ADEPOJU v. STATE (2021)

ADEPOJU v. STATE

(2021)LCN/15172(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/IL/50C/2020

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

MAJEED ADEPOJU AKA ”SERE” APPELANT(S)

And

STATE RESPONDENT(S)

RATIO

BURDEN PLACED ON THE PROSECUTION IN DISPROVING THE PRESUMED INNOCENCE OF THE ACCUSED

The law is trite that in our adversarial system of justice, an accused is presumed innocent until the contrary is proved. This principle is reinforced by Section 36(5) of the 1999 Constitution (as amended) which provides that: “(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” In order to discharge the burden of proving, the guilt of an accused person, the prosecution must lead cogent, reliable and credible evidence to clearly establish the ingredients of the offence charged. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

ESSENTIAL INGREDIENTS OF ARMED ROBBERY WHICH MUST BE PROVED BEYOND REASONABLE DOUBT

By a long line of cases, it is settled that the ingredients of armed robbery which must be proved beyond reasonable doubt are (1) That there was a robbery or series of robberies (2) That the robber or one of the robbers was armed with firearm or any offensive weapon (3) That the accused participated in the robbery. See STATE V. ORAY (2020) 7 NWLR (PT.1722) 130 AT 162 (F-H). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MEANS BY WHICH THE PROSECUTION CAN DISCHARGE THE BURDEN OF PROVING THE INGREDIENTS OF AN OFFENCE CHARGED AGAINST THE ACCUSED

The prosecution can discharge the burden of proving the ingredients of an offence charged by any of the following means: (1) By the evidence of an eye witness who actually saw the offence being committed (2) By the clear and unequivocal confessional statement of the accused duly proven and tested in accordance with the law (3) By circumstantial evidence which unequivocally leads to an irresistible conclusion that the accused and no other person committed the offence. See DAWAI V. STATE (2017) LPELR-43896 (SC) AT 53-54 (B-A). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

INSTANCES WHEN AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE OF A TRIAL COURT; ATTITUDE OF AN APPELLATE COURT TO INFERENCE WITH THE EVALUATION OF EVIDENCE OF A TRIAL COURT WHEN THE QUESTION OF EVALUATION OF EVIDENCE INVOLVES CREDIBILITY OF WITNESSES

The law is settled that evaluation and ascription of probative value to the evidence led is a primary duty of the trial Court that had the opportunity of hearing and watching the witnesses testify in the open Court. Where the trial Court has creditably and properly performed that duty and made a correct finding, the appellate Court has no business interfering with the finding of the Court. However, where it is shown that the trial Court failed to perform its duty or where the findings of fact and the conclusion of the trial Court are not supported by the evidence led or proper conclusion or inferences are not drawn from the evidence, the appellate Court has a duty to intervene so as to ensure that justice is done. See SOGUNRO & ORS. V. YEKU & ORS (2017) LPELR-41905 (SC) AT 29-30 (D), ABDULMUMINI V. F.R.N (2018) ALL FWLR (PT. 969) 774 AT 779 (4), BELLO V. F.R.N (2018) LPELR-44465 (SC) AT 13-17 (A-E). In ALI V. STATE (2015) LPELR-24711 (SC) AT 21-22 (F-E), the Supreme Court Per OGUNBIYI, J.S.C. stated instances when an appellate Court will interfere with the evaluation of evidence of a trial Court as follows: “As rightly submitted by the respondent’s counsel, re-evaluation of evidence by an appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the appellate Court can re-examine the whole facts and come to an independent decision from the Court of trial. See the case of Ebenehi v. State (supra). This Court has also held in the case of Anyegwu v. Onuche (supra) and said: “Appeal Court can exercise the power/jurisdiction to re-evaluate evidence. Appeal Court can do so where the trial Court fails, neglects or refuses to do so or does it in an improper way. The Appeal Court can conveniently embark on such re-evaluation where for instance: (a) The trial Court’s evaluation of the evidence is clearly perverse; (b) The trial Court drew wrong inferences from the totality of the evidence; (c) The trial Court applied wrong principles of the law to accepted facts in the case.” In JIBRIN V. F.R.N (2018) LPELR-43844 (SC) AT 13-14 (A-B), the Supreme Court Per AUGIE, J.S.C. held as follows: “As I pointed out earlier, the issue in this Appeal boils down to whether the Court below should have re-evaluated evidence. The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – see Fatai V. State (2013) 10 NWLR (Pt.1361) 1 at 21 SC. So, when the question of evaluation of evidence involves credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – see Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905(SC). “Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – see Adelumola V. The State (1988) 1 NWLR (Pt.73) 683 SC.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

POSITION OF THE LAW REGARDING SUBSTANTIAL CONTRADICTIONS IN THE EVIDENCE OF THE PROSECUTION ON A MATERIAL POINT RELATING TO THE CHARGE

The law is settled that when there are substantial contradictions in the evidence of the prosecution on a material point relating to the charge, a doubt is created and the benefit of the doubt must be given to the accused. See IKEMSON & ORS. V. STATE (1989) LPELR-1473 (SC) AT 15 (A), UCHE V. STATE (2015) LPELR-24693 (SC) AT B23 (B-D), OGOALA V. STATE (1991) LPELR-2307 (SC) AT 22 (C-E). I am aware that when the phrase “on or about” is used in a charge, it is not necessary to proof the precise date the alleged offence was committed. See ANKPEGHER V. STATE (2018) LPELR-43906 (SC) AT 14-18 (A-E), AWOPEJO V. THE STATE (2015) CA AT 42-43 (D-C). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

