(2018) LPELR-43928(CA)

Transcription

1 UDJOR v. STATE CITATION: JIMI OLUKAYODE BADA In the Court of Appeal In the Benin Judicial Division Holden at Benin ON FRIDAY, 9TH MARCH, 2018 Suit No: CA/B/404C/2014 Before Their Lordships: MOORE ASEIMO ABRAHAM ADUMEIN MUDASHIRU NASIRU ONIYANGI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal OVWIGHO UDJOR - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI

2 1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Ingredients of the offence of armed robbery; standard of proof required of the prosecution "It is trite that whenever an accused is charged with the offence of armed robbery, the burden of proof is on the prosecution to prove the following elements of the offence beyond reasonable doubt. (a) That there was a robbery or series of robbery; (b) That the said robbery(s) was an armed robbery (c) That the Appellant was one of those who took part in the armed robbery. See - ATTAH VS STATE at 224 Paragraphs B - F (Supra)." (a) In order to show that there was a robbery, PW1 Olayinka Aladesuyi an eye witness and victim of the armed robbery stated in examination-in-chief thus:- "The robbers are the persons in Court... The 1st accused person pointed gun at my son, if I do not bring money, he will shoot him... so they opened my wardrobe and they took all the gold in the wardrobe and wristwatches..."(see page 143 of the record of appeal).the witness stated further:- "... I told them that there was money in the shop, it was the 1st accused that took me through the window and accompanied me to the shop... Immediately I stepped into the shop the 1st accused person followed me with second and he held a knife on my head and said "where is the money that I should bring it now..." I opened the safe. He took one of the bags... He now took the remaining little amount. He packed it himself." (See pages of the record of appeal). I am of the view that with the above evidence, armed robbery was committed. In this case, the evidence of PW1 shows that there was threat of violence when the gun was pointed at her son and a knife on her head. And the Appellant and his cohorts carted away huge sum of money, gold and wristwatches. They had no intention to return the money, gold and the wristwatches but an intention to permanently deprive the PW1 of the money and the other items. (b) On the second ingredient that the said robbery was an armed robbery. I will also refer to the testimony of the PW1 where she stated thus:- "Then the 1st accused person pointed gun at my son, if I do not bring money, he will shoot him..." (See page 143 of the record) The PW1 stated further that: - The reason why I remembered the 2nd accused person vividly is because when I was about to be taken to shop, I was made to come and look at my son with a gun on his head, and he was the one holding the gun and so in that instance there was eye contact and the face registered. (See page 147 of the record of appeal). The PW2 gave evidence thus:- "... I had to comply because they had objects with them and they threatened that if I refuse to comply I will be dead and so I had to comply." (See page 150 of the record of appeal). Section 15 (1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. 22 Laws of the Federation defines "Firearms" to include any canon, gun, rifle, carbine machine gun. In view of the foregoing, a gun is a firearm within the meaning of the law. Therefore, the robbery was an armed robbery. (c) On the third ingredient, that the Appellant was one of those who took part in the robbery, the vivid evidence of the PW1 in examination-in-chief is incisive. "The robbers are the persons in Court... And it was the 2nd accused person that pointed gun at my son." (See page 144 of the record of appeal)." PW1 went further in her testimony that:- "The reason why I remembered the 2nd accused person is because when I was about to be taken to the shop, I was made to come and look at my son with a gun on his head, and he was the one holding the gun and I had to appeal to him and so in that instance there was eye contact and the face registered." From the testimony of the PW1 set out above, it is clear that the Appellant was among the robbers who were armed and robbed PW1. There is sufficient evidence from PW1 which fixed the Appellant at the scene of crime at the material time."per BADA, J.C.A. (Pp , Paras. E-C) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF RAPE: What the prosecution must prove to succeed in a charge of rape or unlawul carnal knowledge "Concerning the offence of rape, the Learned Counsel for the Appellant submitted that the prosecution failed to establish the offence of rape against the Appellant. By virtue of Section 357 of the Criminal Code, any person who has unlawful carnal knowledge of a woman or girl without her consent, if the consent is obtained by force, or by means of threat or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act or in the case of a married woman, by personating her husband is guilty of an offence which is called rape. See the following cases:- - IKO VS STATE (2001) 14 NWLR Part 732 Page 195; - LUCKY VS THE STATE (2016) LPELR (SC); - JEGEDE VS STATE (2001) 1 NWLR Part 695 Page 623 at 630 Paragraphs A - B. The essential ingredients of rape which the prosecution must prove are - (a) That the accused had sexual intercourse with the prosecutrix; (b) That the act of intercourse was unlawful, not between husband and wife; (c) That in giving evidence of intercourse, penetration must be proved. Unless penetration is proved, the prosecution must fail. But penetration however slight is sufficient and it is not necessary to prove any injury or the rupture of the hymen to constitute the crime of rape. See - OKOYOMON VS THE STATE (1972) 1 NMLR Page 292, (1972) 1 SC Page 21 at 33 (d) That the accused had the "mens rea" that is, intention to have sexual intercourse with the prosecutrix without her consent. (e) That the prosecution must adduce credible evidence to corroborate the complaint made by the prosecutrix. See the following cases: - - POSU VS STATE (2011) 7 S.C. Part 1 Page 122; - LUCKY VS STATE (Supra); - POPOOLA VS STATE (2013) LPELR (SC); - UPAHAR VS STATE (2003) (Supra). The victim in this case is the PW2. During her examination-in-chief, she testified thus:- "It was the 2nd accused person that took me to the adjourning room. I was asked to lie down there. It was the 2nd accused person that asked me to lie down. I was there, initially he asked me to pull down, but I think others called his attention and so he left. Few minutes they came back. They were like four to five. Two were half naked while the remaining two were stark naked. It was at that stage that they asked me to pull down. I did not oblige him. When they came back I was stripped off my clothes. They came in turns, when the four of them came back, I was asked to pull down my skirt and my pant which I did. And they came in turns. The two of the men are in Court. They are the 1st and 2nd accused persons. I had to comply because they had objects with them and they threatened that if I refuse to comply, I will be dead and so I had to comply. They came in turns, one after the other. They had sex with me one after the other. After they had finished, they left. In the process, I was calling my aunty for help and nobody came to my rescue and that was how they left. It was not with my consent... It was when I heard my aunty's voice that I cannot, she asked me what happened and I told her. She went and alerted Shell Police, who came and took me to the hospital. At the hospital, I was examined and after which I was treated and injected and given drugs to go home and go and rest." (See page 150 of the record of appeal). As I stated earlier in this Judgment, the offence of rape is the unlawful carnal knowledge of a woman or girl without her consent. In the instant appeal, I am of the view that the evidence of "PW2" Ottun Abiodun, the victim and eyewitness of the dastardly act established all the ingredients of the offence of rape. In MUSA VS THE STATE (2013) LPELR (SC), the Supreme Court held among others that:- "... in offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complainant is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the Court is not hindered from convicting an accused on the uncorroborated evidence of the complainant...." A perusal of the evidence before the Court revealed that the evidence of PW2 was corroborated by the evidence of "PW4" Dr. Okunweme Ohiosimuken, the Medical Doctor who examined PW2. He testified in examination-in-chief as follows:- "On 19/12/2010, I was on duty on call, I was called on by my colleague to come and see a case which bordered on my specialty. This was in Shell Hospital in Ogunu. On getting to the emergency room, I met Miss Biodun Ottun i.e. "PW2"... I decided to examine her. My assessment at the time was that she was having what is called rape trauma syndrome. On examination physically, there were no bruises. I asked her how come, she explained that she was threatened if she was to resist, they will injure her and so she decided to cooperate.... The reason for giving her the drugs is that she has been raped and she was also within her fertile period and so she needs drugs to prevent pregnancy. In more than 50% of cases, when you examine a woman who has been raped, you usually find no injuries especially if she cooperated. In other words, she did not struggle and on my own personal experience, that is consistent with what the book says. The fact that she was around her fertile period, there is increase amount of vagina secretion which reduces the risk of a tear or a laceration." (See pages 158 to 160 of the record of appeal). The evidence of "PW2" was also corroborated by the evidence of PW1 when she testified that:- "When my niece was calling for help, I attempted to go in there but I was dragged back. I attempted to go into the adjoining room to my bedroom. And the door of the room is permanently opened, it is never closed, as I attempted to go into the room, they just dragged me back. In my attempt I saw my niece on the floor and there were about four of the armed robbers with her, one was like standing in front of her, while she was lying on the floor." The above evidence by PW4 and PW1 respectively, constitutes independent credible corroborative evidence which not only corroborates the prosecutrix's claim that she was raped by the Appellant and his cohorts penetrating into her vagina but also unequivocally implicated the Appellant. The conclusion to be drawn from the evidence of the PW1, PW2, and PW4 is that the Appellant and his cohorts had forceful sexual intercourse with the PW2 who was in distress at the material time and all efforts to rescue her was unsuccessful."per BADA, J.C.A. (Pp , Paras. C-D) - read in context

