(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.