POSITION OF THE LAW REGARDING WHEN A HEARSAY EVIDENCE CAN BE USED

Hearsay evidence can be used to inform the Court about what a witness heard another say but not establish the truth of an event. See OKOLO V. FRN (2018) LPELR-45431 CA. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EFFECT OF THE PROSECUTION LEADING CREDIBLE, COMPELLING AND UNEQUIVOCAL EVIDENCE FIXING THE ACCUSED AT THE SCENE OF CRIME AS A PARTICIPANT ON THE BURDEN PLACED ON IT BY THE LAW

Where the prosecution leads credible, compelling and unequivocal evidence fixing the accused at the scene of crime as a participant, it would have discharged the onus of proving guilt beyond reasonable doubt. See; ANEKWE V. THE STATE (2014) 10 NWLR (PT. 1415) 353. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein and two other persons were arraigned before the High Court of Kwara State on an eight count charge of conspiracy to commit armed robbery, armed robbery and attempt to kill. The 3rd accused was discharged on a no case submission. The appellant was the 1st accused. The appellant pleaded not guilty to all the eight (8) counts charge. Six (6) witnesses testified for the prosecution. The appellant testified in his own defence and called no other witness. The Court below in its judgment delivered on 23/1/20 found the appellant and 2nd accused guilty of counts 1, 2, 3, 5 and 6. Each of the accused was sentenced to 5 years imprisonment on counts 1, 5 and 6. On counts 2 and 3, each accused was sentenced to death.

The appellant was dissatisfied with the judgment. Pursuant to an extension of time granted by this Court on 26/10/20, a notice of appeal containing 5 grounds of appeal was filed on 28/10/20.

The appellant’s brief was filed on 30/11/20. The respondent’s brief was filed on 29/12/20. Appellant’s reply brief was

filed on 8/1/2021. The appellant raised the following issues for determination:
1. “Whether from the totality of the admissible evidence before the trial Court, the prosecution proved her case beyond reasonable doubt upon which the learned trial judge convicted and sentenced the appellant for the alleged offences of Criminal Conspiracy, Attempted Murder and Armed Robbery. (Grounds 2, 3 and 4).
2. Whether from the gamut of the evidence adduced at the trial Court, the learned trial judge was right to have convicted and sentenced the appellant for the alleged offences of Criminal Conspiracy, Attempted Murder and Armed Robbery and whether the conviction and sentence has not occasioned a miscarriage of justice.”

The respondent adopted the issues raised by the appellant. The 2 issues shall be considered together as they are interwoven.

The appellant’s counsel submitted that Section 138(1) of the Evidence Act places a very heavy burden on the prosecution to prove the guilt of the accused beyond reasonable doubt and the burden rests throughout on the prosecution. He referred to AKINRINLOLA V. STATE (2017) ALL FWLR (PT. 877) 208 AT

212(9). It is the contention of the appellant that PW2 who is one of the victims of the alleged robbery is a tainted witness because his testimony is a calculated attempt to suit his own case as it was established that there was a fracas between him and the accused persons the night before the alleged incident. On who is a tainted witness, he referred to ODOGWU V. STATE (2014) ALL FWLR (PT. 719) 997 AT 999 (2). It is his further contention that the evidence of PW6 who was also a victim of the alleged robbery that it was one disabled man in the area that told him it was “Sere” and “Eso” that operated is purely hearsay which is not admissible in law. He referred to EZE V STATE (2015) ALL FWLR (PT.811) 1394 AT 1403 (4), JOHN V. STATE (2017) ALL FWLR (PT.901) 620 AT 633 (14). He argued that failure to call the disabled man who allegedly recognised the accused persons as the robbers is fatal to the prosecution’s case as he was a vital witness in the case. He referred to OCHIBA V. STATE (2011) 48 NSCQR 1 AT 8, 34 (10), OGUDO V. STATE (2011) VOLUME 12 M.J.S.C. (PT.1) 108 AT 114, 129-130 (G), OSUAGWU V. STATE (2016) 14 NWLR (PT.1537) 31,

SALE V. STATE (2016) 3 NWLR (PT.1506) 443, SMART V. STATE (2016)9 NWLR (PT.1518) 447. It is also contended that failure to conduct an identification parade in the instant case is also fatal to the prosecution’s case and the Court below erred in law to have convicted the appellant for conspiracy and armed robbery. On when an identification parade should be conducted, he referred to OSUAGWU V. STATE (2009) 1 NWLR (PT. 1123) 523. Counsel argued that the notion that since the appellant was involved in the fight that occurred on 20/3/2017, he should be held responsible for the armed robbery incident (if any) that happened the next day, 21/3/2017 is a mere speculation not supported by cogent, credible and convincing evidence.

On the allegations of criminal conspiracy, attempted murder and armed robbery, counsel submitted that the prosecution failed to prove any of the ingredients of those offences. On the ingredients of an attempt to commit an offence, he referred to OLOMO V. STATE (2015) ALL FWLR (PT.779) 1028 AT 1033 (7) and LAWAL V. STATE (2017) ALL FWLR (PT. 904) 1210 AT 1214 (2).

