STATE v. MOH’D (2022)

STATE v. MOH’D

(2022)LCN/16336(CA)

In The Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, January 31, 2022

CA/K/165/C/2019

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

THE STATE APPELANT(S)

And

ABUBAKAR MOH’D RESPONDENT(S)

RATIO

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The ingredients of armed robbery have been outlined in a plethora of cases. The ingredients of armed robbery were spelt out in the case of AGUGUA V. STATE (2017) All FWLR (Pt. 888) 355 at 378, paras. D-F (SC) as follows; a. That there was a robbery or series of robberies. b. That the robbery or each of the robberies was an armed robbery. c. That the accused was the armed robber or one of the armed robbers. See also the cases of AMOSHIMA V. THE STATE (2009) All FWLR (pt. 488) 328 at 372 373, paras H-D. PER AKINGBAMI, J.C.A.

THE POSITION OF LAW ON IDENTIFICATION EVIDENCE

THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON UNTIL PROVED GUILTY

Now, in law, there is a presumption of innocence in favour of any person accused of having committed a criminal offence. This presumption of innocence is constitutionally enshrined in Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This presumption therefore places a heavy burden on the prosecution to rebut that presumption before they can secure a conviction. That presumption can only be rebutted by the prosecution adducing sufficient and credible evidence to establish every ingredient of the offence charged. That burden reposed on the prosecution can be said to have been discharged where the evidence led at the trial establishes all and every essential element of the offence charged. See Sections 131(1) &(2) and 132 of the Evidence Act, 2011. See also the cases of Almu v. State (2009) 10 NWLR (pt.1148) 31; Shehu v. State (2010) 8 NWLR (pt.1195)112 and Nwaturuocha v. State (2011) 6 NWLR (pt.1242) 170. Thus in C.O.P v. Amuta (2017) LPELR at 41386 (SC); Ogunbiyi, JSC held as follows:…
The Constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from the beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against the accused through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused. Without any case made out against the accused, he cannot be called upon to enter his defence because in doing otherwise would undermine the constitutional presumption of innocence. To discharge the burden, as earlier stated, would require that all the essential elements of the offence be established by credible evidence. Therefore, where any one of the essential elements of the offence is not made out by the totality of evidence adduced by the prosecution, it would mean that the burden has not been discharged and the accused would be entitled to an acquittal. PER AKINGBAMI, J.C.A

FATIMA OMORO AKINBAMI, J.C.A. Delivering the Leading Judgment): This appeal is against the judgment of the Kaduna State High Court of Justice, Kaduna Judicial Division, delivered by Hon. Justice G.I Kurada in Suit No: KDH/KAD/41C/2016 on the 24/7/2017. Before the said High Court, the Appellant was charged with the following offences:
Count 1: STATEMENT OF OFFENCE: That you ABUBAKAR MOH’D, BENJAMIN MAUDE, HAMZA ABDULLAHI, SANI ADAMU AND FRIDAY STEPHEN on or about 21st September, 2015 at about 1:57 am (sic) at Buwaya Gonin Gora, Kaduna did commit culpable homicide punishable with death in that you caused the death of one Silas Sarki to wit shot him with a gun on his chest with the knowledge that his death would be probable consequence of your act (sic) thereby committed an offence punishable under Section 221(b) of the Penal Code Laws of Kaduna State.
COUNT 2: That you, ABUBAKAR MOH’D, BENJAMIN MAUDE, HAMZA ABDULLAHI, SANI ADAMU AND FRIDAY STEPHEN on or about 21st September, 2015, at about 1:57 am(sic) at Abuwaya Gonin Gora, Kaduna agreed to do an illegal act (sic) wit while armed attacked David Akubor and Joshua Tanko at gun point both at Buwaya Gonin Gora, Kaduna and robbed them, by doing so you committed the offence of conspiracy to commit armed robbery punishable under Section 6(b) R11 Laws of the Federation of Nigeria 2004.
COUNT 3: That you ABUBAKAR MOH’ D, BENJAMIN MAUDE, HAMZA ABDULLAHI, SANI ADAMU and FRIDAY STEPHEN on or about 21st day of September, 2015 at about 1:57 at Buwaya Gonin Gora, Kaduna while armed attacked at gun point Joshua Tanko at his house beat him up and robbed him so many things including two phones(sic) lnfinix Zero and Nokia two bags and the sum of N25,000:00 and by doing so you committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision (sic) Act and Cap R11 LFN, 2004 and triable by the High Court of Justice, Kaduna.
COUNT 4: That you, ABUBAKAR MOH’ D, BENJAMIN MAUDE, HAMZA ABDULLAHI, SANI ADAMU and Friday Stephen on or about 21st day of September, 2015 at about 2am at Buwaya Gonin Gora, Kaduna while armed attacked David Akubor at gunpoint at his house and robbed him so many things including sony phone, wallet and watch valued N17,000 and by doing so you committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act and Cap R 11 LFN, 2004 and triable by the High Court of Justice, Kaduna.

