JOSHUA v. STATE (2021)

JOSHUA v. STATE

(2021)LCN/15125(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, May 26, 2021

CA/IB/152C/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

EJIOFOR JOSHUA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF REQUIRED IN CRIMINAL PROSECUTION

In criminal Prosecution, it is trite that the required standard is that of proof beyond reasonable doubt under Section 135 (1) of the Evidence Act 2011. If the commission of a crime by a party to any proceedings is directly in issue either, civil or criminal, it must be proved beyond reasonable doubt. See the of case:- ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238. However, proof beyond reasonable doubt does not mean that the Prosecution must prove its case beyond any shadow of doubt. When the ingredients of any offence the accused is charged which has been proved, then the Prosecution is said to have proved its case beyond reasonable doubt. See the following cases:- AJAYI VS THE STATE (2013) 9 NWLR PART 1360 PAGE 589. – HASSAN VS STATE (2017) 5 NWLR PART 1557 PAGE 1. – AYINDE VS THE STATE (2019) LPELR – 47835 (SC). – ABIRIFON VS STATE (2013) 13 NWLR PART 1372 PAGE 619. – SMART VS STATE (2016) 9 NWLR PART 1517 PAGE 447 See the following cases:- – EMEKA VS. STATE (2001) 6 SCNJ PAGE 259. – ADELAJA VS. THE STATE (2020) LPELR 50275 (CA). – OGIDI VS. STATE (2003) 9 NWLR PART 834 PAGE 1. PER JIMI OLUKAYODE BADA, J.C.A.

INGREDIENTS THAT MUST BE PROVED BY THE PROSECTION IN ESTABLISHING THE OFFENCE OF ARMED ROBBERY AGAINST AN ACCUSED PERSON

It is trite law that, wherever an accused person is charged with the offence of Armed Robbery the Prosecution must prove the following ingredients of the offence of Armed Robbery beyond reasonable doubt. (a) That there was a robbery or series of robberies. (b) That the said Robbery was an Armed Robbery (c) That the Appellant was one of those who took part in the Armed Robbery. PER JIMI OLUKAYODE BADA, J.C.A.

WAYS BY WHICH THE PROSECUTION CAN PROVE THE COMMISSION OF A CRIME BY AN ACCUSED

In the discharge of the onus of proof, there are three ways by which the Prosecution can prove the commission of a crime. They are as follows:- (i) By Confessional Statement. (ii) By evidence of eye witness/witnesses. (iii) By circumstantial evidence. In this case, the Appellant was charged and convicted for the offence of Armed Robbery and sentenced to death. See the following cases:- – AFOLABI VS. STATE (2010) 16 NWLR PART 1220 PAGE 584. – EMEKA VS. THE STATE (2014) 13 NWLR PART 1425 PAGE 614. – OSUAGWU VS. STATE (2013) 5 NWLR PART 1347 PAGE 360. PER JIMI OLUKAYODE BADA, J.C.A.

WHAT IS A CONFESSIONAL STATEMENT

A confessional statement is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the offence. See – Section 28 of the Evidence Act 2011. PER JIMI OLUKAYODE BADA, J.C.A.

WHETHER A CONFESSIONAL STATEMENT ALONE IS SUFFICIENT TO GROUND A CONVICTION

In the case of – NWEZE VS. STATE (SUPRA) PAGE 197. It was held among others that “… A confessional statement alone is sufficient to ground a conviction … for a confession to secure a conviction, it must have been made direct and positive in relation to the offence for which the Appellant is charged. It must lead to an unequivocal admission of guilt. See – DANIELS VS. STATE (1991) 8 NWLR PART 212 PAGE 715. – R VS. SYKES (1913) 18 CR APP R. PAGE 23.” See also the case of – AKPA VS. STATE (2008) 14 NWLR PART 1106 PAGE 72. PER JIMI OLUKAYODE BADA, J.C.A.

