SAMUEL v. STATE (2020)

SAMUEL v. STATE

(2020)LCN/15191(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/316C/2016

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

IMUETIYAN SAMUEL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

CIRCUMSTANCES WHERE THE APPELLATE COURT CAN INTERVENE AND RE-EVALUATE THE EVIDENCE LED BY PARTIES AT THE LOWER COURT

My lords, in considering issue one, which in essence is a call on this court to review and re – evaluate the evidence in the printed record to determine if indeed the Court below properly evaluated, or even evaluated at all, the evidence and made correct findings borne out by the evidence as led by the parties, it is my firm view that in law it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re-evaluating the evidence and interfering with correct findings of a trial Court. See Amuneke V. The State (1992) NWLR (Pt. 217) 347. See also Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Igago V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888)520.
However, it must be borne in mind that an appellate Court which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court was perverse. Thus, an appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249 @ p. 1302. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE TRIAL COURT MUST CONSIDER ALL THE DEFENCES PUT UP BY AN ACCUSED PERSON IN ALL CRIMINAL TRIALS

Thus, in all criminal trials, it is incumbent upon the trial Court to consider all the defense(s) put up by the Accused person either expressly or impliedly as may be apparent on the evidence and therefore, no matter whether the defense is full of figments of imagination, or is fanciful or bereft of reason and or based on lies or even doubtful or out rightly foolish, the Court must not be wary to give them due consideration. An Accused person is in law entitled to the benefit of all the defense(s) open and available to him on the evidence before the Court, whether specifically raised by him or not and thus they must be fully considered by the Court. See Ani V. The State (2003) 11 NWLR (Pt. 830)142. See also Green V. Queen (1955) 15 WACA 73; R. V. Bramah (1945) 11 WACA 49; Nwuzoke V. The State (1988) 1 NWLR (Pt. 72) 529; R. V. Bio (1945) 11 WACA 46 @ p. 48; Asanya V. State (1991) 3 NWLR (Pt. 180) 442; Ekpenyong V. The State (1993) 5 NWLR (Pt. 295) 513; Grace Boms V. The State (1971) All NLR 335. PER GEORGEWILL, J.C.A.

INGREDIENTS TO BE PROVED TO SUCCEED IN SECURING THE CONVICTION OF AN ACCUSED PERSON

My lords, issue two deals directly with the requirement of the law that an allegation bordering on the commission of a crime must be proved beyond reasonable doubt by the Prosecution in order to secure the conviction of an Accused person. To succeed therefore, the Prosecution must lead credible evidence establishing the essential ingredients of the offence(s) charged. See Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635. See also Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 – 251. See also Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.
However, in law the Prosecution has open to it, three basic types of evidence with which to prove the commission of an offence charged against an Accused person beyond reasonable doubt, namely: A: Direct eye witness evidence; B: Confessional statement and C: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
In law therefore, conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence(s) charged, failing which an Accused person is entitled to be discharged and acquitted. However, in proving the guilt of an Accused beyond reasonable doubt, the law does not impose on the Prosecution any greater duty than it simply entails, which is proof of all the essential ingredients of the offence(s) charged and not proof beyond all shadow of doubt or proof to the hilt. Thus, in a charge alleging the gravest of offences, such as Armed Robbery, and carrying the death penalty upon conviction, the clearest of evidence invoking neither doubt nor mere passion or compassion in the Court is required. See Section 135 of the Evidence Act 2011. See also Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 @ p. 470; Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149; Deriba V. State (2016) LPELR- 40345 (CA) per Georgewill JCA. PER GEORGEWILL, J.C.A.

ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

Now, even though it is the law that an appellate Court has no business interfering with the correct finding of facts of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings or conclusions turns out to be wrong but in the instant appeal, the findings by the Court below on the evidence led by the parties are impeccable and unimpeachable and the reason also very sound and cogent and therefore, this Court would have no business to interfere with it. I therefore, affirm all the findings of facts by the Court below resulting from a due and proper evaluation of the entirety of the evidence led by the parties as being correct. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: S. A. Omonua J., in Charge No. B/77c/2012: The State V. Imuetiyan Samuel delivered on 10/5/2016, wherein the Appellant was convicted for the offence of Armed Robbery and sentenced to death.

The Appellant was peeved with the said judgment and had appealed against it to this Court vide his Notice of Appeal filed on 17/6/2016 on Three grounds of appeal at pages 79 – 81 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 5/8/2016. The Appellant’s brief was filed on 29/6/2017 but deemed as properly filed on 2/3/2018. The Respondent’s brief was filed on 14/5/2019 and deemed properly filed on the same date.

At the hearing of this appeal on 30/1/2020, Ambrose Etsenamhe Esq., learned counsel for the Appellant adopted the Appellant’s brief as his arguments and urged the Court allow the appeal and set aside the judgment of the Court below and to discharge and acquit the Appellant on the count of armed robbery. The Respondent, though duly served with hearing notice on 23/1/2020, was not represented by counsel at the hearing but the Respondent’s brief having been filed on 14/5/2019 was deemed argued and judgment in the appeal was reserved.

BRIEF STATEMENT OF FACTS
The Appellant was arraigned before the Court below on an information charging him with the offences of Conspiracy in Count one and Armed Robbery in Count two. The Appellant pleaded not guilty to each of the two counts and the matter proceeded to trial. At the trial, the Respondent as Prosecution called three witnesses in proof of the charges against the Appellant, tendered some items and documents in evidence as Exhibits A and B, and closed its case. In his defence, the Appellant testified for himself as DW1 and closed his defence.