The case of the prosecution as narrated by David Akubo and victim of the offence who testified as PW1, is as contained in pages 31 to 32 of the record of appeal as follows:
”My name is David Akubo. I live behind Buwaya, Gonin Gora. The house is not numbered because there are no streets. I am a businessman. I know the accused persons. On 20/21 September, 2015 at 1:75am l got a phone call from Head security of our neighborhood watch, there were armed robbers in the neighborhood. He said he had called the police and l thanked him. I got dressed and went outside near my gate. My security man Silas Sarki was still sleeping. I went to the gate and could see outside. As l turned to go and wake up my security man, l saw from the area of my car park two men. One of them pointed a gun at me and shouted that l should lie down and if l did not he was going to shoot me. He repeated the threat. Because l was close to the gate l bolted through the pedestrian gate and ran out, and l was screaming. I ran away from my house. As l was running, l ran into one of them. I mistook him for one of our neighborhood Watch. I continued running and he passed and headed towards my house. I ran to a neighbor’s house, and the neighbors came out and was accompanying me back to my house, when both of us heard gun shot from my house. When we heard the gunshot, we no more had courage to go to my house, so we stayed. About 15 to 20 minutes later, the police arrived and they accompanied me back to my house. The first thing we saw when we got to my house was the body of my security guard Silas. He was in the pool of his own blood. When we entered into the house, l found that my family was safe, they did not see them. The police took the corpse of Silas away. When we entered, we observed that there was light in my son’s room, and that was where the robbers took something. They did not enter other rooms. They took my son’s wallet and his phone. There was money in the wallet. The police asked us to go to the police station later. The second accused was the one that pointed a gun at me, and he was with the 4th accused.

The 1st accused was the person l saw when l ran out and he proceeded to my house. The Accused/Appellant gave testimony in Court as his defence to the charge against him. His oral testimony at page 50 of the record is as follows:
”The 1st accused testified as the DW1, and stated that he is Abubakar Mohammed. He does not know what is alleged against him. He was arrested on 27/7/2015 and by 21/9/2015, he was in Police Cell at the State C.I.D. Kaduna. On 27/7/2015, he was in front of Maumuna Gwarzo Secondary School. He was shown Exhibit 1, and he said he did not make any statement to the Police and Exhibit 1, was never read to him by any Policeman, and he did not admit that he committed any offence before any policeman. He said it is not true the PW3, or any policeman at all took him to his house to conduct a search. He did not know any of the co-accused persons before his arrest. He got to know them for the first time, the day he was brought out of the cell, and they were brought to Court and they were locked in the Court cell together. After his arrest, he was in the cell for two months and one day, and one of the Policemen went with him and said all those in the cell should be brought out. The policeman then asked him what his offence was and he replied that he had not committed any offence, but he just went out and saw police arresting people and he was also arrested. One of the officers said he should be released since he did not commit any offence. He was taken back to the cell and the next day they called him out and took him to an office where he saw a paper on the table. They asked him to sign the paper but he refused to sign until it was explained to him. They said he must sign and they brought out gora sticks. He said he saw the PW1 and PW2 here in Court, and it is not true that Police conducted an identification parade and the PW2, identified him”.

At the trial aside the victim of the robbery who testified as PW1, the prosecution called two other witnesses who testified as PW2, and PW3. The Appellant testified as DW1. The extra-judicial statement of the Appellant was also tendered and admitted in evidence. Counsel also filed and exchanged written addresses; and in a considered judgment delivered on 24/7/2017, the trial Court discharged and acquitted the Respondent. It is against that judgment that the Appellant has appealed to this Court. The notice further amended notice of appeal which was dated 12th February, 2021 filed on 15th February but deemed properly filed on 2/3/21 consists of seven grounds of appeal. In compliance with the Rules of this Court, the parties filed and exchanged briefs of arguments.

