3PLR – IFEANYI NWAFOR V. THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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IFEANYI NWAFOR
V.
THE STATE
IN THE COURT OF APPEAL
(BENIN JUDICIAL DIVISION)
ON TUESDAY, THE 25TH DAY OF JUNE, 2013
SUIT NO: CA/B/332CD/2009
3PLR/2013/82
OTHER CITATIONS
(2013) LPELR-CA/B/332CD/2009
BEFORE THEIR LORDSHIPS
HELEN MORONKEJI OGUNWUMIJU, JCA
SIDI DAUDA BAGE, JCA
AYOBODE OLUJIMI LOKULO-SODIPE, JCA
BETWEEN
IFEANYI NWAFOR – Appellants
AND
THE STATE – Respondents
REPRESENTATION
Olayiwola Afolabi Esq. – For the Appelants
- S. Uwuigbe (Mrs) Solicitor-General of Edo State – For the Respondents
ORIGINATING STATE
EDO STATE: High Court (J. A. OYAKHIROME J- Presiding)
CONNECTED AREAS OF PRACTICE
- Criminal Law
- Women and Children
- Government/Public Institution/Police Procedure
MAIN ISSUES
CRIMINAL LAW– ARMED ROBBERY:- Proof of – Elements that must be established by the prosecution beyond reasonable doubt in a case of armed robbery – Effect of failure thereto
CRIMINAL LAW AND PROCEDURE – CONTRADICTION:- Meaning – Contradiction in evidence of prosecution witness where deemed material – Duty of court to resolve same in favour of accused person – Effect
CHILDREN AND WOMEN LAW:- Children/Women and Security of lives and wellbeing – Armed Robbery – Mother and children assaulted and robbed by a gang – Children/Women and Justice Administration – Prosecution of armed robbers – Nature of evidence needed to succeed – Duty of prosecutors thereto – Women in Business/Real Estate – Woman landlord who also runs a business on the premises – Claims of multiple robbery – Matters arising therefrom
PRACTICE AND PROCEDURE – EVIDENCE – INCONSISTENCY RULE:- Situations in which the inconsistency rule apply – Witness – Where a witness gives an extra judicial statement different from his evidence on oath – Where a witness gives evidence in chief which is different from the one he gives during cross examination – Whether a maker of two apparently inconsistent statements must be allowed to explain the apparent contradiction – Duty of judge thereto – Whether the judge has no discretion to pick and choose which evidence is correct – How treated
MAIN JUDGMENT
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice J. A. OYAKHIROME of the Edo State High Court delivered on 29th of October, 2008 in which the appellant was sentenced along with three others to death by hanging for the offences of conspiracy to commit armed robbery and armed robbery. At the hearing of the appeal, learned appellant’s counsel brought to the court’s attention the fact that the original 2nd appellant had by a bench judgment been discharged and acquitted by this court on 24/4/2012. He was the appellant in CA/B/.332CB/2009 – Blessing Ero Osayande. The facts that led to this appeal are as follows:
The case of the prosecution at the trial was that on 26/2/2006 at about 2am, one Mrs. Ehanire Claudette Iyobosasere (PW1) and her children were attacked by a gang of armed robbers. They were beaten up by the robbers and their property which included money, handsets, coral beads and re-charge cards were stolen. During the robbery operation, there was power supply so PW1, PW2 and PW3 were able to identify the present appellant (Blacky Ojo), Blessing Ero Osayande, David Egharevba (aka Stone), Ifeanyi Nwafor and one Isiaka who is at large. At the trial court, Blacky Ojo was 1st accused, Blessing Ero Osayande was 2nd accused, David Egharevba was 3rd accused while Ifeanyi Nwafor was 4th accused respectively. The victims who gave evidence as PW1, PW2 and PW3 swore that they were able to identify the appellant and the co-accused persons as they lived in the same neighbourhood.
During the robbery operation there was power supply and PW2 was able to identify the appellant, Ifeanyi Nwafor.
At the trial, the prosecution called 4 witnesses while the appellant testfied for himself and called no witness.
