Terlumen Giki V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Calabar Division (“the lower Court” for short) delivered on the 12th day of February 2014, which affirmed the decision of the High Court of Cross River State, (the trial Court), convicting and sentencing the appellant to death on the offence of armed robbery on 12th day of October 2009, contrary to Section 1 (2) (a) (b) of the Robbery and Firearms (Special Provision) Act, Cap R 11 Laws of Federation of Nigeria 2004.
The facts giving rise to this appeal as could be gleaned from the record of appeal, are simply as follows. On 15th December 2005 one Victor Ogbaji Ogar, a motor cyclist who testified at the trial as PW1, dropped a passenger at the boundary of Benue State and Cross River State and wanted to head to his home town. On his way home, he suddenly reached a road block mounted by armed robbers which comprised the appellant and three other co-accused persons who were masked and armed with guns and dagger. The gang of armed attacked him and robbed him of a sum of N31,700 after tying his hands to the back with rope
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and later forced him to lead them to Osina Wafe Village for another robbery operations.
On getting to that village, the victim shouted for help and his shouts attracted people around, hence the armed robbers took to their heels firing gun shots in the air and the shot hit and injured a girl called Rosemary Omagu who later testified at the trial as PW2. Unfortunately for the appellant, he was caught or arrested by the villagers and was unmasked. Even though one of the robbers by name, Sunday Makai escaped, two other members of the robbery gang namely Mannasseh Jiwunde and Aondowase Sougo were arrested, hence the appellant and the two others arrested were jointly charged, tried together and convicted of offence of armed robbery.
At the trial, the prosecution called three witnesses and tendered ten exhibits, whereas the appellant, as accused person, testified on his own behalf without calling any witness to testify for his defence. In the end the learned trial Judge found the appellant guilty as charged and convicted him of the offence of armed robbery and sentenced him to death. Naturally aggrieved by his conviction and sentence by the trial Court, he
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appealed to the lower Court which dismissed his appeal and affirmed the conviction and sentence in its Judgment delivered on 12th February 2014. Still dissatisfied with the Judgment of the lower Court, the appellant further appealed to this Court.
Parties filed and exchanged briefs of argument in compliance with the rules and practice applicable to this Court. The appellant’s brief of argument settled by one Chenure Godwin Omoaka Esq. was filed on 20th October 2017 but deemed filed on 26th October 2017. The Respondent herein, upon being served with the appellant’s brief of argument filed his brief of argument on 12th September 2014 which was also deemed filed on the same 26/10/2017. In the appellant’s brief of argument, a lone issue was distilled for determination from the grounds of appeal contained in the notice of appeal which reads thus:-
Was the Court below right to affirm the Judgment of the trial Court on the ground that the prosecution proved its case beyond reasonable doubt”
The above lone issue for determination was adopted by the learned counsel for the respondent as the only issue calling for the determination of this appeal
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without more.
In arguing the lone issue for determination, the learned counsel for the appellant submitted that failure of the Court below to take into consideration the case put forward by the appellant is fatal and should have led to a reversal of the decision of the trial Court. He pointed out that the appellant. testified that on the day of the incident i.e. 15th of December, 2005, he went to Osina to buy palm wine and while he was engaged in discussion with the seller, the vigilante group members pounced on him and accused him of committing robbery. He then argued that the lower Court did not advert its mind to the evidence of the appellant in affirming the trial Court’s finding that PW1 was robbed. He argued that PW1 gave conflicting evidence as to the amount stolen from him as he put the amount variously at #31, 000 and #31,200 in Exhibits 1 and 2 i.e. his statements to the police.
On the evidence as to the time of the robbery, he pointed out that PW1 stated that he was robbed between 10 and 11pm at the boundary between Benue and Cross River States and that it is not possible that the robbers would have asked him to lead them to Osina village
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for another round of robbery operation at about 9pm in Osima village as would have culminated in firing a stray bullet hitting PW2 which the said PW2 stated in her evidence, to have occurred at about 7pm. He argued that the event at Osina was not the subject of the charge but on an earlier armed robbery that allegedly took place in the forest reserve in Ahfokpa and that the appellant was not arrested in connection with that armed robbery that earlier took place, but in connection with the alleged attempted armed robbery that took place in Osina village. He argued that the Court should have invoked Section 167 of the Evidence Act to hold
(i) that the PW1 did not die
(ii) the absence of evidence showing that he sustained injury to his fore head
(iii) lack of medical evidence that he was treated for injury sustained as a result of stabbing clearly suggests that the appellant and his co-accused were not armed.