Counsel finally submitted that the decision of the trial Court to

convict the appellant for conspiracy, attempted murder and armed robbery despite the failure of the prosecution to establish the ingredients of those offences and link the appellant to any of the offences is perverse. On when a decision is perverse, he referred to IGBIKIS V. STATE (2017) ALL FWLR (PT. 883) 1405 AT 1410 (7). COP V. TOBIN (2009) ALL FWLR (PT.483) 1309.

In response, the respondent’s counsel argued that PW2 is not a tainted witness because he was neither an accomplice nor having any purpose of his own to serve. He was a victim of the armed robbery and he gave a vivid account of what he witnessed. He submitted that where the evidence of a witness is unassailable, the fact that the witness is an enemy of the accused will not render his evidence unreliable. He referred to KING V. STATE (2016) II SCM 89 AT 97. He further submitted that the evidence of PW6 is not hearsay as the information given by the disabled man to PW6 was to reveal the identity of the accused rather than aiming to prove the truth of the statement. He referred to JOHN V.THE STATE (2017) 11 SCM 92 AT 113. He argued that assuming but not conceding that the evidence of PW6 is

hearsay, the evidence of PW2, PW4 and the statement of the appellant is sufficient to convict the appellant.

On prove of conspiracy, counsel submitted that the offence of conspiracy is sustained by leading evidence from which the Court can infer certain criminal act done by the accused in pursuance of an apparent common purpose between them. He referred to IKWUNNE V. STATE (2000) 5 NWLR (PT. 658) 550 AT 560-561, OSONDU V. FRN (2000) 12 NWLR (682) 483 AT 501-502, ONYEYE V. STATE (2012) ALL FWLR (PT.643) 1810 AT 1833. He submitted that the alleged reprisal attack and armed robbery in the premises of PW2 on 21/3/2017 after the scuffle with the appellant and his group on 20/3/2017 is an indication of an agreement between them to commit the crime, ostensibly to teach PW2 a lesson for daring to challenge them for their action on 20/3/2017. According to counsel, the prosecution led cogent and compelling evidence to show that the appellant acted in concert with other armed robbers to rob PW2 and inflict injury on PW6. On the ingredients of attempted murder, he referred to KING V. STATE (SUPRA), ESSIEN V. STATE (2016) LPELR-41179 (CA), DIBIA V. STATE (2017) 1

NWLR (PT.1579) 196 AT 218, GALADIMA V. STATE (2017) SCM 126 AT 128 (2). On the ingredients of armed robbery, counsel submitted that the evidence of PW2 and PW6 was rightly found to be cogent in establishing the ingredients of the offence of armed robbery. He referred to AGUGUA V. STATE (2017) 6 SCM 1 AT 3 (2).

In his reply, the appellant’s counsel submitted that the respondent failed woefully to lead evidence demonstrating the appellant’s intention (mens rea) to commit any of the alleged offences. He further submitted that there is no iota of evidence from which the trial Court could have inferred conspiracy. He referred to ALATISE V. STATE (2013) ALL FWLR (PT. 686) 552 AT 557 (D-E), OMOTOLA V. STATE (2009) 2-3 SC(PT.11) 196.

RESOLUTION
The law is trite that in our adversarial system of justice, an accused is presumed innocent until the contrary is proved. This principle is reinforced by Section 36(5) of the 1999 Constitution (as amended) which provides that:
“(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that nothing in this section shall

invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
In order to discharge the burden of proving, the guilt of an accused person, the prosecution must lead cogent, reliable and credible evidence to clearly establish the ingredients of the offence charged.

The offences of conspiracy to kill, attempt to kill, conspiracy to commit robbery and armed robbery emanated from one single incident. By a long line of cases, it is settled that the ingredients of armed robbery which must be proved beyond reasonable doubt are (1) That there was a robbery or series of robberies (2) That the robber or one of the robbers was armed with firearm or any offensive weapon (3) That the accused participated in the robbery. See STATE V. ORAY (2020) 7 NWLR (PT.1722) 130 AT 162 (F-H).

(3) By circumstantial evidence which unequivocally leads to an irresistible conclusion that the accused and no other person committed the offence. See DAWAI V. STATE (2017) LPELR-43896 (SC) AT 53-54 (B-A). In the instant case, the prosecution relied on the evidence of eye witnesses. PW2 and PW6 were the star witnesses whose testimonies were relied on by the prosecution to prove its case and relied on by the Court below to convict the appellant for conspiracy and armed robbery. On the first ingredient of armed robbery, the Court below considered the evidence led and made a finding at page 89 of the record as follows:
“As to the first ingredient, the evidence of the prosecution witnesses before the Court is that on the night of 21/3/2017, there was an attack on the people at the shop of PW2 (Mustapha Lawal). Apart from the evidence of PW2 who testified that he lost the sum of N1M in the robbery incident which fact is consistent with his earlier statement (Exhibit D1A) to the police, PW6 who testified of being a victim of the same robbery incident also gave evidence as to the fact that there was a robbery at the said location. PW5, (W/Sgt Mary Awodi) the

initial IPO at Ganmo Police Station did not witness the robbery operation but she told the Court that she received the initial complaint about the incident, visited the scene, took photographs and recovered exhibits 1-3. She also saw PW6 bleeding and advised him to go for treatment in the hospital. There is no conflicting evidence in this regard. Therefore, assembling all the above facts together, the Court is satisfied that there was a robbery incident on the day in issue.”