“Despite the fact that none of the victims mentioned the name of the appellant whom they knew very well to the police immediately after the incident coupled with the fact that PW1 had earlier on threatened to implicate the appellant if for any reason she was robbed and the evidence of the appellant (denying the charge, the learned trial judge who relied heavily on the evidence of PW1, PW2 and PW3 convicted the appellant and sentenced him to death.”
Dissatisfied with his conviction and sentence, the appellant appealed to this court. Mr. Ayo Asala filed the appellant’s brief on 2/10/2012. He identified two issues for determination as follows:
- Whether there was credible evidence before the lower court to support the finding and conclusion of the trial judge that the appellant was properly recognized/identified as one of the armed robbers that robbed PW1, PW2 and P3.
- Whether from the totality of the evidence on the record, the lower court was right in holding that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.
The learned counsel for the prosecution, Mr. Otokunrin Senior State Counsel, Edo State also identified similar issues for determination. I will determine the appeal on the issues as set out above and couched by the appellant’s counsel.
ISSUE ONE
Whether there was credible evidence before the lower court to support the finding and conclusion of the trial judge that the appellant was properly recognized/identified as one of the armed robbers that robbed PW1, PW2 and PW3.
Mr. Ayo Asala argued that there was no evidence to support the finding of the learned trial judge that the appellant was properly recognised by PW1, PW2 and PW3 in their house on 26/2/2006. He submitted that it is trite law that one of the major factors that a court must take into consideration in a criminal trial where the evidence against the accused person is based primarily on recognition by one of the victims who claimed to have known the accused person is whether the victims mentioned the name of the accused person to the police at the earliest opportunity. He cited Bozin v. State (1985) 7 SC Pt. 1 Pg. 450; 1998 AGLR 1; Wakala v. State (1991) 8 NWLR Pt.211 pg. 552.
Learned counsel also argued that only PW2 out of the three victims of the robbery identified the appellant as one of the robbers. PW1 and PW3 never in their extra judicial statements or their evidence on oath identified the appellant. The evidence of PW4 was that the appellant lived about 75 yards from behind the house of the victims. PW2 also swore that the appellant was one of the bricklayers who built the house of PW1. There is no doubt that the victims knew the appellant by name and where he lived before the incident. Counsel argued that if the evidence of PW2 and PW4 is to be believed, then there was no mention by PW2 of the appellant to the police when they police responded to the emergency call or when the victims reported to the police the next morning after the robbery. Learned appellant’s counsel contended that since none of the victims especially PW2 mentioned the name of appellant to the police who responded to their distress call immediately after the robbery, the evidence of recognition of appellant by PW2 is unreliable, doubtful and should be regarded as an afterthought.
He cited Ani v. The State (2009) All FWLR Pt.482 P9.1044 at 1062-1063 and Bozin v. The State supra.
Learned counsel submitted that there are glaring inconsistencies in the evidence of PW1 and PW2 while PW1 merely said she strongly suspected the appellant because he had at an earlier occasion visited her house at night with one other person. On that occasion an altercation had ensued between the appellant and PW1. In spite of that PW1 did not identify him as one of the robbers, only PW2 did. PW2 did not immediately alert the other victims as the appellant was arrested in his house ten days after the incident. Learned counsel submitted that having regard to the inconsistencies between the evidence of PW1 and PW2 on the basis of identification of the appellant, the lower court ought to have disregarded the evidence of PW1 and PW2 as it relates to the alleged identification or recognition of the appellant. This is because it is not for the court to pick and choose which witness to believe between PW1 and PW2. The court cannot accredit one witness and discredit the other in such circumstances. The court is bound to reject both. He cited Muka v. State (1998) ACLR Pg.141 at 154; Onubogu v. State (1974) 9 SC 1 at 20. Moreover, suspicion, however strong cannot take the place of proof by credible evidence. He cited Momodu v. State (2008) All FWLR pt.447 pg.67 at 125, paras A. B.
