EGBELEYE FEMI V THE STATE

LEGALPEDIA ELECTRONIC CITATION: LER[2018]CA/AK/64C/2015

AREAS OF LAW:

Appeal, Court, Criminal Lawand Procedure, Jurisdiction, Law Of Evidence, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS:

During the early morning hours of 7th June, 2013, three female students of Adekunle Ajasin University, Akungba were reading, in their dormitory room, in preparation for their examination. Two men, who pretended to be their neighbours, knocked on their room door. When they opened it, those men, armed with cutlass, robbed them of their handsets, laptop, necklaces and bags. On their departure, those students raised an alarm which attracted vigilante men who had deflated the tyres of a motorcycle, parked close to the dormitory, when they did see its owner. The victims reported the robbery incident to the police. The police, based on the emblem on the motorcycle, consulted the chairman of the commercial motorcycle operators in the area who led them to its owners. Its owner led the police to the Appellant who had hired it for commercial purposes. The police arrested the Appellant who was identified by the victims. The Appellant took the police to the house of one Ife where the stolen items were recovered. After investigation, the Appellant was arraigned before the lower court in a 4-count information; one count was conspiracy to commit armed robbery and three counts of armed robbery contrary to the provisions of sections 6(b) and 1(2)(a) of the Robbery and Forearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004 respectively. In a considered judgment, the lower court found the Appellant guilty and convicted him of conspiracy to commit armed robbery and armed robbery. The Appellant was dissatisfied with the decision, hence has appealed to this court.

HELD:

Appeal Dismissed

ISSUE FOR DETERMINATION:

• Whether having regard to the totality of the evidence on record, the trial Judge was right to convict and sentence the appellant for offences of conspiracy and armed robbery under sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14 Laws of the Federation of Nigeria, 2004.
• Whether the prosecution’s deliberate suppression of evidence i.e. refusal to produce and tender the statement of the Appellant made at Akungba Akoko Police Station where he was first detained, violates the Appellant’s right to fair hearing as guaranteed by section 36(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and thereby vitiates the trial.

RATIONES:

“ROBBERY”- MEANING OF THE WORD “ROBBERY”

“By virtue of the provision of section II, the interpretation clause, of the Robbery and Firearms (Special Provisions) Act, Cap. R II LFN, 2004 (hereunder abridged to “the Act”), “robbery” means “stealing anything and, at, or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the things stolen or to prevent or overcome resistance to its being stolen or retained.” PER O. F. OGBUINYA, J.C.A.

ARMED ROBBERY- MEANING OF ARMED ROBBERY

“Where the robbery is accompanied by the use of firearm or offensive weapon which causes or attempts to cause any person’s death or hurt or unlawful restraint or fear, it metamorphoses into an armed robbery, see The State v. Yamusissilka (1974) 6 SC 53 at 62; Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209.” PER O. F. OGBUINYA, J.C.A.

OFFENCE OF ARMED ROBBERY – INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY THE PROSECUTION MUST PROVE IN ORDER TO SECURE A CONVICTION

“To secure a conviction for the offence of armed robbery, the prosecution, the respondent herein, is required, by law, to prove beyond reasonable doubt, that: there was robbery or series of robberies; each robbery was an armed robbery and the accused person was one of those who took part in the armed robbery, see Afolabi v. State (2010) 16 NWLR (Pt. 1220) 584; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Nwaturocha v. State (2011) 6 NWLR (Pt. 1242) 170; Abdullahi v. State (2008) 17 NWLR (Pt. 115) 203; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Sale v. State (2016) 3 NWLR (Pt. 14499) 392; Ayo v. State (2016) 7 NWLR (Pt. 1510) 183; Kayode v. State (2016) 7 NWLR (Pt. 1511) 199; Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Ogogorie v. State (2016) 12 NWLR (Pt. 1527) 468; State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31; Akwuobi v. State (2017) NWLR (2017) 2 NWLR (Pt.1550) 421; State v. Ekanem (2017) 4 NWLR (Pt. 1554) 85; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Amadi v. A.-G., Imo State (2017) 11 NWLR (1575) 92.” PER O. F. OGBUINYA, J.C.A.

PROOF OF CRIME – WAYS OF PROVING COMMISSION OF A CRIME

“The case-law has sanctioned three ways of proving commission of a crime viz: (a)  Eye witnesses evidence; (b)  Confessional evidence or (c)  Circumstantial evidence, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425; State v. Isah (2012) 16 NWLR (Pt. 1372) 613; Abirifon v. State (2013) 13 NWLR (Pt. 1372) 587; Okiemute v. State (supra); FRN v. Barminas (supra), Eze v. FRN (supra); Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126.” PER O. F. OGBUINYA, J.C.A.

