Court name
Court of Appeal
Case number
E 371 of 2012

Afam Okeke v S (E 371 of 2012) [2016] NGCA 142 (20 January 2016);

Law report citations
Media neutral citation
[2016] NGCA 142

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 21ST DAY OF JANUARY, 2016

CA/E/371C/2016

BETWEEN

AFAM OKEKE.  ............            Appellant

AND

THE STATE.  ...............            Respondent

 

MAIN JUDGMENT 

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): 

This is an appeal against the judgment of the High Court of Anambra State delivered by Hon. Justice Peter J. Umeadi on 21/2/2012, wherein His Lordship convicted the Appellant for armed robbery and sentenced him to death by hanging or firing squad. The facts that led to this appeal are as follows:

The Appellant was arraigned before the trial Court on information and proof of evidence containing a five count charge. The Appellant pleaded not guilty to the charge. To prove its case, the Prosecution called 5 witnesses at trial. P.W.1 gave evidence that the Appellant in the company of others had robbed at gunpoint, P.W.1 of her vehicle and other valuables on their way to Nkpor through Ugwunabankpa Road, Inland town, Onitsha, after which P.W.1 went to the Police Station and gave a statement. P.W.2 gave evidence that she knew the Appellant very well and she was in the company of P.W.1 and others in P.W.1's vehicle when the Appellant and some other people riding on motorcycles blocked their path and forced the passengers out of the car. The passengers fled into a nearby slaughter market, while the robbers collected the car, robbed P.W.2 of her Samsung handset and made off with the car. P.W.2 said she was very familiar with the Appellant as she had seen him on several occasions. P.W.3 is a Sergeant attached to the Anti Robbery Squad Inland Town Police Station Onitsha. The Complainant's matter was referred to him for investigation. P.W.3 stated that in the course of his investigation, no suspects were identified nor were any arrests made. At the end of his investigation, P.W.3 wrote a report. P.W. 4 is a Superintendent of police, serving with the Special Anti Robbery Squad (SARS). He got to know the Complainant in this case through a petition she wrote alleging that she was robbed at gun point by a group of four men riding on motorcycles, and that she had complained to the Police who were doing little about it, the Complainant named the Appellant in the petition. P.W.4 in a team of 7 men investigated the Petition and arrested the Appellant in a bush known to be the home of notorious criminals during the course of their investigation. P.W. 4 called P.W.1 to the SARS office where P.W.1 sighted the Appellant and identified him as one of the men that robbed her. P.W.4 then took additional statements from her and other witnesses. P.W.4 stated that the Appellant denied the allegations but admitted that he was a drug dealer. P.W.5 testified that she was not at the scene of the crime but her friend (P.W.2) told her of the incident and that she had seen a man on a motorcycle a day before the incident riding behind the said jeep. She knew him as one of the robbers very well and would point him out when she saw him. The Appellant was pointed out to the P.W.5, the next day as one of the armed robbers and P.W.5 told her friend she had seen the Appellant riding on a motorcycle behind a black Honda jeep. P.W.5 said the Appellant came into her shop one day and when he left, a man came asking questions about him. The man told her that the Appellant was always going into her shop. She would tell everyone. P.W.5 swore that she called the Appellant and asked him about it and gave him advice. P.W.5 said the Appellant confided in her that he had stolen for which the police wanted him.

 

Appellant also testified for himself that he is a panel beater and was arrested on the 11/7/08. On that day, he had prepared to go into the bush on his motorcycle where he went to guard his land when he was hit by a red sports car belonging to members of the SARS squad. He was arrested by these men and taken to SARS unit Awkuzu. Appellant swore that he was handcuffed, tortured and asked to confess his crimes and say where he had kept the vehicle. Appellant confessed to selling and using hard drugs but denied that he had ever stolen anything. Appellant testified that on 11/7/08, the IPO took him out of the cell and pointed him out to PW1 who nodded her head and he was returned to his cell. That P.W. 5 never gave him any advice but he knew her as a woman who sells medicine in a chemist shop. Appellant said he had no knowledge the Police was looking for him until he was arrested on 11/7/08. The trial judge convicted him of armed robbery and sentenced him to death accordingly.

Dissatisfied with the judgment of the trial Court, the Appellant initiated this appeal. Appellant filed a notice of appeal on 6/3/12 containing four grounds of appeal and transmitted Records on 22/1/12. Appellant's brief was filed on 19/4/13, deemed filed on 10/2/15. Amended notice of appeal was filed on 24/9/13 with 5 grounds of appeal and transmitted on 25/9/13, deemed filed on 3/7/14. Appellant's reply brief was filed on 21/4/15. Respondent's brief was filed on 10/3/15.