Counsel urged the court to upturn the finding of the trial judge who relied heavily on the visual identification of the appellant and the fact that their names were mentioned at the earliest opportunity to the police. That was not the position in relation to the appellant whose name was not mentioned at the earliest opportunity. The conclusion of the trial judge was not borne out by the evidence on record.
Mr. Otokunrin in reply argued that the appellant was properly identified/recognized as one of the armed robbers that robbed PW1, PW2 and PW3 in their house on 26/2/2006. The law is settled that the identity of an accused person will not be in doubt if there is evidence before the court showing the opportunity the witness had to identify the accused person.
He cited Archibong v. The State (2008) Vol.6 LRCNCC Pg.290 at Pg.305.
Learned respondent’s counsel stated that the name of the appellant was mentioned by PW2 at the earliest opportunity on 26/2/2006 in her extra judicial statement to the police. She also stated that she pretended not to know the appellant so she will not be killed. He argued that the evidence of PW2 was not disputed under cross examination and cannot now on appeal be disputed. He cited Okosi v. The State (1989) 1 NWLR Pt. 100 Pg. 642.
We must be mindful that at the trial court, PW2 gave evidence at Pg. 50-59. At Pg.51 of the record, she said –
Immediately, we entered my mother’s room I met 4th accused, Ifeanyi Nwafor searching my mother’s clothes.
The 4th accused person (appellant) was among the bricklayers that built our house. The 4th accused person’s house (appellant) is about 75 yards from and behind the housx (sic) of the complainant.
On 26th February, 2006 at about 0.200 hours, there was a distress call by one Mrs. Claudette E, Iyobosasere, PW1 female of Isiohor village, Benin City that at that hour while she was sleeping a gang of armed robbers numbering about five invaded her house at gun point and robbed her of her money, handsets and other valuables. She invited police to come to her aid. Police Headquarters directed SARS personnel on night duty including myself to proceed to Isiohor to caller’s house which we did. On getting there, we met the complainant and her children crying. The (sic) confirmed they called the police. They explained to us how the robbers gained entrance into their house and robbed them. We went round the house, saw where the robbers gained entrance through the window by breaking the protectors. We combed the area. Efforts to arresting the robbers proved abortive.
Having read the record, the questions that agitated my mind are as follows:
(a) Why did PW2, who claimed to have recognized the appellant as one of the armed robbers, fail to tell the police including PW4 immediately they responded to the distress call, that the appellant who lived behind her house was one of the armed robbers?
(b) What stopped PW2 from taking the police to the house of the appellant which was just at the back of her house (scene of crime)?
(c) What stopped PW2 from also telling PW1 and PW3 (who were all victims) that she saw the appellant who, from the evidence, was known to all of them, during the armed robbery incident?
(d) Why did the police wait till about eleven (11)days after the incident before arresting the appellant?
If all these have been done, the police could have proceeded to the house of the appellant which is at the back of PW1’s house (the scene of crime) in which case the police could have confirmed whether the appellant slept at home and whether any of the stolen items were with him.
The normal course of human conduct should have impelled PW2 to take the police to the home of the appellant at the earliest opportunity and to tell her mother PW1. In a situation like this, the Supreme Court in Bozin v. State (supra) held that such failure on the part of the prosecution raises a very strong doubt which doubt must be resolved in favour of the appellant.
Secondly, there was evidence of a previous altercation between the appellant and PW1 when they quarreled about a late night visit of the appellant to the house of PW1 while PW1 claimed that the visit was unwarranted, the appellant claimed he went to protest against bad beer sold to him by PW1
At Pg. 183 of the record the learned trial judge held as follows:
In my view the evidence of visual identification of 1st, 2nd, 3rd, 4th accused persons and one Isiaka (at large) was either not cross-examined or shaken under cross-examination. PW1, PW2, PW3 said they knew them before the incident and they mentioned their names (and alias) at the earliest opportunity to the police.
That conclusion by the learned trial judge is not borne out by the record. The appellant gave unchallenged evidence that he did not leave his house after the incident and that the victims were seeing him moving around the vicinity without any challenge until when he was arrested in his house on 7/3/2006. All these facts go to show that the evidence of alleged recognition of appellant by PW2 is an afterthought.
