➥ CASE SUMMARY OF:
Daniel Kekong v. The State (2017) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.884/2014
➥ JUDGEMENT DELIVERED ON:
Friday, the 28th day of April, 2017
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ SECONDARY EVIDENCE NOT PRODUCED IN ACCORDANCE WITH REQUIREMENT IS INADMISSIBLE
Under Section 83(1) of the same Evidence Act, only the original copy of a document produced by its maker, if it is relevant to the facts in issue, is admissible in evidence. There are, however, other qualifications to the rule in Section 83(1) of the Evidence Act. While Section 88 of the Act directs that documents shall be proved by primary evidence it makes allowance for exceptions including secondary evidence of the existence, condition or contents of a document e.g. as in Section 89 thereof. A secondary evidence of the contents of a document which is not produced in accordance with the material provisions of the Act, though relevant to the issue in the proceedings, will not be admissible in evidence. — E. Eko, JSC.
⦿ DESPITE RELEVANCY, DOCUMENT MAY BE INADMISSIBLE BY OPERATION OF LAW
Section 1 of the Evidence Act is to the effect that evidence may be given of the facts in issue and relevant fact. Proviso (b) thereto is categorical that the Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. There is no doubt that by virtue of Section 2 of the Evidence Act that a piece of evidence excluded either by the Act itself or any other legislation validly in force in Nigeria cannot be admissible in evidence. It is therefore, not only relevancy that governs admissibility. A piece of evidence may be relevant and yet could, by operation of law, be inadmissible. — E. Eko, JSC.
⦿ ESSENTIAL REQUIREMENTS TO IMPEACH CREDIBILITY OF A WITNESS AS TO CONTRADICTION
Section 232 of Evidence Act, 2011 is intended to check the double-speak of a witness, who is prevaricating on an issue that he had made previous statement in writing on. There are essential requirements of the Section that the party cross-examining a witness, who intends to impeach the credit of the witness by showing that what the witness is presently saying contradicts his previous statement in writing, must comply with. That is, (a) the attention of the witness must be specifically drawn to those parts or portions of his previous statement in writing which are to be used for the purpose of contradicting him; (b) the witness must be reminded of what he had stated in the previous statement, and (c) he must be given an opportunity of making explanation on the apparent contradictions. From the authoritative stance of this Court those are the templates the cross-examiner shall comply with before he tenders any previous statement in writing by a witness for the purpose of contradicting the witness and impeaching his credibility. See MADUMERE v. OKAFOR (1996) 4 NWLR (pt.445) 637; AMODU V. THE STATE (2010) 2 NWLR (pt.1177) 47. — E. Eko, JSC.
⦿ CO-ACCUSED CANNOT APPEAL APPLICATION REFUSED RELATING TO AN ACCUSED
My Lords, this Appellant, being tried jointly with the 1st Accused, may be a party interested in the outcome of the 1st Accused’s application. He cannot, however, appeal against the ruling in that application without leave of Court first sought and obtained. Doing otherwise, as he has done in this appeal, the Appellant in my view is a busybody meddling in the affairs of the other. See SOCIETE GENERALE BANK (NIG.) LTD. V. 13 AFEKORO (1999) 11 NWLR (pt.628) 521; (1999) 7 SC (pt. iii) 95. — E. Eko, JSC.
⦿ ALLEGATION TO ALTERING CHARGE
The allegation that the PW.3 altered or attempted to alter Exhibit C, extra judicial statement of the Appellant is too serious a charge against the PW.3 and the prosecution to be allowed to be whimsically struggled into issue 2 without a ground of appeal putting the respondent on notice of this very serious charge that is criminal, as well as unethical, in nature. The sub-issue iv will accordingly be discountenanced. — E. Eko, JSC.
⦿ DISCRETION OF ATTORNEY GENERAL IN TAKING OVER CHARGE
The prosecutorial powers of the office of the Attorney-General of any State in the Federation, by dint of Section 211 of the 1999 Constitution, as amended, include taking over, at any stage, the case and the case file from the police and filing an information in the High Court in respect of any offence which, in their discretion, has been disclosed by the police investigation. This discretion cannot be denied to the office of the Attorney-General. — E. Eko, JSC.