The Appellant’s Amended 12/2/21 but filed 15/2/21. Therein, three issues were formulated for determination as follows;
1. Whether the learned trial Judge did not err in law when he held that the Appellant failed to establish the offence of culpable homicide punishable with death contrary to Section 221(c) of the Penal Code Laws of Kaduna State against the Respondent. (Ground 1).
2. Whether from the totality of evidence adduced by the Appellant before the trial Court, the offence of armed robbery was not proven by the appellant against the Respondent beyond reasonable doubt. (Grounds 3, 4, 5,6 ). 3. Whether from the state of the evidence adduced by the Appellant in proof of the count of conspiracy, the appellant in proof of the count of conspiracy, the appellant did not establish the offence of conspiracy to commit armed robbery against the Respondent beyond reasonable doubt. (Ground 2).

The Respondent’s brief of Argument was dated the 14th day of December, 2020 and filed the same day. The Respondent distilled a lone issue for determination as follows:
“Whether the learned trial Judge erred in law, when he held that the Appellant failed to establish the offences contained in the Notice of Amended Charge of 5th December, 2016 against the Respondent beyond reasonable doubt.”

I have soberly reflected on the issues formulated by the parties. I am of the view that the issue formulated by the Respondent will be sufficient for the determination of this appeal. Now, on issue one, learned counsel for the Appellant contended that there was ample evidence before the trial Court which established Count 1 of the Amended Charge, which borders on culpable homicide contrary to Section 221 (c) of the Penal Code Laws of Kaduna State was proved beyond reasonable doubt against the Respondent. The ingredients of the offence charged are as follows:
a) That there was death of a human being.
b) That the death was caused by the act of the Defendant.
c) That the Defendant did the act with the intent to cause the death of the deceased or could not have known that death was the possible consequences of his act. The case of Azoryeme v State (2019) All FWLR (pt 976) 1096 at 1110-1111 paras G-A for the ingredients of the offence charged herein.

On issue two, Appellant’s Counsel submitted that the second issue ought to be resolved in favour of the Appellant as the Appellant proved the offence of armed robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearm (Special Provision) Act Cap R11, LFN 2004. The Supreme Court enumerated the elements of the offence of Armed Robbery in the case of Oseni v State (2012) 5 NWLR (pt 1293) 351. On the third issue on conspiracy between the Respondents and his gang members to commit armed robbery. In the case of Posu v The State (2011) LPELR-SC 134/2020. The Respondent’s extra-judicial statement admitted in evidence and marked as Exhibit 1, clearly shows that the Respondent and his co-accused at the lower Court who consisted of a robbery gang conspired to commit the armed robberies captured in Counts 3 and 4 of the Amended charge.

The trial Court therefore erred in law in failing to give effect to the extra-judicial statement of the Respondent in holding that the offence of conspiracy and other offences charged have been proven by the Appellant. Respondent’s Counsel’s submissions on the lone issue:
“Whether the learned trial Judge erred in law when he held that the Appellant failed to establish the offences contained in the Notice of Amended Charge of 5th December, 2016 against the Respondent beyond reasonable doubt.”

Count one of the Notice of Amended Charge bordered on the alleged commission of the offence of culpable homicide punishable with death by the Respondent and his co-accused at the trial Court. Count two of the said Charge bordered on the alleged commission of the offence of conspiracy to commit armed robbery by the Respondent and his co-accused. Counts three and four of the said Charge bordered on the commission of the offence of armed robbery at the residences of Joshua Tanko and David Akubo at Buwaya, Gonin Gora, Kaduna. The Appellant failed to adduce cogent, credible and compelling evidence in proof of the commission of the offence of culpable homicide punishable with death contrary to Section 221 (c) of the Penal Code Laws of Kaduna State against the Respondent.

In the case of AZORYEME V. STATE (2019) All FWLR (Pt. 976) 1096 at 1110-1111, paras. G-A, the Court set out the ingredients, of the offence of culpable homicide punishable with death as follows;
i. That a human has died.
ii. That the death was caused by the act of the accused.
iii. That the accused intended the death of the deceased. See also ILODIGWE V. STATE (2012) 18 NWLR (Pt. 1331) 1 at 11.

Counsel submitted on the first ingredient of the offence of culpable homicide punishable with death contrary to Section 221 (c) of the Penal Code Laws of Kaduna State was not proved by the Appellant. This is so as there was no medical report stating that one Silas Sarki died, was produced before the trial Court and tendered in evidence. Also, a post mortem report stating of what cause the said Silas Sarki died was never produced and tendered in evidence before the trial Court. Thus, the cause of death of Salas Sarki remains unknown till date.

