➥ CASE SUMMARY OF:
Raphael Ewugba V. The State (2017) – Supreme Court
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Kidnapping;
Conspiracy;
Identification parade.
➥ CASE FACT/HISTORY
This is an appeal from the judgment of the Court of Appeal, (Benin Judicial Division) which affirmed the decision of a Delta State High Court on 27 May 2015 wherein the appellant as the 2nd accused person and his co-accused person were found guilty of the offences of conspiracy to commit kidnapping, kidnapping and armed robbery.
Dissatisfied with the sentence, the appellant filed an appeal to the Court of Appeal. That Court affirmed the judgment of the High Court in the concluding paragraph as follows: The appeal is totally lacking in merit and it is hereby dismissed. The judgment of the Lower Court embodying the conviction and sentence imposed on the appellant in Suit No.A/37C/2012 delivered on October, 2013 is hereby affirmed. This appeal is against that judgment.
➥ ISSUE(S)
I. Whether having regard to the circumstances of this case and the totality of the evidence on record, the Lower Court was right in upholding the decision of the learned trial judge that the prosecution proved the charges of conspiracy to kidnap, kidnapping and armed robbery against the appellant beyond reasonable doubt?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE IDENTIFICATION PARADE WAS PROPERLY CONDUCTED
‘Where a witness testifies on a material point in controversy, in this case that the identification parade was properly conducted, if the appellant does not accept the witness testimony as true, should cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either as in this case the Court can take his silence as acceptance that he does not dispute the fact. In view of failure to cross-examine properly and highlight errors in the conduct of the identification parade, I am satisfied that the identification parade was properly conducted. Aside from the identification of appellant at a well conducted identification parade, I am also satisfied with the testimony of PW1 when she said: “I saw their face i.e. the accused person on the day of the incident. When they found the key, within about 2 minutes they were looking for the key I took my time to look at their faces and features…..” To my mind when a person is traumatized e.g. attacked by armed robbers or raped, the whole episode remains in the mind of the victim for life. He or She remembers faces vividly, despite trauma which usually sets in after the act. When PW1 was surrounded by armed robbers in broad daylight and bundled into the back seat of her car before being blind folded, such a victim would never forget the face of her assailants.’
THE BLACKBERRY PHONE; DOCTRINE OF RECENT POSSESSION
‘To my mind, both Courts below were right not to believe the explanation of the appellant as to how the blackberry phone came into his possession. His explanation has always been that he bought the blackberry phone from his co-accused for N14,000.00. This was confirmed by his co-accused when he gave evidence on oath. (see page 56 of the Record of Appeal), but when the co-accused was shown the blackberry phone in Court, he examined it and said it was not the phone he sold to the appellant (see page 57 of the Record of Appeal). This was never resolved together with the many contradictions in testimony, eventually linking a non-existing person by name Rukevwe with the blackberry phone. Both Courts below were in the circumstances right that the doctrine of recent possession applies to this case since the appellant explanation as to how he came to possess the blackberry phone is not true. The presumption that the appellant is the thief is believable and sustained.’
THE OFFENCES WERE COMMITTED – CONSPIRACY, KIDNAPPING
‘The offence of conspiracy was committed on 26 December, 2011 when the appellant in company of other persons, armed, surrounded the appellant’s car, bundled her into the back seat of the car and drove off with her, bound and blindfolded, and later dumped in the bush. Then driving off once again, and to this day, the respondent’s car has not been recovered. It is easily inferred that the appellant and his co-accused persons conspired to steal the respondent’s car. The complicity of the appellant in the offence of conspiracy is established and the charge of conspiracy is proved beyond reasonable doubt. Kidnapping contrary to Section 364 (2) of Criminal Code. When a person is detained unlawfully, the offence of kidnapping is established. The offence of kidnapping is proved beyond reasonable doubt when the appellant and his co-accused persons bound and blindfolded the respondent and dumped her in the back seat of her car and drove off. The charge of kidnapping contrary to Section 364(2) of the Evidence Act was proved beyond reasonable doubt.’]
.
.
.
✓ DECISION:
‘My lords, it is no longer in doubt that there was a robbery on 26 December, 2011 when the appellant and his co-accused stole PW1’s car, her blackberry phone and some of her possessions. The robbers were armed, since evidence of PW1 that the appellant and the other persons who stole her car were armed is unchallenged. Finally the appellant was recognized by PW1 and positively identified at a well conducted identification parade. On these undisputed facts, I am satisfied that the charge of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act was proved beyond reasonable doubt. It is for all that I have been saying that I find no merit in this appeal. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ WHEN A CHARGE IS PROVED BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean proof of a mathematical certainty. It also does not mean proof beyond all possible doubt. A charge is proved beyond reasonable doubt when the facts and circumstances of the case and the quality of the evidence adduced is compelling and reliable to establish the guilt of the accused person. There must be a high degree of probability that the accused person committed the offence. The doubt must be of a reasonable man and the standard must 7 also be of a reasonable man. See Egwumi v. State (2013) 2 SC (Pt.iii) p.119 Nwaturuocha v. State (2011) 2-3 SC (Pt.i) p.111 Eke v. State (2011) 1-2 SC (Pt.ii) p.219 Ochiba v. State (2011) 12 SC (Pt.iv) p.79. — O. Rhodes-Vivour JSC.
⦿ IDENTIFICATION PARADE WOULD NOT BE NECESSARY WHERE THE WITNESSES KNEW THE ACCUSED BEFORE
An identification parade is necessary when the identity of who committed the crime is disputed and the accused person saw the accused for the first time during the commission of the crime. An identification parade is never full proof. Mistakes as to the identity of the accused persons occur repeatedly. Identification parade would not be necessary where the witnesses (or victim of the crime) knew the accused person before the crime was committed. See; Ikemson v. State (1989) 20 NSCC (Pt.ii) p.471 Orimoloye v. State (1984) 15 NSCC p.654. — O. Rhodes-Vivour JSC.
⦿ NO PRESUMPTION CAN BE RAISED WHERE NO NOTICE TO PRODUCE WAS SERVED
The defence is entitled to demand for documents it considers relevant for its defence and this is done by serving a subpoena/Notice to produce on the prosecution to produce the documents. The presumption in Section 167 (d) arises and the Court is entitled to presume that documents in possession of the prosecution would be unfavourable to the prosecution’s case if the prosecution after service of Notice to produce still refuses to produce the documents. See Queen v. Itule (1961) 1 ALL NLR P.462; Aremu v. State (1991) 7 NWLR (Pt.201) p.1. No demand for documents was made either orally or in writing by the appellant and no process was served on the respondent to produce documents. In the absence of Notice to produce on the appellant, Section 167 (d) of the Evidence Act does not apply. — O. Rhodes-Vivour JSC.
⦿ CONSPIRACY – SIMPLY MEETING OF THE MIND
There is a conspiracy when two or more persons agree to do an act which is unlawful. They do not necessarily have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. Once there is a meeting of the minds of the conspirators to commit an offence and this is easily inferred by what other person does in furtherance of the offence of conspiracy. In all cases of conspiracy, the Court is to ascertain evidence of complicity of the accused person in the offence. See Adejobi v. State (2011) ALL FWLR (Pt.588) p.850 Shurumo v. State (2011) ALL FWLR (Pt.568) p.864 State v. Salawu (2011) 18 NWLR (Pt.1279) p.580 Posu v. State (2011) 3 NWLR (Pt.1234) p.393. — O. Rhodes-Vivour JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olabode Rhodes-Vivour, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. Asala Esq.
⦿ FOR THE RESPONDENT(S)
P. Mrakpor, the Attorney-General of Delta State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
