could not have been relied upon. She went further in her argument that the Appellant was not precluded from calling the Investigating Police Officer of Ogida Division to testify if his evidence would be beneficial to the Appellant?s case.

It was also submitted that the prosecution is not obliged to call a host of witnesses. He relied upon ?

– OSUAGWU VS THE STATE (Supra) Page 523 at 531 ratio 11

– AMAREMOR VS

STATE (2010) 7 NWLR Part 1193 page 317 at 335 Paragraph F

– OCHIBA VS STATE (Supra)

She finally urged that Issues 3 & 4 be resolved in favour of the Respondent.

In this appeal, the Police Investigation Report which formed part of the proof of evidence filed by the prosecution which is contained on pages 15 ? 18 of the record of appeal does not form part of the case presented before the trial Court, because it cannot be regarded as documentary evidence tendered by a witness, it is just to guide the Court that there is prima facie evidence to support the charge before the Court.

See the case of;-

– F.R.N. VS WABARA (Supra)

A vital witness is one whose evidence may determine the case one way or the other. The prosecution is not bound to call each and every witness. It is at liberty to call only such number of witnesses as is necessary to establish proof of the offence charged beyond reasonable doubt.

In OCHIBA VS THE STATE (Supra) The Supreme Court per Odili JSC held thus among others:

?It is rather lame to call for the operation of Section 149(d) of the Evidence Act now Section 167(d) of the Evidence Act

2011 (as amended) against the prosecution for failing to call the witnesses that the defence felt ought to be called. Since the prosecution was able to make out their case adequately within the standard of proof required, there was no need for surplusage or superfluity serving no useful purpose.?

In view of the foregoing, I am of the view that the Investigation Police Officer was not a vital witness who ought to have been called by the prosecution in this case because all the material evidence about the armed robbery were adequately covered in the evidence of PW1, PW2 and PW3 presented by the prosecution.

The failure to call the Investigation Police Officer is not fatal to the case of the prosecution.

Therefore Issues Numbers 3 and 4 are hereby resolved in favour of the Respondent and against the Appellant.

ISSUE NO 5

the offence of conspiracy.

On the ingredients of the offence of conspiracy, the learned counsel for the Appellant relied on the cases of:-

? IKUEPENIKAN VS STATE (2011) 1 NWLR Part 1229 Page 449 at 465 to 466 Paragraph H ? A, 474 ? 475;

? ABDULLAHI VS STATE (2008) 17 NWLR Part 1115 Page 203 at 221 Paragraph E ? H;

? CLARK VS STATE (1986) 4 NWLR Part 35 Page 381;

? SHODIYA VS STATE (1992) 3 NWLR Part 230 Page 230 Page 457 at 472 Paragraph A ? B.

He submitted that the question for consideration is ? Did the prosecution by any means, conclusively and beyond reasonable doubt, establish that the Appellant on or about the 19th day of March 2010 at No. 18, Oba lane Useh Quarters, Benin City formed a common intention with any person to invade the residence of the Complainants and rob them, whilst armed with offensive weapons?

He went further in his submissions that the Appellant?s conviction for the offence of conspiracy as laid out in Count 1 is based on his alleged identification by PW2 as one of the robbers who invaded the Complainant?s house. However, he contended

that since the prosecution has failed to establish the identity of the Appellant as one of those robbers, therefore he submitted that the evidence of PW2 and PW3 to the effect that the robbers were more than one in number is of no moment.

He relied on the case of

– AWOSIKA VS STATE (2010) 8 NWLR Part 1198 Page 49 at Page 70 Paragraph D ? E

He therefore urged that this issue be resolved in favour of the Appellant.

In her Response, the learned counsel for the Respondent submitted that from the totality of the evidence adduced at the trial, the Respondent proved the count of conspiracy to commit armed robbery i.e. Count 1 against the Appellant beyond reasonable doubt just as much as it did in Count II (the substantive offence of robbery) as required by Section 135(1) of the Evidence Act Cap E 14, Laws of the Federal Republic of Nigeria 2004 (as amended).

She referred to the case of: – GBADAMOSI VS STATE (1991) 6 NWLR Part 196 Page 82 for the definition of crime of conspiracy. She submitted that a careful perusal of the testimonies of PW2 and PW3 would reveal that there is no dispute as to the fact that more than one person lunched

the attacked on PW2 and PW3 on the day in question.

It was also submitted on behalf of the Respondent that armed robbery is an offence known to our law and is punishable with death. Thus, the agreement to rob somebody of his/her property means agreement to carry out an unlawful purpose. She went further that having argued that the Appellant was unmistakably one of the two robbers, she submitted that there was an agreement inferable from the circumstances between the Appellant and the other robber now at large to go to the scene of crime and rob.

