IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT No. 34 CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY THE 2ND DAY OF MARCH, 2009.
SUIT NO: 1D/64C/2007
BETWEEN
FEDERAL REPUBLIC OF NIGERIA....COMPLAINANT/RESPONDENT
AND
CHIEF SUNNY EVBODAGHE....................ACCUSED/APPLICANT
RULING
At the close of prosecution's case, the learned defence counsel Mr. Onyeke opted to make a no case submission. He submitted that the issue for determination is whether the prosecution has made out a prima facie case by establishing the elements of the offences the defendant is charged with sufficient in law to warrant his being called on to enter a defence by the court or whether the evidence adduced by the prosecution witnesses have been so discredited during cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it.
He referred to OMISORE VS STATE (2004) 28 WRN 106 at 126, IBEZIAKO VS C.O.P (1963) 1 ANLR 61 and ONAGORUWA VS STATE (1993) 7 NWLR (PT 303) 49.
He started by considering whether the prosecution has established the elements of the offences alleged against the defendant. On count 1 of attempt to obtain money by false pretences pursuant to Section 5, 8 (b) and 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, he outlined the ingredients of the said offence and submitted that the prosecution failed to establish any of the said ingredients.
He referred to JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264 and FRN VS OGATINMIR1N (2005) 3 QCCR 191 at 220.
On count 2 of use of premises for sending document containing false pretence contrary to Section 3 of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, Mr. Onyeke once again outlined the legal ingredients thereof and submitted that the prosecution failed to tender any document containing false pretences that was sent from the defendant's premises or produce or give any evidence of the alleged recipient thereof thereby failing to establish the necessary ingredients thereof.
Moving to the offence of possession of documents containing false pretences pursuant to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No 14 of 2006 contained in Counts 3,5,7 and 9 the learned lead defence counsel once again outlined the legal ingredients thereof. He referred to FRN VS ODIAWA (2006) 5 QCCR 1 at 88-89.
He submitted that for the offence here to be made out, the document involved in its tangible form must have been found in the physical possession of the defendant and that 1 being an illiterate it cannot be assumed that he knew or ought to have known the existence of the alleged documents herein without adequate .proof which was lacking in the case presented by the prosecution.
He urged the Court to dismiss the counts of possession and referred to Section 2 (b) Illiterates Protection Law, Cap 67 Laws of Lagos State, ALOBA VS FRN (2002) 14 WRN 45 at 53, ADETORO VS UBN PLC (2007) ALL FWLR (PT 396) 590 and ZARIA VS OKON (1959) SCNLR 562.
On the counts of forgery in counts 4, 6, 8, and 10 the learned defence counsel once more outlined the necessary ingredients thereof and referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 and BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264.
He submitted that the prosecution failed to show that the documents in question were forged or that it was the defendant who forged them.
He then proceeded to the second leg of his submissions alleging the non reliability of some key prosecution witnesses as a ground for upholding his no case submission. He referred to UBIERHO VS STATE (2004) ALL FWLR 1028 at 1044.
He reviewed the testimonies of PW1, PW2 and PW3 and submitted that they were sufficiently discredited under cross-examination to render them totally unreliable.
He urged the Court to hold that the prosecution failed to make out a prima facie and accordingly uphold the no case submission.
For the prosecution Mr. Ugwu opposed the no case submission and submitted that the issue for determination is whether the prosecution has made out a prima facie case which will require the Honourable Court to call on the defendant to enter his defence.
He equally set out the various legal principles guiding the consideration of no case submissions and referred to The Practice Direction of Lord Parker dated 9th February, 1962 and published in (1962) 1 All E.R 448, EKWENUGO VS FRN (2008) 10 MJSC 79 at 84-85, DABOH VS THE STATE (1977) 11 NSCC 309,
AMINU VS STATE (2005) 2 NWLR (PT 909) 180 at 191, YAU VS STATE (2005) 5 NWLR (PT 917) 1 at 22 and AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 414.
He reviewed the evidence adduced so far by the prosecution and outlined all the essential elements of the alleged offences. On the count of attempt to obtain money by false pretences, he outlined the essential elements of the alleged offence and reviewed the evidence adduced so far by the prosecution and then submitted that the said offence has been established by the prosecution.
He referred to AGWUNA VS A.G. FEDERATION (1995) 5 NWLR (PT 396) 418 at 438 and STATE VS OLADIMEJI (2003) 14 NWLR (PT 839) 57.
On count 2 of allegedly using premises for sending document containing false pretence, the learned prosecutor once again outlined the ingredients thereof and submitted that this count has been established. He referred to ODUA VS FRN (2002) 5 NWLR (PT 761) 615.
Moving to counts 3, 5, 7, and 9 of unlawful possession of documents containing false pretence, he equally outlined the legal ingredients and the adduced evidence and submitted that the alleged offence has been established. He referred to BLACK'S LAW DICTIONARY 7th Edition 1163.
Finally on the counts of forgery in counts 4, 6, 8 and 10 he similarly outlined the legal ingredients and the adduced evidence and submitted that these counts were equally established.
He referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592, BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 at 277, OSONDU VS FRN (2000) 12 NWLR (PT 682) 483, AGWUNA VS AG FEDERATION (supra) and STATE VS OLADIMEJI (supra).
He went on to submit that the court is not to determine the guilt or innocence of the defendant at this stage and that the literacy level of the defendant is an evidential issue to be determined by the court at the end of trial and not an issue of address of counsel.
He referred to R VS COKER 20 NLR 62, EKWENUGO VS FRN (supra), OGUGU VS STATE (1994) 9 NWLR (PT 366) 1 at 38, NIGER CONSTRUCTION LTD VS CHIEF OKUGBENI (1987) 4 NWLR (PT 67) 787,
GIRGIRI VS ELF MARKETING (NIG) LTD (1977) 2 NWLR (FT 487) 368 at 378 and OLADEJO VS STATE (1994) 6 NWLR (PT 348) 101.
In totality, he urged the court to overrule the no case submission and call upon the defendant to enter into his defence.
I have duly considered the submissions of the counsel for the two sides.
The sole issue for determination herein is whether the prosecution has made out a prima facie case against the defendant sufficient for the court to call on him to enter into his defence.
The meaning of a submission that there is no case for a defendant to answer is that there is no evidence on which even if the court believes it, it could convict. The question whether or not the court does believe the evidence does not arise, nor is the credibility of the witnesses in issue at this stage.
See R VS COKER & ORS 20 NLR 62. DABOH VS STATE (1977) 11 NSCC 309 at 315 and STATE VS EMEDO (2001) 12 NWLR (PT 726) 131.
As well submitted by both counsel, a no case submission may properly be made and upheld when there has been no evidence to prove an essential element of the alleged offence or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
See IBEZIAKO VS C-O.P (1963) 1 SCNLR 99, and STATE VS EMEDO (supra).
It must be pointed out that a prima facie case is not the same as proof, which comes later when the court is to make a finding of guilt of the defendant, it is evidence which if believed and uncontradicted, will be sufficient to prove the guilt of the criminal defendant.
See AJIDAGBA VS I.G.'P. (1958) SCNLR 60 and EMEDO VS'STATE (SUPRA) at 151-152.
It is also important to say that in a no case submission, the Court should be brief in its comments as only one side of the case has been heard and it would be premature and prejudicial to extensively pronounce on the evidence or facts of the case at that stage.
See 'CRIMINAL PROCEDURE IN NIGERIA, LAW AND PRACTICE' by OLUWATOY1N DOHERTY at 272-273, RVS COKER (supra), AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 413 and CHIEF ODOFIN BELLO VS THE STATE (1967) NMLR 1 at 3.
