EWUGBA v. THE STATE (2017)

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.480/2015

Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

RAPHAEL EWUGBA – Appellant

AND

THE STATE – Respondent

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OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): 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.Trial got underway on 31 July, 2012 after the appellant entered a plea of not guilty to a three count charge which reads:
COUNT 1
STATEMENT OF OFFENCE

Conspiracy to commit a felony to wit: Kidnapping punishable under Section 516 of the Criminal Code Law, Cap C 21 Vol. 1, Laws of Delta State of Nigeria 2006.
PARTICULARS OF OFFENCE:
Saidu Haruna (M), and Raphael Egwuba (M) on or about the 26 of December 2011 at Effurun, within the Effirun Judicial Division, conspired with others now at large to commit a felony to wit: Kidnapping.
COUNT 2
STATEMENT OF OFFENCE

Kidnapping punishable under Section 354(2) of the Criminal Code Law, Cap. C 21 Vol.1, Laws of Delta State of Nigeria 2006.

PARTICULARS OF OFFENCE
Saidu Haruna (M), and Raphael Egwuba (M) on or about the 26 of December, 2011 at Effurun within the Effurun Judicial Division, unlawfully imprisoned one Onoriode Yvonne Asheshe (f) against her will.
COUNT 3
STATEMENT OF OFFENCE

Armed Robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Vol.4, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
Saidu Haruna (M), and Raphael Egwuba (M) on or about the 26 of December, 2011 at Effurun, within the Effurun Judicial Division, robbed one Onoriode Yvonne Asheshe (f) of her Honda Pilot Jeep, ATM card Jewelleries and Black Berry phone while armed with a gun.

Three witnesses gave evidence at the trial. PW1, the victim of these crimes and PW2 the Investigating Police Officer, an officer attached to the State Securities Service Delta State Command, both gave evidence for the State (Respondent).
The appellant gave evidence in defence, but did not call any witness.
The following items were tendered as exhibits:
Exhibit A: Statement of 1st accused person (not relevant in this appeal).
Exhibit B: Statement 
of 2nd accused person.
Exhibit C: Blackberry Phone with Pin. No.3245D4FE.
Exhibit D: Certificate of (Engr.) Saidi Haruna from lovely communication.

On 27 February, 2013 the trial judge adjourned the case to 28 March, 2013 for adoption of written addresses and judgment was delivered on 10 October, 2013. The learned trial judge found the appellant guilty on the three count charge and sentenced him to death on count III.
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. In accordance with rules of Court, briefs were filed and exchanged. The appellant’s brief was filed on 14 September, 2015, while the respondent’s brief was filed on 17 December 2015.

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Learned counsel for the appellant formulated a sole issue for determination. It reads:
“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.”

Learned counsel for the respondent also formulated a sole issue for determination:
“Whether on the totality of the evidence adduced on record, the Court below was right in upholding the judgment of the trial Court which found the appellant guilty for the offences of conspiracy to kidnap, kidnapping and armed robbery.”
The sole issue formulated by counsel asks the same question, whether the prosecution proved the charges beyond reasonable doubt. I am satisfied with the issue as framed by the learned counsel for the appellant and so his sole issue shall be considered in this appeal. At the hearing of the appeal on 5 October, 2017, learned counsel for the appellant A. Asala Esq., and P. Mrakpor, the Attorney-General of Delta State for the respondent adopted their briefs and had nothing to say in amplification. The appellant’s brief was filed on 14 September, 2015. Learned counsel for the appellant urged this Court to acquit and discharge the appellant. The respondents brief was filed on 17 December 2015. Learned counsel for the respondent urged this Court to dismiss the appeal.
The Facts.
At about 12:30p.m. on 26 December, 2011, Onoriode Yvonne Asheshe, a Magistrate in the Delta State Judiciary was in the process of parking her Honda Sport Utility Vehicle with registration No. DE 387 KTU in front of her house at No. 80 Jakpa Road Effurun in Uvwie Local Government Area of Delta State when three men armed with guns surrounded the car and ordered her to open the doors. She opened the doors and spent some time looking for the keys of the car with the men. The keys were eventually found. She was forced to lie down on the back seat of the car bound hands and feet, blind folded. They drove off.
She was disposed of her handbag, mobile phones (blackberry), ATM Cards, money and jewelry. She had to disclose the PIN number of her ATM card with a warning that if it was found not to be correct she would be killed. After a long ride she was abandoned in the bush in Olukobare village, near Orerokpe in Okpe Local Government Area of Delta State. She was left in the bush, while they drove off in her car. Eventually she was able to remove the ropes from her legs, hands and free herself completely. She made her way to the highway where a good spirited motorcyclist gave her a ride into town where she reported the incident to the Police.
Her blackberry phone was eventually found with the appellant, but to this day her car has not been recovered.
The sole issue:
“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 prove the charges of Conspiracy to Kidnap, Kidnapping and Armed Robbery against the appellant beyond reasonable doubt.”
Learned counsel for the appellant concedes that PW1 was Kidnapped and robbed at gun point on 26 December, 2011, but, contends that the prosecution failed to adduce credible evidence to prove beyond reasonable doubt that the appellant was one of the persons that committed the offences of kidnapping and armed robbery.
The issue at the trial Court and on appeal was whether the fact that the blackberry phone was traced to the appellant conclusively proved that the appellant participated in the kidnapping and armed robbery. The decision of the trial Court was challenged in the Court of Appeal on these major issues. It is now the duty of this Court to find out if the decision of the Court of Appeal is flawed or correct.
Subsumed in the sole issue for determination are the following issues:
(a) Whether there was proper identification of the appellant as one of the kidnappers and armed robbers.
(b) Whether the prosecution withheld vital documents.