4 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: When the offence of conspiracy would be said to have been established "On conspiracy, the Learned Counsel for the Appellant submitted that the trial Judge was wrong to have convicted the Appellant on the charge of conspiracy to commit armed robbery. Conspiracy has been held in a number of decided cases to be an agreement by two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The two or more persons must be found to have combined in order to ground a conviction for conspiracy. See the following cases:- - YAKUBU VS THE STATE (2014) LPELR (SC); - GARBA VS C.O.P. (2007) 16 NWLR Part 1060 Page 378 at 400; - SULE VS THE STATE (2009) 17 NWLR Part 1169 Page 33; - ADEJOBI VS STATE (2011) 12 NWLR Part 1261 Page 347 at Paragraphs H - C. The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned. In the instant appeal under consideration, the offence of conspiracy can be inferred from the evidence-in-chief of PW1 who stated thus:- "On the 19/12/2010 at about 12.30am...I rushed to my sitting room and saw about 5 men... then the 1st accused pointed a gun at my son's head.... the 1st accused took me through the window and accompanied me to the shop... the reason I remembered 2nd accused vividly was because when I was about to be taken to the shop, I was made to look at my son with a gun pointed at his head and 2nd accused was the one holding the gun, I had to appeal to him and in that instance, there was eye contact and his face registered." Also, PW2, in her evidence-in-chief, stated as follows:- "... at about 12.30am... my aunt was calling me so I got up to answer her, when I got there, I saw strange men numbering about 4-5 and we were asked to go into my aunt's room, when we got there, I was taken into the room by the 2nd accused person who asked me to lie down..." The conclusion to be drawn from the evidence above is that it cannot be a coincidence that all the armed robbers inclusive of the Appellant, met at the scene of the robbery at the same time. Even if they did, having all participated actively in the armed robbery and leaving the scene together, the only reasonable inference to be deduced is that they were all at the scene of crime having a meeting of the mind and in agreement in pursuance of a common purpose which was to rob the "PW1" of her property while armed with a gun and also to rape "PW2". Also, by Exhibit "C" which is the extra judicial statement of the Appellant which was admitted in evidence, he stated in an unambiguous manner that:- "I was sitting down under the kolanut tree at Ogunu opposite Secretariat when Ebikeme Igangan came to meet me also, we all sat down together. Ebikeme now brought the issue out. He said that we should go to park "n" shop inside Shell Yard Ogunu to steal. After our discussion, we then agree to go for the operation the next day. The next day we all met at Elf Road, Ogunu. We discuss how to enter inside the Shell Yard, myself, Ebikeme, Sunday and Ojigwe went to Shell fence through Zubbaya Company. On getting to the fence, Sunday use cutter to cut the barbwire and we gain entrance into the Shell Yard. (See pages of the record of appeal). In my humble view, it is clear that from the totality of evidence placed before the lower Court and the evaluation of same, there is no doubt that there was indeed a meeting of the minds of the Appellant and his cohorts manifested by the overt act of robbing PW1 with a gun and raping PW2. The pieces of evidence assembled showed that the Appellant was not working alone on the day of the incident. He was working in collaboration with the 1st accused and others now at large. The only conclusion to be drawn from the scenario is that the offence of conspiracy to commit armed robbery and rape by the Appellant and his cohorts has been proved beyond reasonable doubt. The learned trial Judge was therefore right when he held as follows:- "My finding of fact from the evidence before me is that the 1st and 2nd accused persons are members of the gang of armed robbers who robbed both PW1 and PW2 and raped PW2. I am satisfied beyond reasonable doubt that the prosecution has adduced sufficient evidence to prove the guilt of the 1st and 2nd accused persons and I so hold."per BADA, J.C.A. (Pp , Paras. D-D) - read in context 4. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: When a person will be deemed to have committed armed robbery "...I also want to emphasise that once the prosecution has established that the accused person was among the robbers and that they were armed with offensive weapons e.g. firearms by common design, the accused person is guilty of armed robbery. It matters not that the accused person himself did not carry a weapon. Therefore, once it is established that the Appellant was among the armed robbers not as a casual onlooker but a full participant and his accomplices, now at large, carried firearms, the Appellant is guilty of the offence of armed robbery. The most important aspect of the Appellant's part in the crime is the principle of common object, the intention to violently rob while armed with a gun and that intention being executed. The presence of the Appellant at the LOCUS CRIMINIS was supported by overwhelming evidence that he was in concert with others, now at large, to violently commit armed robbery and rape. The mere presence of the Appellant with others armed even with offensive weapon was enough to find him guilty of the offence under the Act. See the following cases:- - THE STATE VS ISIAKA (2013) LPELR (SC); - AFOLALU VS THE STATE (2010) 16 NWLR Part 1220 Page 554; - OLAYINKA VS THE STATE (2007) 4 (SC) Part 1 Page 201, (2007) 9 NWLR Part 1040 Page 561; - TIRIMISIYU ADEBAYO VS THE STATE (2014) LPELR (SC); - BASSEY VS THE STATE (2012) LPELR 7813 (SC); - SUBERU VS THE STATE (2010) 8 NWLR Part 1197 Page 586 (SC); - OKPULOR VS STATE (1990) 7 NWLR Part 164 Page 581 at 590 Paragraphs C - F."Per BADA, J.C.A. (Pp , Paras. F-B) - read in context