Count 1 is attempt to obtain money by false pretences pursuant to Sections 5, 8 (b) and 1 (3) of the Advance Fee Fraud and Other "Fraud Related Offences Act No. 14 of 2006.
The particulars of the said Count 1 state that the defendant represented to a certain Richard Walter Dennis Jr that one late Johnson Rosland of Florida USA kept two trunk boxes containing the sum of US $9.5 million, Gold and valuable documents of properties with Inter Trust Global Security firm based in the United Kingdom.
To appreciate the intendment of the offence it is necessary to set out all the provisions of the sections of the Act involved.
"Section 1
(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud -
(a) obtains from any other person, in Nigeria or in any other country, for himself or any other person;
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
1 (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, is guilty of an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be-done on the understanding that the benefit has been or will be paid for is guilty of an offence under this Act.
(3) A person who is guilty of an offence under subsection (I) or (2) of this section is
liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without the option of a fine.
5. (1) Where a false pretence which constitutes an offence under this Act is contained in a document, it shall be sufficient in a charge of an attempt to commit an offence under this Act to prove that the document was received by the person to whom the false pretence was directed.
(2) Notwithstanding anything to the contrary in any other law, every act or thing done or omitted to be done by a person to facilitate the commission by him of an offence under this Act shall constitute an attempt to commit the offence.
8 (b) A person who attempts to commit or is an accessory to an act or offence under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act."
TO BE CONTINUED…
The attempt to commit a crime is an act done with intent to commit a crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence are not sufficiently proximate to constitute an offence. See NWANKWO VS F.R.N. (2003) 4 NWLR (PT 809) 1 at 37-38 and JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264.
The evidence adduced so far by the prosecution does not include that of the named victim in this Count, Richard Walter Dennis Jr. No document containing the alleged particulars emanating from the defendant to the said Richard Walter Dennis Jr. and none purportedly received by the said Richard Walter Dennis Jr. was tendered before the Court. No document addressed to the said Richard Walter Dennis Jr. by the defendant was tendered in evidence.
It seems to me that the submission of learned defence counsel, Mr. Onyeke that no case has been made out by the prosecution in the present circumstances to constitute sufficient prima facie case in respect of this Count is well founded, and I so hold.
Count 2 is alleged use of premises for sending document containing false pretences contrary to Section 3 of the Advance Fee Fraud and Other Fraud Related Offences Act 14 of2006.
The particulars are that the defendant permitted his premises to be used for sending documents containing false pretences.
The said Section 3 of the Act provides that:
"'A person who, being the occupier or is concerned in the management of any premises, causes or knowingly permits the premises to be used for any purpose which constitutes an offence under this Act commits an offence and is liable on conviction to imprisonment for a term not more than 15 years and not less than 5 years without the option of a fine."
It is worth reiterating that the specific offence here is that the defendant allegedly permitted his premises to be used for sending document containing false pretences. The evidence placed before the Court by the prosecution witnesses however did not include that any document was sent from the said premises. In fact the prosecution witnesses stated that no internet capability was detected on the computers recovered in the said premises.
There was also no evidence that any document said to contain false pretences emanating from the said defendant's premises was received by anyone.
In light thereof, I cannot but hold therefore that prima facie case was not made out in respect of this Count as well.
Counts 3, 5, 7 and 9 contain allegations of possession of documents containing false pretences contrary to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud And Other Fraud Related Offences Act 14 of 2006.
The particulars thereof state that the defendant had certain documents containing false pretences in his possession. Sections 1 (3) and 8 (b) have earlier been set out while Count 1 was being considered. Section 6 provides as follows:
"A person who is in possession of a document containing a false pretence which constitutes an offence under this Act commits an offence of an attempt to commit an offence under this Act if he knows or ought to know, having regard to the circumstances of the case, that the document contains the false pretence."
The offence created is a strict liability one with heavy punishment, and legislations such as this must be narrowly interpreted.
See OKOROAFOR VS THE MISCELLANEOUS OFFENCES TRIBUNAL (1995) 4 NWLR(PT387)59 and JOKANMA VS MOWETE (2001) 6 NWLR (PT 709) 351.
Essential to grounding the offence herein is possession; which must be actual or constructive coupled with knowledge which again maybe actual or constructive depending on the circumstances.
The evidence of the prosecution witnesses is that the defendant is an illiterate who can neither read nor write.
The documents in question here are exhibits P31, P32, P33 and P38 and they were found in the virtual or soft form in a computer admitted by the defendant to be his. The evidence before the Court however is that the said computer was found in the possession of a third party not charged before this Court nor called as witness by the prosecution.
The evidence presented was that the said third party was working on the said computer when the investigators came upon him. The defendant was no where near the said computer but admits ownership thereof,
The offence created here in my humble view is not concerned primarily with ownership of location of the document in question but direct possession of the document thereof.
The documents in this instance were not found in their tangible or hard form on the defendant but located in the soft form in a computer possession of which computer was found on a third party different from the defendant.
Not being literate, the prosecution ought to lead evidence showing actual or constructive knowledge of the existence of the said soft copies of these documents by the defendant.
If a bag belonging to party A was carried by party B and a search thereof discloses prohibited items; proceedings for possession of the found prohibited items can only ordinarily proceed against party B found in possession of the bag in the absence of tangible conclusive evidence of the culpability of party A who owns the bag. Merely asserting that ownership of the said bag is in party A will not suffice, as party B since he had control of the said bag could put those prohibited items in it without the knowledge or awareness of party A who owns the bag. No evidence of actual or constructive knowledge by the defendant of the existence of the soft copies of the documents in question in the computer in which they were found was led by the prosecution and I have no choice than to hold that no case has been made out against him in respect of the said Counts 3, 5, 7 and 9 as well.
The remaining Counts 4, 6, 8 and 10 are that the defendant forged the same documents contained in counts 3, 5, 7 and 9 respectively contrary to Section 467 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003.
Section 467 provides that; "Any person who forges any document, writing, or seal, is guilty of an offence which, unless otherwise stated, is a felony and he is liable if no other punishment is provided, to imprisonment for three years." While sub paragraphs 2 (a) to (q) thereof provide aggravating circumstances which could increase the punishment to imprisonment for fourteen years.
Forgery is defined in section 465 of the Criminal Code as follows:
"A person who makes a false document or writing knowing-it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Lagos State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document or writing."
The above definition has been held by the Supreme Court to include not only a document, which tells a lie, but also one, which tells a lie about itself, and that it further includes documents made with intent to defraud. See BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 per NNAEMEKA-AGU JSC at 277.
The elements of the offence of forgery are:
1. That there is a document in writing.
2. That the document or writing is forged.
3. That the forgery is by the accused person.
4. That the accused person knows that the document or writing is false.
5. That the accused intends that the forged document be acted upon to the prejudice of the victim in the belief that it is genuine. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592.
A document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge of the falsity and with intention that it may be used or acted upon as genuine to the prejudice of the victim. See OSONDU VS FRN (2000) 12 NWLR (PT 682) 483 at 504.
The prosecution led no evidence of actual forgery of the said documents by the defendant said by its witnesses to be an illiterate.
It also failed to lead evidence that the defendant procured a person to forge the said documents.
It is essential that the evidence adduced by the prosecution goes beyond merely stating that the documents in question were found in a computer belonging to the defendant when the said computer was found in possession of a third party working thereon. The prosecution must show that the defendant knew about the existence of the said documents and either forged it or procured someone to do it.
