ADAH v. STATE (2020)

ADAH v. STATE

(2020)LCN/14114(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/AK/206C/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

MONDAY ADAH APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE ESSENTIAL ELEMENTS REQUIRED TO PROVE THE OFFENCE OF ARMED ROBBERY

Both parties are agreed that the three essential elements required to prove the offence of armed robbery are:
1) That there was a robbery
2) That the robber or robbers was/were armed with an offensive weapon and
3) That the accused person was one of those who took part in the armed robbery or robberies.
See the cases of BOZIN V STATE(SUPRA); ATTA & ORS V THE STATE (2009) 13 NWLR, PT 1164,284 AT 313, PARAS F – G; TANKO V STATE (SUPRA) ; JOHN V STATE (2016) 11 NWLR, PT 1523, 191 and UGBOJI V STATE (2018) 10 NWLR, PT 1627, 346.
Both parties are in agreement that the offence can be proved by one of three ways, (a) confessional statement; (b) circumstantial evidence and (c) direct (eye witness) evidence: FATILEWA V STATE (SUPRA) and SUNDAY V STATE (SUPRA). PER MAHMOUD, J.C.A.

WHETHER OR NOT A PROSECUTION NEEDS TO CALL A HOST OF WITNESSES TO ESTABLISH THE GUILT OF AN ACCUSED PERSON

What is more, it is a settled principle of law that the prosecution does not need to call a host of witnesses to establish the guilt of an accused person, even in a capital offence such as the instant case. Same can be proved even on the testimony of a single witness once it is positive, direct, unequivocal and establishes all the elements of the offence as in the instant case. Thus the evidence of a single witness, if believed by the Court can establish a criminal case even if it is a capital offence. See EFFIONG V STATE (1998) 8 NWLR, PT 562, 362. Indeed in ONAFOWOKAN V STATE (1987) 3 NWLR, PT 61, 538, the apex Court per OPUTA JSC put it very succinctly when he held:
“…the Court can act on the evidence of one single witness if that witness can be believed given all the surrounding circumstances. Truth is not discovered by a majority vote. One solitary credible witness can establish a case beyond reasonable doubt…”
See also the more recent decision of the apex Court in BASSEY V STATE (2019) LPELR – 46910 (SC). PER MAHMOUD, J.C.A.

WHETHER OR NOT THERE WOULD BE A NEED FOR FURTHER IDENTIFICATION, WHERE AN ACCUSED PERSON HAS BY HIS CONFESSION IDENTIFIED HIMSELF

What is more, in ARCHIBONG V STATE (2004) 1 NWLR, PT 855, 488 this Court found that where an accused person by his confession has identified himself, there would be no need for any further identification. I hold that Exhibit C, the confessional statement having properly identified the appellant there can no longer be any issue of mistaken identity. I so hold. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Monday Adah was arraigned and tried on a two count charge of armed robbery and murder contrary to and punishable under SECTIONS 1 (2) (a) of the ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP R11 VOL 14, LAWS OF THE FEDERATION, 2004 and contrary to SECTION 316 and punishable under SECTION 319 of the CRIMINAL CODE LAW CAP 30, VOL II, LAWS OF ONDO STATE OF NIGERIA, 1978, respectively, before the Ondo State High Court sitting in Akure. The prosecution’s case was that on the 9th day of June, 2011, at Big Joe Street, Off New Lagos Road, Ore in Ondo State, the appellant, while armed with a cutlass robbed one Edward Erios (PW1) and his family of three handsets and some undisclosed amount of money and thereafter killed their new born baby before the appellant was arrested after a struggle.

In proof of its case, the prosecution called two witnesses, PW1 and PW2 and tendered 9 Exhibits marked as Exhibits A, B1, B2, B3, B4, B5, B6, B7 and C. Exhibit A was the cutlass, Exhibits B1 – B5 were the photographs while Exhibits B6 and B7 were the negatives and Exhibit C was the

extra judicial statement of the appellant (see page 7 of the Records). The appellant testified in his own behalf, called no other witness and tendered no exhibit.

At the conclusion of trial, the learned trial judge, Hon. Justice D. I. Kolawole, in a considered judgment delivered on the 07/04/2017 discharged and acquitted the appellant on the charge of murder but convicted him for the offence of armed robbery and sentenced him to death.