As can be garnered from the evidence led by the parties before the Court below, the case of the Respondent as the Prosecution was that on 9/9/2010, the Appellant robbed one Mrs. Joy Eromosele Joy, the PW1, who was on an official assignment as a banker with LAPO Micro finance bank and was being carried on a motor bike by one Eze Kenneth, the PW2 and that she noticed along Textile Mill Road, Benin City that another motor bike was trailing them and they tried to lose them but to no avail until they got to the traffic light of Urubi junction where the Appellant who had alighted from his motor bike showed her a gun from under his long sleeved shirt and demanded for the gold chain on her neck. On realizing that the Appellant was armed, the PW1 tried to remove her neck chain but the Appellant forcibly pulled it from her neck and then put the gun on the PW2’s neck. The PW2 then bent the motor bike and PW1 jumped down, while the Appellant followed her demanding for her bag, but the PW2 then behind the Appellant hit the gun from the Appellant and grabbed the Appellant and they both started to fight.

The PW2 then overpowered the Appellant and the Appellant threw the gun into the gutter and passersby intervened and searched the Appellant’ s pocket and found gold chain, and beads as well as the sum of N915. 00. The PW1 then retrieved the gun and cartridges from the gutter before the Police came and took all parties to New Benin Police Station where the PW1 and PW2 made Statements. Later the matter was transferred to SARS, where they also made another statement to the Police. The case was further investigated by one Sgt. Akinola Bukola, the Police Investigating Officer at SARS who testified at the trial that on 13/9/2010, while on duty a case of Conspiracy and Robbery was transferred from New Benin Division along with the Appellant, together with one locally made cut to size single, one bead, a locket and the sum of N915.00 and the parties were taken before O/C for interview and then referred to her for investigation. She took their statements including the statement of the Investigating Police Officer at New Benin Police Station and registered all the Exhibits. The Respondent as Prosecution tendered some Exhibits at the trial namely: Exhibit A – Hospital Card; Exhibit B – Some items found with the Appellant. However, upon prompt objection by the counsel for the Appellant, the Court below rejected the extra – judicial statement of the Appellant, marked as Exhibit C rejected and the Police Attestation Form, marked as Exhibit D rejected. See pages 1 – 3, 17 – 26 and 50 – 51 of the Record of Appeal.

On his part, the Appellant denied making the Confessional Statement tendered by the Respondent and thus objected to its admissibility by the Court below. The objection was upheld after a trial within trial was conducted by the Court below and the statement was marked as Exhibit C rejected along with the Police Attestation Form which was marked as Exhibit D rejected. His defense was that he saw the PW1 and PW2 for the first time before the Court below and that on 12/9/2010, he being a welder had gone to fix a gate at a place opposite Triangle Avenue at Wire Road and was using a wheel barrow to convey the gate but a motor cyclist refused to heed their caution and splashed flood water on them and ran into the gate and fell and started to quarrel that they damaged his motor cycle and insisting on a new one. The motor bike was carrying the wife of Policeman and for that reason the Police came and arrested him and took him to New Benin Police Station alleging that he had wanted to kill their Boss’s wife. The Police beat him for insulting their Boss’s wife and later took him to SARS where they brought gun and chain which he denied any knowledge of. However, the Police at SARS took him to the scene and verified the occurrence of the accident but because the Police Boss at the New Benin Police Station was the complainant, being the husband to PW1 they would still charge him before the Court below even when he had committed no offence at all. He denied riding any motor bike on the day in question and did not also use any gun to rob the PW1 of her neck chain. He also did not demand for her hand bag and no jewelries were found in his pocket. He also did not fight with the PW2 and did not own the items tendered by the Respondent before the Court below at the trial. See pages 51- 53 of the Record of Appeal.

At the close of the trial, the parties through their counsel filed and adopted their respective final written addresses before the Court below and on 10/5/2016, the Court below delivered its judgment discharging the Appellant on Count one for the offence of Conspiracy while convicting him on Count two for the offence of Armed Robbery and sentencing him to death. See pages 63 – 78 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether or not the Court below properly considered the defense of the Appellant in arriving at the conclusion of guilt against the Appellant? (Distilled form Ground one)
2. Whether or not the failure of the Respondent to call vital witnesses created doubts the guilt of the Appellant, which ought to have been resolved in favor of the Appellant? (Distilled from Grounds two and three)

In the Respondent’s brief, two issues were also distilled as arising for determination in this appeal, namely:
1. Whether from the evidence adduced the Court below was right when it convicted the Appellant on the unchallenged evidence of PW1 and PW2?
2. Whether the Court below rightly held that the Respondent proved Count two of the charge of Armed Robbery beyond reasonable doubt?

I have taken a calm look at the charge in Count 2 alleging the offence of Armed Robbery against the Appellant. I have also taken time to review the evidence, both oral and documentary and other Exhibits tendered before the Court below. I have further considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below, and it does appear to me that the proper two issues for determination in this appeal are issue one as distilled in the Appellant’s brief and issue two as distilled in the Respondent’s brief, which two issues best represent the real issues arising for determination in this appeal. Let me therefore proceed anon to consider these two issues ad seriatim.