Furthermore and as rightly observed by the trial Judge at page 99 of the judgment, there was no evidence before the trial Court that the body of Silas that the PW1 saw was certified death. There was no evidence that the said Silas Sarki was buried. No member of Silas Sarki’s family was called to testify of his death. Quite curiously, the PW3 was the Investigating Police Officer who investigated the allegations of armed robbery, conspiracy and culpable homicide punishable with death against the Respondent and his co-accused persons. Throughout his evidence, the PW3 never mentioned the named Silas Sarki. He did not say anyone died in the course of the robbery. If the Police took away the corpse of Silas Sarki as stated by the PW1 in his evidence, it is unbelievable that the PW3 who investigated the case did not see the corpse. Yet he did not state that he saw the corpse or that someone even died. Thus, there is no basis whatsoever to have believed that Silas Sark died as rightly held by the trial Judge.

The second ingredient is that the act of the accused caused the death of Silas Sarki. Counsel submitted that there is no cogent or positive evidence from the Appellant in proof of this fact. PW1 in his evidence claimed that he ran out of his house and went to his neighbour’s house and that it was when his neighbour was accompanying him back to his house that they heard gunshot and when they later entered the house, they saw the body of Silas Sarki in the pool of his own blood. None of the Appellant’s witnesses saw who shot Silas Sarki. Under cross-examination by Dele Oye Esq., the PW1 admitted he was not present when Silas Sarki was shot. In fact, there is no cogent evidence in proof of the fact that Silas Sarki was shot and at what part of his body he was shot. This is despite the fact that the charge sheet stated that Silas Sarki was shot on his chest. Obviously, none of the Appellant’s witnesses at the trial Court knew that Silas Sarki was shot with a gun on his chest as stated in count one of the charge hence they did not testify to that effect.

Consequently, the Appellant failed to prove the second ingredient of the offence of culpable homicide punishable with death. Counsel further submitted with respect to the second ingredient of the offence of culpable homicide that the confessions in Exhibits 1, 2, 3 and 4 to the effect that it was one Tirki that shot Silas Sarki dead goes to no issue. This is so as the said extra judicial statements equally shows that when the said Tirki shot Silas Sarki, the other members of the robbery gang began to quarrel with him and that even the 5th Accused person fought with Tirki for shooting at Silas Sarki. Thus, the Respondent and his co-accused cannot be held liable for the act of Tirki in shooting at Silas Sarki as they did not do any act to aid or facilitate the shooting by Tirki. The mere presence of the Respondent at the scene of crime, does not as a matter of law render the Respondent guilty of the offence of culpable homicide. There must be clear evidence that he did any act either before or at the point of commission of the offence to aid or facility the commission of the offence. See EME ORJI V. THE STATE (2008) 3 SCLR (Pt. 3) 69 AT 87-89.

However, Tirki was not arraigned alongside the Respondent and his co-accused. Even then, the Respondent and his co-accused could not know if the said Silas Sarki was dead even if they saw him on the floor as he could just have been unconscious. Thus, as rightly pointed out by the trial Judge at page 101 of the Record, that the extra-judicial statements of the Respondent and his co-accused says that Tirki shot the security man dead is not conclusive proof that Silas died as there is no credible evidence before the trial Court that Silas Sarki died. Counsel submitted that in view of the failure of the Appellant to prove the first and second ingredients of the first count, it is academic to address the third ingredient of the offence of culpable homicide punishable with death. Respondent counsel urged this Court to hold that the Appellant failed to prove the ingredients of the offence of culpable homicide punishable with death.

With respect to the offence of armed robbery, Respondent’s counsel submitted that the Appellant failed to prove that the offence of armed robbery was committed by the Respondent in the residence of David Akubo and that of Joshua Tanko. It is trite that in order to secure conviction with respect to offences charged, the Prosecution must prove the commission of the offence by the accused beyond reasonable doubt. This burden on the Prosecution remains static. See the cases of UCHE V. STATE (2015) All FWLR (Pt. 796) 431 at 440, paras. F-G (SC); STATE V. OLADOTUN (2011) 10 NWLR (Pt. 1256) 572. But the Appellant herein failed to prove the commission of the offence of armed robbery against the PW1 and PW2 by the Respondent beyond reasonable doubt.

The ingredients of armed robbery have been outlined in a plethora of cases. The ingredients of armed robbery were spelt out in the case of AGUGUA V. STATE (2017) All FWLR (Pt. 888) 355 at 378, paras. D-F (SC) as follows; a. That there was a robbery or series of robberies. b. That the robbery or each of the robberies was an armed robbery. c. That the accused was the armed robber or one of the armed robbers. See also the cases of AMOSHIMA V. THE STATE (2009) All FWLR (pt. 488) 328 at 372 373, paras H-D.