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(c) Whether the doctrine of recent possession applies in this case.
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 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

If the three issues referred to above are resolved in favour of the respondent, the case would be said to have been proved beyond reasonable doubt in the trial Court and the Court of Appeal would be right to affirm that judgment, thereby resulting in the fact that concurrent findings of fact are correct. Conversely the appellant would be entitled to an acquittal and discharge.
(a) Whether there was proper identification of the appellant as one of the kidnappers and armed robbers?

This issue shall be addressed under two sub heads:
(i) The identification parade.
(ii) Visual or eyewitness identification of the appellant by PW1.

Learned counsel of the appellant observed that the identification parade did not meet up with the required standard laid down by judicial pronouncements and as such, the identification parade is unreliable and should be set aside.  Reference was made to page 56 and page 63 of the record of appeal.
On visual identification of the appellant by PW1 learned counsel for the appellant observed that the encounter between PW1 and the armed robbers was for a very short period, a fleeting encounter under a distressed condition. He submitted that the conclusion of the Lower Court that PW1 had the opportunity to observe the features of her assailants is incorrect and unsupported by the evidence on record. He urged this Court to hold that the identification of the appellant as one of the kidnappers and armed robbers is unsafe and unreliable. Reliance was placed on R. v. Turnbull (1976) 3 ALL ER P.549
Emenegor v. State (2010) ALL FWLR (Pt.511) p.884
Alabi v. State (1993) 7 NWLR (Pt.307) p.511

Learned counsel observed that there was an identification parade which the trial Court and the Court of Appeal found to be regular. He observed that PW1 had the opportunity of seeing the accused persons (appellant included) when they swooped on her and pointed guns at her since the unchallenged evidence is that the offence was perpetuated in broad day light. On the identification parade, learned counsel observed that PW1 was able to identify the appellant and his co-accused in an identification parade made up of eight persons. He submitted that PW2 never assisted PW1 to identify the appellant, observing that both of them were not confronted with the allegation when they gave evidence. He submitted that since the appellant failed to confront PW1 and PW2 with the allegation it means the testimony of PW1 and PW2 is correct. He further observed that the contention that the appellant was almost half naked when he participated in identification parade is an afterthought as PW1 and PW2 were also not confronted with that piece of evidence, further observing that appellant’s statement, Exhibit B was obtained immediately after the identification parade and he did not complain of any anomaly in the identification parade. Relying on Oladipo v. Moba LGA (2010) 5 NWLR (Pt.1186) p.117.
Agbo v. State (2006) ALL FWLR (Pt.309) p.1380
Ikemson v. State (1989) 3 NWLR (Pt.110) p.455

He urged this Court not to disturb concurrent findings of the two Lower Courts:
PW1 said on oath:
“The two accused persons are among the three armed men I am talking about. They started looking

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for the key. 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. After getting the key, they ordered me to lie flat on the back seat.
Under cross-examination PW1 said:
I identified the faces of the accused persons on the day of the incident quite clearlyI saw their faces for the first time on the day of the incident. I saw their face i.e. the accused person on the day of the incident and again on the day of the identification parade and now in court again..

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
Otti v. State (1993) 4 NWLR           

(Pt.290) p.675.