⦿ POLICE INVESTIGATION REPORT REJECTED CANNOT BE RELIED UPON
The Appellant submitted that the PW.1’s extra-judicial statement contained in the PIR contradicted her testimony in open Court that she reported robbery and not mere stealing at police station. The PIR is not in evidence. The attempt to put it into the body of legal evidence before the trial Court was rejected by the trial Court. A fact that never forms part of legal evidence before the Court cannot be used nor relied upon by a Court of law to hold that it contradicts an existing legal evidence. I agree with the Respondent’s submission relying on EKPO v. KANU (2012) 12 WRN 132 at 155 that only documents tendered as exhibits are evidence before the Court, and that the Court cannot act on or utilise any document or fact that is not evidence before it in the determination of any disputed facts or matter before it. The PIR, having been rejected, is no longer any credible evidence on which the trial Court could act on. See TERAB v. LAWAL (1992) NWLR (Pt. 231) 569. — E. Eko, JSC.
⦿ STEALING ACCOMPANIED WITH ACTUAL VIOLENCE AND SHOOTING IS ARMED ROBBERY
In my considered view the report of stealing made by the PW.1 which was accompanied with actual violence and shooting of gun to overcome any resistance to the PW1’s handbag being stolen, snatched or retained by the assailant is consistent with armed robbery. I hold therefore that the Court below was not wrong when in its judgment particularly the portion at page 179 of the Record, it affirmed the trial Court’s finding, relying on the PW.1’s evidence, that there was a robbery. — E. Eko, JSC.
⦿ IDENTIFICATION OF ACCUSED PERSON IS ONE OF FACT
Proper identification of the accused person as the person who took part in the commission of the alleged crime, is one of fact. See OKOSI v. THE STATE (1989) 1 NWLR (pt. 100) 642; STATE v. AIBANGBEE & ANOR. (1988) 7 SCNJ 128. — E. Eko, JSC.
⦿ APPELLATE COURT RARELY INTERFERES WITH TRIAL COURT’S FINDING
The law is settled that on issues of facts, evaluation of evidence and the credibility of witnesses are matters within the exclusive competence and domain of the trial Court. See CHIEF FRANK EBA v. CHIEF WARRI OGODO & ANOR. (1984) 12 SC 133 at 176; DANIEL SUGH v. THE STATE (1988) NWLR (pt.77) 475. Where the trial Court finds a witness credible and believable, unless the appellant shows evidence that renders that stance perverse the appellate Court rarely interferes with that finding. — E. Eko, JSC.
⦿ CONCURRENT FINDING AS TO IDENTIFICATION
It was the trial Court which has the advantage of seeing, watching and observing the PW.1 testify in the witness box that can exercise its discretion, upon evaluation of the evidence before it, to believe or disbelieve her. That liberty and privilege of believing the PW.1 and accepting her evidence on the identification of the Appellant with whom she struggled over her bag, in preference to any other evidence per contra were completely within the discretion of the trial Court. On this issue of the credibility of the PW.1 there are concurrent findings of the two Courts below. This Court, therefore has very limited, if any scope to interfere. — E. Eko, JSC.
⦿ SUFFICIENTLY RECOGNISED THE ACCUSED PERSON
I quite agree with Aderemi, JSC, when he stated in NDIDI v. THE STATE (supra) that a trial Judge must not only warn himself but must meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused person was sufficiently recognised by the witness. — E. Eko, JSC.
⦿ IDENTIFICATION PARADE HAS ITS WEAKNESSES; DEFENCE COUNSEL MUST BE WARY TO IMPUGN IDENTIFICATION
The learned Appellants counsel seems to hold a strong impression, though erroneous, that without a proper identification parade the identification of the Appellant by the PW1 was faulty. There is nothing magical about identification parade. It also has human errors associated with it. And it is for this reason that Oputa, JSC, stated in lKEMSON v. THE STATE (supra) at page 478 that identification parade itself, is not foolproof nor is it a guarantee against the usual errors of observation, errors of recognition or errors of reconstruction. His Lordship in the judgment cited two cases: of The Trial of Adolf Beck ed E.R. Watson (Edinburgh 1924); and Walter Graham Rowland (1947) 32 C.R. App. 29. There was identification parade in the Rowland’s case. Rowland was identified by three independent witnesses as the murderer. However, subsequently Mr Ware confessed that he, and not Rowland, was the actual murderer. Identification of offenders, whether through witness(es) or identification parade: because of its importance to criminal law justice or jurisprudence; trial Courts are admonished to be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the Court was the person who actually committed the alleged offence. It is the duty of the defence counsel, through purposeful cross-examination, to cast reasonable doubt on the witness’s identification of the accused person by exposing errors of observation, of recognition, of resemblance etc. See Oputa, JSC in IKEMSON v. STATE (supra) at page 479. — E. Eko, JSC.