Consequent upon this conviction and sentence, the appellant by a Notice of Appeal filed on the 17/05/2017 appealed to this Court. The appeal was however determined on the appellant’s Amended Notice of Appeal filed on the 20/08/2018 but deemed on the 10/10/2019 on four grounds of appeal with their particulars as follows:-
1) The decision of the learned trial Judge is wrong in law because the Prosecution did not prove the commission of the offence of Armed Robbery beyond reasonable doubt against the Appellant.
PARTICULARS OF ERROR
a) The Conviction is perverse in that there was no proof of the ingredients of the offence of armed robbery against the Appellant.
b) The Prosecution did not prove

beyond reasonable doubt that the Appellant did commit the offence of Armed Robbery.
c) The learned trial Judge did not subject the extra-judicial statements of the appellant to the required tests stated in the case laws.
2) Having regards to the evidence on record, the decision of the trial Court is unwarranted.
PARTICULARS OF ERROR
a) There are substantial discrepancies, inconsistencies and contradictions in the evidence of the Prosecution, which contradiction on material facts in the Prosecution’s case have occasioned a miscarriage of Justice for which the verdict of guilt should not have been entered against the Appellant.
b) The inability of the learned trial Judge to properly review the evidence in this case has led to a miscarriage of Justice.
3) The learned trial Judge erred in law when he convicted the appellant on the basis of both resiled and a retracted confessional statement without any legal justification and inspite of the avalanche of contradictory evidence in the case of the prosecution and which raised doubts in the prosecution’s case.
PARTICULARS OF ERROR
a) There are reasonable doubts in

the case of the Prosecution, which the trial Court ought to have resolved in favour of the Appellant.
b) The failure and refusal of the trial Court to resolve the doubts in the case of the prosecution in the Appellant’s favour occasioned a miscarriage of Justice on the Appellant for which the verdict of guilt should not have been entered against him.
c) It was obvious from the record that if the learned trial judge had diligently subjected the said confessional statement of the Appellant to the said tests prescribed by law, the trial Court would have seen that it is not probable that the Appellant made the said confession.
4) The learned trial Judge erred in law when he convicted the Appellant for the offence of conspiracy and armed robbery without considering the defence of Mistaken Identity raised by the Appellant and which was obvious from the face of the record.
PARTICULARS OF ERROR
a. The decision of the trial Court was perverse.
b. The failure and refusal of the trial Court to resolve the doubts in the case of the prosecution in the Appellant’s favour occasioned a miscarriage of Justice on the Appellant for which

the verdict of guilt should not have been entered against him.
Whereof the appellant seeks the ORDER of this Court:-
1) Setting aside the decision of the trial Court and
2) Discharging and acquitting the appellant of the offences of conspiracy and armed robbery.

In prosecuting this appeal, the appellant filed his brief of argument on the 07/05/2018 but deemed on the 10/10/2019. In it, the appellant submitted two issues for determination by the Court as follows:-
1) Whether the Respondent has not failed in proving the case of conspiracy and armed robbery against the appellant beyond reasonable doubt.
2) Whether in the circumstance of the case the decision of the trial Court was tainted with illegality and as such perverse.

In arguing the appeal, MR A. K. Adewusi, holding the brief of Mr Victor O. Odjemu for the appellant adopted the brief as their legal arguments in support of the appeal. In arguing both issues together, Counsel submitted that the entire proceedings and judgment of the lower Court was a nullity as same was based on insufficient and incredible evidence. Counsel submitted that the trial judge failed to critically

review and properly evaluate the evidence before him before convicting the appellant for the offence of armed robbery. Counsel referred to the case of BOZIN V THE STATE (1985) 2 NWLR, PT 8, 465 to submit that to sustain a charge of armed robbery, the prosecution must establish three ingredients:
a) That there was a robbery or series of robberies;
b) That the robberies were armed robberies;
c) That the accused persons were, or some of the people who committed the armed robbery.

Counsel also referred to the case of FATILEWA V STATE (2007) 5 ACLR, 630 AT 631 to submit that in criminal cases the prosecution can prove the guilt of an accused by any of these three ways:-
(i) Confessional statement, or
(ii) Circumstantial evidence or
(iii) Direct evidence, i. e evidences of an eye-witness.

