Andrew Ekwenuya v. The State

The instant appeal is against the judgment of the Court of Appeal, Benin Judicial Division, delivered on May 25, 2018 in appeal No. CA/B/40C/2017. By the decision in question, the Court below Coram: Ekpe, Adumein and Oniyangi, JJCA affirmed the judgment of the trial High Court of Delta State that convicted and sentenced the Appellant to death, in addition to various terms of imprisonment for the offences of armed robbery, kidnapping, demanding with menace and stealing.

BACKGROUND FACTS
It is trite, that the travails of the Appellant is traceable to November 19, 2014. That was the day the Appellant and one other person were arraigned before the trial High Court of Delta State sitting at Asaba, upon seven count information:
1. PARTICULARS OF OFFENCE:
Andrew Ekwenuja and Samuel Idoko (M) on the 27th of December, 2013 at Ogwashi-Uku within the Ogwashi-Uku Judicial Division robbed one Francis Onwugbuezu ‘M’ of his four runner Jeep with Registration No…., his wrist watch and gold ring whilst armed with a gun.
STATEMENT OF OFFENCE

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Receiving stolen property obtained by means of armed robbery punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R11 Vol. 1 Laws of the Federation 2004.
2. PARTICULARS OF OFFENCE:
Samuel Idoko (M) on the 27th of December, 2013 at Ogwashi-Uku within the Ogwashi-Uku Judicial Division received one four runner Jeep from one Mr. Godwin now at large with Registration No…., belonging to one Francis Onwugbuezu ‘M’ knowing same to have been stolen.
STATEMENT OF OFFENCE:
Kidnapping punishable under Section 4(1) of the Anti-Kidnap and Anti-terrorism law of Delta State No. 8, 2013.
3. PARTICULARS OF OFFENCE:
Andrew Ekwenuja (M) on the 27th of December, 2013 at Ogwashi-Uku within the Ogwashi-Uku Judicial Division unlawfully imprisoned one Francis Onwugbuezu ‘M’ and prevented persons entitled to have access to him from discovering the place where he was kept.
STATEMENT OF OFFENCE:
Demanding with menaces punishable under Section 406 of the Criminal Code Cap C21 vol. 1 laws of Delta State 2006.
4. PARTICULARS OF OFFENCE:
Andrew Ekwenuja (M) on the 27th of December, 2013 at Ogwashi-Uku

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within the Ogwashi-Uku Judicial Division with threat to kill one Francis Onwugbuezu demanded a monetary sum of five million Naira (N5,000,000.00) from the Onwugbezu family if the said demand is not complied with.
STATEMENT OF OFFENCE:
Stealing punishable under Section 390 of the Criminal Code Cap C21 Vol. 1 Laws of Delta State 2006.
5. PARTICULARS OF OFFENCE:
Andrew Ekwenuja on the 27th of December, 2013 at Ogwashi-Uku within the Ogwashi-Uku Judicial Division stole a monetary sum of five million Naira (NS,000,000.00) belonging to one Francis Onwugbuezu ‘M’.
STATEMENT OF OFFENCE:
Armed Robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol. 14, Laws of the Federation of Nigeria 2004.
6. PARTICULARS OF OFFENCE:
Andrew Ekwenuja and Samuel Idoko (M) on the 27th of December, 2013 at Ogwashi-Uku within the Ogwashi-Uku Judicial Division robbed one Ifeanyi Okonkwo ‘M’ of his phone, wallet, driver’s license, I.D card whilst armed with a gun.
STATEMENT OF OFFENCE:
Kidnapping Punishable under Section 4(1) of the Anti-Kidnap and Anti-terrorism Law of Delta State No. 8, 2013.

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7. PARTICULARS OF OFFENCE:
Andrew Ekwenuja (M) on the 27th of December, 2013 at Ogwashi-Uku within the Ogwashi-Uku Judicial Division unlawfully imprisoned one Ifeanyi Okonkwo ‘M’ and prevented persons entitled to have access to him from discovering the place where he was kept.