On the conduct of the identification parade, the Court of Appeal said:
“The appellant had contended that the victim was able to identify him because of the way he was dressed at the identification parade. The uncontroverted evidence is that six persons were scantily dressed and the question that readily comes to mind is why it was the appellant and not any of the others scantily dressed that was identified by the victim, if as argued it was merely on account of his having been scantily dressed that the victim identified him. PW2 equally testified as to the conduct of the identification stating that the appellant was identified by the victim at the identification parade.”
On whether the victim (i.e. PW1) was aided to identify the appellant, the Court of Appeal said:
“……..The appellant in his defence testified that at the identification parade PW2 aided the victim to identify him because PW2 came and stood behind him. Instructively, this fact which goes to the propriety of the identification at the parade was never put to the victim and PW2 in cross-examination. I tend to agree with the Respondent’s submission that it was an 
afterthought and that no such thing happened during the identification parade….”
Concluding the Court of Appeal said:
“The evidence adduced as to the conduct of the identification parade was not shaken under cross-examination and there is no reason to interfere with the conclusion of the Lower Court at page 123 of the Records that it was satisfied that the identification parade was genuine and 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.
Once again I am satisfied that the appellant was properly recognized by PW1 as one of the robbers that kidnapped her and stole her Blackberry phone on 26 December, 2011 and the identification parade conducted on 7 March, 2012 was flawless.
(b) Whether the prosecution withheld vital document’s.
Learned counsel for the appellant observed that during trial, the respondent (prosecution) failed, refused and deliberately

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withheld from the defence the following:
1. The extra judicial statement of PW1 made to the police immediately after the incident.
2. The written complaint by PW1 to the State Security Service.
3. The first extra judicial statement made by PW1 to the State Security Service before the identification parade.
4. Bail bonds of sureties who took some of the accused persons on bail.
5. Signals from the Headquarter of Delta State Security Service directing its office at Warri to track down and arrest one Rukevwe.
6. The Reply and Report on the findings by the Warri Zonal Office of Sate Security Service on the efforts made to track down Rukevwe.

He contended that the failure by the prosecution to produce this vital documents offends Section 167 (d) of the Evidence Act and amounts to a denial of fair hearing. Reliance was placed on
Emenegor v. State (2010) ALL FWLR (Pt.511) p.884.
Ajie v. State (2000) FWLR (Pt.16) p.2831
Ogudu v. State (2012) ALL FWLR (Pt.629) p.1111
Ekaidem v. State (2012) ALL FWLR (Pt.631) p.1587

In conclusion, he submitted that the prosecution failed to prove the charges against the appellant beyond reasonable doubt in view of the failure of the prosecution to make available to the defence vital documents upon demand by the defence, contending that in the absence of these vital documents there is serious doubt which should be resolved in favour of the appellant.
Learned counsel for the respondent observed that the appellant did not demand for any document from the prosecution during trial, contending that the appellant could have asked for the documents by Notice to produce or invoking the provisions of Sections 186 and 188 of the Criminal Procedure Law. He submitted that the appellant cannot do on appeal what he failed to do at the trial Court.
He observed that Section 167 (d) of the Evidence Act will only be invoked when the prosecution fails to produce these documents upon the issuance of summons on it by the trial Court. Reliance was placed on Aremu v. State(1991) 7 NWLR (Pt.201) p.1.
He submitted that Section 167 (d) is not applicable. Concluding, he submitted that all the authorities relied on by the appellants learned counsel are not relevant. He urged this Court not to disturb the impregnable concurrent findings of the trial Court and Court of Appeal.
At the trial, the 1st accused person was represented by C. O. Egwuenu while R. O. Olarenwaju represented the 2nd accused person (the appellant).
The State was represented by the Delta State Director of Public Prosecutions, E.H. Edema.
On 8 October, 2012, learned counsel for the 1st accused person during cross-examination of PW2 made an oral application that the prosecution should produce the following documents:
1. The petition of PW1, to the State Security Service.
2. The Bail Bonds of sureties that took the four persons on bail who were arrested in connection with this matter but not charged to Court and
3. Two signals generated between the State Headquarters of the State Security Services, Asaba and the Warri South Local Government Area office relating to the tracking down of one Rukevwe.

Learned counsel for the prosecution objected on the ground that there was no formal Notice to produce in writing. On 5 November, 2012 the learned trial judge delivered a considered Ruling wherein he refused to grant the application on the ground that no foundation had been laid to warrant the Court making an order for the production of the said documents.
Learned counsel for the

