⦿ CASE SUMMARY OF:
Onyemechi Nweke Nweneke v. The State (2019) – SC
⦿ LITE HOLDING
The Appellant was discharged. The Appellant was not identified as one of the robbers. The Confessional statement was not tendered and admitted properly.
⦿AREA OF LAW
– Criminal Law
– Confessional statement.
– Armed robbery with offensive witness.
– Voluntariness of Confessional statement.
Onyemechi Nweke Nweneke
⦿ LEAD JUDGEMENT DELIVERED BY:
Onyekachi A Ja Otisi, J.C.A.
* FOR THE APPELLANT
– Chief Dr. (Mrs.) Caroline Mbafan Ekpendu.
* FOR THE RESPONDENT
– Mrs. Mary E. Ochenjele.
⦿ FACT (as relating to the issues)
The facts leading to this appeal, in summary, are as follows:
The Appellant, alongside one David Pius Kelvin, were charged with the offences of criminal conspiracy and armed robbery contrary to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, with the Appellant standing trial as the 2nd accused person, as follows:
That you, David Pius Kelvin (M) and Onyemechi Nweke Nweneke (M) on or about the 26th/02/2011 at North-Bank, around Court 5 opposite Musa Plato Mega Station, Makurdi within the jurisdiction of this Honourable Court conspired with others now at large to do an illegal act to wit: you agreed to rob one Sunday Igba of his vehicle Golf 3 with registration No. XF 538 MKD, and money in the sum of N16, 300. 00, and his Nokia handset, which act was done in pursuance of agreement and you thereby committed an offence punishable under Section 6 (b) of the Robbery and Fire-Arms (Special Provisions) Act, Cap. Rll, Laws of the Federation of Nigeria 2004.
That you, David Pius Kelvin (M) and Onyemechi Nweke Nweneke (M) on or about the 26th/02/2011 at North-Bank, around Court 5 opposite Musa Plato Mega Station, Makurdi within the jurisdiction of this Honourable Court, did commit armed robbery, in that, you armed yourselves with a gun and army jack-knife and you robbed Sunday Igba of a Vehicle Golf 3 with registration No. XF 538 MKD, and of his money amounting to N16,300.00 and a Nokia handset and you thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Fire-arms (Special Provisions) Act, Cap. Rll, Laws of the Federation of Nigeria.
At the conclusion of hearing, the trial Court convicted and sentenced the Appellant to death.
Aggrieved by his conviction and sentence, the Appellant lodged the instant appeal by Notice of Appeal filed on 29/6/2017 on eight grounds of appeal.
1. Whether the Respondent proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant the conviction and sentencing to death by the lower Court (Grounds 1, 2, 3, 4, 7 & 8).
2. Whether Exhibit B, the alleged confessional statement made by the Appellant was admissible in evidence and or of any evidential value before the lower Court (Grounds 5 & 6).
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, THE ACCUSED IS DISCHARGED]
The Court of Appeal in concluding stated, “Where, as in this case, the prosecution fails to call material witnesses; and there is neither direct circumstantial evidence pointing directly to the guilt of the accused, nor any confessional statement by the accused, which has satisfactorily scaled every prescribed test, the inevitable conclusion is that the standard of proof beyond reasonable doubt has not been met.”
1. ISSUE 1 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The evidence of the prosecution reveals that PW1 did not identify the Appellant as being one of the armed robbers. PW2, the IPO, did not effect his arrest in the stolen vehicle. Rather, the Appellant and the 1st accused person were said to have been arrested by a team of highway policemen led by one Emmanuel Wada. Emmanuel Wada did not testify. The learned trial Judge was of the view that the evidence of Emmanuel Wada was not vital to the case of the prosecution. With respect, this cannot be correct. The Appellant and his witness both denied that the Appellant was apprehended in the stolen vehicle. Neither PW1 nor PW2 saw him in the stolen vehicle. The person who apprehended him or at least a member of the team of highway patrol policemen that apprehended him ought to have testified to state that the Appellant was indeed apprehended in the said stolen vehicle, more so in the light of his denial. Emmanuel Wada was therefore a vital witness.