5 5. CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Circumstance where an identification parade would not be necessary "The Learned Counsel for the Appellant also submitted that the evidence on identification of the Appellant is doubtful. Identification, in my view, is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. See - OTTI VS STATE (1993) 4 NWLR Part 290 Page 675 at 681 Paragraph A. It is settled law that it is not in all criminal cases that an identification parade is necessary, where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary. Identification parade is not the only means of identification, there could also be voice or visual identification. If a victim or witness successfully proves visual or voice identification, there will be no need for identification parade. See - JONATHAN IGBI & ANOR VS THE STATE (2000) 3 NWLR Part 648 Page 169."Per BADA, J.C.A. (Pp , Paras. C-A) - read in context 6. CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Circumstance where an identification parade would not be necessary "It is trite that where an accused person confesses to have committed the offence for which he is charged, an identification parade is clearly unnecessary. In this appeal under consideration, the Appellant made it clear in Exhibit "C" that he took part and played active and pivotal role in the armed robbery of 19/12/2010 in the house of PW1 and PW2. The identity of the Appellant as one of the robbers and rapist was never in doubt. In AFOLABI VS STATE (2013) 13 NWLR Part 1371 Page 292 at 311 Paragraphs D - G, the Supreme Court held that:- "Where an accused person by his own confession had identified himself with the commission of the act constituting the offence he is charged with, the need for identification in such circumstances is completely ruled out."per BADA, J.C.A. (Pp , Paras. E-C) - read in context 7. EVIDENCE - STANDARD OF PROOF: Standard of proof in criminal cases; whether proof beyond reasonable doubt means proof beyond all shadow of doubt "The law is settled that in criminal prosecution the standard of proof required is that of proof beyond reasonable doubt. Section 135 (1) of the Evidence Act 2011 provides as follows:- If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean that the Prosecution must prove its case with mathematical exactitude, nor does it mean proof beyond any shadow of doubt. The prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with. See - DIBIE VS STATE (2004) 14 NWLR Part 893 Page "Per BADA, J.C.A. (P. 12, Paras. A-E) - read in context 8. EVIDENCE - CONTRADICTION IN EVIDENCE: Position of the law as regards contradictions in evidence "It has been contended on behalf of the Appellant that the evidence adduced by the prosecution is contradictory and inconsistent.?in this regard, I am of the view that when two pieces of evidence contradicts one another, it affirms the opposite of what other evidence has said. A discrepancy may occur when a piece of evidence stops short of or contains a little more than what other evidence says or contains same differences in details. It is trite that before evidence is said to be contradictory in nature, so as to create a doubt, as to which of the two alternative stories should be believed, it must be such as to change the cause of events. The contradiction in this respect must be material and very fundamental. A mere variation and difference in the use of language is a natural phenomenon and should not account as material contradiction. Individual differences in perception are factors which should always be taken into consideration and not disregarded. Therefore, the contention of the Learned Counsel for the Appellant that there are inconsistent evidence in respect of:- - Whether Ebikeme who took PW1 to the Supermarket came back with her; - The number of the persons in the house on the day of the incident; - Who took PW2 to the adjoining room; - Whether it was the 1st or 2nd accused person (Appellant) that pointed the gun at PW1's son; should be discountenanced in view of the submission of the Learned Counsel for the Respondent which I agree with that the evidence were mere discrepancies. There is no contradiction in the prosecution's case worth considering. When two or more persons are called as witnesses to say what they saw on a particular day, there are bound to be discrepancies in their testimonies. The Court is only concerned with testimony on material facts and not on peripheral that have no bearing on the substance in issue. See - EGWUMI VS STATE (2013) 13 NWLR Part 1372 Page 525 at 555 Paragraphs B - D. The material facts in this case are:- (1) Was there a robbery? (2) Was the robbery an armed robbery? (3) Was the Appellant one of those who took part in the armed robbery? (4) Did the Appellant have sexual intercourse (carnal knowledge) of "PW2"? (5) Was it with "PW2's" consent or not? (6) Was there other evidence to corroborate the aforesaid? (7) Did the Appellant and others agree and had a meeting of the mind to rob PW1 with a gun and rape PW2? It is my view that it is only if there are contradictions in the testimony of the prosecution witnesses on the above that grave doubt would be cast on the prosecution's case. But in this case, there was no contradiction in the prosecution's case on material facts. Consequent upon the foregoing, the case of the prosecution was indeed unassailable. The minor discrepancies in the evidence of the witnesses for the prosecution are not sufficient to entitle the Appellant to an acquittal. Therefore, the learned trial Judge had no iota of doubt in his mind when he held thus:- "I am afraid I am at pains to see any contradiction or conflict or inconsistencies as submitted that is capable of benefiting the accused in this case. Two witnesses are not bound to give the same details to an event. A witness is bound to be more detailed in his evidence than another. Equally too, evidence in Court of a witness may be more detailed than his previous statement to the police, that will not amount to a contradiction; contradiction must be substantial and fundamental to the issues in equation before the Court. I cannot see any such contradiction in this case."per BADA, J.C.A. (Pp , Paras. E- F) - read in context