Mere acknowledgement by a defendant stated to be an illiterate, of ownership of the computer from which the documents alleged to be forged were printed cannot be conclusive and would fall short of the requisite legal ingredients.
In the circumstances thereof I also hold that prima facie case was not made out in respect of Counts 4, 6, 8 and 10 as well.
In totality thereof, I hold that the prosecution did not make out a prima facie case against the defendant in respect of any of the Counts alleged against him herein. I uphold the no case submission and I hereby discharge and acquit the defendant in respect of each of Counts 1 to 10 herein,
Hon. Justice J.O.K Oyewole
Appearances:
Mr. K.M.O. Olusesi with him Mrs. A. Abdulahi for the prosecution.
Mr. E.D. Onyeke with him Mr. Ahamisi and Miss M.O. Adeisa for the defendant.
Thursday, August 27, 2009
Wednesday, August 12, 2009
(30-3-09) THE STATE V.AZUIKE & 2 ORS
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT 34 CRIMINAL DIVISION
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY THURSDAY THE 5TH DAY OF MARCH, 2009
SUITNOID/52C/2006
BETWEEN
THE STATE COMPLAINANT
AND
1. SUNDAY AZUIKE
2. SATURDAY OKOEGUALE DEFENDANTS
3. ANDREW ONYEMECHI
JUDGMENT
By the amended charge dated 16th January, 2007 the 3 defendants were arraigned before this court on 3 counts to which they all pleaded not guilty. The entire counts are reproduced in full as follows:
STATEMENT OF OFFENCE 1ST COUNT
Conspiracy contrary to Section 403A of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division conspired to commit a felony to wit; robbery.
STATEMENT OF OFFENCE 2ND COUNT
Attempted Robbery contrary to Section 403 (1) of the Criminal Code Cap C17 Vol.2
Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguate (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division while armed with dangerous weapons to wit: a gun, attempted to commit robbery.
STATEMENT OF OFFENCE 3RD COUNT
Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17 Vol.2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division were found in a public place in possession of firearms with intent to commit robbery.
At the trial two witnesses testified for the prosecution while each of the defendants testified for his defence from the witness box.
PW1 was Police Sgt Tirimisiyu Abass of the Lagos State Anti Robbery Squad Annex, Ikeja.
His evidence in chief was that he was in the same unit in January 2004 when as a member of a special surveillance team around Gowon Estate, Ipaja some vigilantes in the area drew their attention to a certain bus containing some men. They stopped and searched the said bus and found 6 men and a driver therein. They also found a locally made pistol and 6 live cartridges.
He identified the 3 defendants as being among the men found in the said bus stating that 6 of them were arrested while one of them escaped. He also identified the said locally made pistol and 6 cartridges which were admitted without objection as exhibits PI and P2A to P2F respectively.
He obtained statements from each of the defendants and they explained to him that the person who escaped was the one leading them to rob his boss who supposedly cheated him. They however did not know the name of the said boss or his residence.
In the course of the investigation 3 additional persons were arrested but two of the suspects died in custody while some were released due to lower level of involvement while the present defendants were among the remaining ones charged to Court.
He stated that the original case file forwarded to the Magistrate Court got missing and identified the certified true copies of the extra judicial statements of the defendants. That of the 1st defendant was admitted as exhibit P3 while that of the 2nd defendant was admitted as exhibit P4.
It was submitted for the 3rd defendant that he refutes ownership of the statement sought to be tendered as his extra judicial statement and it was admitted as exhibit P5 with the issues raised reserved for evaluation at the end of the trial.
Under cross-examination from Mr. Bale for the 1st and 2nd defendants, he stated that he recorded exhibit P3 for the 1st defendant at his instruction and subsequently took the 1st defendant and the said statement to his superior officer for endorsement.
He similarly recorded the extra judicial statement of the 2nd defendant.
He stated that the two persons who died in police custody among those arrested for the case died of natural illnesses and that while the vehicle in which the defendants and their colleagues were arrested was impounded, the owner escaped at the time of arrest and could not be traced.
He reiterated that two of the initially arrested suspects were released by the police for lesser involvement and explained the circumstances thereof.
He rejected the suggestion that the defendants were tortured while in police custody and stated that they were pointed out by the local vigilante group in the area where they were arrested.
Under further cross-examination from Mr. Uhie for the 3rd defendant, he gave his service experience but could not remember the other members of his patrol team the night the defendants were arrested although he recalled that the arrest took place around 7 pm.
He also could not recall the registration number of the vehicle in which the defendants were arrested as the one found on it was found to be fake.
He stated that he recorded the extra judicial statement of the 3r defendant for him because he could not read nor write and denied coercing or forcing him to sign the said statement. He further denied that the death of the two suspects who died in police custody resulted from gun shot injuries.
He stated that the recovered gun was found on the 3rd defendant but when the name of one of the dead suspects was put to him he stated that he was not sure if he was the one in whose possession the said gun was found but insisted that it was found in the vehicle in which all the defendants rode while the driver on sighting the police escaped. He denied that the 3rd defendant was charged to court for his inability to bribe his way out of the case.
He was not re-examined.
PW2 was Mr. Gaji Abana a Superintendent of Police attached to the Special Anti Robbery Squad of the SCID, Ikeja Lagos State.
His evidence in chief was that PW1 brought the defendants to him together with their extra judicial statements now in evidence and after reading it to them to confirm authorship he endorsed the said statements.
He identified exhibits P3, P4 and P5 as the said statements and stated that the gun found in possession of the defendants was brought to him as well.
Under cross-examination from Mr. Banu for the 1st and 2nd defendants, he stated that he would not know whether the 1st and 2nd defendants were literate.
He also did not know the location of the vehicle in which the defendants were arrested neither did he know the location of its driver.
He did not know about those who died in police custody neither did he know about those released by the police.
Under further cross-examination from Mr. Uhie for the 3rd defendant he stated that the defendants were brought before him in 2004 but PW1 never told him when exactly they made their said statements.
He was aware that PW1 recorded the said statements for the defendants but never inquired as to why that happened.
He reiterated that he read the statements in question to the defendants in English Language which they confirmed understanding before they signed.
He was shown exhibits P3, P4 and P5 and he identified his endorsements and signatures as well as the dates thereon.
On being re-examined he stated once again that the said statements were brought to him on 11th January, 2004.
With his evidence the prosecution closed its case.
The 1st and 2nd defendants entered into their defence immediately while the 3rd defendant first made a no case submission which was overruled before he also entered the witness box to testify in his defence.
DW1 was the 1st defendant. He used to be a4rader prior to his arrest for this case. His evidence in chief was that on the day in question he was in a commercial bus on the way to the lyana Ipaja market when some policemen forced the bus he was in to stop and all the passengers asked to come down and lie face down. He complied and together with the other passengers they were taken to the premises of the Special Anti Robbery Squad.
After about two weeks in police custody, PW1 brought a note for him to sign but he refused upon which he was subjected to severe torture at the end of which he still refused.
Two men were then taken out in his presence and shot to death, he was threatened with a similar fate upon which he then signed the document.
He could read and write and never knew the 2" and 3rd defendants prior to their joint arrest in the bus.
He was never taken before PW2 and also denied being found with any gun or ammunition but he had the sum of N25,000.00 with him which was discovered on him by the policemen who searched him.
He was not cross-examined for the 2nd defendant but under cross-examination for the 3rd defendant he stated that he never knew the 3r defendant prior to his arrest and he never saw any arms or ammunition with the y defendant or anyone in the said bus when the were arrested.