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appellant at no time during trial demanded for any document from the prosecution, neither did he adopt the demand/submissions of learned counsel for the 1st accused person.
When does Section 167(d) of the Evidence Act apply?
The rule in Section 167(d) of the Evidence Act is contained in the maxim “omnia praesumuntur contra spoliatorem.” Where a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted.
The withholding of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it. So where the prosecution is served with Notice to produce evidence that the defendant needs for his defence and the prosecution willfully refuses to produce the said evidence, the Courts would act on the natural inference that the evidence is held back because it would be unfavourable.
Section 167 (d) of the Evidence Act states that:
167(d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.
The above complaint was not raised at the trial Court by learned counsel for the appellant.
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.
Once again this complaint was not raised at the trial Court by learned counsel for the appellant. It must be elementary now that an appeal is a rehearing. It is the duty of an Appeal Court to examine the Record of Appeal to see if the judgment of the trial Court is correct of flawed. New issues can only be raised an appeal with leave. Where leave was not obtained, nothing new would be heard on appeal. It follows naturally that a party must be consistent in stating his case in the trial Court and on appeal. He will not be allowed to present a case at trial and present a different case on appeal. He will never be allowed to shift ground on appeal as it suits his fancy.
I am satisfied that complaining about the respondent withholding documents/evidence was never the appellant’s case in the trial Court. It is wrong and is not worth considering on appeal. This is clearly an afterthought by the appellant that is futile in the extreme. The prosecution did not withhold evidence.
Finally on this point, It is learned counsel for the appellant’s case that learned counsel for the respondent deliberately withheld six items.
At trial, he never raised this issue. It was learned counsel for the 1st accused person who asked for only three items to be produced.
This brings into focus and is further evidence, that this issue on appeal is clearly without foundation. The prosecution once again did not withhold evidence from the appellant since at no time in trial Court did his counsel ask orally or formally for any document to be produced by the respondent.
(c) whether the doctrine of recent possession applies in this case.

Learned counsel for the appellant observed that the appellant explained to the State Security Service in his extra judicial Statement how he came in possession of the blackberry phone. He submitted that the explanation that is expected of an accused person to displace presumption of guilt is on balance of probability and once the explanation is reasonable the onus is discharged.
Reliance was placed on-
State v. Nnolim (1994) 5 NWLR (Pt.345) p.394
Salami v. State (1988) 3 NWLR (Pt.85) p.670

He observed that the blackberry phone was sold to the appellant by the 1st accused person. He urged this Court to hold that the appellant gave reasonable explanation that he brought the blackberry phone from the 1st accused person, contending that the doctrine of recent possession relied on by the two Lower Courts is displaced by this evidence and totally inapplicable in this case.
Learned counsel for the respondent observed that the learned trial judge examined the defence of the appellant and held that the

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testimonies of the appellant in his extra judicial statement and on oath were full of material contradictions, thus making the oral testimony of the appellant as well as his extra-judicial statement unreliable and not worthy to be relied upon. Reference was made to page 123 (line 3 – 13) and 215 lines 15 -19) of the Record of Appeal.
He urged this Court to disturb concurrent findings of fact of the two Lower Courts and to hold that the doctrine of recent possession was correctly applied by the trial Court and affirmed by the Court of Appeal.
Section 167 (a) of the Evidence Act states that:
“167. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume that –
(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.
Before this presumption applies, the following factors must be present:

(a) the goods must be goods capable of being stolen.
(b) the goods were recently stolen.
(c) soon after the theft the goods were found in possession of the defendant
(d) the accused person failed to account for his possession of the goods. See
Idan v. C.O.P. (1964) NMLR P.103
State v. Aiyeola (1969) ANLR p.293
Omopupa v. State (2008) ALL FWLR (Pt.445) p.1648.

The presumption could arise if the Court is satisfied that the person in possession of the stolen goods was the thief or that the person in possession of the stolen goods received the goods knowing them to have been stolen.
The accused person is required to explain how the goods came into his possession. If the Court is satisfied with his explanation, the presumption is rebutted. In Idan v C.O.P (supra) the accused person was charged with being in possession of stolen goods. He was convicted. On appeal, he was able to satisfy the Court that although he was in possession of the goods he did not know that they were stolen. The appeal was allowed.
The presumption in Section 167 (a) of the Evidence Act cannot be drawn in the absence of evidence. Facts are presumed from the common course of events. Section 167 (a) thus applies to the given facts.
According to the appellant (2nd accused person) he bought the blackberry phone from the 1st accused person.
The learned trial judge did not believe the appellant. His lordship said:
“Furthermore Exhibit ‘C’ is among the properties she was robbed of and the said Exhibit ‘C’, a blackberry handset was recovered from 2nd accused person who claimed to have bought it from 1st accused person. An account that 1st accused person originally admitted but turned around during the trial to change when he contended that Exhibit C was not the phone he sold to 2nd accused person.
A new line of defence that destroys the defence of both the 1st and 2nd accused persons.”

Concluding his findings on the blackberry phone his lordship said:
“The testimonies of 1st accused in his extra judicial statement, Exhibit ‘A’ and on oath were full of material contradictions that I find them unreliable and not worthy to act upon. I disbelieve him when he stated that the phone was given to him by Rukevwe. I also disbelieve the 2nd accused person who claimed the same fictitious Rukevwe as his friend who lives in the same area with him, I do not believe that 2nd accused bought Exhibit ‘C’ from 1st accused. Rather I believe the testimony of PW1 that 1st and 2nd accused were among those who kidnapped her and robbed her of her Jeep and other valuables including exhibit ‘C’.”