ISSUE ONE
Whether or not the Court below properly considered the defense(s) of the Appellant in arriving at the conclusion of guilt against the Appellant?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that in law where a trial Court failed to properly consider the defense of an accused person, it is fatal to the judgment which would be liable to be set aside on appeal since a Court of law is under duty to properly and totally consider the defenses of an accused person no matter how foolish they may appear and contended that on the totally of the evidence adduced by the parties the Court below failed to properly consider the defense of the Appellant and urged the Court to hold that the failure had occasioned a miscarriage of justice in the resultant wrongful conviction of the Appellant for the offence of Armed robbery and to allow the appeal and set aside the conviction and sentence of death imposed on the Appellant by the Court below. Counsel relied on Olagesin V. State (2013) All FWLR (Pt. 670) 1357 “@ p. 1366.

It was also submitted that there was no evidence before the Court below of any proper investigation of the statement of the Appellant that the alleged incident happened on 12/9/2010 by Triangle Avenue on Wire Road, Benin City and not at the alleged venue and that the entire incident was the result of an accident resulting into damage of a motorbike that ran into the gate he was carrying and contended that not all these allegations were not investigated by the Police but surprisingly none of the Police Officers that arrested the Appellant was even called to give evidence before the Court below and urged the Court to hold that in law the proper person that ought to refute the defense of the Appellant is the Police Officer that investigated the matter at the New Benin Police Station or any member of his team and therefore, if the defense of the Appellant was properly considered, the Court below could not have arrived at the conclusion of guilt against the Appellant for the alleged offence of Armed Robbery.

It was further submitted that the Court below having admitted and believed the evidence of the Appellant that he was tortured and thereby rejecting his alleged confessional statement ought to have taken notice of the desperation of the Police to incriminate the Appellate at all cost, more so when the PW3 admitted that the Appellant denied being the owner of the items tendered as Exhibit B’ and which were not recovered from him and contended that this piece of evidence from the PW3 corroborated the absolute denial of the Appellant that he did not at any time rob the PW1 and that it was an entirely different incident that took him to the New Benin Police Division and urged the Court to so hold and to resolve the doubts thereby created in favor of the Appellant as required by law.

It was also further submitted that in law a question asked by counsel during cross examination does not amount to evidence upon which a Court can rely or act, but rather it is the answer elicited from the witness that forms part of the record of evidence and contended that it was therefore wrong of the Court below to have discredited the case of the Appellant as being contradictory by placing reliance on a question by his counsel while cross examining the PW3 and urged the Court to hold that the Appellant’s defense was not properly considered and to resolve issue one in favor of the Appellant since in law the Court below had a duty to evaluate properly all evidence placed before it, more so where the Respondent failed to shake the evidence of the Appellant and rather proceeding in error and on wrong inference to convict and sentence the Appellant for an offence he was not proved to have committed. Counsel relied on Maikudi Aliyu V. The State (2013) All FWLR (Pt. 711) 1492 @ p. 1494.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondent had submitted that the Court below was right when it convicted the Appellant on the unchallenged evidence of the PW1 and the PW2 since in law, facts admitted need no further proof thereof and contended that where evidence is led by one party and there is no contrary evidence from the other party, such evidence is deemed to have been true and accepted and urged the Court to hold that the evidence of the PW1 and PW2 remained positive, un-contradicted and un-challenged establishing the guilt of the Appellant as rightly found by the Court below and to dismiss the appeal for lacking in merit. Counsel relied on Okoebor V. Police Council (2003) 12 NWLR (Pt. 834) 448; Iriri V. Erhurhobara (1991) 2 NWLR (Pt. 173) 252 @ p. 255; Asafa Food V. Alraine Nig Ltd (2002) 12 NWLR (Pt. 781) 353 @ p. 380.

It was further submitted that in every proceedings before a Court of law once there is evidence given and some allegations are made against a person who has the opportunity of repudiating it but choose to ignore it or treat same with levity, in law the Court seised of the proceedings would act on what it has in its possession such as where the Appellant ignored the opportunity to repudiate the allegations brought against him and treated same with levity at the trial before the Court below and contended that in all cases evidence which is unchallenged through cross examination or not controverted by other evidence and is not by itself incredible is qualified to be accepted and acted upon by the Court and urged the Court to hold that the evidence of the Respondents was neither controverted nor challenged by the Appellant and was accordingly rightly acted upon by the Court below in convicting the Appellant and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Charles Ikechi Okike V. The Legal Practitioner Disciplinary Committee & Ors. (2005) 15 NWLR (Pt. 949) 471; Dennis Ivienagbor V. H.O. Bazuaye (1999) 4 NWLR (Pt. 620) 552.

RESOLUTION OF ISSUE ONE
My lords, in considering issue one, which in essence is a call on this court to review and re – evaluate the evidence in the printed record to determine if indeed the Court below properly evaluated, or even evaluated at all, the evidence and made correct findings borne out by the evidence as led by the parties, it is my firm view that in law it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re-evaluating the evidence and interfering with correct findings of a trial Court. See Amuneke V. The State (1992) NWLR (Pt. 217) 347. See also Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Igago V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888)520.
However, it must be borne in mind that an appellate Court which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court was perverse. Thus, an appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249 @ p. 1302.