WHETHER A COURT CAN RELY UPON A CONFESSIONAL STATEMENT NOT TENDERED IN EVIDENCE IN CONVICTING AN ACCUSED

In the case of ESANGBEDO VS. STATE (1989) 4 NWLR PART 113 PAGE 57 AT 66 PARAGRAPH E. It was held among others as follows:- “We cannot look at the extra judicial statements of PW1, PW2, PW4 and PW9 which were not tendered as Exhibits during trial because, those statements cannot be legal Evidence. An Appellate Court is bound to base its consideration of every Appeal before it upon legal evidence upon which the Court below acted. Even in the Court of Trial, the only proper use that could have been made of those extra- judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony.” As indicated earlier in this judgment, the Learned Trial Judge relied on a Confessional Statement which was not tendered in Evidence to convict the Appellant. This is wrong because, a Judge is not entitled to convict an accused person on a Confessional Statement not proved before him to have been made by the accused person voluntarily. See the case of PEOPLE OF LAGOS STATE VS. MOHAMMED UMARU (2014) 7 NWLR PART 1407 PAGE 584. PER JIMI OLUKAYODE BADA, J.C.A.

EFFECT OF THE FAILURE OF THE PROSECUTION TO CALL A VITAL WITNESS

… it is not necessary for the Prosecution in order to discharge the onus of proof imposed on it to call a host of witnesses, however, it is necessary to call a vital witness whose evidence is very important in view of the fact that the testimony will decide the case one way or the other and if the Prosecution fails to call such a witness, its case may crumble. See – HASSAN VS. STATE (SUPRA). – OGEDENGBE VS. STATE (2014) 12 NWLR PART 1421 PAGE 338. PER JIMI OLUKAYODE BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Ogun State High Court, Ijebu-Ode Judicial Division in Charge NO. HCJ/2C/2014: THE STATE VS (1) EJIOFOR JOSHUA (2) CHIKWADO MICHAEL delivered on 7/4/2017 wherein the Appellant was found guilty of the offence of Armed Robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004 and sentenced to death by hanging.

Briefly, the facts of the case according to the Prosecution was that, on 22/11/2012, at about 7.30pm one Ariyo Alade Ibinu (PW1) was on his way from Warri, Delta State to Ibadan, Oyo State. He stopped at the Ijebu-Ode toll gate to eat and rest a little bit. On his return to the vehicle, he was accosted by armed robbers among whom was the Appellant. He was attacked at gun point, and his mobile phone, valued N10,500 was collected. The Appellant and the others were later arrested, handed over to Police and charged to Court.

At the conclusion of hearing, the learned trial Judge found the Appellant and one other guilty of the offence of Armed Robbery and sentenced them to

death.

The Appellant who is dissatisfied with the judgment of the trial Court appealed to this Court.

The Learned Counsel for the Appellant formulated three issues for the determination of the appeal. The said issues are set out as follows:-
(1) Whether the trial Judge was right to have relied on Confessional Statement not tendered in evidence (Distilled from ground 5 of the Notice of Appeal).
(2) Whether the trial Judge was right to have relied on the evidence of PW1 to convict the Appellant (Distilled from grounds 3, 4 and 7 of the Notice of Appeal).
(3) Whether the trial Court was not in breach of the principle of fair hearing when it discountenanced the evidence of the Appellant (Distilled from ground 2 of the Notice of Appeal).

On the other hand, the Learned Counsel for the Respondent formulated a sole issue for the determination of the appeal.
The said issue is set out as follows:-
“Whether the Prosecution proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.”

At the hearing of this appeal on 15/3/2021 the learned Counsel for

the Appellant stated that the appeal is against the judgment of Ogun State High Court delivered on 7/4/2017. Two Notices of Appeal were filed on 7/4/2017 and 7/6/2017 respectively. The Learned Counsel for the Appellant relied on the Notice of Appeal filed on 7/6/2017. The Notice of Appeal filed on 7/4/2017 is therefore struck out.