The trial Court applied the doctrine of recent possession in convicting the appellant.
Agreeing with the trial Court, the Court of Appeal said:
“…….It has to be remembered that even though the appellants’ co-accused testified that he did not know the

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appellant before, he sold the blackberry phone to him, the appellant himself testified that he had been seeing his co-accused for about three years before the incident and that he knew his house. He further stated that even though they were not enemies, they were also not friends, so at least they were acquaintances. The appellant also testified that he knew that his co-accused person does not sell phones. This notwithstanding he claimed to have bought a blackberry phone from him for which he was not issued any receipt. The source of the said blackberry phone according to the co-accused of the appellant was one Rukevwe, who most conveniently it was claimed had been shot dead by the police when he went for a robbery operation. The appellant in his extra judicial statement Exhibit ‘B’ stated that the said Rukevwe lived in the same area as him.
Notwithstanding the claim that the said Rukevwe had been shot dead, investigation activities were still carried out, as testified to by PW2 a view to tracing the said Rukevwe but that the name and address was fictitious as no one knew him in the area where it was claimed that he lived. Doubtless, the law is that the doctrine of recent possession is displaced even though the Court may not be convinced of the truth of the explanation but it is imperative that the explanation proffered as to how the stolen property came into possession of an accused person might be reasonably true: State v. Nnolim (supra). Where the explanation might not be reasonably true, there can be no question of the presumption being displaced. In the peculiar circumstances of this case, the fact that the source of the blackberry phone traced by the appellant and his co-accused was revealed by investigations to be a non-existent person clearly shows 
that the explanation proffered by the appellant might not be reasonably true. Therefore, the Lower Court rightly applied the doctrine of recent possession to accept and believe the testimony of the PW1 that the appellant was among those who kidnapped the PW1 and robbed her of her vehicle and other valuables, including the blackberry phone, Exhibit C.”
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 appellant was charged with conspiracy under Section 516 of the Criminal Code, Kidnapping under Section 364 (2) of the Criminal Code and Armed Robbery under Section 1(2) (a) of the Robbery and Firearms (Special Provisions Act).
Learned counsel for the appellant observed that the reasons adduced by the Lower Court for upholding the findings by the trial Court that the prosecution proved the charges against the appellant beyond reasonable doubt are not sustainable having regard to the evidence on record.
On the other side, learned counsel for the respondent observed that the evidence on record is that the appellant and his fellow conspirators swooped on Onoriode Yvonne Asheshe brought out guns, threatened to shoot, got into the victims car, took her to the bush and stole her belongings, submitting that this could only have been done by persons because they had conspired to do so. Reliance was placed on Busari v. State (2015) LPELR  24279 (SC).

The appellant was charged and convicted for conspiracy contrary to Section 516 of the Criminal Code, Kidnapping contrary to Section 364(2) of the Criminal Code and Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms Act.
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

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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

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.
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act.
For the prosecution to succeed in a charge under Section 1(2)(a) of the Robbery and Firearms Act, the prosecution must proved beyond reasonable doubt that:
(a) there was a robbery.
(b) the robbers were armed
(c) the appellant was one of the robbers. See

Eke v. State (2011) 3 NWLR (Pt.1235) p.589
Ogudo v. State (2011) 18 NWLR (Pt.1278) p.1
John v. State (2011) 18 NWLR (Pt.1278) p.353.

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.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and in support of the reasonings from which the decision emanated, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Benin Division otherwise referred to as the Lower Court or Court below, delivered on the 27th day of May, 2015 affirming the judgment of the High Court of Delta State, Asaba Division delivered on 10th day of October, 2013 convicting and sentencing the appellant to death by hanging.
The detailed facts of this appeal are well set out in the lead judgment and I do not want to repeat them save for when it becomes necessary to refer to any part thereof.
On the 5th day of October, 2017, date of hearing, Ayo Asala of counsel for the appellant adopted his brief of argument filed on the 14/9/2015 and in it, he raised a single issue, viz:-
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.

For the respondent, the learned Attorney-General of Delta State, Peter Mrakpor adopted the brief of argument of the

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respondent filed on 17/12/2015 and in it distilled a sole issue which is as follows:-
Whether on the totality of the evidence adduced on record, the Court below was right in upholding the judgment of the trial Court which found the appellant guilty of the offences of conspiracy to kidnap, kidnapping and armed robbery Grounds 1, 2, 3 and 4.