6 9. EVIDENCE - EVIDENCE OF AN EYE WITNESS: Effect where an eye witness omits to mention at the earliest opportunity the name(s) of the person(s) seen committing an offence "It is trite that where an eyewitness omits to mention at the earliest opportunity, the name or names of the person or persons who committed an offence or his features and characteristics, a Court must be careful in accepting his evidence given later implicating the person or persons charged, unless a satisfactory explanation is given. See - SUNDAY ANI VS STATE (2009) 16 NWLR Part 1168 Page 443 at Paragraphs E - A."Per BADA, J.C.A. (P. 34, Paras. D-F) - read in context 10. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person "A free and voluntary confession of guilt by an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why a confession by itself alone is sufficient without further corroboration to warrant a conviction so long as the Court is satisfied as to the truth of the confession. See - SOLOLA VS STATE (2005) 11 NWLR Part 937 Page 460."Per BADA, J.C.A. (P. 38, Paras. C-E) - read in context 11. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same "A Court can convict on the retracted Confessional Statement of an accused person. However, before that is properly done, the trial Court should evaluate the confession and testimony of the accused person and all the evidence available through the following six tests:- (1) Whether there is anything outside the confession to show that it is true. (2) Whether it is corroborated. (3) Whether the relevant statement made in it of facts are true as far as they can be tested. (4) Whether the accused person had the opportunity of committing the offence charged. (5) Whether the confession is possible. (6) Whether the confession is consistent with the other facts which have been ascertained and have been proved."per BADA, J.C.A. (Pp , Paras. E-C) - read in context 12. EVIDENCE - CALLING OF WITNESS(ES): Discretion of the prosecution in calling witnesses "The Learned Counsel for the Appellant also submitted that the failure of the Prosecution to call one Solomon and the Ogunu Community Chairman is fatal to the case of the prosecution. In this respect, I am of the view that the law does not impose any obligation on the part of the Prosecution as to the number of witnesses it must call in order to prove its case. The Prosecution has a duty to prove facts in issue but it is not obliged to call each and every witness on any particular point. A Court of Law can act on the evidence of a single witness and if such a witness is believed, given all the surrounding circumstances may establish a case beyond reasonable doubt. As such, the evidence of one credible witness whose testimony is accepted and believed by the trial Court is sufficient to justify a conviction. See the following cases:- - OFOKE NWAMBE VS THE STATE (1995) 3 NWLR Part 384 Page 385, (1995) 3 SCNJ Page 77; - SUNDAY VS STATE (2010) 18 NWLR Part 1224 Page 235 at 246 Paragraph B; - BABUGA VS THE STATE (1996) 7 NWLR Part 460 Page 279, ( ) ALL NLR Page 362; - ADEJOBI & ANOR VS STATE (2011) LPELR (SC); - NKEBISI VS STATE (2010) 5 NWLR Part 1188 Page 471 (SC); - JULIUS BAYODE AYENI VS THE STATE (2016) LPELR (SC). In a criminal trial, the Prosecution's duty is to adduce evidence to prove its case and it is not accountable for failure to produce a witness not necessary to establish its case. The law imposed a duty on the Prosecution to call only such number of witnesses as are necessary to prove the offence charged beyond reasonable doubt. The Prosecution's failure to call the Ogunu Community Chairman as a witness was not fatal to the Prosecution's case. This is because the Appellant's Confessional Statement, Exhibit "C" and the evidence of "PW1", "PW2", "PW3" and "PW4" sufficiently proved the Prosecution's case that the Appellant robbed "PW1" with a gun and raped "PW2". See - MBANG VS STATE (2013) 7 NWLR Part 1352 Page 48 at 77 Paragraphs G - H."Per BADA, J.C.A. (Pp , Paras. B-A) - read in context