The 7 counts information was read and explained to the Appellant and the co-accused person thereof, to which they both pleaded not guilty. In the course of the trial, the prosecution called three witnesses and tendered various exhibits. At the close of the trial, the Appellant testified in his defence albeit called no any other witness. The trial having come to an end, the respective learned Counsels were accorded the opportunity of addressing the Court and adopting their respective briefs of argument, thus warranting the trial Court to deliver the vexed judgment on 07/12/2018, to the conclusive effect:
These pieces of evidence, in my view are strong enough to draw an inference that the accused person was one of the kidnappers who robbed the PW1 and PW2 of their Jeep and other items.
Apart from this the evidence before this Court that a Jeep which was

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snatched in Ogwashi-Uku in Delta State was in the possession of the accused person and focus barely 24 hours after it was snatched raises a presumption that they are the thieves or that they received same knowing it to have been stolen. The accused person failed to give a reasonable account or explanation for their possession of the said Jeep.
The Court did say that the only issue in contention between the parties in this case is whether or not the accused person was one of those who participated in the crime. Having found from the evidence before me that he was one of them and having made findings on facts which touch on each of the counts with which the accused person is charged, the Court holds that the prosecution has proved each of the said counts against the accused person beyond reasonable doubt.
In the result, the Court finds the accused person guilty in each of counts i, iii, iv, v, vi and vii of the charge. He is convicted in each of the said counts.

Consequent upon the defence counsel’s allocutus, the trial Court proceeded, without further ado, to pass sentences upon the Appellant:
SENTENCE
The sentence for armed robbery is

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mandatory and the Court is not in a position to mitigate the sentence.
ANDREW EKWUENUYA, the Court having found you guilty, pronounces sentence upon you as follows: –
1. In each of counts I and VI, the sentence of the Court upon you is that you be hanged by the neck until you dead. May God have mercy on your soul.
2. In each of counts III and VII, you are sentenced to 3 years imprisonment on each of the counts.
HON. JUSTICE T. O. DIAI,
JUDGE
7:12:2016

Having been dissatisfied with the conviction and sentences in question, the Appellant deemed it expedient to appeal against the said judgment of the trial High Court to the Court below vide a Notice of Appeal filed on 28/02/2017.

Having been seised of the appeal, the Court below proceeded to hear same and deliver its judgment on 25/5/2018, to the conclusive effect:
I think that I have advanced sufficient reasons to enable me resolve the lone issue in this appeal. For all reasons given above, I resolve the sole issue in this appeal against the appellant.
This appeal therefore lacks merit and it is hereby dismissed.
The judgment of the trial Court delivered

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on 07/12/2016, is hereby affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN
JUSTICE, COURT OF APPEAL.

Both Ekpe and Oniyangi, JJCA were in complete agreement with Adumein, JCA in dismissing the Appellant’s appeal in question.

The Appellant’s Notice of Appeal, filed on 21/6/2018, is predicated upon a total of 4 Grounds. On 23/11/2023, when this appeal ultimately came up for hearing, the learned counsel were accorded the opportunity of addressing this Court and adopting the eloquent submissions contained in the respective briefs thereof, thereby resulting in reserving judgment to today.

Most particularly, the Appellant’s brief of argument, settled by Itohari Igbinigie Esq. on 09/10/2018, spans a total of 19 pages. At pages 2-3 of the brief, two issues have been nominated for determination:
i. Whether the lower Court rightly affirmed the trial Court’s judgment that the prosecution proved the alleged offences of armed robbery, stealing, kidnapping and demanding, with menace against the appellant beyond reasonable doubt based on circumstantial evidence.
ii. Whether after, affirming the appellant’s guilt on the basis of the stolen car being

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found in his possession in Lagos within twenty-four hours after the crime was committed in Delta State, the lower Court was wrong when it affirmed the appellant’s conviction for offences that were ongoing in Delta State at the same time.