so as to ensure that justice is done. See SOGUNRO & ORS. V. YEKU & ORS (2017) LPELR-41905 (SC) AT 29-30 (D), ABDULMUMINI V. F.R.N (2018) ALL FWLR (PT. 969) 774 AT 779 (4), BELLO V. F.R.N (2018) LPELR-44465 (SC) AT 13-17 (A-E). In ALI V. STATE (2015) LPELR-24711 (SC) AT 21-22 (F-E), the Supreme Court Per OGUNBIYI, J.S.C. stated instances when an appellate Court will interfere with the evaluation of evidence of a trial Court as follows:
“As rightly submitted by the respondent’s counsel, re-evaluation of evidence by an appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the appellate Court can re-examine the whole facts and come to an independent decision from the Court of trial. See the case of Ebenehi v. State (supra). This Court has also held in the case of Anyegwu v. Onuche (supra) and said: “Appeal Court can exercise the power/jurisdiction to re-evaluate evidence. Appeal Court can do so where the trial Court fails, neglects or refuses to do so or does it in an improper way. The Appeal Court can conveniently embark on such re-evaluation where for instance: (a) The trial Court’s

evaluation of the evidence is clearly perverse; (b) The trial Court drew wrong inferences from the totality of the evidence; (c) The trial Court applied wrong principles of the law to accepted facts in the case.”
In JIBRIN V. F.R.N (2018) LPELR-43844 (SC) AT 13-14 (A-B), the Supreme Court Per AUGIE, J.S.C. held as follows:
“As I pointed out earlier, the issue in this Appeal boils down to whether the Court below should have re-evaluated evidence. The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – see Fatai V. State (2013) 10 NWLR (Pt.1361) 1 at 21 SC. So, when the question of evaluation of evidence involves credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is

in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – see Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905(SC). “Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – see Adelumola V. The State (1988) 1 NWLR (Pt.73) 683 SC.”

I find it necessary to state the evidence of PW2 on the alleged robbery incident as recorded on pages 35-36 of the record:
“On 20/3/2017, somebody came to my shop and met my boy and bought some items-indomie and egg and after eating, he alleged that he has paid which was not so. Argument ensured, thereafter, my boy collected/seized the properties of the person and kept them inside the shop. Thereafter, the 2nd accused entered the shop and took egg and indomie

and gave them to the person who ate indomie and egg and did not pay. I later arrived and seized the handset of the person who ate and did not pay. It was until he paid before I released the phone to the person. When the 2nd accused came to me attempting to collect the phone, we started fighting and people intervened. After people begged me, I released the phone. The 1st, 2nd accused and the person who brought indomie then scattered my shop. The following day, on 21/3/2017 at around 11pm, the accused person came back. We had the generator on because there was no light. The two accused went to put off the generator. They were holding cutlass and stick and started beating people around and cut one of my customer who was eating indomie. Also, my boy selling tea was attacked. They (the accused) then ran away.
I am the chairman of the Hausa community in Amoyo, I used to collect contribution daily from Hausa labourers in Amoyo. When I went into my shop after the attack, I found that over N1 Million kept with me had been taken away.
I then went to lodge a report at the police station and went back to my house and so did the other people who were attacked.

The police started patrol in the night and were able to arrest the two accused. We were called on phone to identify the attackers which we did. That is all.
I do not know the actual date that the accused persons were later arrested by the police at A Division where the case was later transferred to.”
Under cross-examination, PW2 said:
“Yes, on 21/3/17, I suddenly realised that the generator was put off. It was the 1st accused that was first arrested and I was called to come and identify him. Later, when the 2nd accused was arrested, I was equally called to come and identify him.
The two accused did not deny the allegation in my presence. The two accused did not deny in my presence seeing money in my shop neither did they say they came to intervene in any fight. I have a register to show that I was collecting money but some of them, I just note in my mind. The records were all taken away that night. I did not know that I had lost those documents so I did not inform the police.
My statement was taken at A Division of the police. On the night in issue, we went to Ganmo police station to lodge the complain, they did not follow

us to the scene of the crime immediately because they requested for money which I did not have but it was later that they called us.
On that night, I called a friend who called the police at Ganmo. I also went to Ganmo police station but my statement was not taken there.
I cannot remember whether my statement was made before or after the arrest of the accused persons.
I can remember that the incident was on 20/3/18. No money was taken from my body because I did not keep money on me.”

PW3, a Police Sergeant said the case was transferred from Ganmo Police Station to FSARS on 20/3/2017. PW4, also a Police officer said the case was transferred from Ganmo police station to SARS Unit on 21/3/2017. He said the 1st accused was arrested early in the morning of 21/3/2017, the incident occurred between 20th–21st March, 2017. Under cross-examination, he said after going through the case file, he did not believe everything in the statement of the complainant. PW5, a woman sergeant testified that Maishai (PW2) came to the station at Ganmo to lay a complaint but the police at the counter were busy and he left in annoyance. Later on at

9:45am, a tanker driver by name Jamiu Muyideen laid a complaint at the counter and she was detailed to investigate the case. She visited the scene of the crime and recovered a locally made pistol and one live cartridge. According to her the complaint was conspiracy, armed robbery, mischief and inciting disturbance against “Eso”, Akube and others. Under cross-examination, she said she visited the scene of the crime on 21/3/2017 and that was the day the alleged incident occurred. She further testified that it was around 6:30am and they got there around 1:50am.