7 JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of Justice, Warri Judicial Division in Delta State of Nigeria in Charge No. W/318C/2011 Between: THE STATE VS OVWIGHO UDJOR & ANOR delivered on the 30th day of April, Briefly, the facts of the case are that the Appellant was charged with the offences of Conspiracy to commit Armed Robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Volume 14, Laws of the Federation of Nigeria 2004, Conspiracy to commit felony to wit: Rape, Punishable under Section 516(2)(a) of the Criminal Code Cap 21, Laws of Delta State 2006; and Rape punishable under Section 358 of the Criminal Code Cap 21, Laws of Delta State At the trial, the Prosecution in proof of the case called four witnesses, PW1, PW2, i.e. the two victims of the armed robbery and rape, PW3, the investigating Police Officer and PW4 a Medical Doctor who examined PW2 after she was brutally raped. The Prosecution also tendered in evidence Exhibits A 1

8 and C which are extra-judicial statements of the 1st Accused Person and the Appellant who was the 2nd Accused and the attestation forms to the statements as Exhibits B and D. The Appellant testified in his defence and he did not call any witness. At the conclusion of trial, in a Judgment delivered on 30th day of April 2014, the Learned trial Judge found the Appellant guilty on all counts charged and sentenced him to death by hanging. The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court. The Learned Counsel for the Appellant formulated four issues for the determination of the Appeal, the issues are set out as follows:- (1) Whether from the evidence by the Prosecution before the Honourable Court, the lower Court was right in finding the Appellant guilty and sentencing him to death. (2) Whether the trial Court ought to have held that the failure of the Prosecution to call one Solomon and Ogunu Community Chairman is fatal to the case of the Prosecution and therefore came to wrong decision. (3) Whether based on the evidence proffered by the

9 2

10 Prosecution, the Prosecution established the offence of Rape in count 4 of the charge against the Appellant. (4) Whether based on the evidence proffered by the prosecution, the trial Court was right to have held that the Prosecution established the charge of conspiracy to commit armed robbery in count 1 of the charge. In his own case, the learned Counsel for the Respondent formulated a lone issue for the determination of the appeal. The issue is set out as follows:- Whether the learned trial Judge was right in law when he held that he was satisfied beyond reasonable doubt that the Prosecution has adduced sufficient evidence to prove the guilt of the Appellant. At the hearing, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court delivered on 30/4/14. The notice of appeal was filed on 12/6/2014 while the amended notice of appeal was filed on 16/2/2017. The record of appeal was transmitted on 19/9/2014. The amended Appellant s brief of argument was filed on 8/5/2017. The Learned Counsel for the Appellant adopted and relied on the said amended 3