The two differently crafted issues asked the same question and I shall answer accordingly. Learned counsel for the appellant, Ayo Asala Esq., submitted that from the totality of the evidence and having regard to the circumstances of this case, the Lower Court was wrong in affirming 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.
That the Lower Court was wrong in holding that the prosecution rightly refused to produce or make available to the defence the various documentary evidence which was shown to be in existence and requested for by the defence during the trial. That this failure is fatal to the case of the prosecution since it is tantamount to prosecution being unable to discharge the burden of proof on it. He cited Emenegor v State (2010) All FWLR (Pt.511) 884 at 931 – 932; Section 167 (d) of the Evidence Act, 2011; Ogundu v State (2012) All FWLR (Pt.629) 1111 at 1132; Elaidem v. State (2012) All FWLR (Pt.631) 1587 at 1613.
It was further stated for the appellant that the failure to produce those documents cast serious doubt on the credibility of the evidence of identification of the appellant by PW1 as there was nothing before the trial Court to cross-check and confirm the subsequent evidence of identification and dock ARCHIBONG V. STATE (2006) LPELR (537) 1 at 16 17; Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt.762) 512 at 534.

Mr. Asala, learned counsel for the appellant urged the Court to disregard the doctrine of recent possession of the black berry phone, Exhibit c which the trial Court applied to the detriment of the appellant as the explanation proffered by the appellant was good enough to settle any questions arising. He referred to Omopupa v State(2008) All FWLR (Pt.445) 1648 at 1674; State v. Nnolim (1994) 5 NWLR (Pt.345) 394 at 410.

Responding, learned Attorney General, peter Mrakpor Esq., stated that it is settled law that the Supreme Court will not interfere with the concurrent findings of facts of both the High Court and the Court of Appeal so long as the said findings are supported by regally admissible evidence and they are not perverse or have led to a miscarriage of justice. He cited Azabada v. The State (2014) LPELR – 23017; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Agala v Okusin (2010) 10 NWLR (Pt.1202) 412 etc.
That it is settled law that the prosecution can prove its case beyond reasonable doubt by any or the combination of the following means:-
(a) By confession of the accused,
(b) By direct evidence of eye witnesses and
(c) By circumstantial evidence.
He referred to Julius Abirifon v The State (2013) LPELR 20807 (SC).

Learned counsel for the respondent contended that the appellant who did not demand for any document at the trial cannot turn around to accuse the respondent of withholding documents at this stage. He cited Aremu v. State (1991) 7 NWLR (Pt.201) 1 at 17 – 18; Co-operative and Commerce Bank (Nig) Ltd v. A.G. Anambra State & Ors. (1992) 8 NWLR (Pt.261) 528 at 556; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt.1183) 159 at 207; Sections 186and 188 Criminal Procedure Law of Delta State.
He stated that the offence of conspiracy is complete as soon as two or more agreed to carry the intention into effect and it is open to the Court to infer conspiracy from the fact of doing things towards a common end. He cited Oyakhire v. State (2007) All FWLR (Pt.344) 1 at 12 – 14. That there is no basis for the disturbance of the concurrent findings of the Court below.
In a nutshell, the appellants position is that the identification evidence adduced by the prosecution is unreliable and that the appellant gave cogent explanation of how he came into possession of the black berry phone belonging to the PW1.

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That the prosecution deliberately withheld upon demand by the defence vital documents from the appellant.
The respondent in reaction contends that the concurrent findings of facts of the two counts below are not perverse as they are supported by evidence which debunked those concerns of the appellant and that there is no basis for this Court to interfere with those findings.
The appellant alongside his co-accused was charged for the offence of kidnapping contrary to Section 364 (2) of the Criminal Code Cap. C21, 2006. In proof, the prosecution through the evidence of PW1 and PW2 showed that the culprits stopped PW1’s car and dragged her through the bush and sat her on the ground where she was tied up. PW1 had stated that the assailants were three in number and that the two accused persons she identified in an identification parade organised by PW2 were among the three culprits. That she could identify them as she had up to 15 – 20 minutes with them at which she had close contact within their faces and features thereof.
On being confronted with PW1s blackberry phone found in possession of the appellant his explanation in his extra – judicial statement contradicted his Version in Court and even that of his co-accused from whom he said he purchased it.
The learned trial judge had no difficulty in finding against the two accused persons including the appellant on the two offences of kidnapping and conspiracy.
Before going further, I am mindful of the fact that what is before this Court is an appeal against the concurrent findings of the two Courts below and this Court will not interfere with the concurrent findings of facts of both the High Court and the Court of Appeal as long as the said findings are supported by legally admissible evidence and they are not perverse or have led to a miscarriage of justice. In this, I am guided by the following cases:-
Onwudiwe v. FRN (2006)10 NWLR (Pt.988) 382;
Agala v. Okusin (2010) 10 NWLR (Pt.1202) 412,
Peter Iliya Azabada v The State (2014) LPELR – 23017.