The Appellant’s learned Counsel deemed it expedient to canvass both issues 1 and 2 together at pages 5-18 of the brief thereof.

In the main, it was submitted that the prosecution had a duty to prove the ingredients of the offences beyond reasonable doubt. And that although the offences have a range of diverse ingredients, the physical presence of the Appellant at the scene of the crime is an ingredient that is common to all the four offences in question. However, it is only count 2 of the offences that would not require the physical presence of the Appellant at the scene of crime, but which said count was not levelled against the Appellant. Therefore, the prosecution was under a duty to prove that the Appellant was in Delta State at the time the crimes were allegedly committed. See NDIDI VS. THE STATE (2007) 13 NWLR (pt. 1052) 633 @65 paragraphs E-F; UMANI VS. THE STATE (1988) LPELR – 3357 (SC) @ 14 paragraph F. et

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al.

It was further contended, that the Court below delivered a perverse decision when it held that the prosecution adduced circumstantial evidence establishing the guilt of the Appellant beyond reasonable doubt. See FELICIA AKINBISADE VS. THE STATE (2006) LPELR – 342 (SC) @ 31-32 paragraphs C-C; et al.

It was postulated, that in the instant case, Exhibit A (the confessional statement) the statements therein were a complete denial of the 6 specific offences alleged against the Appellant, who did not admit committing any crime. That both the Courts below had invoked the provisions of Section 167(a) of the Evidence Act, against the Appellant, albeit in error.

It was argued, that the presumption under Section 167(a) of the Evidence Act (supra), is a presumption of fact which ought to be resolved in favour of the Appellant. See YONGO VS. COP (1990) NWLR (pt. 148) 103 © 117 paragraph B; PEOPLE OF LAGOS STATE VS. UMARU (2014) LPELR – 22466 (SC) @ 51-53 paragraphs A-C.

On the whole, the Court is urged upon to resolve both issues 1 and 2 in favour of the Appellant, allow the appeal, set aside the concurrent decisions of the two Courts below,

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acquit and discharge the Appellant.

Contrariwise, the Respondent’s Amended brief, settled by D.E. Agbaga, Esq. on 02/6/2020, spans a total of 14 pages. At page 4 of the brief, a sole issue has been canvassed for determination:
Whether in view of the evidence on record, the lower Court was right in law when it affirmed the trial Court conviction of the Appellant for the offences of Armed Robbery, Kidnapping, demanding with menace, and stealing?

The sole issue is argued at pages 4-11 of the brief, to the effect that the Respondent had proved beyond reasonable doubt the offences for which the trial Court convicted and sentenced the Appellant, through the 3 prosecution witnesses and by inference from the Appellants’ extra-judicial statement. Therefore, the Court below was right when it affirmed the said conviction and sentence of the Appellant.

Further submitted on the sole issue, that although the trial Court rejected the direct oral evidence of identification given by the PW1 and PW2, in convicting the Appellant, the Court relied upon the evidence of the PW3 and inference from the Appellants 3 statements.

According to the learned

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Counsel, it’s the findings of the two Courts below at pages 209-210, that the Appellant challenges in the present appeal. Therefore, the onus is on the Appellant to show special circumstances, such as miscarriage of justice has been occasioned, or that there was a breach of either substantive or procedural law to warrant a reversal of the concurrent findings by the two Courts below. See AKINBISADE VS. THE STATE (2007) All FWLR (pt. 334) 14 @ 42 paragraphs E-H; OLALEKAN VS. THE STATE (2002) FWLR (pt. 91) 1605 @ 1628; FELIX ORPAKO VS. THE STATE (2018) 9 NWLR (pt. 1624) 213, et al.

Regarding the issue of identification, it is posited that having been found in possession of the stolen car soon after it was stolen, identification of the Appellant is no longer an issue. See BANJO VS. THE STATE (2013) 224 LRCN (pt. 2) 74, et al.