11 Appellant s brief of argument as her argument in urging that the appeal be allowed and Judgment of the lower Court set aside. The Learned Counsel for the Respondent also referred to the Respondent s brief of argument filed on 1/11/17 which was deemed as properly filed on 2/11/2017. He adopted and relied on the said Respondent s brief of argument as his argument in urging that the appeal be dismissed. I have carefully examined the issues formulated for the determination of this appeal by Counsel for the parties. The lone issue formulated on behalf of the Respondent encapsulates the issues formulated for the determination of the appeal on behalf of the Appellant. I will therefore rely on the said lone issue formulated for the determination of the appeal on behalf of the Respondent. ISSUE FOR THE DETERMINATION OF THE APPEAL Whether the learned trial Judge was right in law when he held that he was satisfied beyond reasonable doubt that the Prosecution has adduced sufficient evidence to prove the guilt of the Appellant. The Learned Counsel for the Appellant referred to the evidence of the Prosecution 4

12 Witnesses and stated that none of the witnesses identified the Appellant. She then submitted that the trial Court should not have relied on the evidence of the Prosecution Witnesses. She submitted that the establishment by the Prosecution of identity of the Appellant as one of the persons that committed the offences charged was a fundamental issue which the Prosecution ought to have established at the trial. She relied on the following cases:- - OJUKWU VS STATE (2002) FWLR Part 98 Page 943 at 951 Paragraphs B C; - AJIBADE VS STATE (1987) 1 NWLR Part 205 Page 210. She also submitted that where the identity of the person that committed the offence is not known the issue of an identification parade is necessary. She relied on the cases of:- - FATAI VS STATE (2013) ALL FWLR Part 683 Page 1837 at Paragraphs G B; - DICKSON VS STATE (2012) ALL FWLR Part 511 Page 1538 at 1554 Paragraphs D E, Page 1555 Paragraphs C D; - BOZIN VS STATE (1985) 7 SC Page 450; - ABDULAHI VS STATE (2005) ALL FWLR Part 263 Page 698 at 715 Paragraphs E F.

13 The Learned Counsel 5

14 for the Appellant referred to Exhibit C i.e. the Confessional Statement and submitted that it must satisfy some basic requirements which includes confessing and admitting all the elements of the offence charged. It was submitted that the evidence of PW1 is contrary to that of PW2 and the Court cannot pick and choose between the two pieces of evidence, Learned Counsel for the Appellant therefore urged that the doubt created be resolved in favour of the Appellant. It was also stated that the PW3 i.e. the Investigating Police Officer, in his evidence stated that Ogunu Community Chairman gave him the name of the Appellant as one of the persons who committed the offence, the said Ogunu Community Chairman who ought to be a material witness was not invited to make statement to the police or testify in Court. The Learned Counsel for the Appellant submitted that the Prosecution, through the Ogunu Community Chairman, had a duty to explain to Court how he knew that the Appellant was part of those who allegedly robbed the PW1 and PW2. She also submitted where, as in this case, the quality of identification evidence is poor, the trial 6

15 Court erred in law to have relied on same to convict the Appellant, rather it should have returned a verdict of not guilty on the Appellant on the four counts charge of conspiracy, robbery and rape. She relied on the case of IKARIA VS STATE (2013) ALL FWLR Part 671 Page 1463 at Paragraphs G A. It was also submitted on behalf of the Appellant that the failure by the Prosecution Witnesses to identify the Appellant at the earliest opportunity when the offences charged were allegedly committed was fatal to the case of the Prosecution and the trial Court erred in law to have held that from the evidence that the Prosecution fixed the accused to the scene of the crime The Learned Counsel for the Appellant also submitted that the failure of the Prosecution to call one Solomon and the Ogunu Community Chairman who are material witnesses to the four counts charge was fatal to the case of the Prosecution and that the trial Court ought to have so held. She relied on ODUNEYE VS STATE (2000) FWLR Part 13 Page 2289 at 2296 Ratio 10. On the issue of rape, it was also 7

16 submitted on behalf of the Appellant that the prosecution failed to establish the offence of rape against the Appellant and that the trial Court was wrong to have convicted the Appellant on that count. She relied on EZIGBO VS STATE (2012) ALL FWLR Part 638 Page 847 at 853 Paragraphs B C. It was finally submitted on behalf of the Appellant that the trial Court was wrong to have convicted the Appellant on the charge of conspiracy to commit armed robbery when PW1 and PW2 had earlier on stated in their statement to police that they could not recognize the persons that committed the offences in the four count charge and there was no evidence of identification parade conducted by police nor was the Appellant ever identified by the Prosecution Witnesses before he was charged to Court. Learned Counsel for the Appellant urged that the issue be resolved in favour of the Appellant and appeal allowed. In his response, the Learned Counsel for the Respondent submitted that the lower Court was right in holding that it was satisfied beyond reasonable doubt that the Prosecution has adduced sufficient evidence to prove the guilt of the 8

17 Appellant. He went further that the standard of proof required in a criminal prosecution is that of proof beyond reasonable doubt. And that whenever an accused person is charged with armed robbery, the burden of proof is on the Prosecution to prove the following beyond reasonable doubt: (a) That there was a robbery or series of robbery; (b) That the said robbery was an armed robbery; (c) That the Appellant was one of those who took part in the armed robbery. He relied on ATTAH VS STATE (2010) 10 NWLR Part 1201 Page 190 at 224 Paragraphs B F. In proof of the above ingredients, the Counsel for the Respondent referred to the evidence on record and he submitted that the Appellant was among the robbers that were armed and robbed PW1. On the issue of rape, it was also submitted on behalf of the Respondent that the Prosecution must prove the following ingredients: - (1) That the accused had sexual intercourse with the prosecutrix; (2) That the act of intercourse was unlawful, not being between husband and wife; (3) That in giving evidence of intercourse, complete penetration is proved;