I have read the entire evidence of PW2, PW3, PW4 and PW5 together. The combined testimonies of PW2, PW3, PW4 and PW5 raise a serious doubt as to whether the appellant and any other person went back to PW2’s shop on 21/3/2017. PW4’s evidence was that the appellant slept in his house but was arrested early in the morning of 21/3/2017. The evidence of PW5 was that one Mashai went to the police station at about 9:00am on 21/3/2017. PW6 went there at about 9:45am. Under cross-examination, she said she visited the scene of the crime on 21/3/2017. These pieces of evidence clearly

negated, rendered incredible and unbelievable PW2’s evidence that the accused persons went back to his shop at 11pm on 21/3/2017. It is practically impossible for a person arrested early in the morning of 21/3/2017 to go back to PW2’s shop at 11 Pm the same day. PW5’S evidence that she visited the scene of the crime in the morning of 21/3/2017 confirmed the falsity of PW2’s evidence that the appellant and others went back to his shop at 11pm on 21/3/2017. PW5 could not have visited the scene of the crime before the alleged crime was committed. It is obvious from the evidence of PW5 who was the first police officer that investigated the case that the only incident which occurred was the fight between the appellant, PW2 and other persons. No other incident occurred on 21/3/2017. The evidence of PW3, PW4 and PW5 violently contradicted the evidence of PW2 on the alleged armed robbery of 21/3/2017. The law is settled that when there are substantial contradictions in the evidence of the prosecution on a material point relating to the charge, a doubt is created and the benefit of the doubt must be given to the accused.

See IKEMSON & ORS. V. STATE (1989) LPELR-1473 (SC) AT 15 (A), UCHE V. STATE (2015) LPELR-24693 (SC) AT B23 (B-D), OGOALA V. STATE (1991) LPELR-2307 (SC) AT 22 (C-E). I am aware that when the phrase “on or about” is used in a charge, it is not necessary to proof the precise date the alleged offence was committed. See ANKPEGHER V. STATE (2018) LPELR-43906 (SC) AT 14-18 (A-E), AWOPEJO V. THE STATE (2015) CA AT 42-43 (D-C). However taking into consideration the entire facts and circumstances of this case, the date of commission of the alleged offence is a material fact which goes to the root of the offence allegedly committed by the appellant. The discrepancies in the evidence of the prosecution’s case raised a serious doubt about the guilt of the appellant. The only inference that can be drawn is that it is the fight of 20/3/2017 that PW2 and PW6 reported to the police in the morning of 21/3/2017 as armed robbery. If the Court had properly evaluated the evidence of PW5, he would have come to the conclusion that there was no robbery incident in the evening of 21/3/2017.

On the second ingredient of robbery, the Court below at pages 89-90 of the record held that:

“The Court has before it Exhibits 1 and 2 which were said to have being recovered at the scene of the incident. PW1 (exhibit keeper) received the items inclusive of Exhibit 3 from PW4 (Inspector Salami Matthew) who informed him that the items were recovered from the defendants. It however eventually became clear from the evidence of PW2, PW4 and PW5 that the items were allegedly recovered at the scene of crime. It came out clearly that PW2 was not the one who recovered those exhibits neither is he the one who handed them over to the police. He conceded under cross-examination that it was his brother named Tijani. Tijani did not come before this Court to verify the origin of the items. It is not in evidence before this Court that any of the victims was threatened with a gun in the cause of robbing them neither is there any evidence relating to gunshots. PW2 and PW6 in particular were eye witnesses who both gave no evidence about the use of gun. None of the prosecution witness testified about the cloth worn by any of the defendants that is consistent with Exhibit 3 from which the Court may draw the inference that Exhibits 1 & 2 are

connected with the wearer or owner of Exhibit 3. Consequently, this Court finds doubtful the connection of the items with the robbery incident. There being no linkage by cogent evidence of Exhibits 1 and 2 in particular with the robbery incident of 21/3/2017, the Court is not persuaded that the items were used during the robbery incident.”

The finding of the Court below has not been challenged. No explanation as to how the items said to have been recovered from the scene got there. If the weapons recovered from the scene were not linked or connected to the alleged attackers, how did it get there? That mystery was never explained by the prosecution. It is not the case of the prosecution that the appellant and the other accused were armed with any dangerous weapon on 20/3/2017 when the fighting took place. The only inference that can be drawn from the alleged recovery of those exhibits is that it is a mischief concocted with the aimed of roping the appellant into the allegation of armed robbery. The evidence of PW2 is not that the appellant and the other accused had cutlass or machete when they fought him. He never said that he saw them or any other

person holding a gun.