On the issue of failure to make a specific finding on the alibi raised by the Appellant, it’s submitted that it’s not in all cases that failure to make a finding that would amount to denial of fair hearing. See THE STATE VS. AJIE (2000) 11 NWLR (pt. 678) 434; BAMAIYI VS. THE STATE (2001) 8 NWLR (pt. 715) 270, et al. it is contended

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that the evidence before the Court is that the offences for which the Appellant was convicted were carried out by more than one person. Thus, it’s not impossible for the Appellant to have committed the offences with other persons on 27/12/2013, and still be in Lagos on the 28th and 29th of December 2013, leaving the other culprits to keep the PW1 and PW2 in their custody while he and his friend ‘focus’ sell the stolen car.
In the circumstances, the Court is urged to resolve the sole issue in favour of the Respondent.

On the whole, the Court is urged upon to dismiss the appeal and affirm the judgment of the Court below.

Having critically, albeit dispassionately considered the nature and circumstances surrounding the instant appeal, the submissions of the learned Counsel contained in their respective briefs of argument vis-a-vis the record of appeal, I am of the paramount view that the two issues raised argued by the Appellant in the brief thereof are very much germane to the grounds of appeal upon which the Notice of Appeal is predicated, thus, have deemed it expedient to adopt them for the ultimate determination of the appeal.

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ISSUE NO. 1
The issue 1, as copiously alluded to above, raises the question of whether the Court below rightly affirmed the trial Court’s judgment that the prosecution proved the alleged offences of armed robbery, stealing, kidnapping and demanding with menace against the Appellant, beyond reasonable doubt based on circumstantial evidence.

ISSUE NO. 2
The issue 2 raises the question of whether after affirming the Appellant’s guilt on the basis of the stolen car having been found in his possession in Lagos within 24 hours after the crime was committed in Delta State, the Court below was right when it affirmed the Appellant’s conviction for offences that were ongoing in Delta State at the same time.

The trite fundamental law is that in a criminal trial, the prosecution is under an onerous duty to prove its case against the accused person beyond reasonable doubt. The provision of Section 135 of the Evidence Act, 2011 is very much unequivocal regarding the fundamental burden of proof in criminal trial:
135(1) 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

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reasonable doubt. The law is equally trite, that evidential burden of proof can be discharged by direct oral evidence of witnesses, or by circumstantial evidence, or by admission (confession) of the accused person. See ITU VS. THE STATE (2016) 5 NWLR (pt. 1506) 443; STEPPHEN VS. THE STATE (2013) 223 LRCN (pt. 2) 215; OGUONZEE VS. THE STATE(1998) 58 LRCN, et al.

The facts and circumstances surrounding the charge, the trial and ultimate conviction and sentencing of the Appellant are gleanable from the record of appeal. On 27/12/2013, PW1 and PW3 were kidnapped at gunpoint at Ubuhe-Unor, within Ogwasi-Uku Judicial Division of the trial Court. They were taken to unknown destination. Both the PW1 and PW3 remained in the custody of their kidnappers from the said 27/12/2013, until they ultimately regained freedom on 31/12/2013.

In the course of the kidnapping operation, the PW1 was robbed by the dare-devil assailants of his forerunner Jeep vehicle, a wrist-watch and a gold ring. The kidnappers, who were deadly armed with guns, demanded a ransom and did actually receive the sum of Five Million Naira from the PW1 under threat.

On the other

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hand, the PW2 was himself robbed of his phone, a wallet, a driver’s license and ID cards in the course of the armed robbery and kidnapping incident.

The only issue of contention at the trial and on appeal at the Court below was regarding the question of whether the Appellant was one of the assailants that took part in the commission of the offences for which the Appellant was tried, convicted and sentenced.