Under cross-examination by the learned prosecutor Mr. Adamson he stated that he was on his way to Ipaja Market to buy foodstuffs when he was arrested as he trades in foodstuffs at the Ikotun Egbe Market.
Eight of them were arrested together and he described the location of his shop at Ikotun Egbe. He lived in Port Harcourt before coming to Lagos and learnt some trade there.
He attended a Secondary School at Owerri, and insisted that he never knew any of the people arrested with him prior to the day of their arrest.
He identified his signature on exhibit P3 but stated that he was coerced into signing it after over two weeks in detention contrary to the date shown on the said document.
He insisted that he contributed nothing to the contents of exhibit P3 and stated that the two detainees supposedly killed by the police were among those arrested with him in the said bus.
Since he came to Lagos, he had not travelled out of the State.
He was not re-examined.
DW2 was the 2nd defendant. Prior to his arrest he was a businessman dealing in clothes. His evidence in chief was that on the fateful day, he was in a commercial bus on his way to see his younger brother when their bus was stopped by policemen who searched the occupants and arrested them. The sum of N7,000.00 he had on him was taken away and he was clamped into detention for over one year before being charged to court from where they were remanded in prison.
While in police custody, he was forced at the point of death to sign a statement brought to him.
He identified exhibit P4 as the statement he was forced to sign and stated that he could read and write.
He had never known the other defendants prior to their Joint arrest and no weapon was found on him when he was arrested neither was he ever taken before PW2.
He was not cross-examined for the 1st defendant but under cross-examination for the 3rd defendant he stated that he never met the 3rd defendant prior to his arrest and denied that any gun or ammunition was recovered from the 3rd defendant or anyone arrested with him.
Under further cross-examination from the learned lead prosecutor, Mr. Osoala, he gave details of his residence prior to his arrest and gave details of the Secondary School he attended before dropping out in SS1 to learn some handiwork.
He recounted his movement leading to his arrest but due to the beatings he received at the point of arrest he could not remember the number of people arrested with him.
He denied that any gun or ammunition was found in the bus when they were arrested and also denied knowing the 3r defendant prior to their arrest.
He was taken to his house for search after his arrest but nothing incriminating was found therein.
He gave his present age as 30 years and denied ever signing or even seeing exhibit P4 before.
He was not re-examined.
DW3 was the 3rd defendant. He was a trader prior to his arrest selling various alcoholic drinks at Oyingbo market.
On the day he was arrested he left his church at Ikotun Egbe and boarded a bus to lya Ipaja. While on the way, they were stopped by some policemen who ordered all the occupants of the bus to disembark and after searching and beating them, took them to their station where they were all locked up.
They were later interrogated but when he denied being an armed robber and wrote do what actually happened, the said statement was torn and another one written by the investigator who directed him to sign. He refused and was subjected to severe beating until he signed it.
His co defendants are among those arrested with him and the 1st defendant was the first to cave in and sign the prepared statement for him.
He identified exhibit P5 as the statement he was forced to sign to save his life but denied writing it. The said statement was never read or interpreted to him before he signed it.
He denied ever meeting the co defendants or any of those arrested with him prior to his arrest.
Under cross-examination for the 1st and 2nd defendants, he denied ever knowing them prior to his arrest and stated that no weapon was found on him by the police.
Under cross-examination from Mr. Adamson for the prosecution, he stated that he is married with four children and lived at Oyingbo market for over a year selling alcoholic drinks.
He explained the program that took him to his church on a Saturday and gave his wife’s names as well as the names of his kinsmen he knew at Oyingbo market. His education stopped at primary school after which he went into welding before eventually moving into his present trade and later got introduced to his said church He reiterated that he never met the co defendants before his arrest.
He was not re-examined and with his evidence the defence was closed and counsel proceeded to their final addresses.
First to address the court was Mr. Banu on behalf of the 1st and 2nd defendants. He gave some background facts which he wanted the court to take cognizance of and submitted that the alleged confessional statements of the 1st and 2nd defendants could: be said to be voluntarily.
He further submitted that the testimony ofPW2 is inconsistent and that there is no independent evidence with which the allegedly confessional statements could be validated.
He then outlined the principles to be considered in testing the veracity of confessional statements and referred to ONOCHIE VS THE REPUBLIC (1966) NMLR 307.
R VS SKYES (1913) 8 CAR 233 at 236,
R VS OBIASO (1962) 1 ANLR 65 and
AKPAN VS STATE (1992) 6 NWLR (PT248) 439 at 460.
He urged the court to hold that the prosecution has failed to prove its case beyond reasonable doubt and consequently discharge and acquit the 1st and 2nd defendants.
For the 3rd defendants, Mr. Uhie reviewed the charge and evidence adduced at the trial and submitted the following issues for determination as follows:
1. Whether the prosecution has discharged the burden to prove their case beyond
reasonable doubt.
2. Whether from the available evidence the court could convict the 3rd accused as
charged.
Arguing the two issues together, he submitted that the burden of proof in criminal cases lies on the prosecution which burden has not been discharged in the present case. He referred to Section 138 (1) of the Evidence Act and AIGBADION VS STATE (2000) SC (PT 1) at 16.
On count 1, he submitted that merely charging the defendants together will not suffice in the absence of proof of common intention.
On count 2, he submitted that there was no evidence-that 3rd defendant was armed, that he attacked someone and that there is a probable victim and that the evidence adduced would only amount to suspicion which cannot ground conviction. He referred to STATE VS OGUNBUNJO (2001) 1 SC 90 and AIGBADION VS STATE (supra).
Moving to count 3, Mr. Uhie submitted that there was no evidence to indicate that exhibit PI and P2 were found on the 3rd defendant or any of the defendants who were not stated to own die bus in which they were arrested. He referred to Section 135 (I) of the Evidence Act and AYUB-KHAN VS STATE (1991) 2 NWLR (PT 172) 127 at 133.
TO BE CONTINUED…
CONTINUED FROM LAST WEEK…
He submitted that exhibit P5 would not pass the tests of truthfulness and should not be accorded any evidential weight especially when the inconsistent evidence ofPW2 in relation thereto is considered. He referred to IHUEBEKA VS STATE (2000) 4 SC (PT 1) 203 at 218, NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138 and ASANYA VS STATE (1991) 3 NWLR (PT 180) 422 at 433.
He urged the court to discharge and acquit the 3rd defendant on all the counts. For the prosecution, Mr. Osoala reviewed the legal ingredients of the offences alleged against the defendants and submitted that onus to prove beyond reasonable doubt is on the prosecution.
He referred to Section 138 (3) of the Evidence Act and DIBIE VS STATE (2007) 9 NWLR (PT 1038) 56. Specifically on count 1 of conspiracy, he outlined the legal ingredients thereof and referred to AITUMA VS STATE (2006) 10 NWLR (PT 989) 468, MAJEKODUNMI VS THE QUEEN (1952) 14 WACA 64, OYEDIRAN VS REPUBLIC (1967) NMLR 122. HARUNA VS STATE (1972) ALL NLR 738 and ERIM VS STATE (1994) 5 NWLR (PT 346) 525.
He referred to the evidence of PWl which according to him was uncontroverted and sufficiently proves this count.
He referred to Section 403 (2) (a) of the Criminal Code Law of Lagos State
On count 2 of attempt to commit robbery, he once again outlined the legal ingredients of the said offence and referred to DPP VS STONE HOUSE (1997) 2 ALL ER 909 at 917, SANNI VS STATE (1993) 4 NWLR (PT 285) 122, IBRAHIM VS STATE (1995) 3 NWLR (PT 381) 37 and ARCHBOLD 37™ Edition paragraph 4104.