The Court below had held thus:-
“Furthermore, EXHIBIT ‘C’ is among the properties she was robbed of and the said Exhibit ‘C’ a blackberry handset was recovered from 2nd accused person who claimed to have bought it from 1st accused. An account that 1st accused originally admitted, but turned around during the trial, to change when he contended that Exhibit ‘C’ was not the phone he sold to 2nd accused person. A new line of defence that destroys the defence of both the 1st and 2nd accused persons.
The 1st accused tried to make the Court believe that he repairs phones and was given Exhibit ‘C’ in the normal course of his business to repair yet he went ahead to give the name and address of the person he alleged gave him the phone as Rukevwe who lives in Masoje.

At the same time, he quickly added in his statement EXHIBIT ‘A’ that he had been informed that the Police had shot Rukevwe. Nevertheless, the State Security Service Operatives Investigating went in search of the said Rukevwe and PW2 testified of his finding which I capture here. “All attempt by the Investigation team to locate the said Rukevwe proved abortive as both the name and address of Rukevwe were fictitious. It was a ploy to misdirect the investigators and exonerate himself from the crime.”
The Lower Court went along the findings of the trial Court that the testimonies of 1st accused in his extra judicial statement, EXHIBIT A and on oath were full of material contradictions that they were unreliable and not worthy to be acted upon.
Also the two Courts found unacceptable the evidence put across by appellant that he bought the phone, EXHIBIT C from 1st accused. Therefore the Court utilised the presumption of fact under Section 167(a) of the Evidence Act, 2011. It provides thus:
Section 167 (a) of the Evidence Act 2011 enacts as follows:-
“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of

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natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that-
(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”

Going by the said Section 167(a) of the Evidence Act, 2011, it is clear that the trial Court had enough on which it could and did in fact activate the presumption that the appellant was either the thief or culprit or obtained the EXHIBIT C knowing it to have been stolen or acquired through unlawful means.
The appellant had also raised more than an eyebrow over what he claimed to be the withholding of valuable documents that would have assisted his defence. The Court of Appeal tackled the issue as stated hereunder, thus:-
It is trite law that the prosecution is enjoined to make available all the evidence in respect of the case. However, the records shows that the appellant upon demanding that he required certain documents served a notice to produce on the prosecution, thus implying that he had the secondary evidence of the documents to use in the conduct of his defence if the original demanded in the notice to produce was not made available: ADEGBUYI v MUSTAPHA (2010) LPELR (3600) 1 AT 33. See pages 43-46 of the records. Upon the Lower Court ruling that no foundation had been laid for the production of the documents, the appellant rather than tender the secondary evidence which would have followed the failure to produce the original subject of the notice to produce, turned round to vilify the Lower Court for having aided the prosecution to withhold evidence. The procedure employed by the appellant was not the correct procedure and there is no justification in the contention that the prosecution with held evidence.”
The Court of Appeal had further stated as follows:-
“It has to be remembered that the PW2 testified at page 37 at the records that the official pertaining to the case could be obtained from the State Director of the Department of the State Service. There is nothing to show that the appellant applied to the State Directory for any documents and the same were not given to him. It seems to me that the course open to the appellant was to have proceeded under Section 186(1) and 188 of the Criminal Procedure Law Cap. C22 Laws of Delta State 2006 to have a summons and or warrant issued to have whoever had the documents. This is particularly so when the learned Director of Public Prosecutions who prosecuted the charge maintained that the documents desired by the appellant did not form part of his case and were not part of the documents on the basis of which the information was preferred.”
The provisions of the said CPL, Section 186(1) and 188 thus:-
186 (1) If the Court is satisfied that any person likely to give material evidence for the prosecution or for the defence the Court may issue a summons for such person requiring him to attend, at a time and place to be mentioned therein, before the Court to give evidence respecting the case and to bring with him any specified documents or things or any other documents or things relating thereto which may be in his possession on power under control,”
“188. If the person to whom such summons is directed does not attend before the Court at the time and place mentioned therein, and there does not appear to the Court on inquiry to be any reasonable excuse for such non-
attendance, then after proof to the satisfaction of the Court that the summons was duly served or that the person to whom the summons is directed willfully avoids service, the Court, on being satisfied that such person is likely to give material evidence, may issue a warrant to apprehend him and to bring him, at a time and place to be mentioned in the warrant, before the Court in order in testify as aforesaid.”
I agree with learned counsel for the respondent that the appellant’s co-accused failed to adopt the proper procedure as stipulated in Sections 186 and 188 CPL of Delta State and the Court of Appeal was right to have held that the non production of the said documents were not detrimental to the case of the appellant and co-accused and raising the presumption to be applied here and now that its non production was because they would have worked against the prosecution is not only late in the day but of no value to the appellant. See Aremu v. State (1991) 7 NWLR (Pt.201) 1 at 17 -18 per Nwokedi JSC.