⦿ HE WHO IS IN POSSESSION OF STOLEN GOODS IS PRESUMED TO BE THE ROBBER
Earlier in this Judgment I found and held that the evidence of PW.1, PW 2, DW.1 and DW.2 (the Appellant) had linked the Appellant to the GLO recharge cards violently stolen from the PW.1 when she was robbed on 19th January 2013. The Appellant had thus come to be in possession of stolen goods. Thus a proper foundation had been laid for the invocation of the presumption under Section 167(a) of the Evidence Act, 2011 to the effect that a man who is in possession of stolen goods soon after the theft or robbery is either the robber or a receiver of stolen goods knowing them to have been stolen, unless he could give good account for his possession. The Appellant’s account that he found the GLO recharge cards on the road was not believed by the trial Court, which rather preferred the PW.1’s account that the recharge cards were stolen from her in an armed robbery operation. — E. Eko, JSC.
⦿ INGREDIENTS OF THE OFFENCE OF ROBBERY
The ingredients of the offence of armed robbery are: 1. That there was a robbery or series of robberies. 2. That each robbery was an armed robbery and 3. That the accused was the robber or among those who participated in the robbery. See: Bozin vs The State (1985) 2 NWLR (pt.8) 465; Nwachukwu vs The State (1985) 1 NWLR (Pt.11) 218; Afolabi vs The State (2010) 16 NWLR (Pt.1220) 584. — K.M.O. Kekere-Ekun, JSC.
⦿ MEANING AND NATURE OF IDENTIFICATION PARADE
Identification parade by its nature is the means of establishing whether a person charged with an offence is the same person who committed the offence. It is essential in instances where:- (a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence. (b) The victim or witness was confronted by the offender for a very short time. (c) The victim due to time and circumstances might not have had the full opportunity of observing the features of the accused. — S.D. Bage, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
⦿ FOR THE APPELLANT
Godwin Omoaka, Esq.
⦿ FOR THE RESPONDENT
A. Oyebanji, Esq.
➥ CASE FACT/HISTORY
On 19th January, 2013, at about 8.00p.m., one Perpetua Ubua (PW.1) a GSM recharge card dealer, was attacked and robbed of her handbag containing recharge cards worth N128,000.00 plus the sum of N285,000.00 cash and two (2) mobile cell phones (a Nokia and a Techno) by three men on motorcycles The PW.1 was a passenger on another motor-cycle. She was returning home from her shop after the day’s business. The three boys on their motor-cycle followed the motor-cycle conveying the PW.1. The motor-cycle from behind was ridden into that conveying PW.1. The three boys allegedly started beating the PW.1 and the person conveying her. One of the boys snatched the PW.1’s hand bag. The PW.1 struggled with him over the hand bag. She was overpowered. She was shouting for help. The boys then started shooting gun to scare people away, and thereafter fled with PW.1’s handbag. The recharge cards in PW.1’s handbag included GLO recharge cards of N100.00 denomination. The PW.1 later testified that the person she struggled with, who took her hand bag was the 2nd Accused/Appellant.
The Appellant’s appeal against his conviction and sentence was dismissed by the Court of Appeal, Calabar Division (hereinafter called the Court below) on 28th October, 2014. This further appeal is against the decision of the Court below affirming the conviction and sentence of the Appellant.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the non-admission in evidence of the Police investigation Report (PIR) dated 22/01/2013 by the learned trial Judge and the subsequent affirmation of that finding by the Court below was proper in law having regard to the principle governing admissibility of documents?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE WITNESS WAS NOT CONFRONTED WITH ANY PREVIOUS WRITING.
“What one finds at pages 82 and 83 of the Records is a far cry from the requirements of Section 232 of the Evidence Act. The PW.3, an Investigating Police Officer (IPO), cross-examined by counsel for the 1st Accused, averred that he did not make any report on his investigation and findings to the Court in respect of the 1st Accused. The Police Investigation Report (PIR) sought to be tendered was not made by the PW.3. The witness was in fact not confronted with any previous statement he had made in writing. It is for these reasons the learned trial Judge, correctly in my view, rejected the 1st Accused’s “application for the tendering of the Police Investigation Report through the PW.3 who did not make any such report”. The 1st Accused did not appeal this adverse finding or ruling on his application. He is therefore taken to have accepted it.”
B. THAT THE APPELLANT DID NOT MAKE ANY APPLICATION UNDER SECTION 232 EVIDENCE ACT.
“The Appellant, as the 2nd Accused, who made no such application nor did he associate himself with, is the one complaining that the application of the 1st Accused, under Section 232 of the Evidence Act, had been wrongly dismissed or rejected. At page 85 of the Records, after the PW.3 admitted that, in respect of the 2nd Accused (Appellant), he “made investigation report” and that the report “is with the State”, his cross-examiner made no further effort under Section 232 of the Evidence Act. He had elected not to pursue the matter any further. He did not satisfy the requirements of Section 232 of the Act, and he made no application thereunder.”