On the 3rd ingredient of armed robbery, the Court below at pages 90-91 of the record held as follows:
“The last ingredient to be proved is that the defendants participated in the robbery. PW2, an eye witness of the incident testified on the fact of seeing both the 1st and 2nd defendants on the day in issue. It is in evidence that events leading to the attack at PW2’s shop on the people there commenced a day before with the active participation of both defendants, PW2 told the Court that he saw both accused and others come back the following day. The 1st and 2nd defendants went to put off the generator that was on, they were holding cutlass and sticks with which they attacked people. The defendants ran away after the operation but he later confirmed their identity after their arrest, being people that were well known to him. He told the Court under cross-examination that both defendants did not deny in his presence at the police station the allegation against them and in particular, the fact that they saw money in his shop. He also maintained that his complaint to the police was that the defendants attacked them and

stole their money.
PW6 told the Court that though it was dark, he was able to see the faces of the people who attacked him and collected his belonging. He had not known them before but, it was after they left that he was informed by a disabled man in the vicinity that it was “Sere” and “Eso” who just operated and that is how he got the nicknames of the two defendants which led to their going to lodge a complaint immediately to the police.
None of the two defendants were arrested at the scene of the crime. However, it was well settled and admitted by the defendants themselves that they are well known in that environment. They even have nicknames by which they were called. Therefore, the Court believes that the prompt naming of the defendants supports the fact that they were recognised and this simplified the search for them and their eventual arrest. Recognition presupposes prior knowledge which requires the mention of the known accused timorously. See MARTIN EGBUFOR V THE STATE LER (2018) SC 217/2013; NDIDI V. STATE (2007) 13 NWLR (PT. 1052) 633 AT 653. This was the position in this case.”

First, the evidence of PW2 that he saw the appellant and the other accused when they went back on 21/3/2017 has been shown to be false. In his evidence in chief, one gets the impression that PW2 saw the appellant and the alleged attackers as they were arriving at the scene of the alleged crime and watched them as they put off the generator. However, under cross-examination, he said he suddenly realised that the generator was put off- which means he did not see the attackers before the generator was put off. He said his shops are a container and another made of plank and iron sheets. PW5 said he saw an open shed made of wood and zinc. PW6 said the tea shop is made of wood and covered with iron sheets. The place where people are served was not covered. Neither PW5 nor PW6 said he saw any container shop. PW4 said he did not believe everything in the statement of the complainant (PW2). A proper analysis and evaluation would have revealed that the story that the appellant went back on 21/3/2017 to attack and stole PW2’s money is nothing but a fabrication. None of those who kept money with him was called. He said he had a register to show that he was collecting money but they were

taken away that night, yet he said he could not read or write. From the entire evidence on record and a proper evaluation of same, the finding of the Court below that there was a robbery and it was an armed robbery is perverse. What happened on 20/3/2017 was a fight. The story of armed robbery in the evening of 21/3/2017 is a fabricated one aimed at getting back to the accused persons. The evidence of PW4 that the case was transferred from Ganmo police station on 21/3/2017 to SARS UNIT confirmed the fact that there was no robbery in the evening of 21/3/2017. There could not have been a transfer of the case from one station to another before the alleged crime was even committed. The Court either failed to see or ignored this important fact. The story of the prosecution and the time lines just did not add up. The situation as regards the dates in the instant case is not one that can be explained or excused under the principle that the prosecution need not prove the exact date the crime was committed. PW2 was emphatic that the fight happened on 20/1/2017. The appellant and other persons allegedly went back at 11pm the next day, 21/3/2017 to attack and commit the

alleged crimes. Yet the police had already recovered the weapons allegedly used to commit the crime and arrested the appellant for the crime in the morning of 21/3/2017 and transferred him from Ganmo police station to FSARS along with a locally made pistol, cartridge and a blue T shirt. PW4 insisted that the appellant was arrested and transferred to SARS on 21/3/2017. According to PW4, the investigating police officer at FSARS, it was alleged that the 2nd accused dropped the pistol while he was being chased by the Ganmo police and the police at Ganmo confirmed that the T shirt belonged to the 3rd accused. From the evidence of PW4 under cross-examination, the 3rd accused was arrested and charged along with the 2nd accused merely because he was with the 2nd accused when the accused was arrested at Idofian months after the alleged incident. However, PW5 who was the 1st police officer that visited the scene of the alleged crimes never said the police chased the accused persons or anybody at the scene. She was the one that recovered those items at the scene and she never said any of the items belonged to any of the accused persons. PW2 and PW6 who were the victims

of the alleged crime never said the police met any of the accused persons at the scene of the crime. In any case, the crime allegedly happened around 11pm on 21/3/2017 and it was not reported until the next morning. It is therefore impossible for the police to encounter the alleged attackers or any of the accused persons at the scene talk less of chasing him. Someone was hell bent on securing a conviction at all cost.

Still on the 3rd ingredient of armed robbery, the Court below at pages 92-93 held as follows:
“The Court therefore finds the evidence of PW2 in particular cogent, credible and reliable as to the fact that the defendants were participants at the robbery incident of 21st March, 2017. Evidence of sole prosecution witness if believed is sufficient to establish the guilt of an accused. In this case, the evidence of PW6 corroborates that of PW2. PW6 initially got the identity of his assailants by hearsay; he later had the privilege to validate same when he saw the defendants after they were arrested. Hearsay evidence can be used to inform the Court about what a witness heard another say but not establish the truth of an event.