The Record of Appeal was transmitted on 17/4/2019 and deemed as properly transmitted on 29/4/2020.

The Appellant’s brief was filed on 7/7/2020 and deemed as properly filed on 15/3/2021. The Learned Counsel for the Appellant adopted and relied on the said Appellant’s brief of argument as his argument in urging that this appeal be allowed.

The Learned Counsel for the Respondent in her own case referred to the Respondent’s Brief of Argument filed on 15/3/2021 and deemed as properly filed and served on the same day i.e. 15/3/2021.

The Learned Counsel for the Respondent adopted and relied on the said Respondent’s brief as her argument in urging that the appeal be dismissed.

I have perused the issues formulated for the determination of this appeal by Counsel for both parties and I am of the

view that the issues formulated for the determination of the appeal on behalf of the Appellant is apt in determining this appeal. I will therefore rely on the issues formulated for the determination of the appeal on behalf of the Appellant.

“ISSUE NUMBERS 1, 2 AND 3 (taken together)
(1) Whether the trial Judge was right to have relied on Confessional Statement not tendered in evidence (Distilled from ground 5 of the Notice of Appeal).
(2) Whether the trial Judge was right to have relied on the evidence of PW1 to convict the Appellant (Distilled from grounds 3, 4 and 7 of the Notice of Appeal).
(3) Whether the trial Court was not in breach of the principle of fair hearing when it discountenanced the evidence of the Appellant (Distilled from ground 2 of the Notice of Appeal).”

It was submitted by the Learned Counsel for the Appellant that an accused person is presumed innocent until proved guilty by credible evidence. It was also contended that the Prosecution has a duty to prove beyond reasonable doubt, the guilt of the accused person. He referred to the following cases:-
– FRN VS ABUBAKAR (2019) 7 NWLR PART 1670 PAGE

113 AT 130 PARAGRAPHS D-E.
– IDEH VS STATE (2019) 6 NWLR PART 609 PAGE 479 AT 505 PARAGRAPHS A-C

The Learned Counsel for the Appellant stated that the Prosecution called only one witness i.e PW1 who was the victim of the alleged robbery. PW1 testified that on the day of the incident there was no light because it happened at night.

The learned trial Judge relied on the Confessional Statement of the Appellant to support the evidence of PW1 and subsequently convicted the Appellant.

It was submitted on behalf of the appellant that a Confessional Statement is sufficient to convict an accused person, where the said Confessional Statement is direct, cogent and compelling. The case of NWEZE VS STATE (2018) 6 NWLR PART 1615 PAGE 197 AT 210 PARAGRAPHS E-F, was relied upon.

The Learned Counsel for the Appellant contended that the Confessional Statement relied upon by the trial Judge was not tendered in evidence during trial. And since it was not tendered in evidence, the Court cannot rely on it for any purpose. He relied on the case of THE PEOPLE OF LAGOS STATE VS UMARU (2014) 7 NWLR PART 1407 PAGE 584 AT 611-613.

He referred

to the evidence of PW1 and stated that the evidence showed that it was not the PW1 that recognized the armed robbers. None of the persons that recognized the armed robbers was called in evidence to identify the robbers. Even the vigilante group that arrested the robbers was not called in evidence.

He submitted that the evidence of PW1 is not sufficient to convict the Appellant at the trial Court. He went further that the Confessional Statement not being an evidence before the trial Court cannot corroborate the evidence of PW1.

It was also submitted on behalf of the appellant that the Prosecution is under obligation to call key witnesses to prove its case. He relied on the case of OKOROJI VS STATE (2005) 1 NCC PAGE 279 R 294 – 295.