“CONTRADICTION”- MEANING OF THE WORD “CONTRADICTION”

“Etymologically, contradiction, like most legal terminologies, traces its paternity to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”.” PER O. F. OGBUINYA, J.C.A.

CONTRADICTORY EVIDENCE- INSTANCE WHEN PIECES OF EVIDENCE OF A WITNESS WILL BE REGARDED AS CONTRADICTORY

“Two pieces of evidence of a witness or witnesses are contradictory when they are diametrically opposed and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. In other words, minor discrepancy, which occurs when a piece of evidence stops short of, or contains minor difference in detail, is incapable of vitiating a case. Put the other way round, collateral contradiction will not constitute dents on a party’s case, see Ebeinwe v. State (supra); Attah v. State (supra); Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614.” PER O. F. OGBUINYA, J.C.A.

CONTRADICTIONS IN EVIDENCE OF WITNESSES – NATURE OF DISCREPANCIES IN THE EVIDENCE OF WITNESSES PERMITTED BY LAW

“The law welcomes discrepancies in evidence of witnesses in that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”, see Eke v. State (supra), at 665, per Fabiyi, JSC. It flows, that the minute differences in the narration of evidence attest to the veracity of the witnesses on the point”. PER O. F. OGBUINYA, J.C.A.

EVIDENCE – WHETHER WITNESSES ARE PERMITTED TO GIVE INACCURATE EVIDENCE

“At any rate, the law gives witnesses the liberty to recount events with slight differences not in a robotic manner. It follows, that witnesses are not expected, being human and not automatic machines, to profer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours vis-à-vis time and date. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWRL (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187”. PER O. F. OGBUINYA, J.C.A.

WITNESS – INSTANCE WHERE THE PROSECUTION WILL BE COMPELLED TO CALL A WITNESS

“It is trite, that the law compels the prosecution to call a vital witness: a witness whose evidence will prove a vital point or ingredient of an offence either way. If the prosecution defaults in calling such a vital/material witness, the failure will be fatal to its case which must be proved beyond reasonable doubt, see Sale v. State (2016) 3 NWLR (Pt. 1499) 392; Itu v. State (2016) 5 NWLR (Pt. 1506) 443; Pius v. State (2016)   NWLR (Pt. 1517) ; Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Abokokiyanro v. State (2016) 9 NWLR (Pt. 1518) 520; Ayeni v. State (2016) 12 NWLR (Pt. 1525) 51; Nweke v. State (2017) 15 NWLR (Pt. 1587) 120; Osuagwu v. State (supra).” PER O. F. OGBUINYA, J.C.A.

UNCHALLENGED EVIDENCE – ATTITUDE OF COURTS TO UNCHALLENGED EVIDENCE

“The law gives the court the unbridled license to act on unchallenged evidence, see Ayeni v. State (2016) 12 NWLR (Pt. 1525) 51”. PER O. F. OGBUINYA, J.C.A.

WITNESSES – WHETHER A PROSECUTION IS REQUIRED TO CALL A HOST OF WITNESSES TO PROVE THE INGREDIENTS OF AN OFFENECE

“My view point is solidified by the hallowed principle of law, that the prosecution, the respondent herein, is not required to field a host of witnesses to prove ingredients of an offence, Eze v. FRN (2017) 4 NWLR (Pt. 1589) 433; Amadi v. A. –G., Imo State (2017) 11 NWLR (Pt. 1575) 92; Ali v. State (2015) 10 NWLR (Pt. 1466) 1.” PER O. F. OGBUINYA, J.C.A.

TENDERING OF A WEAPON – WHETHER THE FAILURE TO TENDER A WEAPON USED IN COMMITTING AN OFFENCE IS FATAL TO THE PROSECUTION’S CASE

“In criminal proceedings, failure tender a weapon utilised in the commission of an offence is not fatal to a prosecution’s case, see Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561; Victor v. State (2013) 12 NWLR (Pt. 1369) 465; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584.” PER O. F. OGBUINYA, J.C.A.