Counsel contended that in the instant case, the only evidence adduced by the prosecution in proof of the offence of armed robbery is uncorroborated and suspicious direct evidence and the untested evidence of a retracted confessional statement. That the trial Court wrongly applied the facts before it in resolving and arriving at the decision

to convict the appellant for the offence of armed robbery. Counsel argued that in proof of the first two ingredients of the offence, the prosecution relied on the testimony of PW1 and the untested extra judicial statement of the appellant. That the decision of the Court based on these testimonies is misplaced as it was founded on the wrong premise that the evidence of PW1 was neither controverted nor contradicted and it is not incredible. Counsel contended that on the contrary, the evidence of the appellant contradicted and controverted the evidence of armed robbery on PW1. That PW1’s testimony is not corroborated and the trial judge acted on it without first warning himself of the danger of convicting on the said evidence without corroboration. Counsel further submitted that the trial Court failed to appraise and evaluate the evidence on oath of the appellant to ascribe any probative value to it. That as a consequence the trial Court failed to consider the defence of mistaken identity raised by the appellant. Counsel argued that this failure has tainted the decision of the trial Court with illegality making it perverse. And that this failure has

breached the appellant’s right to fair hearing occasioning a miscarriage of justice.

Mr Adewusi referred to the cases of AHMED V THE STATE (1999) 5 SC, PT II, 39; (1999) 7 NWLR, PT 612, 641 AT 679, PARA D and EBRE V STATE (2001) 12 NWLR, PT 728, 617 to submit that failure of the prosecution to investigate the defences raised by the accused and failure of the Court to examine such defences and others that arise from the evidence before the Court where it is demonstrable that such failure would lead to a miscarriage of justice, a conviction based on such evidence would be quashed on appeal. Counsel urged the Court to so hold in the instant case. Counsel referred to the cases of DEMO OSENI V THE STATE (2012) 5 NWLR, PT 1293, 351 AT 387, PARAS C-E and SHANDE V STATE (2005) 1 NWLR, PT 907, 218 AT 225-226 to contend that the failure of the trial Court to test the truth of the confession by examining it in the light of other credible evidence before the Court has invalidated the decision of the Court. Counsel contended that the failure of the trial Court to consider the defences open to the appellant and to properly evaluate the evidence led gave way to

speculation which creates uncertainty. Counsel contended that a decision based on speculation and uncertainty must be set aside on the authority of ARCHIBONG V STATE (2004) 1 NWLR, PT 855, 488 AT 498. Counsel urged the Court to resolve this twin issue in favour of the appellant, set aside his conviction by the lower Court and discharge and acquit him.

The respondent in opposing this appeal filed its brief of argument on the 19/07/2018. The same was consequentially deemed on the 10/10/2019. In arguing the appeal, MRS G. A. Olowoporoku, the learned DPP, Ondo State Ministry of Justice, of Counsel for the respondent adopted the brief as their legal arguments in opposition to the appeal. In it the learned DPP adopted the two issues raised by the appellant for the resolution by the Court in this appeal.

In arguing the two issues separately, Counsel submitted on issue (1) that the respondent proved the offence of armed robbery against the appellant beyond reasonable doubt. Counsel referred to the cases of ATTA & ORS V THE STATE (2009) 13 NWLR PT 1164, 284 AT 313, PARAS F-G; OSUAGWU V THE STATE (2009) 1 NWLR, PT 1123, 523 AT 536-537, PARAS D-B;

TANKO V. THE STATE (2009) 4 NWLR, PT 1131, 430 AT 459 PARAS C-A and JOHN V THE STATE (2011) 18 NWLR, PT. 1278, 353 AT 377, PARAS E-F to agree with his learned friend for the appellant on the three ingredients that must be proved beyond reasonable doubt to succeed on a charge of armed robbery. Counsel also cited the case of SUNDAY V STATE (2013) AFWLR PT 682 AT 1821, PARAS G-H.

Counsel submitted that the evidence of PW1 and PW2 was to the effect that there was a robbery incident at Big Joe Street, Off New Lagos Road, Ore, Ondo State on the night of 9th June, 2011. That this evidence was corroborated with the extra judicial statement of the appellant, Exhibit C. That the evidence before the Court was that PW1 was matcheted by the side of his face while being robbed. This matchet was admitted in evidence as Exhibit A. Counsel submitted that the prosecution proved beyond reasonable doubt before the trial Court that the appellant was the armed robber who attacked and robbed PW1 and his family on the night of 09/06/2011 and injured PW1 with a matchet in the process. He urged the Court to so hold.

On issue (2) Counsel submitted that it was upon a thorough appraisal

of the evidence before it, that the learned trial Judge convicted the appellant. Counsel referred to the case ofUNITY BANK PLC V BOUARI (2008) AFWLR, PT 416, 1825 AT 1832 to contend that evaluation of evidence and ascription of probative value thereto belong to the province of the trial Court which in this case has exercised that power correctly since the findings of fact are not demonstrated to be perverse. On the identity of the appellant, Counsel submitted that the appellant was arrested at the scene of crime and handed over to the police. That his identity is therefore not in issue in these proceedings.