See OKOLO V. FRN (2018) LPELR-45431 CA. As to the truth of the event of robbery, PW2 & PW6 witnessed it. Their evidence therefore establishes the truth of that event. It is not the correct state of affairs that PW2 and PW6 did not state that they were robbed personally as submitted by learned counsel to the defendants. Where the prosecution leads credible, compelling and unequivocal evidence fixing the accused at the scene of crime as a participant, it would have discharged the onus of proving guilt beyond reasonable doubt. See; ANEKWE V. THE STATE (2014) 10 NWLR (PT. 1415) 353. On this premise, the Court is satisfied that the prosecution has proved beyond reasonable doubt that both defendants participated in the robbery of 21st March, 2017 where both PW2 & PW6 suffered the loss of money and valuables. the Court finds counts two and three proved against the two defendants.”

The above finding is not in any way supported by the evidence on record. From the entire evidence on record, it was alleged that many people apart from the accused persons went there. I have earlier referred to the evidence of PW2 that the generator suddenly went off which means he

did not see the appellant or any of the accused persons put off the generator. PW6 said the place was a bit dark. The fact that a person knew an alleged attacker well before the day of the crime does not mean that he would automatically recognise the attacker in the dark. From all what I have said earlier, the Court below should have exercised caution in believing the evidence of PW2 hook line and sinker. In my view, PW2 is a tainted witness who has his own purpose to serve. See PIUS V. STATE (2015) LPELR-24446 AT 19-20 (A-B), where the Supreme Court Per NWEZE, J.S.C. stated who is a tainted witness and how should the Court treat the evidence of a tainted witness as follows:
“The trial, from which this appeal arose, was conducted under the repealed Evidence Act. That Act did not define the expression “a tainted witness.” However, Case law offered what was endorsed as its acceptable definition, Olalekan v. The State (2001) LPELR – 2561 (SC) 29, B-C. What emerges from the conspectus of the authorities on this point is that a tainted witness is a witness who may not, in the strict sense, be an accomplice but who, in giving his evidence, is established to have

some purpose of his own to serve and in respect of whom it is desirable that warning, as to the corroboration of his evidence, may appropriately be given. See Idahosa v. The State (1978) 2 LRN 111; (1965) NMLR 85; Ishola v. The State [1978] 9 – 10 SC 81; Mailayi & Anor. v. The State (1968) 1 All NLR (Pt.1) 116, 123; Ifejirika v. The State [1999] 3 NWLR (Pt.593) 59; Ogunlana v. The State [1995] 5 NWLR (Pt.395) 266. This must be so for, as a result of such interest, he may harbor the tendency to cover up the true facts of the case. See Ogunye v. The State [1995] 8 NWLR (Pt.413) 333; Oguonzee v. The State (1998) LPELR – 2357 (SC) 4; Effiong v. The State (1998) LPELR – 1028 (SC) 8, C-D; Akalonu v. The State (2002) LPELR -314 (SC) 7, C-D. However, the fact that such a witness has other personal interest of his own to serve is, by itself, not sufficient to reject his evidence. All said, the effect of such interest is to place the trial Court on its guard to warn itself as to the veracity of the evidence. See Oteki v. The State [1986] 2 NWLR (Pt.24) 648; Mbenu v. The State [1988] 7 SC (Pt.111) 71, 87; [1938] 3 NWLR (Pt.84) 615; [1988] 7 SCNJ (Pt.11) 211 – 219 – 220 ;

Mailaiyi and Anor v. The State (supra); Ogunlana and Ors v. The State (supra) ; Onuoha v. The State (1987) 4 NWLR (Pt.65) 331, 346 ; Olalekan v. The State (supra).”
See also OCHANI V. STATE (2017) LPELR-42352 (SC) AT 27-29 (D-C) and ANYASODOR V. STATE (2018) LPELR-43720 (SC) AT 18 (B-D).

The identity of the armed robber is very fundamental for securing a conviction in cases of armed robbery. See OGU V. C.O.P (2017) LPELR-43832 (SC) A 40-41 (A-B). I have stated earlier, that PW2 could not have identified the appellant in the dark. Contrary to the summation of the evidence of PW6 by the Court that he said he was able to see the faces of the persons who attacked him and collected his belongings, the evidence of PW6 at page 51 of the record is that as they were waiting the generator went off. They thought the generator ran out of fuel but later discovered that it was put off by criminals. He was backing a kiosk where the generator was. He was struck with a cutlass and he shouted. Other people ran away. He said he was about to see the faces of attackers although the place was a bit dark. After the robbers had left, a disabled person in that area told him it was

“Sere” and “Eso” who just operated. Under cross-examination, he said he never set his eyes on the accused persons before the day of the incident. He never said he saw the faces of his attackers or recognised the accused persons at the police station. He said the accused persons were shown to him at the police station. The finding of the Court below that PW6 initially got the identity of his assailants by hearsay is correct but the finding that he validated same when he saw the accused persons after they were arrested is wrong. The practice of the police showing an arrested person to a victim of a crime as the person who committed the crime is not only dangerous, it is unlawful. It is not the legal and correct process of identifying an accused. In the instant case, PW6 neither identified nor recognised the accused persons. PW2’s alleged recognition of the appellant at the scene of the fabricated robbery is not true. It is not a credible piece of evidence upon which a man should be sent to the gallows.

The conclusion of the Court below that “the prosecution has proved beyond reasonable doubt that the appellant

participated in the robbery of 21/3/2017 where both PW2 and PW6 suffered the loss of money and valuables cannot be allowed to stand. The conviction of the appellant for conspiracy and armed robbery, counts 1, 2 and 3 of the charge is hereby quashed.
Counts 5 and 6 are conspiracy to kill and attempt to kill PW6.