He submitted that exhibits P3, P4 and P5 when taken with exhibits PI and P2 conclusively establish the guilt of the defendants and that free and voluntary confessions, are sufficient proof of guilt.
He referred to Section 27 of the Evidence Act, AKPAN VS STATE (2001) 15 NWLR (PT 737) 745, ONYEJEKWE VS STATE (1994) 3 NWLR (PT 230) 444 and NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138.
He agreed with the learned defence counsel that the confessional statements should be subjected to validity tests and submitted that exhibits PI and P2 provide the necessary corroboration to validate them.
He referred to OJOGELE VS STATE (1998) 1 NWLR (PT 71) 144 and NWACHUKWU VS STATE (2002) 7 SC (PT 1) 136 at 261.
He submitted further that the confessional statements were tendered without objection thereby constituting a waiver to any subsequent objection.
He urged the court to hold that the discrepancy in the testimony of PW2 was inconsequential.
He further urged the court to hold that the alleged offences have been proved beyond reasonable doubt and as such convict each of the defendants as charged.
I have duly considered the case presented by the prosecution, the defence put forward by the defendants and the final addresses of counsel.
The sole issue for determination herein is whether the prosecution has proved each of the 3 counts of offences alleged against the defendants before this court beyond reasonable doubt as to justify their being found guilty in respect thereof and consequently convicted. In every criminal matter, the defendant is presumed innocent and onus of proof of the criminal allegation is on the prosecution, which onus is discharged on the establishment of the essential elements of the alleged offence. See section 36 (5) of the Constitution, 'Section 138 of the Evidence Act, ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 591 per TOBI JCA (as he then was), and NWANKWO VS STATE (2003) 4 NWLR (PT 809) 1 at 35 per EKPE JCA.
To justify conviction, the required standard of proof is proof beyond reasonable doubt and this level of proof is attained when every ingredient, which constitutes the alleged offence, has been proved.
See AYUB-KHAN VS STATE (1991) 1 NWLR (PT 172) 127, ADIGUN VS A.G. OYO STATE (1987) 1 NWLR (PT 53) 678 and EDE VS FRN (2001) 1 NWLR (PT 695) 502 at 515.
It must be appreciated that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability.
And for the defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the court. See NWANKWO VS FRN (supra) at 35-36.
The 3 counts alleged against the defendants are as follows:
1. Conspiracy to commit robbery contrary to Section 403A of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:
403 (A) "Any person who conspires with any person to commit an offence under section 402 of this Law whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly".
2. Attempted armed robbery contrary to Section 403 (1) of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:
403 (1) "Any person, who with intent to steal anything, assaults any other person and at or immediately after the time of assault, use or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty years".
3. Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17, Laws of Lagos State 2003.
The said Section provides that:
403 (3) "Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under section 402 above shall upon conviction be sentenced to imprisonment for not less than fourteen years not more than twenty years".
The facts grounding the 3 counts against the defendants are the same and it may therefore be worthwhile to begin by evaluating the entire evidence adduced.
The prosecution called two witnesses both police officers, one of them claimed to have been among those who arrested the defendants and he it was who obtained their extra judicial statements exhibits P3, P4 and P5 from which they all resiled at the trial. He produced exhibits PI and P2A-P2F as having been recovered from the possession of the defendants,
PW2 was the superior police officer who supposedly endorsed the said extra Judicial, confessions after ascertaining the voluntariness thereof but contradicted himself on the dates on which they were said to have been brought to him.
All the defendants denied having been brought before him, his contradictory assertions on the dates they were brought did not assist his veracity.
It is significant that only PWl could be found out of those who supposedly arrested the defendants on the fateful day and none of the vigilante group who supposedly drew the attention of his team to the bus said to have conveyed the defendants was produced. To worsen the situation, PWl could not recall the names of any of his colleagues on the same patrol beat with him when the defendants were supposedly arrested.
Furthermore, the bus in which the defendants were said to have been arrested was never produced at trial despite the crucial role it played. PWl claimed the said bus was blue color while all the defendants claimed they were arrested in a commercial bus. It is a notorious fact that commercial buses in Lagos are never painted blue.
The presence of this bus would have resolved the issue and serve as vital corroboration for the case presented by the prosecution on whom lies the onus of proof.
The prosecution also tendered exhibits PI and P2A to P2F said to be the locally made gun and 6 rounds of live ammunition said to have been found on the defendants at the time of arrest.
None of the defendants admitted to these exhibits being found in their possession. The evidence of PWl on this issue became shaky when he veered from his earlier assertion that they were recovered from the 3rd defendant and became unsure.
He could not recall any member of his team who participated in the arrest and recovery and none of them was called as witness.
PW2 testified that when the defendants were brought before him for the endorsement of their supposed confessions only exhibit PI was brought. He knew nothing about the arrest of the defendants and was emphatic that only the gun, exhibit PI was brought leaving out the cartridges exhibits P2A-P2F despite the fact that the confessions he was to endorse covered the said cartridges.
As mentioned earlier, the prosecution tendered exhibits P3, P4 and P5 as the extra judicial confessions of the defendants from which the defendants all resiled at trial giving various accounts that would have justified objections to the admissibility of the said statements at the stage when they were sought to be tendered.
The issue of voluntariness would have been resolved in a trial within trial but this opportunity was waived by the failure of defence counsel to object on that ground, leading to the said documents being admitted without objection.
The retraction and setting up of contrary stories by the defendants necessitates that the court would only act on the retracted confessional statements on being satisfied after testing the veracity thereof by considering whether there is anything outside the confessions to show that they are true, whether the statements are corroborated, no matter how slightly, whether the facts contained therein, so far as can be tested, are true, whether the defendants had the opportunity of committing the offence, whether the confession of the defendants was possible, and whether the confessions were consistent with other facts, which have been ascertained and proved.
See ALARAPE VS STATE (2001)5 NWLR (PT 705) 79,
EGBOGHOME VS. STATE (1993) 7 NWLR (PT 306) 383
IBINA VS. STATE (1989) 5 NWLR (PT 120) 238 at 248 and
NWOSU VS. STATE (1998) 8 NWLR (PT 562) 433 at 442.
A defendant who wants to impeach his earlier extra judicial statement has to establish that his earlier confessional statement cannot be true or correct by showing any of the following events or instances;
(a) That he was not correctly recorded or
(b) That he in fact did not make the statement or
(c) That he was unsettled in mind at the time he made the statement or
(d) That he was induced to make the statement.
See ONWUMERE VS STATE (1991) 4 NWLR (PT 186) 428 at 440.
In the present case, all the defendants gave evidence from the witness box and tried to impeach the confessional statements credited to each of them. They denied all the material admissions contained in the said statements and denied having anything to do with the alleged offences.
PW2 gave evidence that the defendants were brought before him and on being satisfied that they voluntarily made the said statements endorsed each of them.
In the course of cross-examination, he contradicted himself on the dates the endorsements supposedly took place giving a different date from that shown on the face of the said documents. Re-examined he maintained the said contradiction.
This contradiction substantially weakened the corroborative quality of his testimony for the veracity of the statements in question.
When related with the earlier defects pointed out in the prosecution's case, it is evident that doubts have been created which must only be resolved in favor of the defendants and cannot permit the accreditation of the said exhibits P3, P4 and P5. See NWANKWO VS FRN (supra).
Having reached this conclusion, and in total consideration of the case presented by the prosecution, I must hold that the prosecution has failed to discharge the onus on it to prove its case beyond reasonable doubt against the defendants.