Indeed the evaluation and assessment of the evidence as done by the trial Court and accepted by the Court of Appeal cannot be faulted in view of the materials available on record which has afforded this Court, the opportunity of revisiting what the two Courts did and in context and it has not been difficult for me to reach the conclusion that no justification exists for the interference of

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this Court on those concurrent findings of fact. I shall refer to the case of: Oladipo v. Moba L.G.A (2010) 5 NWLR (Pt.1186) 117 at 150-151 PARAS H-C, the Court held thus:
“It must be borne in mind that the evaluation and assessment of evidence as well as the ascription of probative value to such evidence is entirely the primary function of the Court of trial which saw, heard and duly assessed the witnesses. Where such a Court of trial has justifiably evaluated the evidence, it is not the business of the Court of Appeal to substitute its own views for that of the trial Court. What the Court of Appeal is called upon to do when faced with such is to ascertain whether or not there is evidence upon which the trial Court acted. Once there is such evidence, the appellate Court will not intervene even if it feels that if the facts were before it, it would not have come to the same decision as the trial Court.” See also Attah v. State (2010) NWLR (Pt.1201) 190 at 217, PARAS. E-G where this Honourable Court Mustapha, JSC (as he then was) held thus:-
It is also the law that there is visual and positive identification of the accused at the scene of the crime which is believed by the trial judge, the appellate Court should not disturb such a finding.”

I am in agreement with the fuller and better reasoning in the lead judgment and so I too dismiss this appeal as lacking in merit. I abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: The appeal herein is against the concurrent judgment of the Court of Appeal delivered on 27/5/15 affirming the judgment of the High Court, Delta State. The appellant was convicted and sentenced to death by hanging, having been found guilty for the offence of conspiracy to commit kidnapping, kidnapping and armed robbery.
The appellant was arraigned on 3 count charge. It was alleged that appellant (1st accused) and one other person while armed with a gun, kidnapped and robbed one Onoriode Yvonne Asheshe on 26th December, 2011.
The lone issue for determination was:
Whether having regard to the circumstances of the 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.
The burden on the prosecution in a criminal trial is to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where like in this case, the evidence adduced is strong as to have only a remote probability; See Miller vs. Minister of Pensions (1947) 2 All ER 372 and Bakare v. The State (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12  19 where Oputa, JSC had this to say amongst others:-
Absolute certainty is impossible in any human adventure including the administration of Criminal Justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denming J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All ER 373:-
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence. “Of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.”

Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial; that certainty is, that the offence was committed, and that the person charged therewith is responsible in committing the offence.
Where like in this case the evidence adduced established these two facts, then the case is proved beyond reasonable doubt. It is not in doubt herein that the appellant conceded the fact that the offence was committed. His point of departure however is whether the evidence did establish that he was indeed one of the offenders.
With all intents and purposes, it is obvious on the record that there is no doubt as to the fact that the evidence established that the Appellant was one of the perpetrators of the crime, the victim having identified him by fixing him at the scene of crime.

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There is therefore, no rational basis on which the judgment of the Lower Court should be interfered with. The sole issue is resolved against the appellant.
On the totality, my learned brother Rhodes-Vivour, JSC has dealt comprehensively with this appeal and I agree without more that same is devoid of any merit and it is hereby dismissed also by me. The judgment of the Lower Court which affirmed that of the trial Court is hereby endorsed further by me. The appeal is dismissed.
AMIRU SANUSI, J.S.C.: I was served with a copy of the Judgment just delivered in this appeal before now by Rhodes-Vivour JSC, who prepared same. Having perused same, I am convinced that His lordship had ably, adequately and painstakingly dealt with all the vital issues raised and canvassed in the appeal by learned counsel to the parties. I entirely agree with the reasoning and conclusion in the lead Judgment that this appeal is lacking in merit and must be dismissed. While dismissing the appeal, the Judgment of the Lower Court is affirmed by me.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me. Judgment of the Court of Appeal Benin Division is hereby affirmed

Appearances

A. Asala with him, A. Makinde – For Appellant

AND

P. Mrakpor AG of Delta State with him, O. F. Enemmo Director Appeals, E.U. Edonwonyi D.P.P., O. Idibar Assistant Chief State Counsel and S. Anumati Assistant Chief State Counsel.- For Respondent

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