18 9

19 (4) That the accused had the mens rea that is intention to have sexual intercourse with the prosecutrix without her consent. (5) The Prosecution must adduce credible evidence to corroborate the complaint made by the prosecutrix. The Learned Counsel for the Respondent relied on the case of UPAHAR VS STATE (2003) FWLR Part 139 Page 1512 at 1527 Paragraphs B E. In proof of the above ingredients, the Learned Counsel referred to the evidence of PW2, Ottun Abiodun that is the victim and eyewitness. He then concluded that the evidence of PW2 established the ingredients of the offence of rape. On the contention of Counsel for the Appellant that there are inconsistent evidence adduced by the prosecution, the Learned Counsel for the Respondent submitted that where two or more persons are called as witnesses to say what they saw on a particular day, there are bound to be discrepancies in their testimonies. The Court is only concerned with testimony on material facts and not peripheral that have no bearing on the substance in issue. On the failure of PW1 and PW2 to identify the Appellant before being charged to Court, the 10

20 Learned Counsel for the Respondent referred to the evidence of PW1 and PW2 and contended that the evidence should be seen from the perspective that for an obviously frightened, incensed and shocked observer like PW1 and PW2, it would be idle to expect that such frightened observers in a charged and prolonged scene as in an armed robbery, would notice exactly the same thing with mathematical consistency especially when both parties have never experienced such dastardly act all through their lives. The Learned Counsel for the Appellant contended that the failure to call Ogunu Community Chairman is fatal to the Prosecution s case. The Learned Counsel for the Respondent in response, submitted that the law does not impose any obligation on the part of the prosecution as to the number of witnesses it must call in order to prove its case. He relied on the case of - SUNDAY VS STATE (2010) 8 NWLR Part 1224 Page 223 at 246 Paragraph B. On the whole, he urged this Court to dismiss this appeal and affirm the Judgment of the lower Court. The Learned Counsel for the Appellant has urged this Court to hold that the Prosecution

21 11

22 failed to establish that the Appellant was one of the persons that committed the offences for which he was charged before the lower Court. The law is settled that in criminal prosecution the standard of proof required is that of proof beyond reasonable doubt. Section 135 (1) of the Evidence Act 2011 provides as follows:- If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean that the Prosecution must prove its case with mathematical exactitude, nor does it mean proof beyond any shadow of doubt. The prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with. See DIBIE VS STATE (2004) 14 NWLR Part 893 Page It is trite that whenever an accused is charged with the offence of armed robbery, the burden of proof is on the prosecution to prove the following elements of the offence beyond reasonable doubt. (a) That there was a robbery or series of robbery; 12

23 (b) That the said robbery(s) was an armed robbery (c) That the Appellant was one of those who took part in the armed robbery. See ATTAH VS STATE at 224 Paragraphs B F (Supra). (a) In order to show that there was a robbery, PW1 Olayinka Aladesuyi an eye witness and victim of the armed robbery stated in examination-in-chief thus:- The robbers are the persons in Court The 1st accused person pointed gun at my son, if I do not bring money, he will shoot him so they opened my wardrobe and they took all the gold in the wardrobe and wristwatches "(See page 143 of the record of appeal).the witness stated further:- I told them that there was money in the shop, it was the 1st accused that took me through the window and accompanied me to the shop Immediately I stepped into the shop the 1st accused person followed me with second and he held a knife on my head and said where is the money that I should bring it now I opened the 13

24 safe. He took one of the bags He now took the remaining little amount. He packed it himself." (See pages of the record of appeal). I am of the view that with the above evidence, armed robbery was committed. In this case, the evidence of PW1 shows that there was threat of violence when the gun was pointed at her son and a knife on her head. And the Appellant and his cohorts carted away huge sum of money, gold and wristwatches. They had no intention to return the money, gold and the wristwatches but an intention to permanently deprive the PW1 of the money and the other items. (b) On the second ingredient that the said robbery was an armed robbery. I will also refer to the testimony of the PW1 where she stated thus:- Then the 1st accused person pointed gun at my son, if I do not bring money, he will shoot him. (See page 143 of the record) The PW1 stated further that: - The reason why I remembered the 2nd accused person vividly is because when I was about to be taken to shop, I was made to come and look at my son with a gun on 14

25 his head, and he was the one holding the gun and so in that instance there was eye contact and the face registered. (See page 147 of the record of appeal). The PW2 gave evidence thus:- I had to comply because they had objects with them and they threatened that if I refuse to comply I will be dead and so I had to comply. (See page 150 of the record of appeal). Section 15 (1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. 22 Laws of the Federation defines Firearms to include any canon, gun, rifle, carbine machine gun. In view of the foregoing, a gun is a firearm within the meaning of the law. Therefore, the robbery was an armed robbery. (c) On the third ingredient, that the Appellant was one of those who took part in the robbery, the vivid evidence of the PW1 in examination-in-chief is incisive. The robbers are the persons in Court And it was the 2nd accused person that pointed gun at my son. (See page 144 of the record of appeal). PW1 went further in her testimony that:- 15