In the circumstances therefore, I find each of the defendants not guilty on each of the 3 counts alleged against them before this Court and I hereby discharge and acquit each of them on each of the said 3 counts.
Appearance;
Mr. O.G. Osoala, with him Mrs A. Adeyioka, Mr. O.A. Adamson, Mrs. I.I. Isiyola, Miss O.O. Taiwo and Mrs. R. I. Salami for the State.
Mr. A.J. Banu for the 1st and 2nd Defendants.
Mr. E. Uhie for the 3rd Defendant.
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT 34 CRIMINAL DIVISION
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY THURSDAY THE 5TH DAY OF MARCH, 2009
SUITNOID/52C/2006
BETWEEN
THE STATE COMPLAINANT
AND
1. SUNDAY AZUIKE
2. SATURDAY OKOEGUALE DEFENDANTS
3. ANDREW ONYEMECHI
JUDGMENT
By the amended charge dated 16th January, 2007 the 3 defendants were arraigned before this court on 3 counts to which they all pleaded not guilty. The entire counts are reproduced in full as follows:
STATEMENT OF OFFENCE 1ST COUNT
Conspiracy contrary to Section 403A of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division conspired to commit a felony to wit; robbery.
STATEMENT OF OFFENCE 2ND COUNT
Attempted Robbery contrary to Section 403 (1) of the Criminal Code Cap C17 Vol.2
Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguate (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division while armed with dangerous weapons to wit: a gun, attempted to commit robbery.
STATEMENT OF OFFENCE 3RD COUNT
Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17 Vol.2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division were found in a public place in possession of firearms with intent to commit robbery.
At the trial two witnesses testified for the prosecution while each of the defendants testified for his defence from the witness box.
PW1 was Police Sgt Tirimisiyu Abass of the Lagos State Anti Robbery Squad Annex, Ikeja.
His evidence in chief was that he was in the same unit in January 2004 when as a member of a special surveillance team around Gowon Estate, Ipaja some vigilantes in the area drew their attention to a certain bus containing some men. They stopped and searched the said bus and found 6 men and a driver therein. They also found a locally made pistol and 6 live cartridges.
He identified the 3 defendants as being among the men found in the said bus stating that 6 of them were arrested while one of them escaped. He also identified the said locally made pistol and 6 cartridges which were admitted without objection as exhibits PI and P2A to P2F respectively.
He obtained statements from each of the defendants and they explained to him that the person who escaped was the one leading them to rob his boss who supposedly cheated him. They however did not know the name of the said boss or his residence.
In the course of the investigation 3 additional persons were arrested but two of the suspects died in custody while some were released due to lower level of involvement while the present defendants were among the remaining ones charged to Court.
He stated that the original case file forwarded to the Magistrate Court got missing and identified the certified true copies of the extra judicial statements of the defendants. That of the 1st defendant was admitted as exhibit P3 while that of the 2nd defendant was admitted as exhibit P4.
It was submitted for the 3rd defendant that he refutes ownership of the statement sought to be tendered as his extra judicial statement and it was admitted as exhibit P5 with the issues raised reserved for evaluation at the end of the trial.
Under cross-examination from Mr. Bale for the 1st and 2nd defendants, he stated that he recorded exhibit P3 for the 1st defendant at his instruction and subsequently took the 1st defendant and the said statement to his superior officer for endorsement.
He similarly recorded the extra judicial statement of the 2nd defendant.
He stated that the two persons who died in police custody among those arrested for the case died of natural illnesses and that while the vehicle in which the defendants and their colleagues were arrested was impounded, the owner escaped at the time of arrest and could not be traced.
He reiterated that two of the initially arrested suspects were released by the police for lesser involvement and explained the circumstances thereof.
He rejected the suggestion that the defendants were tortured while in police custody and stated that they were pointed out by the local vigilante group in the area where they were arrested.
Under further cross-examination from Mr. Uhie for the 3rd defendant, he gave his service experience but could not remember the other members of his patrol team the night the defendants were arrested although he recalled that the arrest took place around 7 pm.
He also could not recall the registration number of the vehicle in which the defendants were arrested as the one found on it was found to be fake.
He stated that he recorded the extra judicial statement of the 3r defendant for him because he could not read nor write and denied coercing or forcing him to sign the said statement. He further denied that the death of the two suspects who died in police custody resulted from gun shot injuries.
He stated that the recovered gun was found on the 3rd defendant but when the name of one of the dead suspects was put to him he stated that he was not sure if he was the one in whose possession the said gun was found but insisted that it was found in the vehicle in which all the defendants rode while the driver on sighting the police escaped. He denied that the 3rd defendant was charged to court for his inability to bribe his way out of the case.
He was not re-examined.
PW2 was Mr. Gaji Abana a Superintendent of Police attached to the Special Anti Robbery Squad of the SCID, Ikeja Lagos State.
His evidence in chief was that PW1 brought the defendants to him together with their extra judicial statements now in evidence and after reading it to them to confirm authorship he endorsed the said statements.
He identified exhibits P3, P4 and P5 as the said statements and stated that the gun found in possession of the defendants was brought to him as well.
Under cross-examination from Mr. Banu for the 1st and 2nd defendants, he stated that he would not know whether the 1st and 2nd defendants were literate.
He also did not know the location of the vehicle in which the defendants were arrested neither did he know the location of its driver.
He did not know about those who died in police custody neither did he know about those released by the police.
Under further cross-examination from Mr. Uhie for the 3rd defendant he stated that the defendants were brought before him in 2004 but PW1 never told him when exactly they made their said statements.
He was aware that PW1 recorded the said statements for the defendants but never inquired as to why that happened.
He reiterated that he read the statements in question to the defendants in English Language which they confirmed understanding before they signed.
He was shown exhibits P3, P4 and P5 and he identified his endorsements and signatures as well as the dates thereon.
On being re-examined he stated once again that the said statements were brought to him on 11th January, 2004.
With his evidence the prosecution closed its case.
The 1st and 2nd defendants entered into their defence immediately while the 3rd defendant first made a no case submission which was overruled before he also entered the witness box to testify in his defence.
DW1 was the 1st defendant. He used to be a4rader prior to his arrest for this case. His evidence in chief was that on the day in question he was in a commercial bus on the way to the lyana Ipaja market when some policemen forced the bus he was in to stop and all the passengers asked to come down and lie face down. He complied and together with the other passengers they were taken to the premises of the Special Anti Robbery Squad.
After about two weeks in police custody, PW1 brought a note for him to sign but he refused upon which he was subjected to severe torture at the end of which he still refused.
Two men were then taken out in his presence and shot to death, he was threatened with a similar fate upon which he then signed the document.
He could read and write and never knew the 2" and 3rd defendants prior to their joint arrest in the bus.
He was never taken before PW2 and also denied being found with any gun or ammunition but he had the sum of N25,000.00 with him which was discovered on him by the policemen who searched him.
He was not cross-examined for the 2nd defendant but under cross-examination for the 3rd defendant he stated that he never knew the 3r defendant prior to his arrest and he never saw any arms or ammunition with the y defendant or anyone in the said bus when the were arrested.
Under cross-examination by the learned prosecutor Mr. Adamson he stated that he was on his way to Ipaja Market to buy foodstuffs when he was arrested as he trades in foodstuffs at the Ikotun Egbe Market.
Eight of them were arrested together and he described the location of his shop at Ikotun Egbe. He lived in Port Harcourt before coming to Lagos and learnt some trade there.
He attended a Secondary School at Owerri, and insisted that he never knew any of the people arrested with him prior to the day of their arrest.
He identified his signature on exhibit P3 but stated that he was coerced into signing it after over two weeks in detention contrary to the date shown on the said document.