On Exhibit C, the confessional statement, the learned DPP submitted that a trial Court may convict an accused person on his extra judicial confession which is voluntary. Counsel referred to the cases of EDHIGERE V THE STATE (1996) 8 NWLR, PT 464, 1 AT 14, PARAS A-B; QUEEN V ITULE (1961) 25 CNLR, 183; MUMUNI V THE STATE (1975) 6 SC 79 and AREMU V THE STATE (1991) 7 NWLR, PT 201, 1.

Counsel referred to the case of GBADAMOSI V STATE (1991) 6 NWLR, PT 196, 182 to submit that confession is often the best evidence. Counsel submitted that the fact that

the appellant resiled from his extra judicial statement does not exculpate him and does not render the statement involuntary. The learned DPP argued that the trial Court followed the principle laid down in DARWA & ORS V THE STATE (1979) 12 NSCC 334 AT 338 by finding corroborative evidence in the testimony of PW1 to corroborate Exhibit C, the appellant’s confessional statement. Counsel also submitted that the appellant’s constitutional right of presumption of innocence under SECTION 36(5) of the 1999 CONSTITUTION was not affected as the appellant was presumed innocent until the evidence led by the prosecution proved him guilty as found by the trial Court in its judgment of 07/04/2017. The learned DPP urged the Court to dismiss the appeal and uphold the judgment of the trial Court.

I will deal with both issues together. What first calls for resolution is whether the Respondent proved the charge of armed robbery against the appellant beyond reasonable doubt. Both parties are agreed that the three essential elements required to prove the offence of armed robbery are:
1) That there was a robbery
2) That the robber or robbers was/were

armed with an offensive weapon and
3) That the accused person was one of those who took part in the armed robbery or robberies.
See the cases of BOZIN V STATE(SUPRA); ATTA & ORS V THE STATE (2009) 13 NWLR, PT 1164,284 AT 313, PARAS F – G; TANKO V STATE (SUPRA) ; JOHN V STATE (2016) 11 NWLR, PT 1523, 191 and UGBOJI V STATE (2018) 10 NWLR, PT 1627, 346.
Both parties are in agreement that the offence can be proved by one of three ways, (a) confessional statement; (b) circumstantial evidence and (c) direct (eye witness) evidence: FATILEWA V STATE (SUPRA) and SUNDAY V STATE (SUPRA). In the instant case, the trial Court seemed to have relied on both direct evidence as well as confessional statement of the appellant, Exhibit C. The evidence of PW1 which the trial Court believed and acted upon was to the effect that a robber entered his room in the early hours of the 9th June, 2011. According to this witness who was also the victim of the robbery and the complainant, in the early hours of the night he was watching films with his family when the generator suddenly went off. PW1 testified that he took his torchlight to go outside to check why

the generator went off. That as he opened the door someone who he identified as the appellant pushed him inside the room, entered and asked everybody to lie face down which they did. PW1 further testified that after the appellant robbed him, his wife and daughter of their handsets and money he gave him a machete cut on the side of his face. PW1 testified that he was angered by this machete cut and the anger drove him to charge at the appellant and grip him. That both of them struggled for some time and in the process the appellant matched his baby boy who was lying on a mattress foam on the floor in the room. PW1 also testified that the appellant bit him and his daughter. That they raised an alarm and people came to their rescue. That after putting the generator back on the people overpowered and subdued the appellant. That these people invited the police and they handed the appellant over to the Police. PW1 testified that he was rushed to the hospital because of the machete cut inflicted on the side of his face by the appellant and so he was not there when the Police went to the scene. That he went to the Police station after he left the hospital to give his

statement. The cross examination of PW1 did not in any way test or question his testimony to the effect that there was an armed robbery in which the appellant robbed him and his family and injured him on his face with a machete. The testimony of PW1 is direct, positive and unequivocal. More significantly it proves all the three elements of the offence of armed robbery. These are that the accused/appellant was armed and that while armed participated in the robbery. The accused/appellant was arrested on the scene of crime. There is therefore no issue of improper or non identification of the appellant as the culprit in the circumstances of this case. What is more, it is a settled principle of law that the prosecution does not need to call a host of witnesses to establish the guilt of an accused person, even in a capital offence such as the instant case. Same can be proved even on the testimony of a single witness once it is positive, direct, unequivocal and establishes all the elements of the offence as in the instant case. Thus the evidence of a single witness, if believed by the Court can establish a criminal case even if it is a capital offence. See

EFFIONG V STATE (1998) 8 NWLR, PT 562, 362. Indeed in ONAFOWOKAN V STATE (1987) 3 NWLR, PT 61, 538, the apex Court per OPUTA JSC put it very succinctly when he held:
“…the Court can act on the evidence of one single witness if that witness can be believed given all the surrounding circumstances. Truth is not discovered by a majority vote. One solitary credible witness can establish a case beyond reasonable doubt…”
See also the more recent decision of the apex Court in BASSEY V STATE (2019) LPELR – 46910 (SC).