The Learned Counsel for the Appellant also submitted that evidence that requires further corroboration cannot corroborate another evidence. He relied on the case of YAHAYA VS STATE (2005) 1 NCC PAGE 120 AT 134. He submitted that the evidence of PW1 lacks any evidential value and it cannot be relied upon to convict the Appellant.
It was submitted further on behalf of the Appellant that the trial

Court evaluated only the evidence of the Respondent and discountenanced that of the Appellant, as a result, the trial Court failed to observe the principles of fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended). He relied on the following cases:-
– IGWE VS STATE (2019) 3 NWLR PART 1660 PAGE 417 AT 427.
– UWAZURIKE VS A. G. FEDERATION (2008) 10 NWLR PART 1096 PAGE 444 AT 463 PARAGRAPHS G-B
– MUHAMMED VS A. B. U. ZARIA (2014) NWLR PART 1407 PAGE 500 AT 538 PARAGRAPHS D-F.

It was also contended on behalf of the Appellant that he promptly raised and gave particulars of alibi in his testimonies before the trial Court which was uncontroverted and uncontradicted. It was submitted that the trial Court ought to rely and give weight to the alibi raised by the Appellant. Learned Counsel relied on the following cases:-
– BOZIN VS STATE (1985) 2 NWLR PART 8 PAGE 465.
– ADERONPE VS ELERAN (2019) 4 NWLR PART 1661 PAGE 141 AT 170 PARAGRAPHS D-F.
– STATE VS ODOMO (2019) 4 NWLR PART 1662 PAGE 191 AT 210 PARAGRAPHS C-F.

It was finally submitted that, the Appellant ought to have been

acquitted by the trial Court.

The Learned Counsel for the respondent in her response to the submission of Counsel for the Appellant submitted that in criminal trials, the burden is on the Prosecution to prove its case beyond reasonable doubt. She relied on the following cases:-
– ABIRIFON VS THE STATE (2013) 9 SCM PAGE 1 AT 5.
– OSETOLA VS THE STATE (2012) 12 SCM PART 2 PAGE 347 AT 365-366.

She stated that the ingredients of the offence of Armed Robbery are:-
(a) That there was a Robbery
(b) That the Accused/Appellant was armed
(c) That the Accused/Appellant while armed, participated in the Robbery.

She relied on the following cases:-
– OSUAGWU VS THE STATE (2013) LPELR – 19823 (SC)
– BELLO VS STATE (2007) 10 NWLR PART 1043 PAGE 564 AT 588-589 PARAGRAPHS A-G.

On the first ingredient of Armed Robbery, she submitted that there is no doubt that there was a robbery on 22/11/2012. She referred the testimony of PW1 that he was robbed on 22/11/2012. On the second ingredient, Learned Counsel also referred to the evidence of PW1 the he was robbed at gun point. It was stated that those who rescued the

Appellant recognized one of the robbers.

It was submitted on behalf of the Respondent that the identity of the Appellant was not in dispute as PW1 specifically stated that the vigilante members and himself were the ones who took the accused person to the Police Station on the day of the incident after he was arrested by the vigilante members. She went further in her submission that identification parade is not a sine qua non where there is good and cogent evidence linking the accused i.e Appellant to the crime on the day of the incident. She relied on the case of ADEBAYO VS THE STATE (2014) 8 SCM PAGE 255.

It was also submitted on behalf of the Respondent that, a Confessional Statement is the best evidence in criminal proceedings and that once same is admitted in evidence, it becomes part of the Prosecution’s case which the trial Judge is bound to consider. She relied on the case of NWACHUKWU VS STATE (2007) 12 SCM PAGE 447 AT 455.

On Conspiracy, learned Counsel stated that the offence of Conspiracy is complete when two or more persons agree to do an unlawful act or do a lawful act by an unlawful means. She relied on the

following cases:- OSETOLA & 1 OTHER VS THE STATE (SUPRA).
– UPAHAR VS STATE (2003) 6 NWLR PAGE 230 AT 239.
– NGUMA VS A.G. IMO STATE (2014) 3 SCM PAGE 137 A 160-161.
– NWOSU VS STATE (2004) 15 NWLR PART 897 PARAGRAPHS E-H
– BELLO VS THE STATE (2010) 12 SCM PART 2 PAGE 28 AT 34.