Respondent’s submitted that no armed robbery took place at the house of the PW1. He in examination in chief, the PW1 testified as follows; “On 20/21 September 2015, at 1.75am-I got a phone call from Head security of our neigbourhood Watch, there were armed robbers in the neigbourhood. He said he had called the police and I thanked him. I got dressed and went outside near my gate. My security man Silas Sarki was still sleeping. I went to the gate and could see outside. As I turned.to go and wake up my security man, I saw from the area of my car park two men. One of them pointed a gun at me and shouted that I should lie down and if I did not he was going to shoot me. He repeated the threat. Because I was closed to the gate I bolted through the pedestrian gate and ran out and I was screaming. I ran away from my house. As I was running, I ran into one of them. I mistook him for one of our neigbourhood Watch. I continued running and he passed and headed toward my house. I ran to a neighbour’s house and the neighbour came, and was accompanying me back to my house, when both of us heard gunshot from my house. When we heard the gun shot we no more had courage to go to my house so we stayed. About 15 to 20 minutes later, the police arrived and they accompanied me back to my house. The first thing I saw when we got to my house was the body of my security guard Silas. He was in the pool of his own blood. When we entered into the house, I found that my family was safe, they did not see them. The police took the corpse of Silas away. When we entered, we observed that there was light in my son’s room, and that was where the robbers took something. They did not enter other rooms. They took my son’s wallet, his phone. There was money in the wallet ….”(Underlining ours) See page 31 of the Record.

It is evident from the above that the PW1 was never robbed of anything. He claimed his son’s wallet which contained money and his son’s phones were stolen by the Respondent and his gang. However, his son who should have been the best person to give evidence as to what properties of his were stolen was never called to give evidence before the trial Court as he was a vital witness. Hence the evidence of PW1 to the effect that his son’s wallet and phone were stolen cannot be taken seriously, more so as the reason why his son did not come to Court.

This is because it is the PW1’s son that was the victim of the armed robbery, not the PW1. See OGUDO V. STATE (2011) 18 NWLR (Pt. 1278) 1 at 31-32, paras. G-B; STATE V. NNOLIM (1994) 5 NWLR (Pt. 345) 394. In a case of armed robbery, which carry death sentence, the PW1 could not tell this honourable Court how much was in his son’s wallet that was purportedly stolen. He did not even state the make of his son’s phone that was allegedly stolen. This makes his story incredible and manifestly unreliable. Count four of the charge claimed that it was the PW1 that was robbed of his Sony Phone, Wallet and watch valued at N17,000. Hence the evidence led by the PW1, is at variance with the charge. It is submitted for the Respondent that evidence emanating from the prosecution which is at variance with the charge ought to ensure in the accused’s favour, as such evidence should be fatal to the prosecution’s case. See RAYMOND NWOKEDI V. C.O.P (1977) ALL NLR 11 at 14-15. Hence the trial Court was right in refusing to attach any weight to evidence of the PW1, in proof of the first ingredient of the offence of armed robbery.

Counsel submitted further that the robbery at the residence of the PW1 and PW2 could not have been possible based on the evidence contained in the said Notice of Amended Charge. This is so as under cross-examination by the Respondent’s then Counsel, Dele Oye Esq., the PW1 claimed that the robbery happened at about 2pm. In his evidence in chief, the PW1 had earlier stated that the robbers he saw were the 1st, 2nd and 4th Accused person. However, the PW2 claimed that on the same 21st September, 2015, at about 2:21am, some robbers broke into his house and the 5th accused hit him on his nose with his leg and asked him to cooperate. That he then asked his wife to go and give them the money he took home that day from church. That the robbers ransacked his bedroom. They later came back unsatisfied and started to beat him and his son. He identified those that beat him and his son as the 2nd, 3rd, 4th and 5th accused persons. The PW2, claimed at that point they said they should go back to his bedroom. That they went back and that the robbers had already picked his car key. One of the robbers accidentally pressed the security of the car and the security started blowing just like police siren. Then one of them said “polowa, polowa” that is “police, police” and they rushed out and he followed them. That was when he realized that two of the robbers were standing outside including the 2nd accused who was standing with a gun. They scaled through the fence and left behind their iron bar (which they used to open the kitchen door, torchlight and bullet, which he submitted to the Sabo Police Station. See pages 34-37 for the evidence of the PW2. Counsel submitted that a common feature of the alleged robbery of the PW1, and PW2 is the time of the robbery. While the PW1 said he was robbed at about 2pm, the PW2 equally stated that the robbery at his residence happened on the same night as that of PW1 at around two pm. Now, the PW1 and PW2 do not live in the same apartment. They live in the same neighbourhood at Buwaya. While the PW1 claimed that the 2nd and 4th Accused were the persons that robbed him at about 2am of the 21st September, 2015, the PW2 claimed that it was the 2nd, 3rd, 4th and 5th Respondent that robbed him on the said 21st September, 2015 at about 2am and 2:15am.