Now, it has been contended for the Appellant that the Court below did not properly consider the evidence of the Appellant, particularly the defense put up by the Appellant that the incident for which he was arrested and taken to the New Benin Police Station was one involving an accident between the wheel barrow being used by him to carte a gate for his welding works and a motor bike for which he was arrested because the accident involved the wife of the Police Boss at the New Benin Police Station.

In view of the above allegation against the judgment of the Court below, I have taken the liberty to review and to reproduce in extenso the consideration of the evidence by the Court below, more particularly the evidence of the Appellant to see if the Court below did or did not properly consider the evidence of the Appellant, and by implication the defense(s) either put up directly by him or apparent from his evidence at the at the trial before the Court below.

In the judgment, after setting out the entirety of the evidence of PW1, PW2, PW3 and the Appellant in great details, the Court below proceeded to state inter alia as follows:
“……I have carefully considered the case presented by the prosecution and the defense of the accused……Against this evidence is the defense of the accused. Whereas the Prosecution claimed that the accused had been arrested at a robbery scene on 9th September 2010, the accused claimed that he had been arrested on 12th September because a bike rider carrying a police man’s wife ran into the wheel barrow conveying a gate from lgun Street, his workshop, to Wire Road. …. But why did he conceal his partner or colleague, for after speaking throughout in the plural, “we, us”, he later claimed that he was conveying the gate alone to fix in a Church. I do not believe him…But in his defense, the accused denied that jewelries were found in his pocket, and that he was not the owner of the items mentioned by the Prosecution…I am inclined to believe the 1st PW therefore that the hand chain, 3 necklaces and locket were recovered from the pocket of the accused at the scene. I cannot believe the accused on the point, except I want to believe that someone quickly gathered them at the scene in order to frame him up, a very improbable conjecture! Then there is the cut to size single barrel gun. The accused person’s version was that it was at SARS that “they brought gun and chain”. In other words, New Benin Police arrested him for insulting Oga’s wife and almost killing her and sent him to SARS, while SARS now brought gun and chain. What case then did New Benin send to SARS. The accused had said it was accident case but I am unable to believe him, just as I am unable to believe him that the gun surfaced at SARS. This defense was hardly a rebuttal to the concise and unchallenged evidence of the prosecution linking the gun to the accused….The defense of the accused in the main tried to paint a scene entirely distinct from the one described by the 1st and 2nd Prosecution witnesses. The accused even mentioned a different date. I have already highlighted and considered the evidence of the 1st and 2nd Prosecution witnesses…I therefore agree with the learned defense counsel that the prosecution failed to adduce evidence to prove the count of conspiracy….. Mr. Okungbowa, learned Assistant Director described the defense of the accused person as “manifestly pregnant with lies and in consistencies”. I have already highlighted the defense and considered same and I am inclined to agree. I therefore disbelieve the defense of the accused…. I however reject the defense as it was attempt to create some sort of diversion and it was also contradictory. It attempted to create the impression that after being arrested for armed robbery on 9th September 2010, the accused was having a problem with a policeman’s wife on 12th September…” See pages 72 – 76 of the Record of Appeal.

My lords, looking at the judgment of the Court below as above, it would appear and I so hold that the Court below carried out a thorough review and evaluation of the entirety of the evidence led by the parties before arriving at its findings and conclusions on the charges in Counts One and Two. I have borne in mind that in law it is the prerogative of a trial Court which sees and hears the witnesses to chose whom to believe and to ascribe probative value to such evidence, either oral or documentary.
However, a trial Court, though the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, it is only if its findings are premised on the facts and evidence led by the parties, that it must be allowed to stand and cannot be interfered with by an appellate Court, which of course had not seen, heard and watched the witnesses testify in Court. See Mogaji V. Odofin (1978) 4 SC 94; UBN Ltd. V. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640; Anyaoke & Ors. V. Adi & Ors (1986) 3 NWLR (Pt. 751) 1.
Thus, once a trial Court discharges the above duty, excerpt where the findings and or conclusion turns out to be wrong, there is no further duty on an appellate Court once upon a review and evaluation of the totality of the evidence the trial Court had arrived at the correct findings and conclusions. A trial Court cannot be accused of improper evaluation of evidence simply because its findings and conclusion, though correct, were against the party complaining of improper evaluation of evidence.
It is to be noted that evaluation of evidence, a very tough turf for the trial Courts, is not merely a review or restatement of the evidence of the witnesses but it is rather a critical appraisal of the evidence in the light of the facts in issue, and determining which evidence is relevant, admissible or inadmissible, and what weight to be attached to such admissible evidence. Put simply, evaluation of evidence is much more critical, crucial and tasking than mere restatement of or summary of evidence of witnesses. In Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) @ p. 182, the Court had admonished and clarified thus:
“Unlike mere review of evidence, its actual evaluation involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or reasoned preference of one version to the other. There must be an indication on the record as to show how the Court arrived at its conclusion preferring one piece of evidence to the other”
See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582; Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458. In criminal trials where not only the liberty of the Accused person is at stake, but his guilt must be proved beyond reasonable doubt, and which onus lies squarely on the Prosecution and never shifts, a Court must consider every defense raised or available to the Accused person. In law, failure to do so is fatal where miscarriage of justice results from such wrongful conviction. In such circumstances, an appellate Court would be under a duty dictated by the ends of justice to intervene to carry out a proper consideration of the defense(s) either raised or available on the evidence and if established to set aside such wrongful conviction and set the wrongfully convicted free! See Olagesin V. State (2013) All FWLR (Pt. 670) 1357 @ p. 1366. See also Maikudi Aliyu V. The State (2013) All FWLR (Pt. 711) 1492 @ p. 1494.
Thus, in all criminal trials, it is incumbent upon the trial Court to consider all the defense(s) put up by the Accused person either expressly or impliedly as may be apparent on the evidence and therefore, no matter whether the defense is full of figments of imagination, or is fanciful or bereft of reason and or based on lies or even doubtful or out rightly foolish, the Court must not be wary to give them due consideration. An Accused person is in law entitled to the benefit of all the defense(s) open and available to him on the evidence before the Court, whether specifically raised by him or not and thus they must be fully considered by the Court. See Ani V. The State (2003) 11 NWLR (Pt. 830)142. See also Green V. Queen (1955) 15 WACA 73; R. V. Bramah (1945) 11 WACA 49; Nwuzoke V. The State (1988) 1 NWLR (Pt. 72) 529; R. V. Bio (1945) 11 WACA 46 @ p. 48; Asanya V. State (1991) 3 NWLR (Pt. 180) 442; Ekpenyong V. The State (1993) 5 NWLR (Pt. 295) 513; Grace Boms V. The State (1971) All NLR 335.