 

In the Appellant's brief settled by John Oguejiofor Esq, six issues were identified for determination as follows:

1.       Whether exhibit B was forged for the purpose of this case, and if affirmatively so, whether this Court has power to expunge it from the evidence in this case.

2.       Whether exhibits C, J and H have valid probative value which the trial Court could rely on without more to corroborate exhibit B

3.       Whether the entire additional evidence filed on 3/11/2009 by the Respondent comprising exhibits A, D and E were not forged to bolster the case of the Respondent against the Appellant.

4.       Whether by the circumstance of this case, there was the need for an identification parade to have been conducted by police.

5.       Whether there were any material contradictions in the evidence of the prosecution

6.       Whether the trial Court properly evaluated the evidence before it.

In the Respondent's brief settled by P.N. Ofomo Esq, the six issues identified by Appellant's counsel were adopted with modifications as issues for determination thus:

 

1.       Whether exhibit B was forged for the purpose of this case.

2.       Whether exhibits C, J and H do not have the probative value which the trial Court accorded to them.

3.       Whether the entire additional evidence filed on 3/11/2009 by the respondent comprising exhibits A, D, E were forged to bolster the case of the Respondent against the Appellant.

4.       Whether by the circumstances of this case there was a need for identification parade to have been conducted by the police.

5.       Whether there were material contradictions in the evidence of prosecuting witnesses.

6.       Whether the trial Court failed to properly evaluate the evidence before it which made the prosecution fall to prove her case beyond reasonable doubt.

 

After careful perusal of the issues proffered by both parties, I will crystallise the issues as follows:

1.       Whether Exh B, Exh C, Exh J, Exh H were admissible and credible in view of material contradictions in the case of the prosecution witnesses.

2.       Whether there was correct and admissible identification of the Appellant by the Complainant.

 

ISSUE ONE

Whether Exh B, Exh C, Exh J and Exh H were admissible and credible in view of material contradictions in the case of the prosecution witnesses.

Appellant's counsel submitted that Exh B was made after the arrest of the Appellant and after Appellant had made Exh K on 11/7/08, since P.W. 1 stated during cross examination that she went to SARS a day or two after 11/7/08. Counsel posited that since there is uncertainty as to when Exh B was made, it is very likely the Prosecution forged and backdated Exh B through PW1 after seeing Appellant's statement. Appellant's counsel submitted further that the uncertainty should be resolved in favour of the Appellant. Counsel submitted that it is only legally admissible evidence that a Court of law can validly use to determine legal issues before it and there is no discretion for a Court to act on evidence made inadmissible by express statutory provision. He cited Engr. Agbi & Anor v. Chief Ogbeh & Ors (2003) FWLR (Pt. 169) 1245 at. 1271. Counsel submitted that by the Evidence Act, forged documents are inadmissible and consent of parties or even no objection to it does not make it admissible in criminal trials. He cited (2001) 4 S.C (Pt. 1) 84 at 90.

Counsel submitted further that an

Appellate Court has a duty to reject such inadmissible evidence that has been admitted with no objection. He cited Tangale Traditional Council v. Alhaji Fawu & Anor (2002) FWLR (Pt. 117) 1137 at 1167.

Counsel argued that a document or deposition made after a case has been initiated is inadmissible. Counsel cited Onuh & Ors v. Ide & Ors (2002) FWLR (Pt. 94) 66 at 83. Counsel urged this Court to expunge Exh B from the evidence before it.

Appellant's counsel argued that exhibits C, J and H do not have evidential value to the extent attached to them by the trial Court as corroborating Exh B since both were made more than 70 days after the crime was committed.

Counsel submitted that a witness who fails to report and give to the police the details he knows concerning an offence at the earliest opportunity preferring to give it later will not be regarded as a serious witness and a Court of law must be careful in accepting his evidence unless a satisfactory explanation is given for the delay. He cited Sunday Anyanwu v. The State (1986) 5 NWLR (Pt. 43) 612, Ani v State (2007) All FWLR (pt. 482) 1044 at 1064; Ndidi v. State (2007) All FWLR (Pt. 381) 1617 at 1650; Abdullahi v. State (2008) All FWLR (Pt. 432) 1047.

Appellant's counsel argued that Exh C and J cannot validly corroborate Ex B without more, and Exh H being compiled on the basis of Exh C and Exh J is not an independent piece of evidence, hence is insufficient to corroborate Exh B, C and J.

Appellant's counsel contended that Exh A, D and E were forged by the Prosecution to bolster its case against the Appellant, since they were not filed along with the initial proof of evidence nor were they mentioned until 6/11/09, when the Defence mentioned to the Court

REPRESENTATION

John Oguejiofor with him, J.O.C. Onyiorah For Appellant

AND

P.N. Ofoma Principal State Counsel Anambra State For Respondent