26 The reason why I remembered the 2nd accused person is because when I was about to be taken to the shop, I was made to come and look at my son with a gun on his head, and he was the one holding the gun and I had to appeal to him and so in that instance there was eye contact and the face registered. From the testimony of the PW1 set out above, it is clear that the Appellant was among the robbers who were armed and robbed PW1. There is sufficient evidence from PW1 which fixed the Appellant at the scene of crime at the material time. Concerning the offence of rape, the Learned Counsel for the Appellant submitted that the prosecution failed to establish the offence of rape against the Appellant. By virtue of Section 357 of the Criminal Code, any person who has unlawful carnal knowledge of a woman or girl without her consent, if the consent is obtained by force, or by means of threat or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act or in the case of a married woman, by personating her husband is guilty of an offence which is called rape. See the following 16

27 cases:- - IKO VS STATE (2001) 14 NWLR Part 732 Page 195; - LUCKY VS THE STATE (2016) LPELR 4054 (SC); - JEGEDE VS STATE (2001) 1 NWLR Part 695 Page 623 at 630 Paragraphs A B. The essential ingredients of rape which the prosecution must prove are (a) That the accused had sexual intercourse with the prosecutrix; (b) That the act of intercourse was unlawful, not between husband and wife; (c) That in giving evidence of intercourse, penetration must be proved. Unless penetration is proved, the prosecution must fail. But penetration however slight is sufficient and it is not necessary to prove any injury or the rupture of the hymen to constitute the crime of rape. See OKOYOMON VS THE STATE (1972) 1 NMLR Page 292, (1972) 1 SC Page 21 at 33 (d) That the accused had the mens rea that is, intention to have sexual intercourse with the prosecutrix without her consent. (e) That the prosecution must adduce credible evidence to corroborate the complaint made by the prosecutrix. See the following cases: - - POSU VS STATE (2011) 7 S.C. Part 1 Page 122; - LUCKY VS STATE 17

28 (Supra); - POPOOLA VS STATE (2013) LPELR 2097 (SC); - UPAHAR VS STATE (2003) (Supra). The victim in this case is the PW2. During her examinationin-chief, she testified thus:- It was the 2nd accused person that took me to the adjourning room. I was asked to lie down there. It was the 2nd accused person that asked me to lie down. I was there, initially he asked me to pull down, but I think others called his attention and so he left. Few minutes they came back. They were like four to five. Two were half naked while the remaining two were stark naked. It was at that stage that they asked me to pull down. I did not oblige him. When they came back I was stripped off my clothes. They came in turns, when the four of them came back, I was asked to pull down my skirt and my pant which I did. And they came in turns. The two of the men are in Court. They are the 1st and 2nd accused persons. I had to comply because they had objects with them and they threatened that if I refuse to comply, I will be dead and so I had to comply. They came in turns, one after the other. They had sex with me one after the other. After they had finished, 18

29 they left. In the process, I was calling my aunty for help and nobody came to my rescue and that was how they left. It was not with my consent.... It was when I heard my aunty s voice that I cannot, she asked me what happened and I told her. She went and alerted Shell Police, who came and took me to the hospital. At the hospital, I was examined and after which I was treated and injected and given drugs to go home and go and rest. (See page 150 of the record of appeal). As I stated earlier in this Judgment, the offence of rape is the unlawful carnal knowledge of a woman or girl without her consent. In the instant appeal, I am of the view that the evidence of PW2 Ottun Abiodun, the victim and eyewitness of the dastardly act established all the ingredients of the offence of rape. In MUSA VS THE STATE (2013) LPELR (SC), the Supreme Court held among others that:-.. in 19

30 offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complainant is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the Court is not hindered from convicting an accused on the uncorroborated evidence of the complainant... A perusal of the evidence before the Court revealed that the evidence of PW2 was corroborated by the evidence of PW4 Dr. Okunweme Ohiosimuken, the Medical Doctor who examined PW2. He testified in examination-in-chief as follows:- On 19/12/2010, I was on duty on call, I was called on by my colleague to come and see a case which bordered on my specialty. This was in Shell Hospital in Ogunu. On getting to the emergency room, I met Miss Biodun Ottun i.e. PW2 I decided to examine her. My assessment at the time was that she was having what is called rape trauma syndrome. On examination physically, there were no 20

31 bruises. I asked her how come, she explained that she was threatened if she was to resist, they will injure her and so she decided to cooperate. The reason for giving her the drugs is that she has been raped and she was also within her fertile period and so she needs drugs to prevent pregnancy. In more than 50% of cases, when you examine a woman who has been raped, you usually find no injuries especially if she cooperated. In other words, she did not struggle and on my own personal experience, that is consistent with what the book says. The fact that she was around her fertile period, there is increase amount of vagina secretion which reduces the risk of a tear or a laceration. (See pages 158 to 160 of the record of appeal). The evidence of PW2 was also corroborated by the evidence of PW1 when she testified that:- When my niece was calling for help, I attempted to go in there but I was dragged back. I attempted to go into the adjoining room to my bedroom. And the door of the room is permanently opened, it is never closed, as I attempted to go into the room, 21