He insisted that he contributed nothing to the contents of exhibit P3 and stated that the two detainees supposedly killed by the police were among those arrested with him in the said bus.
Since he came to Lagos, he had not travelled out of the State.
He was not re-examined.
DW2 was the 2nd defendant. Prior to his arrest he was a businessman dealing in clothes. His evidence in chief was that on the fateful day, he was in a commercial bus on his way to see his younger brother when their bus was stopped by policemen who searched the occupants and arrested them. The sum of N7,000.00 he had on him was taken away and he was clamped into detention for over one year before being charged to court from where they were remanded in prison.
While in police custody, he was forced at the point of death to sign a statement brought to him.
He identified exhibit P4 as the statement he was forced to sign and stated that he could read and write.
He had never known the other defendants prior to their Joint arrest and no weapon was found on him when he was arrested neither was he ever taken before PW2.
He was not cross-examined for the 1st defendant but under cross-examination for the 3rd defendant he stated that he never met the 3rd defendant prior to his arrest and denied that any gun or ammunition was recovered from the 3rd defendant or anyone arrested with him.
Under further cross-examination from the learned lead prosecutor, Mr. Osoala, he gave details of his residence prior to his arrest and gave details of the Secondary School he attended before dropping out in SS1 to learn some handiwork.
He recounted his movement leading to his arrest but due to the beatings he received at the point of arrest he could not remember the number of people arrested with him.
He denied that any gun or ammunition was found in the bus when they were arrested and also denied knowing the 3r defendant prior to their arrest.
He was taken to his house for search after his arrest but nothing incriminating was found therein.
He gave his present age as 30 years and denied ever signing or even seeing exhibit P4 before.
He was not re-examined.
DW3 was the 3rd defendant. He was a trader prior to his arrest selling various alcoholic drinks at Oyingbo market.
On the day he was arrested he left his church at Ikotun Egbe and boarded a bus to lya Ipaja. While on the way, they were stopped by some policemen who ordered all the occupants of the bus to disembark and after searching and beating them, took them to their station where they were all locked up.
They were later interrogated but when he denied being an armed robber and wrote do what actually happened, the said statement was torn and another one written by the investigator who directed him to sign. He refused and was subjected to severe beating until he signed it.
His co defendants are among those arrested with him and the 1st defendant was the first to cave in and sign the prepared statement for him.
He identified exhibit P5 as the statement he was forced to sign to save his life but denied writing it. The said statement was never read or interpreted to him before he signed it.
He denied ever meeting the co defendants or any of those arrested with him prior to his arrest.
Under cross-examination for the 1st and 2nd defendants, he denied ever knowing them prior to his arrest and stated that no weapon was found on him by the police.
Under cross-examination from Mr. Adamson for the prosecution, he stated that he is married with four children and lived at Oyingbo market for over a year selling alcoholic drinks.
He explained the program that took him to his church on a Saturday and gave his wife’s names as well as the names of his kinsmen he knew at Oyingbo market. His education stopped at primary school after which he went into welding before eventually moving into his present trade and later got introduced to his said church He reiterated that he never met the co defendants before his arrest.
He was not re-examined and with his evidence the defence was closed and counsel proceeded to their final addresses.
First to address the court was Mr. Banu on behalf of the 1st and 2nd defendants. He gave some background facts which he wanted the court to take cognizance of and submitted that the alleged confessional statements of the 1st and 2nd defendants could: be said to be voluntarily.
He further submitted that the testimony ofPW2 is inconsistent and that there is no independent evidence with which the allegedly confessional statements could be validated.
He then outlined the principles to be considered in testing the veracity of confessional statements and referred to ONOCHIE VS THE REPUBLIC (1966) NMLR 307.
R VS SKYES (1913) 8 CAR 233 at 236,
R VS OBIASO (1962) 1 ANLR 65 and
AKPAN VS STATE (1992) 6 NWLR (PT248) 439 at 460.
He urged the court to hold that the prosecution has failed to prove its case beyond reasonable doubt and consequently discharge and acquit the 1st and 2nd defendants.
For the 3rd defendants, Mr. Uhie reviewed the charge and evidence adduced at the trial and submitted the following issues for determination as follows:
1. Whether the prosecution has discharged the burden to prove their case beyond
reasonable doubt.
2. Whether from the available evidence the court could convict the 3rd accused as
charged.
Arguing the two issues together, he submitted that the burden of proof in criminal cases lies on the prosecution which burden has not been discharged in the present case. He referred to Section 138 (1) of the Evidence Act and AIGBADION VS STATE (2000) SC (PT 1) at 16.
On count 1, he submitted that merely charging the defendants together will not suffice in the absence of proof of common intention.
On count 2, he submitted that there was no evidence-that 3rd defendant was armed, that he attacked someone and that there is a probable victim and that the evidence adduced would only amount to suspicion which cannot ground conviction. He referred to STATE VS OGUNBUNJO (2001) 1 SC 90 and AIGBADION VS STATE (supra).
Moving to count 3, Mr. Uhie submitted that there was no evidence to indicate that exhibit PI and P2 were found on the 3rd defendant or any of the defendants who were not stated to own die bus in which they were arrested. He referred to Section 135 (I) of the Evidence Act and AYUB-KHAN VS STATE (1991) 2 NWLR (PT 172) 127 at 133.
TO BE CONTINUED…
CONTINUED FROM LAST WEEK…
He submitted that exhibit P5 would not pass the tests of truthfulness and should not be accorded any evidential weight especially when the inconsistent evidence ofPW2 in relation thereto is considered. He referred to IHUEBEKA VS STATE (2000) 4 SC (PT 1) 203 at 218, NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138 and ASANYA VS STATE (1991) 3 NWLR (PT 180) 422 at 433.
He urged the court to discharge and acquit the 3rd defendant on all the counts. For the prosecution, Mr. Osoala reviewed the legal ingredients of the offences alleged against the defendants and submitted that onus to prove beyond reasonable doubt is on the prosecution.
He referred to Section 138 (3) of the Evidence Act and DIBIE VS STATE (2007) 9 NWLR (PT 1038) 56. Specifically on count 1 of conspiracy, he outlined the legal ingredients thereof and referred to AITUMA VS STATE (2006) 10 NWLR (PT 989) 468, MAJEKODUNMI VS THE QUEEN (1952) 14 WACA 64, OYEDIRAN VS REPUBLIC (1967) NMLR 122. HARUNA VS STATE (1972) ALL NLR 738 and ERIM VS STATE (1994) 5 NWLR (PT 346) 525.
He referred to the evidence of PWl which according to him was uncontroverted and sufficiently proves this count.
He referred to Section 403 (2) (a) of the Criminal Code Law of Lagos State
On count 2 of attempt to commit robbery, he once again outlined the legal ingredients of the said offence and referred to DPP VS STONE HOUSE (1997) 2 ALL ER 909 at 917, SANNI VS STATE (1993) 4 NWLR (PT 285) 122, IBRAHIM VS STATE (1995) 3 NWLR (PT 381) 37 and ARCHBOLD 37™ Edition paragraph 4104.
He submitted that exhibits P3, P4 and P5 when taken with exhibits PI and P2 conclusively establish the guilt of the defendants and that free and voluntary confessions, are sufficient proof of guilt.
He referred to Section 27 of the Evidence Act, AKPAN VS STATE (2001) 15 NWLR (PT 737) 745, ONYEJEKWE VS STATE (1994) 3 NWLR (PT 230) 444 and NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138.