She also submitted that Conspiracy can be inferred from the evidence of the eye witness. She referred to the evidence of PW1 on how the Appellant and 2nd accused were arrested and urged that the Court should hold that there was conspiracy. The case of –AJAYI VS THE STATE (2014) NWLR PART 1426 PAGE 1 AT 17.

The Learned Counsel for the Respondent also submitted that the Prosecution called the most vital witness i.e PW1 who was both the victim and eye witness. She urged that the submissions of the Appellant’s Counsel that the Prosecution needed to have brought in more witnesses to corroborate PW1’s identification of the Appellant and his co-accused as the robbers who robbed him on 22/11/19 be discountenanced.

On the issue of contradictions, Learned Counsel for the Respondent, submitted that it is not every minor contradiction that

can vitiate the case of the Prosecution, a minor contradiction which does not affect the credibility of the witness will be of no avail to the Appellant. She relied on the following cases:- ATTAH VS STATE (2010) 5 SCM PAGE 57 AT 166.
– SULE VS STATE (2009) 8 SCM PAGE 113.

It was also argued on behalf of the Respondent that to succeed in upturning a decision on the ground of contradictions and discrepancies, it must be relevant and of such great magnitude that it would cause a miscarriage of justice.

Concerning the issue of fair hearing, she argued that the Law envisages that both parties to a case be given the opportunity of presenting their cases without let or hindrance from the beginning to the end. She relied on the case of:- NEWSWATCH VS IBRAHIM ATTA (2006) 6 SCM PAGE 134 AT 138.

Learned Counsel for the Respondent argued that while it is true that the Appellant raised a defence of Alibi, he was unable to give any evidence in support of his claim that he was somewhere else while PW1 was being robbed. She therefore urged that the submission of the Appellant’s Counsel be discountenanced.

RESOLUTION
In criminal

Prosecution, it is trite that the required standard is that of proof beyond reasonable doubt under Section 135 (1) of the Evidence Act 2011. If the commission of a crime by a party to any proceedings is directly in issue either, civil or criminal, it must be proved beyond reasonable doubt. See the of case:- ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238.
However, proof beyond reasonable doubt does not mean that the Prosecution must prove its case beyond any shadow of doubt.
When the ingredients of any offence the accused is charged which has been proved, then the Prosecution is said to have proved its case beyond reasonable doubt. See the following cases:- AJAYI VS THE STATE (2013) 9 NWLR PART 1360 PAGE 589.
– HASSAN VS STATE (2017) 5 NWLR PART 1557 PAGE 1.
– AYINDE VS THE STATE (2019) LPELR – 47835 (SC).
– ABIRIFON VS STATE (2013) 13 NWLR PART 1372 PAGE 619.
– SMART VS STATE (2016) 9 NWLR PART 1517 PAGE 447
See the following cases:-
– EMEKA VS. STATE (2001) 6 SCNJ PAGE 259.
– ADELAJA VS. THE STATE (2020) LPELR 50275 (CA).
– OGIDI VS. STATE (2003) 9 NWLR PART 834 PAGE 1.

It is trite law that, wherever

an accused person is charged with the offence of Armed Robbery the Prosecution must prove the following ingredients of the offence of Armed Robbery beyond reasonable doubt.
(a) That there was a robbery or series of robberies.
(b) That the said Robbery was an Armed Robbery
(c) That the Appellant was one of those who took part in the Armed Robbery.
In the discharge of the onus of proof, there are three ways by which the Prosecution can prove the commission of a crime. They are as follows:-
(i) By Confessional Statement.
(ii) By evidence of eye witness/witnesses.
(iii) By circumstantial evidence.
In this case, the Appellant was charged and convicted for the offence of Armed Robbery and sentenced to death.
See the following cases:-
– AFOLABI VS. STATE (2010) 16 NWLR PART 1220 PAGE 584.
– EMEKA VS. THE STATE (2014) 13 NWLR PART 1425 PAGE 614.
– OSUAGWU VS. STATE (2013) 5 NWLR PART 1347 PAGE 360.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