He submitted that in the absence of any evidence from the prosecution showing clearly that no offensive weapon was found in possession of the appellant and the gang member at the time of their arrest at Osina raised significant doubt as
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to the veracity of PW1’s assertion, that he was robbed by gun wilding armed robbers. He also argued that the appellant did not take part in the robbery because the alleged robbery that took place and the event of Osina vlllage are two different incidents which must be kept separately. He argued that arresting and unmasking the robbers are not pointer that they were the persons who robbed Pw1. He urged this Court to hold that the prosecution has failed to prove the ingredients of the offence of armed robbery and to allow the appeal.
In his response to the above appellants counsels submissions, the respondent’s learned counsel pointed out that in the charge of armed robbery, the following ingredients must be proved by the prosecution in order to obtain conviction, to wit.
(i) that there was a robbery or series of robberies
(ii) that the robbers were armed
(iii) that the accused was one of the robbers or was one who took part in the armed robbery
He submitted that the guilt of an accused person can be established through confession, circumstantial evidence or evidence of eye witness. He referred to the Judgment of the trial
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Court at page 83 and that of the Court below at page 169 of the record and argued that the PW1’s evidence is corroborated by the following circumstances i.e. the recovery of the mask, the appellant being caught at Osina village soon after, in his quest to continue with the robbery as disclosed by PW1 can also be said to be good evidence to be relied upon by the trial Court.
On the issue of conflicting evidence as to how much was stolen from PW1, the learned counsel for the respondent argued that the contention of the appellant’s counsel on this point does not go to the root of the matter and can thus be seen as a minor discrepancy and therefore not fatal to the prosecution’s case. He referred to Section 9(b) of the Evidence Act and submitted that the shooting at Osina village makes the fact of robbery more plausible and probable. He argued also that the appellant did not deny the presence of mark to show that there was a stabbing on PW1’s forehead. He concluded his arguments by submitting that the prosecution had proved all the ingredients of the offence of armed robbery and then urged this Court to dismiss the appeal and affirm the concurrent decisions
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of the two Courts below.
The time honoured principle of law is that an accused person is presumed innocent until he is proved guilty. It is not for the accused to prove his innocence before the law Court. The burden of proving the guilt of an accused person squarely rests on the prosecution and such burden does not shift. See Section 138 (1) of the Evidence Act 2011 as amended.
Also, the prosecution, in order to obtain conviction must prove its case beyond reasonable doubt. Where there exists any doubt in the prosecution’s case, such doubt must be resolved in favour of the accused person. See Igabele v State (2006) 6 NWLR (Pt 975) 100; Agbo v State (2006) 6 NWLR (pt 977) 545; Miller v Ministry of Pension (1947) 2 AER 372
However, I must state here, that even though the burden of proof of the guilt of an accused person lies on the prosecution, where the prosecution had adduced adequate evidence which shows that the accused person had actually committed the offence charged, the burden of proving that he is innocent shifts to the accused in view of the provisions of Section 138 (3) of the Evidence Act 2011 as amended. See Nasiru vs State (1999)2
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NWLR (pt 589) 87 at 89.
For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely,
(a) Through testimony or testimonies of eye witness or witnesses, and/or
(b) Through confessional statement, voluntarily made by the accused person; and/or
(c) Through circumstantial evidence which clearly point to the sole fact that the accused person and no other person committed the offence charged.
For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit
(i) that the accused person in the process had committed theft
(ii) that the accused person and/or person(s) he was in company of had caused hurt, wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims.