I have to resolve the first issue in favour of the appellant.
ISSUE TWO
Whether from the totality of the evidence on the record, the lower court was right in holding that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.
Learned appellant’s counsel submitted that for the prosecution to succeed in a charge or offence of conspiracy to rob and armed robbery, it must prove beyond reasonable doubt the following ingredients:
(a) That there was an agreement or confederacy between the convict and others to commit the offence of robbery.
(b) That in furtherance of the agreement or confederacy, the accused took part in the commission of the offence of robbery or series of robberies.
(c) That the robberies or each of the robbery was an armed robbery. He cited Usufu v. State (2008) All FWLR Pt. 405 Pg. 1731.
Page 98-99 of the record the appellant claimed he was well known to the complainants and did not rob them. Counsel complained that there was no consideration of the evidence of the appellant. He cited Olayinka v. The State (2007) All FWLR Pt. 373 Pg.163 at 178.
Counsel also argued that the learned trial judge disbelieved the evidence of the appellant because his Lordship claimed there was inconsistency between his extra judicial statement and his evidence on oath. Counsel argued that the appellant was never allowed as required by law to explain the inconsistency during the trial before the court jumped to the conclusion that he had given inconsistent evidence. He cited Adeoti v. The State (2009) All FWLR Pt.454 Pg.1450 at 1509.
Counsel argued that even if there was inconsistency, it was an immaterial one. He urged the court to set aside the finding of the trial court disbelieving the evidence of the appellant.
Counsel argued that the appellant along with other appellants were arrested and prosecuted on mere suspicion and urged the court to give the appellant the benefit of doubt which the trial court refused to do.
Learned respondent’s counsel argued that the charge against the appellant was proved beyond reasonable doubt by the evidence of PW2 who swore that during the robbery he was the one searching his mother’s clothes. Counsel submitted that the learned trial judge who had the opportunity to see and hear the witnesses was therefore in a position to believe or disbelieve the witnesses. He cited Alli v. The State (1988) 1 SC Pg. 35 at P9.47 line 13-17 and urged us to accept the evidence of PW2.
Counsel insisted that the learned trial judge was right in rejecting the evidence of the appellant as being inconsistent.
Let us look at the record. At Pg.207-208 of the record the learned trial judge held as follows:
“After his arrest and at the earliest opportunity the 4th accused person referred to the beer episode in his statement to the police thus:
“There was a time in the night when myself and Timothy went to buy beer from the complainant. When we entered her compound and Knock (sic) she became annoyed and started shouting that why do we come to her house at night. That she is always a victim of armed robbery, and that whatever happen to her she will make sure we go in for it”.
Based on the afore, Ebosele (Mrs), learned PLO for the State invites court to the material variance in his evidence in court and his statement to the police over the sale of beer and urged the court to discountenance the varying accounts as court cannot pick and chose. According to the inconsistency rule, where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which the court can act. See Akpan v. The State (2000) 8 WRN 130, 133 r 8.
I am persuaded by the submission of learned PLO on this point.
In the light of the above, we discountenance 4th accused person’s evidence same being unreliable. I do not believe his general denial of taking part in the armed robbery that took place in the house of PW1 on 26/2/2006.”
I have to over-rule the learned trial judge on his application of the inconsistency rule. The rule is not applicable in this case. The law as expounded in a plethora of authorities interpreting S.199 and 209 of the old Evidence Act is that where a witness gives an extra judicial statement different from his evidence on oath or where a witness gives evidence while gives a different one during cross examination, the witness must be held as being inconsistent. The judge not being allowed to pick and choose which evidence is correct must reject both evidence. For the rule to apply in the case of two apparently inconsistent statements, the witness must be allowed to explain the statement, hence the provision of the old Evidence Act which is the law applicable to this case now S.232 of the Evidence Act 2011. The different statement must be put to the witness and he/she must be allowed to explain the inconsistency. It is when the witness cannot explain the inconsistency that the rule becomes applicable. See Adeoti v. The State supra.