In proof of the charge against the Appellant, the Prosecution called only one witness i.e. Mr. Ariyo Alade who testified as follows:-
“…I went to eat and returned to the vehicle, I then asked my junior and the person we were carrying his load on that day to go and eat before they came back from where they went to eat, armed Robbers accosted me where I was on top of the trailer. I thought maybe they needed my help that very day. When I saw that they pulled out guns I realized it is not help they came for and they were asking for money. When I was shouting the one in the middle dragged me down from where I was lying and they started beating me, so I started shouting, so some vigilante people came to my rescue. It is the 2nd accused person who dragged me down and the third accused put his gun on me. They took my phone and beat me up seriously. The people that came to rescue me pursued them and recognized one of the Armed Robbers.

We reported the case to the vigilante in the area, so the 2nd accused was apprehended. He is well known for such acts in the area. The 2nd and 3rd accused were arrested. I saw both of them after their arrest. The vigilante handed them over to the police men. They even went with us to the police station.
All I am starting now is in my statement. The statement is with the police. The incident happened at night in the area. I was not afraid as I never offended anyone.”

A perusal of the testimony of PW1 the victim and the only witness of the robbery incident revealed that the Armed Robbery incident happened at night and there was no light.

The Learned Trial Judge sensing the inadequacy of the evidence of PW1 relied on the confessional statement of the Appellant to corroborate the evidence of PW1 and subsequently convicted the Appellant.

A confessional statement is an admission made at any time by a person charged with a crime

stating or suggesting the inference that he committed the offence. See – Section 28 of the Evidence Act 2011.
In the case of – NWEZE VS. STATE (SUPRA) PAGE 197. It was held among others that
“… A confessional statement alone is sufficient to ground a conviction … for a confession to secure a conviction, it must have been made direct and positive in relation to the offence for which the Appellant is charged. It must lead to an unequivocal admission of guilt. See – DANIELS VS. STATE (1991) 8 NWLR PART 212 PAGE 715.
– R VS. SYKES (1913) 18 CR APP R. PAGE 23.”
See also the case of – AKPA VS. STATE (2008) 14 NWLR PART 1106 PAGE 72.

In this case under consideration, the Confessional Statement relied upon by the trial Court in convicting the Appellant was not tendered in evidence.
In the case of ESANGBEDO VS. STATE (1989) 4 NWLR PART 113 PAGE 57 AT 66 PARAGRAPH E. It was held among others as follows:-
“We cannot look at the extra judicial statements of PW1, PW2, PW4 and PW9 which were not tendered as Exhibits during

trial because, those statements cannot be legal Evidence. An Appellate Court is bound to base its consideration of every Appeal before it upon legal evidence upon which the Court below acted. Even in the Court of Trial, the only proper use that could have been made of those extra- judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony.”
As indicated earlier in this judgment, the Learned Trial Judge relied on a Confessional Statement which was not tendered in Evidence to convict the Appellant. This is wrong because, a Judge is not entitled to convict an accused person on a Confessional Statement not proved before him to have been made by the accused person voluntarily. See the case of PEOPLE OF LAGOS STATE VS. MOHAMMED UMARU (2014) 7 NWLR PART 1407 PAGE 584.
The said Confessional Statement relied upon by the Trial Court is not a legal Evidence and cannot be acted upon by the Trial Court. It is not eligible for the purpose of corroborating PW1’s Evidence.
There is no doubt that an accused person can be convicted based on the evidence of a single witness.

It is the Law that, a confessional statement once admitted in evidence becomes part of the case for the Prosecution which the Trial Court is bound to consider in determining the probative value of the totality of the evidence adduced by the Prosecution. However, the alleged confessional statement relied upon by the Trial Court failed the necessary test because, it was not tendered in evidence.