TENDERING OF A STATEMENT – WHETHER A CO-POLICE OFFICER CAN TENDER A STATEMENT RECORDED BY ANOTHER OFFICER

“It is settled law, that a co-police officer can tender a statement recorded by another police officer when the reason for the absence of the recorder is explained to the court. The apex court has given its blessing to this cardinal rule of law, see Edoho v. State (2010) 14 NWLR (Pt. 1214) 651; John v. State (2011) 18 NWLR (Pt. 1278) 353.” PER O. F. OGBUINYA, J.C.A.

CONFESSION – DEFINITION OF CONFESSION -SECTION 28 OF THE EVIDENCE ACT, 2011

“A confession is an admission made at anytime by a person charged with a crime stating or suggesting he inference that the committed that crime”.

• PER O. F. OGBUINYA, J.C.A.

ADMISSIBILITY OF CONFESSIONAL STATEMENT- CONDITION FOR THE ADMISSIBILITY OF CONFESSIONAL STATEMENT

“Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner ordained by the provision of the section 29(2) of the Evidence Act, 2011. Unarguably, it is within the provision of the law for a court to base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omogu v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Awuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Muhammad v. State (supra); John v. State (2017) 16 NWLR (Pt. 1591) 304; Agagua v. State (2017) 10 NWLR (Pt. 1573) 254.” PER O. F. OGBUINYA, J.C.A.

CONFESSION – CONFESSION IS THE BEST EVIDENCE

“Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpan v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556”. PER O. F. OGBUINYA, J.C.A.

IDENTIFICATION EVIDENCE – WHAT IS IDENTIFICATION EVIDENCE?

“In the eyes of the law, identification evidence is that which tends to demonstrate that the accused person, charged before the court, is the same person who was at the locus actus during the commission of the offense, see Nwaturuocha v. State 6 NWLR (Pt. 1242) 170; State v. Salawu (2011) 18 NWLR (Pt. 1279) 580; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619; Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132; Ajayi v. State (2014) 14 NWLR (Pt. 1426) 1; Okanlawon v. State (2015) 17 NWLR (Pt. 1489) 445; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Akindipe v. State (2016) 15 NWLR (Pt. 1536) 470; Akinriolola v. State (2016) 16 NWLR (Pt. 1537) 73.” PER O. F. OGBUINYA, J.C.A.

IDENTIFICATION -EFFECT OF        A FAILURE TO PROVE IDENTIFICATION WHEN SAME IS IN ISSUE

“Identification is critical in criminal trials. When it is in issue and it is not proved, particularly in armed robbery allegation, then the offence is not proved and the accused person will be entitled to an acquittal, see Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Fabiyi v. State (2015) 18 NWLR (Pt. 1490) 80. In view of its Olympian status, whenever the case against an accused person turns wholly or substantially on the correctness of his identification and the defence erects the defence of mistaken identity, the law commands and makes it incumbent on the court to examine the evidence closely. In doing so, any real weakness discovered in it must lead to giving the accused person benefit of doubt, see The People of Lagos State v. Umaru (supra); Afolabi v. State (2013) 13 NWLR (Pt. 1371) 292; Pius v. State (2016) 9 NWLR (Pt. 1517) 341; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31. ” PER O. F. OGBUINYA, J.C.A.

MISTAKEN IDENTITY – FACTORS TO BE CONSIDERED BY COURT TO GUARD AGAINST CASES OF MISTAKEN IDENTITY BY AN EYE WITNESS

“In order to guard against cases of mistaken identity by an eye witness, the court must consider meticulously the following: (1) Circumstances the eye witness saw the suspect or accused person. (2)  The length of time the eye witness saw the suspect or accused person. (3)  The lighting condition. (4)  The opportunity of close observations. (5) The previous contact between the witness and the accused person, see Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633; Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663; Adesina v. State (2012) 14 NWLR (Pt. 1321) 429; Sale v. State (2016) 3 NWLR (Pt. 1499) 392; Friday v. State (2016) 16 NWLR (Pt 1538) 242.” PER O. F. OGBUINYA, J.C.A.

INFERENCE – MEANING OF INFERENCE IN LAW

“In law, inference is: “A conclusion reached by considering other facts and deducing a logical sequence from them”, see Muhammed v. State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, JSC. The law gives the court the unbridled latitude to draw inferences, see Babatunde v. State (2014) 2 NWLR (Pt. 1391) 298; Owhoruke v. C.O.P. (2015) 15 NWLR (1483) 557.” PER O. F. OGBUINYA, J.C.A.