From the perusal of the record, particular Pg. 98-99, there was never a time the attention of the appellant was drawn to that portion of his extra judicial statement which the learned trial judge held was inconsistent with his oral evidence. The essence of this is to give the appellant while in the witness box the opportunity to give explanations on such inconsistencies. The approach is also in accordance with S. 232 of the Evidence Act, 2011.
For the inconsistency rule to apply to any given situation, the area of inconsistency must relate to a very vital issue, and not every minor inconsistency will suffice for this rule. In the instant case, the portion of the oral evidence by the appellant that he bought an adulterated beer from the PW1 and when he asked PW1 to change the beer she refused and his extra judicial statement that he visited the house of PW1 to buy beer and PW1 became furious and threatened to arrest the appellant should there be any robbery attack on her, cannot, by any stretch of imagination be said to be inconsistent with one another.
It is unfortunate that the learned trial judge did not consider all the defences open to the appellant because he did not believe his defence on oath.
At Pg. 216 of the record, the learned trial judge held as follows:-
“I apply the above principle to the present case, it is my view that the evidence adduced by the prosecution against each of the 1st, 2nd, 3rd and 4th accused persons is strong, so strong that the remote possibility in favour of each accused person can be dismissed with a sentence of “of course it is possible, but not in the least probable”. I so hold”
In a case of armed robbery, the following elements must be established by the prosecution beyond reasonable doubt.
- That there was a robbery.
- That the appellant was the robber or one of the robbers.
- That the armed robber was armed or was in company of a person so armed.
The learned appellant’s counsel raised several issues in trying to demolish the case made out by the prosecution and in trying to persuade us to overturn the findings of fact by the learned trial judge.
On the issue of how the robbery was reported to the police, I am persuaded by the arguments of learned appellant’s counsel to hold the view that how a case is first reported and investigated is of material importance where the charge is a serious one leveled against the accused. PW4 stated at Pg.60 of the record thus:
“She invited police to come to her aid. Police Headquarters directed SARS personnel on night duty including myself to proceed to Isiohor to caller’s house which we did. On getting there, we met the complainant and her children crying. They confirmed they called the police. They explained to us how the robbers gain entrance into their house and robbed them. We went round the house, saw where the robbers gained entrance through the window by breaking the protectors. We combed the area. Efforts to arresting the robbers proved abortive.”
PW1 stated at Pg. 45 of the record thus:
“The next day early in the morning I went to the police station to report the incident. I went to SARS office where I made a statement.”
PW2 stated at Pg. 53 as follows:
“Myself, my mother, younger sister and cousin went to the SARS office together on 26th. I made statement to police on the same day.”
The most important testimony is actually that of PW3 who stated categorically at Pg.58 of the record as follows:
“After this event I didn’t see anybody again. At day break we went to the police station to complain. I made a statement at the State C.I.D. (SARS).”
This points was taken up at the trial. The trial court held as follows on this issue.
“I do not see or view the statements of Pw1 and Pw4 as irreconcilable on the point to make them inconsistent, I do not also see how non taking of photographs of the scene of crime can create ambiguity leading to doubts. I view learned counsel’s submission with respect as an attempt to throw dust into a cloudless atmosphere. I reject it.”
If indeed as the appellant and the co-accused claimed during the trial, there was actually no robbery on the day in question, how and when it was reported becomes a material issue. In my view this is a live issue in this appeal and the contradiction being material has tilted the appeal in favour of the appellant. See Dagayya v. The State (2006) 1 SCNJ 251; Udosen v. The State (2007) 1 SCNJ 482. I resolve this material contradiction in favour of the appellant.
The amount stolen during the robbery was not ascertained as the amount as stated in the Police Investigation Report and the evidence of the prosecution witnesses differ. At Pg.77 of the record, the learned trial judge noted as follows:
“Court – the police investigation report is admitted in evidence and marked exhibit P6. The figure of amount allegedly stolen as recorded in police crime diary is different”.