The PW1 i.e. the victim of the robbery in this case testified that the robbery incident took place at night and that there was no light. All that could be inferred from this evidence is that it is not adequate to sustain the conviction in this case, more so, the charge carries the weight of a death sentence as penalty.

A perusal of the testimony of PW1 would also reveal that he was not the person that identified the armed robbers, he only saw the accused persons after they were arrested by the people who assisted in arresting them after he was rescued. The vigilante people who assisted in arresting the accused persons were not called as witnesses. And regrettably, the Confessional Statement which could have been used to corroborate the testimony of PW1 was not

tendered in evidence.

It is also important to call the Police Officer who investigated the robbery as a witness. Although, it is not necessary for the Prosecution in order to discharge the onus of proof imposed on it to call a host of witnesses, however, it is necessary to call a vital witness whose evidence is very important in view of the fact that the testimony will decide the case one way or the other and if the Prosecution fails to call such a witness, its case may crumble.
See – HASSAN VS. STATE (SUPRA).
– OGEDENGBE VS. STATE (2014) 12 NWLR PART 1421 PAGE 338.
In this case there are people whose evidence could have resolved the issues in this case one way or the other but they were not called.
For example PW1 testified among others as follows:-
“The people that came to rescue me pursued them and recognized one of the robbers. “(See page 106 of the Record of Appeal) PW1 also stated thus:
“We reported the case to vigilante in the area so the 2nd accused was apprehended. He is well known for such acts in that area. The 2nd and 3rd Accused were arrested. I saw both of them after their arrest. The

vigilante handed them over to the police men. They even went with us to the police station.” (See Page 116 of the Record of Appeal).
As I said earlier in this judgment, the vigilante that arrested the robbers were not called to give evidence. The policemen who investigated the crime were also not called to give evidence.
The Appellant in his testimony on page 118 of the Record of Appeal stated that he was arrested by the police.
The question now is, who arrested the Appellant? The evidence of PW1 conflicted with that of the Appellant.

I am of the view that an identification parade ought to have been conducted for the purpose of identifying the robbers that robbed the PW1 on 12/11/2012.

Furthermore, apart from the fact that the confessional statement relied upon by the Trial Court was not tendered in evidence at the Trial Court, the confession by its nature desires corroboration and Courts have always been reluctant to convict without corroboration. See the following cases:- FAMUYIWA VS. STATE (2018) 5 NWLR PART 1613 PAGE 515.
– JOHN VS. STATE (2017) 16 NWLR PART 1591 PAGE 304.

Furthermore, a sober reading of the

judgment of the Trial Court would also reveal that, the Trial Court, by using the purported Appellant’s confessional statement which was not tendered in evidence to test the veracity of the testimony of Appellant at the Trial, evaluated the evidence of Appellant against a non–existing document i.e. the confessional statement.

The summary of all I have said so far is that the testimony of PW1 is not adequate to secure a conviction in an offence like Armed Robbery that carries death sentence as penalty. As for the confessional statement of the Appellant which was not tendered in evidence before it was relied upon to convict the Appellant, is in my view not a legal evidence. The procedure adopted by the Learned Trial Judge is in my view wrong and not acceptable.
In the circumstance, issue numbers 1, 2 and 3 are hereby resolved in favour of the Appellant and against the Respondent.
The question that comes to mind at this juncture is – what is the appropriate order to be made in the interest of justice to the parties concerned in this case?
Should it be to remit the case to the Trial Court for fresh Trial?

A decision on whether a fresh Trial is to be ordered is determined by the peculiar facts and circumstances of each case.
A retrial would be ordered if the Appellant was charged for a capital offence and the evidence revealed a likely conviction. See the following cases:- MOHAMMED VS. STATE (2019) LPELR – 47632 (SC)
– VUYOR VS. THE STATE (2014) 2 NWLR PART 1390 PAGE 196.
– MOHAMMED VS. STATE (2013) 5 NWLR PART 1347 PAGE 315.
In ABODUNDE VS. THE QUEEN (1959) 4 FSC PAGE 70 –
The applicable principles to be taken into account where a fresh Trial or retrial is to be ordered were stated as follows:-
“Although the Rules guiding an Appeal Court in ordering a retrial are not exhaustive and may be added or modified from time to time, an Appeal Court would order a retrial if it is satisfied as to the following:-
(1) That there has been such an error in Law or an irregularity in procedure which neither renders the Trial a nullity nor makes it possible for the Appeal Court to say there has been no miscarriage of justice.
(2) That apart from the error of Law or irregularity in procedure, the evidence before the Court discloses a