IDENTIFICATION – WHETHER VISUAL IDENTIFICATION IS A MODE OF IDENTIFICATION UNDER OUR CRIMINAL JUSTICE SYSTEM

“Indeed, visual identification has taken roots as a mode of identifying culprits in our criminal justice system. In Adeyemi v. State (1991) 1 NWLR (Pt. 170) 679 at 694/(1991) 2 SCNJ 60 at 71, Olutawura, JSC, of the blessed memory, confirmed:

It is fallacious to think the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial judge from accepting his evidence.

See, also, Otti v. State (1993) 5 SCNJ 143/(1993) 4 NWLR (Pt. 290) 675; Archibong v. State (2006) 14 NWLR (Pt. 1000) 349; Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439; Ochiba v. State (supra); Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1; Ajayi v. State (supra); Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Isong v. State (2016) 14 NWLR (Pt. 1531) 96; Okashetu v. State (supra); Kekong v. State (2007) 18 NWLR (Pt. 1596) 108. Specifically, the law sanctions recognition by face, see Ikpo v. State (supra). Identification by one witness is sufficient in law, see Ochiba v. State (supra).” PER O. F. OGBUINYA, J.C.A.

CONFESSION – EFFECT OF CONFESSION ON THE DEFENCE OF MISTAKEN IDENTITY

“In the sight of the law, a confession demolishes any defence of mistaken identity. In other words, allegation of non-proof of identity of an accused person takes to flight in the glaring presence/face of a confessional statement, see State v. Salawu (supra); Adesina v. State (supra); Agboola v. State (supra); Adeyemi v. State (supra); Ajayi v. State (supra); Okanlawon v. State (supra); Pius v. State (supra); Adewunmi v. State (2016) 10 NWLR (Pt. 1521) 614; Godsgift v. State (2016) 13 NWLR (Pt. 1530) 444; Akindipe v. State (supra); Akinrinlola v. State (supra). PER O. F. OGBUINYA, J.C.A.

DOCTRINE OF RECENT POSSESSION – IMPLICATION OF THE DOCTRINE OF RECENT POSSESSION ON THE DEFENCE OF MISTAKEN IDENTITY

“Where the doctrine is deployed against an accused person, he is foreclosed from raising the defence of mistaken identity. The case-law has given its imprimatur to it, see Sadiku v. State (2013) 11 NWLR (Pt. 1364) 191; Afolabi v. State (2013) 13 NWLR (Pt. 1371) 292; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297”. PER O. F. OGBUINYA, J.C.A.

CONSPIRACY – MEANING AND NATURE OF CONSPIRACY

“To begin with, conspiracy is a confederacy or an agreement between at least two persons with the aim of committing unlawful or criminal act or doing a lawful act by an illegitimate means. Being an agreement, express or implied, it takes at least two persons to conspire, id est, one person cannot be guilty of conspiracy.  The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed.  Due to its usual clandestine nature, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from the proved acts of the conspirators in evidence.  Such circumstantial evidence, often as good as direct evidence, must be cogent, consistent and irresistibly point to the guilt of the conspirators.  In other words, the offence can be committed by the action, inaction, conduct or concert of the conspirators.  To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the criminal actors with a joint or communal understanding and effort at committing a crime, see Ojo v. FRN (2009) ALL FWLR (Pt. 494) 161; Mohammed v. State (1991) 5 NWLR (Pt. 192) 438/(2007) ALL FWLR (Pt. 366) 668; Clark v. State (1986) 4 NWLR (Pt. 35) 381; Oduneye v. State (2001) 1 SC (Pt.1) 6; Okeke v. State (1992) 2 NWLR (Pt. 590) 246; Oyakhire v. State (supra); Njovens v. The State (supra); Obiakor v. State (2002) 10 NWLR (pt. 776) 612; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Omotola v. State (2009) 7 NWLR (pt. 1139) 148; Sule v. State (supra); Posu v. State (2011) 2 NWLR (Pt. 1234) 393; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147.” PER O. F. OGBUINYA, J.C.A.

ACADEMIC DISPUTES – WHETHER COURTS HAVE JURISDICTION TO ADJUDICATE OVER ACADEMIC DISPUTES

“It is settled law, that a court is divested of the requisite jurisdiction to adjudicate over academic disputes. Such academic questions are divorced from live issues which engage the adjudicative attention of the courts.  This is so even if their determination will enrich the jurisprudential contend of the law, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR 9Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299.” PER O. F. OGBUINYA, J.C.A.

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Evidence Act, 2011

Robbery and Forearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004