The trial Court made some far-reaching findings of facts thus:
(i) The accused person was one who took ‘Focus’ and his gang to show them the link to governor’s road. He also stated that focus and his gang collected additional money from the victim the following day. The accused did not say that anyone told him that the additional money was collected by the gang. If he was not with them how did he know that additional money was requested for and delivered?
(ii) In his statement, the accused person said he knew about the kidnap from focus, called him at about 4.44am on 27/2/2013 for a meeting at a dub at Ikotun from which place both of them drove in the jeep, the proceed of a crime, to deliver it to someone else (at page 218 of the Record

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of Appeal).
If the accused person was not involved in the crime, why would he meet someone, whom he said was involved in the kidnap at that time of the night and go with him to deliver the vehicle.
(iii) The accused person stated that after the vehicle was delivered to the policemen, he asked ‘focus’ to give him the phone number of the person whom the vehicle was delivered. Why will both of them go and see the same man on 29/12/2013? The Court cannot but wonder why the accused person would do that, if not to monitor the vehicle.
(iv) The accused person stated that he was given a sum of N100,000.00 by ‘FOCUS’.
(v) The jeep robbed from the PW1 was actually traced to the man to whom it was delivered by the accused person and ‘focus’.
(vi) The evidence before the Court that a jeep which was snatched in Ogwashi-uku in Delta State was in possession of the accused person and ‘focus’ barely 24 hours after it was snatched raised a presumption that they are the thieves or that they received same knowing it to have been stolen. The accused person failed to give a reasonable account or explanation for their possession of the said jeep.

In

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the course of the judgment, the trial Court (at pages 209- 210 of the Record of Appeal), consequent upon reviewing the evidence adduced at the trial by the prosecution, inter alia, stated:
These pieces of evidence, in my view are strong enough to draw an irresistible inference that the accused person was one of the kidnappers who robbed the pw1 and pw2 of their Jeep and other items.

Instructively, the foregoing finding of the trial Court was affirmed by the Court below to the following effect:
“In this case, the circumstantial evidence adduced by the prosecution was so cogent, convincing, and compelling that the Court was amply justified in convicting the appellant on it.”
See page 304, lines 20-22 of the Record.

The findings of the two Courts are the very basis of the Appellant’s grouse in the instant appeal.

The findings of the trial Court are predicated upon an inference from oral evidence of the PW3 and the extra-judicial statements of the Appellant to the police, admitted as Exhibit A consequent upon a trial-within-trial.

The term circumstantial evidence denotes evidence of surrounding circumstances drawn from credible

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evidence adduced in Court which may be capable of proving a proposition with the accuracy of mathematics. Such evidence can be used to convict an accused person facing a criminal trial. However, in such circumstance, the Court must make sure that the evidence so adduced is cogent, consistent, irresistible, rational, and compelling which leads to the guilt of the accused person, thereby leaving no degree of possibility of chance that another person (other than the accused) could have been responsible for the commission of the offence. See AKINBISADE VS. THE STATE (2007) All FWLR (pt. 334) 17 @ 42 paragraphs E-H; ADEPETU VS. THE STATE (1998) 8 NWLR (pt. 565) 185 et al.

From the far-reaching findings of the trial Court at page 5 of the Record of Appeal, the trial Court rightly inferred from the facts that the Appellant actually participated in the commission of the offences for which he was tried, convicted, and sentenced. Thus, the Court below was equally right in affirming those findings. Indeed, those findings are not perverse.

In the circumstances, the issues 1 and 2 ought to be, and same are hereby resolved against the Appellant.

Hence, against

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the backdrop of the resolution of the two issues raised by the Appellant against him, the appeal resultantly fails and it is accordingly hereby dismissed by me.

The concurrent judgment of the Court of Appeal, Benin Judicial Division delivered on May 25th, 2018, in Appeal No. CA/B/40C/2017, thereby dismissing the Appellant’s appeal, is hereby affirmed.
Appeal Dismissed.