In GBADAMOSI VS THE STATE (1991) 6 NWLR Part 196 Page 182, conspiracy was defined to mean:-

?.. the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. In effect, the purpose of the meeting of the two or more minds is to commit an offence ?.?

For the prosecution to succeed in a charge of offence of conspiracy to commit armed robbery and armed robbery, the following ingredients must be proved beyond reasonable doubt.

(1) That there was an agreement between the

accused/appellant and others to commit the offence of robbery.

(2) That in furtherance of the agreement, the accused took part in the commission of the offence of robbery.

(3) That the robbery was an armed robbery.

In ERIM VS STATE (1994) 5 NWLR Part 346 Page 522, it was held among others by the Supreme Court that:-

?the offence of conspiracy is committed the moment two or more persons have agreed that they will do immediately or at some future time, certain things, the conspirators may have no opportunity, or may be prevented, or may fail. Nevertheless the crime was completed at the time they agreed.?

As could be gleaned from the testimonies of the PW2 and PW3 and the findings of the learned trial Judge at page 118 of the record of appeal, that the robbers who were armed with a gun, a long knife, and a saw broke into the home of the 1st and 3rd prosecution witnesses at No. 18 Olor Street, Useh Quarters, Benin City while the 3rd PW was asleep, attacked them and stole jewelries, phones and some cash from them. PW2 and PW3 used the words ?a gang of armed robbers?, ?they? ?two boys?

?the boys? ?one of the boys? etc to refer to the robbers throughout their evidence at the trial and in their statements which were tendered in evidence as Exhibits ?A? ?C? and ?D?. See pages 6, 9, 21, 48, 52 and 53 of the record of appeal.

The PW2?s testimony at page 48 of the record of appeal states thus:-

saw them with a gun and saw. As they were running with me, a man came out and tried to stop them, they pointed the gun at him and he ran back into his house. They took me to an uncompleted building and has (SIC) sexual intercourse with me. It was one of them that did. He is in Court now. He is the accused in the dock.?

The PW3?s testimony on page 53 line 1 ? 6 states thus:-

?… They then started to direct me as to what to give them. By then, they were already inside my room. They collected my jewelleries and money ? and handsets …?

The above testimonies of PW2 and PW3 showed that more than

one person attacked the PW2 and PW3 on the day of the incident.

In OMOTOLA VS STATE (2009) 2 ? 3 MJSC Page 76 (SC) and ERIM VS STATE (Supra), where it was held that:-

?In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other. All that need be established is that the criminal design alleged is common to all of them. Proof of how they connected with or among themselves or that the connection was made is not necessary for there could even be cases where one conspirator may be in one town and the other in another town and they may never have seen each other.?

In view of the foregoing, I am of the view that there was an agreement inferable from the circumstances between the Appellant and the other person, now at large, to go to the scene of crime at No. 18 Olor Street, Benin City to rob.

I am fortified in my view above by the decision in ? GBADAMOSI VS STATE (Supra), where it was held among others as follows that:-

?The Court should not only consider the physical meeting of the minds in a known and identifiable place or spot as the

crime hatching or planning base or ground, but the totality of the conduct of the parties. The law is trite that for the purpose of convicting on conspiracy, direct and distinct evidence, thought most desirable is not invariably indispensable.?

The inevitable conclusion to which I have arrived at is that the contention of the learned counsel for the Appellant that conspiracy was not proved against the Appellant, lacks substance and it is hereby discountenanced. The Respondent has proved the count of conspiracy as well as armed robbery beyond reasonable doubt against the Appellant in this case. The learned trial Judge was therefore right in entering a verdict of ?guilty? against the Appellant and consequently convicting him of the offences of conspiracy in Count 1 and Armed Robbery in Count II of the charge.

This Issue No. 5 is also resolved in favour of the Respondent and against the Appellant.

With the resolution of Issues Numbers 1 to 5 in favour of the Respondent and against the Appellant, this appeal is therefore devoid of any merit and it is hereby dismissed.

In the result, the conviction and sentence of the

Appellant by the learned trial Judge of Edo State High Court in Charge No B/200C/2010 ? THE STATE VS OBINNA UZOR delivered on the 20th day of February 2014 is hereby affirmed.

Appeal dismissed.

Other Citations: (2016)LCN/8896(CA)

Obinna Uzor V. The State (2016) LLJR-CA

Obinna Uzor V. The State (2016)

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