(iii) that the acts complained of were done in the process of committing the theft or in order to commit the theft and/or carry away the property obtained by the theft
(iv) that the accused person did the acts complained of voluntarily and
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(v) that the accused person or any one in his company was/were armed with dangerous weapons at the time of committing the offence in question during the robbery.
See Abdullahi v The State (2008) 5 SCNJ 2101277. In a nut-shell the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death. See Aruna v The State (1990)6 NWLR (pt 155) 725; Tanko v The State (2009) 2 SCNJ 19; Ani v The State (2009) 6 SCNJ 105; Bozin v State (1985) 2 NWLR (pt 8) 465; Okosi V A.G Bendel State (1989)1 NWLR (pt 100) 442; Nwachukwu v State (1985)1 NWLR (pt 11) 218.
I had in the fore paragraphs of this discourse mentioned the modes of proof in criminal cases by the prosecution. In this instant case, the issue of an extra Judicial statement made by the accused appellant which was tendered by the prosecution in the course of the proceeding was admitted and marked Exhibit 9. It is important to note as shown in the record of proceedings, that when the appellant’s extra judicial statement was tendered during the trial, the defence objected to the admissibility of the said statement on the ground that the appellant, as an accused
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at the trial Court, did not make such statement voluntarily because he was tortured to sign the statement. The defence thereupon urged the trial Court to conduct a trial within trial which said call made by the defence counsel, was not objected to by the prosecution. The learned trial Judge however overruled and rejected the call for trial within trial when he stated thus,
“Court- I had just ruled on the same objection admitting the statement of the 1st accused. For the prosecution to say that he is also out for a trial within trial speaks of lack of understanding. In the result, I recall my earlier ruling and standing by it. I overrule the trial within trial and mark the document EXHIBIT 9.”
(See page 37 of the Record of Appeal)
To support his stance on his refusal to conduct trial within trial, the learned trial Judge further stated at pages 84-87 of the record as follows:-
“Trial within trial is not available at the wishful beck and call of an accused person. It must be predicated on an objective conviction that the confession was manufactured by the police and foisted on the accused person or forced down his throat.”
To my mind, the
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above observation or opinion should have at best, been made after testing the veracity of the allegation that the statement was actually not made voluntarily after conducting trial within trial or mini trial in order to ascertain the allegation that it was really voluntarily made by the accused/appellant. The position of the law is that when an accused person retracts a confessional statement on the ground that it was not voluntarily made by him, the trial Court has a duty to try the issue of the voluntariness or otherwise of such statement through the conduct of a trial within trial. See Gbadamosi v State (1992) 1 NWLR (Pt 266); R vs Onabayo (1936) 3 WACA 42; R v Igwe (1960) SCNLR 158; Olayinka v The State (2007) 4 SCNJ 66-67. Failure of a trial Court to conduct trial within trial where issue of voluntariness of a confessional statement is raised, renders such statement inadmissible. See Obidiozo vs State (1987) 4 NWLR (pt 67) 48; See also Emeka vs The State (2001) 6 SCNJ 267, (2001) 14 NWLR (pt 734) 666 where Ogwuegbu JSC stated as below
“The law is that where an accused person contends that a confessional statement sought to be tendered in evidence was
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not made by him voluntarily, it is the duty of the Judge to test the confession by conducting a trial within trial in order to determine whether in fact, the statement was voluntarily made.
Therefore, by refusing to conduct trial within trial in the circumstance of this instant case, the trial Court was wrong and it was also wrong for it to admit the statement in question in evidence.
Now the next question to consider is whether the prosecution had adduced credible and cogent evidence in proof of the offence of armed robbery against the accused/appellant independent of or apart from the confessional statement wrongly admitted This question is apt because even if there is no confessional statement relied on in proof of its case against an appellant, the prosecution can still rely on other evidence, be they eye witness account or circumstantial evidence. See Onyenye v State (2012) LPELR 7866 (SC) ; Emeka v State (supra).
There is no gain saying, that in the present case the prosecution had called and relied on the testimonies of PW1, PW2 and PW3. PW1 and PW2 are eye witness to the commission of the offence of armed robbery by the accused/appellant
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and his fellow co conspirators.