My lords, guided by the above settled position of the law and having considered the totality of the evidence and the evaluation carried out by the Court below in the judgment appealed against, but without deciding here and now whether the findings made thereon are correct or not, which is the subject of the second issue for determination in this appeal, I find that the Court below did properly evaluated in great details all the evidence led by Respondent as well as all the evidence led by the Appellant and thoroughly considered all the defense(s) raised by the Appellant and or were available to him on his evidence even where not directly raised by him. The Court below indeed wasted no time in finding for the Appellant on Count One alleging the offence of Conspiracy against the Appellant and discharging and acquitting him therefrom. I therefore cannot, and do not, see any merit in issue one, which is hereby resolved against the Appellant in favor of the Respondent.

ISSUE TWO
Whether the Court below rightly held that the Prosecution proved Count 2 of the charge of Armed Robbery against the Appellant beyond reasonable doubt?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the Appellant had submitted that the evidence of the Investigation Police Officer at New Benin Police Division, one Cpl. Ebamonlen Aboiral who was alleged by the PW3 to be the person who transferred the matter to him at SARS Office, SCID, Benin City was essential being the person who visited the scene of crime where the Appellant had already been arrested by the said IPO or any member of his team as well as any of the persons who allegedly helped in arresting the Appellant are vital and material witnesses and urged the Court to hold that the failure of the Respondent to call them in the circumstances of this appeal amounted to withholding of evidence from the Court below which should create doubts in the Respondent’s case which ought to be resolved in favor of the Appellant.

It was also submitted that the failure of the Respondent to call these persons amounted to withholding of vital evidence in that the Respondent ought to call the Police Officer who investigated this matter at the earliest opportunity and was alleged to have received the Appellant from the people who arrested him and contended that even the gun allegedly used for the armed robbery was not recovered from the Appellant but was allegedly handed over to the Police by unknown persons, who neither made statements to the Police nor testified in the Court below and urged the Court to hold that these lapses created doubts in the Respondent’s case which ought to have been resolved in favor of the Appellant and to so hold and allow the appeal. Counsel referred to Section 67 (d) of the Evidence Act. 2011 and relied on Azeez V. State (2006) FWLR (Pt. 337) 485 @ p. 488; Oshodin V. The State (2001) 12 NWLR (Pt. 726) 217 @ p. 224; Ogudo V. State (2012) All FWLR (Pt. 629) 1111; Akpan V State (2005) 4 ACLR 547 @ p. 549; Tamuno V. COP (2010) All FWLR (Pt. 538) 921 @ p. 925.

It was further submitted that the failure to call these material witnesses created a gap in the Respondent’s case which cannot be filled by the Court below and contended that in law a trial Court cannot fill in the gaps in the Prosecution’s case and urged the Court to hold that these gaps had created serious doubts in the case presented by the Respondent against the Appellant and which doubts must be resolved in favor of the Appellant and the appeal should be allowed and the judgment of the Court below set aside and the Appellant be discharged and acquitted. Counsel relied on Yakubu V. FRN (2009) All FWLR (Pt. 498) 387 @ p. 392; Emeagor V. State (2010) All FWLR (Pt. 511) 884 @ p. 890; Nwokearu V. State (2010) All FWLR (Pt. 542) 1659 @ p. 1661.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue two, learned counsel for the Respondent had submitted that the Court below was right when it held that the Respondent proved the Count of Armed Robbery against the Appellant beyond reasonable doubt taking into account the totality of the credible and cogent evidence led by the Respondent against the Appellant and contended that in law while proof beyond reasonable doubt would connote a high degree of probability, it does not mean proof beyond every shadow of doubt and urged the Court to hold that the Respondent proved by direct eye witness evidence all the three essential elements of the offence of Armed Robbery as was correctly found by the Court below and to dismiss the appeal for lacking in merit. Counsel relied on Onafowokan V. State (1987) SCNJ 328; Oseni V. State (2012) Vol. 208 (10 LRCN) 159.