From his evaluation of the evidence, the learned trial Judge found the testimony of PW1 cogent and compelling and sufficiently credible to found the conviction of the appellant thereon. I find no reason from the records to disturb this finding. I agree with the learned trial Judge that the evidence of PW1 is not incredible. The evidence remained unchallenged, uncontroverted and uncontradicted. The learned trial Judge was therefore right to have acted on it to convict the appellant. what is more there is Exhibit C, the confessional statement of the appellant. I find that the fact that in the statement the appellant admitted to using a

broken bottle to rob the victim instead of the machete PW1 alleged he used in my view is of no moment in this case. This position is premised on the fact that a broken bottle can be an offensive weapon within the meaning of the Robbery and Firearms (Special Provisions) Act under which the appellant was tried and convicted. An offensive weapon is defined by SECTION 1 OF THE ENGLISH PREVENTION OF CRIME ACT, 1953 as “any article either made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person.” Clearly a broken bottle even if inoffensive on its own can be rendered offensive by the appellant’s use of it in that it be used to cause injury to the person by him. It therefore means that the appellant admitted to using an offensive weapon to rob the victim, PW1. I hold that the learned trial Judge rightly found that the prosecution proved all the ingredients of the offence of armed robbery and properly convicted him.

Learned Counsel to the appellant did raise an ancillary issue of failure or lack of appraisal or evaluation of evidence by the trial Judge. I

find that this submission made merely at large is not supported by any evidence from the records. Clearly at pages 38-39 the learned trial Judge evaluated the evidence and found that the evidence of the victim, PW1 was credible having not been impeached in cross examination. The view is strengthened by the evidence of PW1 and is corroborated by Exhibit C, the confessional statement of the appellant. The contention of the appellant’s counsel that the evidence of PW1 was not corroborated is not deserving of any consideration. This is because this argument is not backed up by any evidence from the records. The appellant’s counsel in his address seems to bandy words and submissions around without marrying them to the facts and evidence on record.

The appellant did also raise the issue of mistaken identity of the appellant. I answer this like the learned Counsel did in that the identity of the appellant was never in doubt. He was arrested at the scene of crime. In the case of UKPABI V STATE (2004) 11 NWLR, PT 884, 439, the Supreme Court held that whenever the case against an accused person depends wholly or substantially on the correctness of his

identification and he alleges that the identification was mistaken, the Court must closely examine the evidence. I have gone through the records very painstakingly. I find nowhere in the entire records where the appellant alleged mistaken identity. He could not therefore bring it up at this stage.

I resolve both issues in favour of the respondent and against the appellant. Consequently this appeal fails. Same is hereby accordingly dismissed. The decision of the Ondo State High Court holden at Akure delivered on the 07/04/2017 is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The direct and unchallenged evidence of witnesses, particularly the eye witness account of the victim PW1 identifying the Appellant and fixing him at the scene, unswerving seals the culpability of the Appellant,

herein.

Indeed the PW1 and Exhibit ‘C’ the Appellant’s confessional statement are intertwined in the proof of guilt as found by the trial court. The arrest of the Appellant as the culprit at the scene of the crime after he had been over powered by the PW1 (victim) who had charged and pounced on him; having been inflicted matchet cut on his face causing provocation and struggle for life makes the question of “the identity of the culprit” a settled issue.

The evidence led was properly evaluated to arrive at the decision to convict.

I concur with P. A. Mahmoud, JCA that this appeal has no merit and should fail; it fails and is dismissed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Patricia Ajuma Mahmoud, JCA. and agreed with the resolutions of the two (2) issues as done by my learned brother with nothing useful to add thereto.

This appeal is unmeritorious and dismissed by me as in the lead judgment. The judgment of the Ondo State High Court holden at Akure and delivered on the 7th of April, 2019 is affirmed.

Appearances:

A. K. Adewusi, holding the brief of MR Victor, O. Odjemu For Appellant(s)

MRS G. A Olowoporoku, DPP Ondo State Ministry of Justice, with him, MR John Dada Joshua, PLO For Respondent(s)