By the provision of Section 138 (1) prosecution has the burden to prove its case beyond reasonable doubt. Such burden can be discharged through the testimony of even a single eye witness account of the commission of the crime by an accused person once such testimony is credible and is believed by the trial Court. See Abouge v G P (1959) SCNLR 576; Fatoyinbo vs AG of Western Nigeria (1966) WNLR 4; The State vs Afolabi (2010) 43 NSCQ 256.
In his testimony, for instance, PW1 revealed how he was attacked by five masked armed men on his way back home at the boundary between Cross River and Benue States, where his money i.e. N31,000,000 was robbed from him, after of course, he was thoroughly beaten and stabbed with a knife. That attack according to him, took place at around 10pm. Then, PW2 testified that she was injured by a stray bullet at Osina when she came out after she heard the alert shouts that some robbers were within the vicinity. She said the incident took place at around 1.30hrs even though she said she was not wearing her wrist watch. PW1 further testified that he was forced by the robbers to accompany them to Osina
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village some distance away from the place he was robbed, for further operations. Evidence abounds that when alarm was raised, the appellant was arrested and unmasked. PW1 and indeed all other persons who arrested the appellant had duly identified the appellant, hence his identity was not of any doubt at all. Moreover, PW1 had a long encounter with the robbers (including the appellant) hence the appellant’s identity was not in dispute at all. It is my firm view therefore that the appellant was really fixed at the scene of the crime. Also the minor disparity on the actual time and the place the armed robbery took place are not material contradictions as would raise some dust on the prosecution case hence the trial Court’s finding rightly been endorsed or affirmed, by the lower Court.
The learned counsel for the appellant tried to raise some reservations on what had happened at the border of Cross River and Benue States, where the pW1 was robbed and on what happened at Osina village, stating that no robbery operation took place at Osina village. I think the learned counsel had misconceived the entire episode because it is not in doubt that the PW1 was robbed
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at the border and was injured. He was taken hostage and forced to lead them to Osina village where the appellant was arrested. To my mind therefore, the robbery operation became a continuous process right from the border up to Osina village since PW1 remained a captive until when the appellant was finally arrested at Osina village. The argument that there was no robbery at Osina village is of no moment and is a ruse.
It is also not in dispute that during the robbery operation one or some of the robbers were armed with guns and other dangerous weapons. The learned appellant’s counsel then frowns at the prosecution’s failure to tender the weapons used during the robbery operation as fatal to the prosecution’s case. Such view held by the learned appellant’s counsel is misplaced. It is trite law, that failure to tender the offensive weapon used during a robbery operation can not result in the acquittal of the accused person because of the strong possibility of accused person to destroy, throw or do away with the offensive weapons after the commission of the crime in order to exculpate himself from criminal responsibility. See Olayinka v State (2007) 9 NWLR
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(pt 1040) 561; Okosi vs AG Bendel State (supra). In fact, there is no principle of law, that insists that the prosecution must always tender weapons used during robbery operations in order to obtain conviction. See Olayinka v State (supra)
A dispassionate and close consideration of the testimonies of the evidence adduced by the prosecution in my opinion were not controverter or contradicted or challenged in any material, particular as would be fatal to the case presented by the prosecution at the trial Court. The pieces of evidence adduced had duly proved beyond reasonable doubt that the appellant did commit the offence of armed robbery of which he was charged, tried, convicted and sentenced. The evidence adduced through the three witnesses called by the prosecution had really established the guilt of the appellant beyond reasonable doubt and he was therefore rightly convicted by the trial Court. The lower Court had also rightly affirmed the conviction and sentence of the accused/appellant with their unperverse findings of the two lower Courts. This Court is therefore hesitant to disturb, or reverse those findings since they are not perverse and there
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was no misapplication of law shown. See Alh Isah Tsokwa vs Joseph Dakukpougbo & Ors (2008) 33 NSCQR 612.
In the result, I adjudge this appeal to be unmeritorious. It is accordingly dismissed by me. I affirm the Judgment of the Court of Appeal which had earlier affirmed the conviction and sentence of the appellant of the offence of armed robbery. Appeal dismissed.
SC.235/2014