It was also submitted that on the credible evidence led by the Respondent it was proved that the Appellant robbed the PW1 and PW2 and that during the robbery the Appellant was armed with a gun and that the armed robbery did took place within the hours of 1.30pm when there was sufficient sunlight and the Appellant did not mask his face and was identified by the PW1 and PW2 having been arrested at the scene of the crime and contended that the Respondent proved its case against the Appellant beyond reasonable doubt by linking the Appellant to the offence of armed robberyand urged the Court to so hold and to dismiss the appeal. Counsel relied on Bakare v. State (1987) 1 NWLR (Pt. 52) 579.

It was further submitted that the law imposes no obligation on the Prosecution in a criminal trial to call a host of witnesses to prove its case since all it need to do is to call enough material witnesses to prove its case and contended that in law even the evidence of a single witness if believed by the Court can established a criminal case, notwithstanding the gravity of the offence charged including murder and urged the Court to dismiss the appeal and affirm the conviction and sentence of death on the Appellant by the Court below. Counsel relied on Effiong V. State (1998) 8 NWLR (Pt. 562) 362.

RESOLUTION OF ISSUE TWO
My lords, issue two deals directly with the requirement of the law that an allegation bordering on the commission of a crime must be proved beyond reasonable doubt by the Prosecution in order to secure the conviction of an Accused person. To succeed therefore, the Prosecution must lead credible evidence establishing the essential ingredients of the offence(s) charged. See Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635. See also Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 – 251. See also Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.
However, in law the Prosecution has open to it, three basic types of evidence with which to prove the commission of an offence charged against an Accused person beyond reasonable doubt, namely: A: Direct eye witness evidence; B: Confessional statement and C: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
In law therefore, conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence(s) charged, failing which an Accused person is entitled to be discharged and acquitted. However, in proving the guilt of an Accused beyond reasonable doubt, the law does not impose on the Prosecution any greater duty than it simply entails, which is proof of all the essential ingredients of the offence(s) charged and not proof beyond all shadow of doubt or proof to the hilt. Thus, in a charge alleging the gravest of offences, such as Armed Robbery, and carrying the death penalty upon conviction, the clearest of evidence invoking neither doubt nor mere passion or compassion in the Court is required. See Section 135 of the Evidence Act 2011. See also Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 @ p. 470; Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149; Deriba V. State (2016) LPELR- 40345 (CA) per Georgewill JCA.

Now, in a count alleging armed robbery as in Count two, for which the Court below found the Appellant guilty and sentenced him to death, the law is well settled that in order to prove the offence of armed robbery the following essential ingredients must be established either by direct or confessional or circumstantial evidence, namely,
a. That there was a robbery or series of robbery;
b. That the robbery was an armed robbery, that is the robbers were armed during the robbery, and:
c. That the Accused person was the person or one of the persons who took part in the armed robbery. See Agboola V. State (2013) 11 NWLR (Pt. 1366) 619 @ p. 641. See also Bozin V. The State (Supra); Ani V. The State (Supra) @ p. 142; Afolalu V. The State (2010) 43 NSCQR 227; Ogudo V. The State (2011) 45 NSCQR (Pt. 1) 278; The State V. Salawu (2011) LPELR – 8252 (SC).
However, it must be pointed out at once that all and each of the above three essential ingredients or elements of the offence of armed robbery must be proved by credible and cogent evidence by the Prosecution in order to secure the conviction of an Accused person for the offence of armed robbery. Having averted my mind to these applicable principles of law, what then are the pieces of evidence led by the Respondent in proof of the alleged offence of Armed Robbery against the Appellant and what is the defense(s) of the Appellant on which he was convicted and sentenced to death by the Court below?

PW1 was one Mrs. Joy Eromosele. She stated that on 9/9/12, she was on official assignment as a banker with LAPO Micro Finance Bank, collecting money from market women customers, and one of her clients the PW2 taking her on his bike when at Textile Mill Road, she noticed that a bike man, the Appellant and another man were trailing them and they tried to lose them to no avail until at the traffic light by Urubi junction, she saw the Appellant whom she had thought they had shaken off, standing by her while she was still on the bike and the accused showed her a gun from under his long sleeved shirt and demanded for the gold chain on her neck at which stage, she realized that the Appellant was armed and because of the gun, she tried to remove the chain but the Appellant forcibly pulled it from her neck and then put the gun on PW2’s neck but he bent the bike and she quickly jumped down and ran, followed by the Appellant demanding for her bag but PW2 now behind him hit the gun from the Appellant’s hand and grabbed him and they both started to fight while she was shouting for help the PW2 was on top of the Appellant who was using the gun to hit his head but PW2 overpowered the Appellant and he threw the gun into the gutter and passers – by intervened, searched the Appellant’s pockets and found gold, other chains and beads while PW2 retrieved the gun and cartridges from the gutter before the Police came and took all parties to New Benin Police Station where she made statement. She later made another statement at SARS. She also stated that the other man with the Appellant on the bike ran away. She was thoroughly cross examined by counsel for the Appellant but she was not shaken on any material particular.

PW2 was one Kenneth Eze Agbedo. He stated that on 9/9/2010 the PW1 joined him on his bike but at Urubi/3rd Cemetery junction, as he stopped at a traffic light, he saw a bike carrying the Appellant and another person. The Appellant came to them and brought a gun from under his shirt and demanded for money. He then directed the gun at the PW1 and demanded for her bag but as the Appellant stretched his hand to collect the bag, he hit him and grabbed him and they started to drag on the ground as the other man on the bike ran away. He also stated that the Appellant was using the gun to hit his face while PW2 was shouting and people responded. He further stated that the Appellant dropped the gun at a stage as they dragged into the nearby gutter and he retrieved the gun from there and the Police came soon after and took all of them to New Benin Police Station where he made statement and was treated at the Specialist Hospital for his injuries and that the PW1 was crying at the Police Station that the Appellant cut her gold chain. He was also thoroughly cross examined but was not shaken in any material particular.