What, for me was the most important consideration in this case was the antecedents of the parties. According to PW1, she had been robbed previously twice. On a previous occasion, she claimed there was an unsuccessful attempt to rob her. One Uyi Obaseki had told her that the persons who were convicted were probably the robbers who had robbed her. At Pg.47 of the record pw1 stated as follows:
“I know one Uyi Obaseki, he is a son to a co-land lady in the street I have my house. I told the police in my statement that Uyi Obaseki once informed me that Osayande Blessing Ero 2nd accused persons and others were the people who robbed me in-2004. I am aware that the said Uyi Obaseki was actually arrested. I will be surprised to hear that Uyi Obaseki told the police that he never gave me the information concerning who robbed me in 2004. It is not true that since then I have remained very bitter.”
At Pg. 46 of the record PW1 stated as follows:
“I told police in my statement that I suspected them to be the robbers who came to my house on February, 26, 2006. I said in my statement that if there is any robbery in my house, they would be held responsible.”
The appellants with other appellants lived in the same village community and were well known to each other. PW1 had threatened to deal with anyone who robbed her again. The appellant was a builder and was in fact one of those who built her house. On the night of the robbery, the robbers were not masked and the appellant pointed a gun at PW1, while the other robbers beat her daughters.
There was electricity and the robbers were not masked. They did not shoot or kill anyone. I wonder if it does not run counter to the natural order of human behavior that the robbers who were easily identified by their victims would wait around to be arrested by the police after the robbery? The natural order of things is for the robbers to have at least attempted to kill their victims if they could be identified and easily named. I pose this question because the learned trial judge kept on insisting that the identification of the appellant by the complainants was not controverted. It was controverted in my view immediately the appellant entered a plea of Not Guilty to the charge. In any event, the learned trial judge refused to give any probative value to the evidence of all the defence witnesses because of his Lordship’s conclusion that the direct evidence of identification of the appellant by the complainants’ placing him at the scene of crime was unassailable.
I read the record from cover to cover. I do not agree that this case is as cut and dried as the learned trial judge was obviously inclined to believe. It is unfortunate also that the learned trial judge gave scant regard to the evidence of character witnesses. The fact evidence of the State. It is also unfortunate that the learned trial judge gave little regard to the contradictions in the evidence of the prosecution witnesses and the antecedents of the relationship between the appellants and the prosecution witnesses.
The contradictions and patent disparity in the evidence of the prosecution should have created doubt in the mind of the learned trial judge as it has created doubt in mine. Any doubt must be resolved in favour of the accused. See Archibong v. The State (2006) 5 SCNJ 202; Orji v. The State (2008) 4 SCNJ 85.
I resolve the second issue in favour of the appellant.
I wish to draw attention also to the fact that the 2nd appellant in CA/B/332C8/2009 had been discharged and acquitted by this court. It would be a travesty of justice to affirm the conviction of the appellant on the same charges in respect of the same facts. See Atiku v. The State (2010) 9 NWLR Pt.1199 Pg.241; Kalu v. State (1988) 4 NWLR Pt.90 P9.503; at Pg. 503; Ebri v. The State (2004) 11 NWLR Pt.885 Pg.589;
In the circumstances, I set aside the conviction and sentence of the appellant in charge No.B/21C/2007 and enter an order of acquittal and discharge of the Appellant.
Appeal Allowed.
SIDI DAUDA BAGE, J.C.A.:
I read before now the leading Judgment of my learned brother H. M. Ogunwumiju JCA, just delivered. I agree with the said Judgment. I set aside the conviction and sentence of the Appellant by the lower court. I also enter an order of acquittal and discharge on the Appellant.
I equally allow the appeal.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.:
I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has painstakingly dealt with the issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I not only have nothing to add, but also adopt the judgment as mine.
Accordingly, I too, resolve the issues in the appeal in the same manner they have been resolved in the lead Judgment and allow the appeal. The conviction and sentence passed on the Appellant in charge No B/21C/2007 is hereby set aside. Instead I make orders acquitting and discharging the Appellant.