The burden was on the prosecution to prove beyond reasonable doubt that the appellant was one of the attackers of PW6. The identity of the attackers is the key to the success of the prosecution securing a conviction on counts 5 and 6. The prosecution failed woefully to discharge that burden. PW6 never identified those who attacked and inflicted machete wounds on him. The information giving to PW6 is hearsay and it is inadmissible to prove the allegation that the appellant was one of the attackers of PW6. Hearsay evidence cannot be relied on to convict an accused person. See ADEOLA V. STATE (2017) LPELR-42327 (CA) AT 11-12 (D-A), IDI V. STATE (2013) LPELR-22623 (CA) AT 30 (D-F). In SIMEON V. STATE (2018) LPELR-44388 (SC) AT 25-26 (B-D), the Supreme Court Per KEKERE-EKUN, J.S.C. held as follows:
“Hearsay evidence is defined in

Section 37 of the Evidence Act, 2011 as follows: “37. Hearsay means a statement – (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.” Section 38 provides: “38. Hearsay evidence is not admissible except as provided in this part or by or under any other provision of this or any other Act.” In Utteh vs The State (1992) LPELR-6239 (SC) @ 21 A – B; (1992) 2 NWLR (Pt.223) 257 @ 273 F, it was held that: “A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognised exceptions.” See also: Arogundade Vs The State (2009) LPELR-559 (SC) @ 23 B – D; Kasa Vs The State (1994) 5 NWLR (Pt.344) 269. The hearsay rule is to protect an accused

person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction See:ljioffor Vs The State (2001) LPELR-1465(SC) @ 19 B-F.”

The law is settled that the burden is on the appellant who assert that the prosecution has failed to prove his guilt beyond reasonable doubt to establish his assertion and it is the duty of the Court to examine the assertion against the entire evidence led and the whole back ground of the case. See UDOSEN V. STATE (2007) LPELR-3311 (SC) AT 26-27 (E-A). I have in compliance with the law painstakingly examined the evidence led by the prosecution. My firm view is that the prosecution failed to prove the charge against the appellant beyond reasonable doubt. From the entire evidence, there is a serious doubt that apart from the fight which happened on 20/3/2017, any other incident occurred on 21/3/2017. The law is settled that where on the totality of the evidence led, a reasonable doubt is created, the doubt

should be resolved in favour of the accused because an accused is presumed innocent until the contrary is proved. Secondly, where a reasonable doubt is created, the prosecution has failed to discharge the burden of proof placed on it by law and the accused is entitled to be discharge and acquitted. See AFOLALU V. STATE (2010) LPELR-197 (SC) AT 14 (C-E). ENUKORA V. FRN (2018) LPELR- 43822 (SC) AT 15 (B-D). In GALADIMA V. STATE (2017) LPELR-41909 (SC) AT 15 (D-E), FRN V. ABUBAKAR (2019) LPELR-46533 (SC) AT 22 (C-D).

For the above reasons, the 2 issues formulated for determination are resolved in favour of the appellant and against the respondent. The appeal is hereby allowed. The judgment of the High Court of Kwara State delivered on 23/1/2020 in charge no. KWS/12C/2018 is hereby set aside. The convictions and sentences passed on the appellant are hereby quashed. The appellant is hereby discharged and acquitted in respect of all the counts in the charge.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA.

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The burden of proof in a criminal case is on the Prosecution. The Prosecution has to prove the case beyond reasonable doubt. See SHEHU VS. THE STATE (2010) LPELR 3041.
In DONGTOE VS. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) LPELR 959, Karibi-Whyte JSC held inter alia:
“Our Law has prescribed the requirement of burden of proof in criminal trials. It is well settled that where there is an accusation of the commission of criminal offences, the burden of proof to be established by the Accuser before a Criminal Tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt.” YONGO VS. C. O. P. (1992) LPELR 3528 where Kutigi JSC held:
“that in criminal proceedings, the onus is always on the Prosecution to establish the guilt of the Accused Person beyond reasonable doubt. The Prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See also THE STATE VS. SUNDAY (2019) LPELR 46943.”
The Prosecution in this case was not able to prove the guilt of the Appellant

beyond reasonable doubt to merit the conviction of the Appellant. The evidence proffered by the Prosecution left a lot of doubt that it would be unconscionable to convict the Appellant on these facts. See NWATURUOCHA VS. THE STATE (2011) LPLER 8119; AKINDIPE VS. THE STATE (2012) LPELR 9345; THE STATE VS. ONYEUKWU (2004) LPELR 3116.

For this and the more robust reasoning in the lead judgment, I also allow this Appeal and set aside the judgment of the lower Court.

I abide by all other orders in the lead judgment and adopt them as mine.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree this appeal is meritorious. My learned brother has considered and resolved all the 3 issues for determination in this appeal leaving no space for any further illucidation. I too hereby allow the appeal, set aside the judgment of the lower Court and consequently, discharge and acquit the Appellant.

Appearances:

Abiodun Dada with him, Oluwaseun Ajiboye For Appellant(s)

O. Yusuf (CSC), with him S.O Dada (CSC), O.O. David (Assistant C.S.) and A.O Ahmed (SSC) For Respondent(s)