substantial case against the accused.
(3) That there are no special circumstances which would make it unjust to put the accused on Trial a second time.
(4) That the offences for which the accused is charged and their consequences are serious in nature, and
(5) That to refuse an order of retrial would occasion a greater injustice than grant it.
The Appellant in this case was charged with the offence of Armed Robbery which carry death sentence as penalty. He was convicted by the trial Court based upon a wrong procedure. As soon as a fresh trial is ordered, the appropriate procedure would be followed and this will be in the interest of justice to both parties concerned in the case.
In view of the foregoing, I am of the view that a fresh trial would not occasion any injustice to the Appellant.
See – YAHAYA VS THE STATE (2002) NWLR PART 734 PAGE 289 AT 305.

In the result, this appeal has merit and it is hereby allowed. The judgment of the trial Court in Charge NO. HCJ/2C/2014 – THE STATE VS (1) EJIOFOR JOSHUA (2) CHUKWADO MICHAEL delivered on 7/4/2017 is hereby set aside because of the wrong procedure

adopted by the trial Court.

In its place, it is hereby ordered that the case is remitted to the High Court of Justice, Ogun State for a fresh trial by another Judge to be assigned by the Chief Judge of Ogun State, not being Akinbiyi J.
Appeal Allowed.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the decision of my learned brother, Jimi Olukayode Bada, JCA, which I was privileged to read in draft.
I adopt the entire decision as mine, with nothing more to add.

FOLASADE AYODEJI OJO, J.C.A.: I have been privileged to read in draft the judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. I agree with the reasoning and the resolution of issues therein.

It is settled law that the prosecution is not bound to call a particular witness in order to discharge the burden of proof placed on her by law before securing conviction. The law is very emphatic that proof beyond reasonable doubt is not dependent on number of witnesses called by the prosecution. All that the law requires is sufficient credible evidence. A decision on the number of witnesses to be called to prove its

case is at the discretion of the prosecution. Failure to call a vital witness is however fatal to its case. See State vs. Azeez (2008) 14 NWLR (Pt. 1108) 439; Ogudo vs. State (2011) 18 NWLR (Pt. 1278)1; Ochiba vs. State (2011) 17 NWLR (Pt. 1277) 663; State vs. Nnolim (1994) 5 NWLR (Pt. 345) 394.
In the instant appeal, the prosecution called only one witness, that is, the victim of the robbery. He was able to establish the fact that there was a robbery on 7th of April, 2017 during which he was robbed of his phone. He was able to establish that the robbers were armed with a gun. He did this by giving eye witness account. He was however unable to recognise any of the robbers. The evidence of at least one of the persons who recognised the Appellant as one of the robbers was vital. Failure to call any of them is fatal to the case of the prosecution. The evidence of one of the people that identified the Appellant as one of the robbers is that of a vital witness and essential at the trial. There is no evidence to corroborate that of the victim that the Appellant took part in the alleged robbery. His conviction cannot therefore stand.

It is for the foregoing

and the fuller reasons contained in the lead judgment that I also find merit in this appeal and allow it. I abide by all the orders made in the lead judgment including the order for fresh trial.

Appearances:

ADEREMI OGUNTOYE WITH HIM, MR. ABRAHAM OLADIPUPO. For Appellant(s)

MISS O. A. SONOIKI Chief State Counsel with her, MISS R. O. OTUN State Counsel Both of Ogun State Ministry of Justice For Respondent(s)