2. ISSUE 2 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The prosecuting Counsel admitted that a wrong statement was shown to the Appellant in error because he did not look at the name on the statement carefully. Surprisingly, the learned trial Judge proceeded to make a different case for the prosecution. The prosecution having admitted their error, failed to promptly apply to correct the error by showing the right statement to the Appellant before the learned trial Judge advanced an explanation not canvassed by the prosecution. The result of the procedure adopted at the trial within trial was that the Appellant was not shown the statement sought to be tendered as his confessional statement. The learned trial Judge acknowledged that the Appellant ought to have been shown the statement but then proceeded to hold that this failure was not fatal to the case of the prosecution. The learned trial Judge at the trial within trial advanced the explanation that the statement of the accused person objected to was in the Court’s file. The pertinent question is this: how does the Appellant know for certain that the statement he had objected to in the main trial was the same statement now sought to be tendered at the trial within trial, if the said statement was not shown to him? I must agree with the Appellant that the learned trial Judge descended into the arena.
ii. The alleged confessional statement ought to be shown to the accused person at the trial within trial, being in itself a different mini trial. Where this was not done, as in this case, admittedly in error, it was improper for the learned trial Judge to have gone ahead to provide a reason for the error or failure of the prosecution. I agree with the Appellant’s Counsel that the statement was inadmissible. The statement was, in spite of this anomaly, admitted as Exhibit B and the trial Court relied thereon in convicting the Appellant.
Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Explaining implications of the phrase proof beyond reasonable doubt, Ogunbiyi, JSC, said in Uche v State (2015) LPELR-24693(SC), pages 22-23 of the E-Report: “Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man/woman might entertain and which is distinct from fanciful or imaginary doubt. In other words, it is one which would cause a prudent and ordinary person to be cautious and hesitate before acting in matters of importance, see Jua v. State (2010) 4 NWLR (Pt.1184) P. 217 at 243. See also Olayinka v. State (2007) 9 NWLR (Pt. 1040) P.561 at 586 at 586, and Jibril v. Mil Admin Kwara State (2007) 3 NWLR (Pt.1021) P.357 at 383.”
Abeke v. The State (2007) ALL FWLR (Pt.366) 644 @ 659 E-F, Tobi, JSC opined thus: “Reasonable doubt is founded upon reason which is rational, devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In proving the guilt of an accused person, there are three main methods of proof: 1. His direct, positive and voluntary confessional statement; 2. Circumstantial evidence; 3. Direct oral evidence given by a victim or by a witness. – Otisi, JCA. Nweneke v. State (2019)
As rightly submitted by the Appellant, the well-established position of the law is that in order to ground a conviction for the offence of armed robbery, the prosecution must prove, beyond reasonable doubt, the following: 1. That there was a robbery or series of robberies. 2. That the robbery or each robbery was an armed robbery. 3. That the accused was the robber or one of those who took part in the armed robbery. – Otisi, JCA. Nweneke v. State (2019)
Thus, proof beyond reasonable doubt does not mean proof to a scientific certainty per Muhammad, JSC in The State v. Azeez (2008) 4 S. C. 188. – Otisi, JCA. Nweneke v. State (2019)
The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required. Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. – Otisi, JCA. Nweneke v. State (2019)
Although it is not the position of the law that the prosecution must call all witnesses, it is mandatory for the prosecution to call every material witness in order to prove its case and also provide opportunity for the accused person to cross examine the witness. – Otisi, JCA. Nweneke v. State (2019)
A trial within trial is a distinct and different proceeding to determine the admissibility of an alleged confessional extra judicial statement, which an accused person alleges was not voluntarily made. It should therefore be borne in mind that the hallmark of a trial within trial is to try to determine whether an accused person’s confessional statement to the police of the commission of a crime was voluntarily made by the accused person or not. – Otisi, JCA. Nweneke v. State (2019)