II. Whether the prosecution proved the active elements in the offence charged beyond reasonable doubt?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE PW1 (VICTIM) WAS ABLE TO IDENTIFY THE RECHARGE CARD AS HER’S STOLEN
“The resolution of this issue posed no difficulty at all to the learned trial Judge. At pages 108- 109 of the Records, the learned trial Judge in his judgment, after evaluation, found that the PW.1 recognised and described her cards vividly and there is no doubt that she owns the cards found with the PW.2, which the 2nd Accused has admitted that he picked at a road junction. The PW.1 had testified unscathed that her recharge cards had peculiar logo which nobody in Obudu had. I do not think, from the evidence of PW.1, PW.2, DW.1 and DW.2 (the Appellant), that there is any dispute about the GLO recharge cards found with PW.2 being the recharge cards the Appellant, DW 2, gave the 1st Accused (DW.1) to assist him sell. The finding of the trial Court affirmed by the Court below, that the GLO recharge cards found with the PW.2 were among the items the PW.1 was robbed of, is not perverse. The submission for the Appellant that the recharge cards, Exhibit A, cannot be linked to the robbery is therefore one that cannot be sustained.”
B. THAT THE VICTIM WAS ABLE TO IDENTIFY THE APPELLANT AS ONE OF THE ARMED ROBBERS
“Now, where, or what, is the evidence on which this Court can come into agreement with the Appellant that the concurrent findings of the two Courts below were perverse. The emphatic and unequivocal evidence of the PW.1 is to the effect that the Appellant was one of three (3) robbers and that she struggled over her bag with him that night. It was also her evidence that at the material or particular time the Appellant wore a face cap, trousers and black short sleeve shirt. The PW.1 had close contact with the Appellant. She had the opportunity of that close contact to watch him and take note of him including his wearing apparels. Her evidence was not discredited by the cross-examinations. It is not enough to speculate that because the time of the incident was 8.00pm., the scene of crime 25 was therefore dark and that the Appellant could not be identified by the PW.1. Courts of law act on empirical evidence and not on speculations. See OKOKO v. THE STATE (1964) 1 ALL NLR 423 at 425; IGABELE v. THE STATE (2006) 6 NWLR (pt.975) 100 SC.”
“The Appellant’s criticism of the identification of the Appellant by the PW.1 is predicated on the counsel’s conjecture that “it was dark at this time”. This bare statement from the Bar has no force of evidence. See ONU OBEKPA v. C.O.P. (1981) 1 NCR 113. The same counsel, who submitted that the prosecution led no evidence regarding the lighting conditions, also did not elicit any evidence through cross-examination of the PW.1 that “it was 27 dark at this time”. The evidential burden of casting reasonable doubt on the prosecution’s case is on the defence. See AKINMOJU v. STATE (2000) 6 NWLR (pt 352) 608 at 629: IGBABELE v. STATE (supra). The defence, in this case, failed to discredit the PW.1 . The trial Court was therefore entitled to believe her and act on her evidence.”
“The Court of Appeal, in OMOPUPA v. THE STATE (2008) ALL FWLR (pt.445) 1648 at 1671 stated and I agree that as identification parade is not a sine qua non for the identification of suspects in every case where there has been a fleeting encounter between the victim of crime and the suspect, if there is any other piece of evidence leading overwhelmingly to the identity of the perpetrator. See alsoNDUKWE v. STATE (2009) 7 NWLR (pt.1139) 43 SC. Where, notwithstanding that the encounter was a fleeting one and the victim did not previously know the assailant, the victim, like the instant PW.1. had a struggle encounter with the accused and thereby an opportunity of the close encounter to observe features of her attacker which she described unscathed, there is, in my view no need for identification parade.”
“On the whole, there is no substance in this appeal, and it is accordingly dismissed in its entirety. The decision of the Court below delivered in the appeal No CA/C/108/2014 on 28th October, 2014 affirming the conviction and sentence of the Appellant by the High Court of Cross-River State is hereby affirmed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ TO CONTRADICT A WITNESS BY HIS PREVIOUS WRITING; MUST SHOW WITNESS THE WRITING
Bello, JSC, in AJIDE v. KELANI (1985) 3 NWLR (pt.12) 248 at 200 – 261, (1985) 16 NSCC (pt.2) 1298 at 1309, stated the options thus – “He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to witness and call his attention to those part of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence.”
➥ REFERENCED (OTHERS)