PW3 was one Sgt. Akinola Bukola of SARS, State Police Headquarters, Benin City who investigated the case when it was transferred to SARS from New Benin Police Station together with the Appellant and a locally made cut to size single barrel gun, 2 live cartridges, one hand chain, three necklaces, one bead, cash of N915 and a locket which were registered as Exhibits. He was thoroughly cross examined but was not shaken in any material particular.

In his defense, the Appellant stated that he is a welder and that he saw the PW1 and PW2 for the first time in the Court below and that on 12/9/2010 they went to fix a gate at a place opposite Triangle Avenue at Wire Road, using a wheel barrow to convey the gate but a motor cyclist refused to heed their caution and splashed flood water on them and ran into the gate and fell and started to quarrel that they damaged his motor cycle and insisting on a new one. The Appellant also stated that because the bike rider was carrying a Policeman’s wife, the Police came and arrested him and took him to New Benin Police Station and said he wanted to kill their Boss wife, the PW1. They then beat him for insulting the PW1 and later took him to SARS where they brought gun and chain as recovered from him but which he denied. The Police at SARS later took him to the scene of incident and saw where the accident happened and agreed that it was an accident but because the complainant was the Police Boss in New Benin Police Station, they would charge him to Court. The Appellant further stated that he was not riding the motor bike on the day in question and also did not show any gun to PW1 and did not cut her chain. He did not also demand for her hand bag and that no jewelries were found in his pocket as he also did not fight with the PW2. He was also thoroughly cross examined by the counsel for the Respondent.

It was on the strength of the above pieces of evidence that the Court below in its judgment delivered on 10/5/2016, while acquitting and discharging the Appellant on Count one for the offence of Conspiracy to commit armed robbery but convicting him on Count two for the offence of Armed Robbery, had held inter alia thus:
“…..Now the evidence of the 1st and 2nd Prosecution witnesses that the accused held them up with a gun at Urubi junction or Urubi/3rd Cemetery traffic light was actually not challenged by the defense….The evidence of the 1st PW that the accused snatched her gold necklace from her neck at gun point was also not challenged by the defence… The evidence of the 2nd PW that he held the accused in the course of the robbery and that people intervened to apprehend the accused at the scene was also supported….Then there is the cut to size single barrel gun said to have been used by the accused to hold up the 1st and 2nd Prosecution witnesses and to hit the 2nd PW during their fight or struggle. The gun also provides support for the evidence of the 1st and 2nd PW….I cannot believe the accused on the point, except I want to believe that someone quickly gathered them at the scene in order to frame him up, a very improbable conjecture!…This defense was hardly a rebuttal to the concise and unchallenged evidence of the prosecution linking the gun to the accused. I therefore believe the 1st and 2nd Prosecution witnesses that the gun belonged to the accused and was used by him to hold up the 1st and 2nd Prosecution witnesses…I have already highlighted and considered the evidence of the 1stand 2nd Prosecution witnesses…..I have no reason whatsoever not to believe the evidence of the 1st and 2nd Prosecution witnesses as to how the accused person held them up with a gun and pulled off the gold chain worn by the 1st PW and I accordingly believe them….I therefore disbelieve the defense of the accused. On the whole, I accept the case presented by the Prosecution for it was simple, concise, straight- forward and amply corroborated. I however reject the defense as it was attempt to create some sort of diversion and it was also contradictory….I find as a fact and on the evidence that the accused was arrested at the scene….On the whole, I hold that the Prosecution has proved count two of the charge against the accused beyond reasonable doubt…. Accused is convicted on count two…” See pages 72 – 76 of the Record of Appeal.

I have taken time to reproduce, review and evaluate the totality of the evidence as in the printed record in view of the fact that the position of the law on what the Prosecution would prove to secure conviction on a charge of Armed Robbery seems fairly well settled and thus this appeal turns out more on the findings of facts as made by the Court below from the evidence led before it by the parties. It is true that in law while facts admitted need no further proof, evidence that remains unchallenged is good evidence on which the Court can act to make relevant findings of facts as such evidence is deemed have been true and or accepted by the adverse party. See Okoebor V. Police Council (2003)12 NWLR (Pt. 834) 448. See also Iriri V. Erhurhobara (1991) 2 NWLR (Pt. 173) 252; Asafa Food V. Alraine Nig. Ltd (2002) 12 NWLR (Pt. 781) 353; Charles Ikechi Okike V. The Legal Practitioner Disciplinary Committee & Ors (2005) 15 NWLR (Pt. 949) 471 SC; Dennis Ivienagbor V. H. O. Bazuaye (1999) 4 NWLR (Pt. 620) 552.