He agreed with the learned defence counsel that the confessional statements should be subjected to validity tests and submitted that exhibits PI and P2 provide the necessary corroboration to validate them.
He referred to OJOGELE VS STATE (1998) 1 NWLR (PT 71) 144 and NWACHUKWU VS STATE (2002) 7 SC (PT 1) 136 at 261.
He submitted further that the confessional statements were tendered without objection thereby constituting a waiver to any subsequent objection.
He urged the court to hold that the discrepancy in the testimony of PW2 was inconsequential.
He further urged the court to hold that the alleged offences have been proved beyond reasonable doubt and as such convict each of the defendants as charged.
I have duly considered the case presented by the prosecution, the defence put forward by the defendants and the final addresses of counsel.
The sole issue for determination herein is whether the prosecution has proved each of the 3 counts of offences alleged against the defendants before this court beyond reasonable doubt as to justify their being found guilty in respect thereof and consequently convicted. In every criminal matter, the defendant is presumed innocent and onus of proof of the criminal allegation is on the prosecution, which onus is discharged on the establishment of the essential elements of the alleged offence. See section 36 (5) of the Constitution, 'Section 138 of the Evidence Act, ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 591 per TOBI JCA (as he then was), and NWANKWO VS STATE (2003) 4 NWLR (PT 809) 1 at 35 per EKPE JCA.
To justify conviction, the required standard of proof is proof beyond reasonable doubt and this level of proof is attained when every ingredient, which constitutes the alleged offence, has been proved.
See AYUB-KHAN VS STATE (1991) 1 NWLR (PT 172) 127, ADIGUN VS A.G. OYO STATE (1987) 1 NWLR (PT 53) 678 and EDE VS FRN (2001) 1 NWLR (PT 695) 502 at 515.
It must be appreciated that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability.
And for the defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the court. See NWANKWO VS FRN (supra) at 35-36.
The 3 counts alleged against the defendants are as follows:
1. Conspiracy to commit robbery contrary to Section 403A of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:
403 (A) "Any person who conspires with any person to commit an offence under section 402 of this Law whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly".
2. Attempted armed robbery contrary to Section 403 (1) of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:
403 (1) "Any person, who with intent to steal anything, assaults any other person and at or immediately after the time of assault, use or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty years".
3. Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17, Laws of Lagos State 2003.
The said Section provides that:
403 (3) "Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under section 402 above shall upon conviction be sentenced to imprisonment for not less than fourteen years not more than twenty years".
The facts grounding the 3 counts against the defendants are the same and it may therefore be worthwhile to begin by evaluating the entire evidence adduced.
The prosecution called two witnesses both police officers, one of them claimed to have been among those who arrested the defendants and he it was who obtained their extra judicial statements exhibits P3, P4 and P5 from which they all resiled at the trial. He produced exhibits PI and P2A-P2F as having been recovered from the possession of the defendants,
PW2 was the superior police officer who supposedly endorsed the said extra Judicial, confessions after ascertaining the voluntariness thereof but contradicted himself on the dates on which they were said to have been brought to him.
All the defendants denied having been brought before him, his contradictory assertions on the dates they were brought did not assist his veracity.
It is significant that only PWl could be found out of those who supposedly arrested the defendants on the fateful day and none of the vigilante group who supposedly drew the attention of his team to the bus said to have conveyed the defendants was produced. To worsen the situation, PWl could not recall the names of any of his colleagues on the same patrol beat with him when the defendants were supposedly arrested.
Furthermore, the bus in which the defendants were said to have been arrested was never produced at trial despite the crucial role it played. PWl claimed the said bus was blue color while all the defendants claimed they were arrested in a commercial bus. It is a notorious fact that commercial buses in Lagos are never painted blue.
The presence of this bus would have resolved the issue and serve as vital corroboration for the case presented by the prosecution on whom lies the onus of proof.
The prosecution also tendered exhibits PI and P2A to P2F said to be the locally made gun and 6 rounds of live ammunition said to have been found on the defendants at the time of arrest.
None of the defendants admitted to these exhibits being found in their possession. The evidence of PWl on this issue became shaky when he veered from his earlier assertion that they were recovered from the 3rd defendant and became unsure.
He could not recall any member of his team who participated in the arrest and recovery and none of them was called as witness.
PW2 testified that when the defendants were brought before him for the endorsement of their supposed confessions only exhibit PI was brought. He knew nothing about the arrest of the defendants and was emphatic that only the gun, exhibit PI was brought leaving out the cartridges exhibits P2A-P2F despite the fact that the confessions he was to endorse covered the said cartridges.
As mentioned earlier, the prosecution tendered exhibits P3, P4 and P5 as the extra judicial confessions of the defendants from which the defendants all resiled at trial giving various accounts that would have justified objections to the admissibility of the said statements at the stage when they were sought to be tendered.
The issue of voluntariness would have been resolved in a trial within trial but this opportunity was waived by the failure of defence counsel to object on that ground, leading to the said documents being admitted without objection.
The retraction and setting up of contrary stories by the defendants necessitates that the court would only act on the retracted confessional statements on being satisfied after testing the veracity thereof by considering whether there is anything outside the confessions to show that they are true, whether the statements are corroborated, no matter how slightly, whether the facts contained therein, so far as can be tested, are true, whether the defendants had the opportunity of committing the offence, whether the confession of the defendants was possible, and whether the confessions were consistent with other facts, which have been ascertained and proved.
See ALARAPE VS STATE (2001)5 NWLR (PT 705) 79,
EGBOGHOME VS. STATE (1993) 7 NWLR (PT 306) 383
IBINA VS. STATE (1989) 5 NWLR (PT 120) 238 at 248 and
NWOSU VS. STATE (1998) 8 NWLR (PT 562) 433 at 442.
A defendant who wants to impeach his earlier extra judicial statement has to establish that his earlier confessional statement cannot be true or correct by showing any of the following events or instances;
(a) That he was not correctly recorded or
(b) That he in fact did not make the statement or
(c) That he was unsettled in mind at the time he made the statement or
(d) That he was induced to make the statement.
See ONWUMERE VS STATE (1991) 4 NWLR (PT 186) 428 at 440.
In the present case, all the defendants gave evidence from the witness box and tried to impeach the confessional statements credited to each of them. They denied all the material admissions contained in the said statements and denied having anything to do with the alleged offences.
PW2 gave evidence that the defendants were brought before him and on being satisfied that they voluntarily made the said statements endorsed each of them.
In the course of cross-examination, he contradicted himself on the dates the endorsements supposedly took place giving a different date from that shown on the face of the said documents. Re-examined he maintained the said contradiction.
This contradiction substantially weakened the corroborative quality of his testimony for the veracity of the statements in question.
When related with the earlier defects pointed out in the prosecution's case, it is evident that doubts have been created which must only be resolved in favor of the defendants and cannot permit the accreditation of the said exhibits P3, P4 and P5. See NWANKWO VS FRN (supra).
Having reached this conclusion, and in total consideration of the case presented by the prosecution, I must hold that the prosecution has failed to discharge the onus on it to prove its case beyond reasonable doubt against the defendants.
In the circumstances therefore, I find each of the defendants not guilty on each of the 3 counts alleged against them before this Court and I hereby discharge and acquit each of them on each of the said 3 counts.
Appearance;
Mr. O.G. Osoala, with him Mrs A. Adeyioka, Mr. O.A. Adamson, Mrs. I.I. Isiyola, Miss O.O. Taiwo and Mrs. R. I. Salami for the State.
Mr. A.J. Banu for the 1st and 2nd Defendants.
Mr. E. Uhie for the 3rd Defendant.
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