My lords, in our criminal jurisprudence the burden of proof, which never shifts, is on the Respondent being the Prosecution to prove the guilt of the Appellant beyond reasonable doubt and this could be achieved by leading credible and cogent evidence establishing all the essential elements of the offence charged against the Appellant. In law, once this is done it is said that the offence has been proved beyond reasonable doubt. However, proof beyond reasonable means just what it means and not proof beyond all shadows or fanciful doubts or proof to the hilt. It does not therefore, impose on the Prosecution any more duty than to show by clear evidence, which may be direct or confessional or circumstantial, the existence of all the essential elements of the offence with which an Accused person is charged. See Ganiyu Nasiru V. The State (1999) 2 NWLR (Pt. 589) 87; Fabian Nwaturuocha V. The State (2011) LPELR – 8119 (SC); Woolmington V. DPP (1935) AC 485; Miller V. Minister of pensions (1947) 3 All ER 373; Alabi V. The State (1993) 7 NWLR (Pt. 307) 511; Igabele V. State (2006) 6 NWLR (Pt. 975) 100; Kim V. The State (1992) 4 NWLR (Pt. 233) 17; Okafor V. The State (2006) 4 NWLR (Pt. 969)1; Ani V. The State (2003) 11 NWLR (Pt. 830) 142; Ilodigwe V. State (2012) 18 NWLR (Pt. 1331) 1; Bello V. State (2012) 8 NWLR (Pt. 1302) 207.
My lords, in a charge alleging the commission of one of the gravest of criminal offences, such as Armed Robbery, and carrying the mandatory sentence of death by hanging upon conviction, the clearest of evidence invoking neither doubt nor mere passion or compassion in the Court is required to prove such a grievous offence beyond reasonable doubt. See Section 135 of the Evidence Act 2011. See also Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 @ p. 470; Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149; Deriba V. State (2016) LPELR- 40345 (CA) per Georgewill JCA.

I have considered the findings of the Court below in the light of the copious evidence led by the Respondent as the Prosecution in proof of the offence of armed robbery against the Appellant. I have also reviewed and evaluated the evidence as led by the Appellant in his defense in the light of the rejection of his defense(s) by the Court below. I have futher considered the submissions of counsel for the parties and it does appear to me and I so hold that the Respondent had by credible and direct eye witness evidence of the PW1 and PW2, victims of the armed robbery by the Appellant, and the evidence of the PW3, the Investigating Police Officer, proved as required of it by law the following, namely; A: That there was a robbery on on 9/9/2010 on the PW1 and PW2 respectively; B: That the robbery was an armed robbery, that is the Appellant was armed with a gun during the robbery; and C: That the Appellant was the person who took part in the armed robbery.

In the circumstances above, and having myself considered and re-evaluated the entirety of the evidence led by the parties, as in the printed record, I also find as fact, as correctly found by the Court below, that all and each of the requisite three essential ingredients or elements of the offence of armed robbery were proved by the Respondent, as the Prosecution against the Appellant as the Accused person before the Court below and I hold therefore, that the Court below was right when it found the Appellant guilty under Count two for the offence of armed robbery and thereby convicting of the offence of armed robbery and sentencing him accordingly as required by law.

Indeed, the PW1 and PW2 are the direct victims of the armed robbery and they each gave direct eye witness account of the incidence of 9/9/2010 in their evidence and they were not in any material particulars shaken or contradicted in their cross examination by counsel for the Appellant at the trial before the Court below. The Court below was therefore right to believe them and to have acted on their credible, consistent and cogent evidence showing clearly the guilt of the Appellant beyond reasonable doubt. I therefore, do not see any vital or material or indispensable evidence any of the Policemen or Officers at the New Benin Police Station would have given that was not given in the evidence of the PW1, PW2 and PW3 at the trial before the Court below as would render such persons as vital witnesses as forcefully, but erroneously, contended by counsel for the Appellant and whose absence would have been fatal to the concise, precise, credible and consistent case as presented and proved by the Respondent against the Appellant before the Court below beyond reasonable doubt as in the printed record. See Agboola V. State (2013) 11 NWLR (Pt. 1366) 619 @ p. 641. See also Bozin V. The State (Supra); Ani V. The State (Supra) @ p. 142; Afolalu V. The State (2010) 43 NSCQR 227; Ogudo V. The State (2011) 45 NSCQR (Pt. 1) 278; The State V. Salawu (2011) LPELR – 8252 (SC).

In the circumstances therefore, having found that the Court below was right when it held that the Respondent proved the charge of armed aobbery in Count two against the Appellant beyond reasonable doubt as required of it by law, issue two is hereby resolved against the Appellant in favor of the Respondent.

On the whole therefore, having resolved both issues one and two for determination in this appeal against the Appellant in favour of the Respondent, I hold that the appeal lacks merit and is thus liable to be dismissed. Consequently, it is hereby so dismissed.

In the result, the judgment of the High Court of Edo State, Coram: S. A. Omonua J., in Charge No. B/77c/2012: The State V. Imuetiyan Samuel delivered on 10/5/2016, wherein the Appellant was convicted for the offence of armed robbery and sentenced to death by hanging is hereby affirmed.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother BIOBELE ABRAHAM GEORGEWILL, JCA; I am in full agreement with the reasoning and conclusion therein.

I agree that this appeal lacks merit and should be dismissed.
I abide by the consequential orders in the lead judgment.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA.
I agree that this appeal lacks merit and, for the very elaborate reasons given by my learned brother, I also dismiss the appeal and affirm the decision of the trial Court.

Appearances:

Ambrose Etsenamhe Esq., For Appellant(s)

Not Represented For Respondent(s)