The implication there is that the Respondent and his co-accused were at two different places robbing at the same day and time. This is impossible. This cast great doubt on the evidence of the PW1, and PW2 with respect to the robbery. PW2’s, evidence as to the identity of the robbers was rightly viewed with further suspicion by the trial Court. This is so as while the PW2 claimed that the 2nd accused was with him inside the house and they ran out together when the alarm started to sound, he further testified that as they ran out, he saw the 2nd Accused standing outside with a gun.

Thus, while the 2nd accused was standing inside the PW2’s residence, he was still standing outside the same PW2’s residence. This is not only incredible, it is impossible. The foregoing cast serious doubt on the evidence of the PW1, and PW2 as to the identity of the robbers who came to rob them on the 21st September, 2015. Thus, the learned trial Court was right in not believing that it was the Respondent and his co-accused that robbed the PW1 and PW2, that is, if they were robbed at all.

In his further cross-examination by the then Counsel for the Respondent, Dele Oye Esq., the PW2 admitted the following; “After the accused were arrested, I was invited to go and identify those who came to my house. I identified the accused among many other people including a policeman that were paraded at the police station. They were around 10-15 people including a policeman that were paraded in the room …. The accused were not in handcuffs or chains. I made statement at Sabo Police station that same date 2119/2015”

The foregoing evidence of the PW2 elicited under cross-examination clearly shows that the accused persons were arrested and an identification parade conducted at the Sabo Police Station on 21/9/2015. And that he was able to identify the accused (he did not say which of the accused persons, though). On his part, the PW3 under cross-examination by Dele Oye Esq., admitted as follows; “I did not arrest the 1st Accused. The Accused persons were not brought to our office from any police station but they were brought by a team of detectives attached to the State C. I. D. and my team was detailed to investigate and I was detailed to record their statements. After recording the statements, a search was conducted in the houses of the accused. I visited the residence of the complainant.

Now, while the PW2, claimed that the accused were arrested by the Police at Sabo Police Station, the PW3 testified that it was a team of detective attached to the State C.I.D. that arrested the accused and that the accused were not brought to their office from any police station. While the PW2 stated that identification parade was conducted at Sabo Police Station, the PW3 never mentioned in his evidence that he, the Investigating Police Officer conducted an identification parade. Curiously, the PW2 claimed that it was on 21/9/15 that he was called to identify the accused and that was the day his statement was taken. Thus, the Accused must have been arrested on or before 21/9/2015.

However, the PW3 testified that the Accused persons were brought to his office in October, 2015. Between the PW2 and PW3, who is telling the truth and who is lying? We do not know as the Appellant made no effort to set the record straight, but left its evidence before the trial Court in a state of disorder.

In the case of CLARK EJUREN v. COMMISSIONER OF POLICE (1961) ALL NLR 498, the Supreme Court per Hurley, C.J.N.R. had this to say:
”on an appeal from conviction on a Criminal Charge, the record of evidence shows that the trial Court heard witnesses who gave two conflicting versions of an essential fact and that the Court failed to make any specific finding on that fact; the Supreme Court, as a Court of Appeal, cannot choose between the two versions of that fact in order to make a finding of fact against the Appellant which the trial Court did not make. In the absence of a specific finding by the trial Court on an essential fact, on which conflicting evidence was adduced, the only conclusion an appellate Court can draw from such conflicting evidence is that favourable to the accused person.”

The trial Court was therefore right in not choosing which evidence to believe between that of the PW2 and that of the PW3. This is so as It is trite in law that upon failure of the prosecution to explain away inconsistencies in the evidence of prosecution witnesses, the Court cannot pick and choose which witness to believe and which not to believe. See BOY MUKA & ORS V. STATE (1976) 9-10 S.C. 305 at 325; ONUBOGU V. STATE (1974) ALL N.L.R. 561.

It is settled law that identification evidence is the evidence that shows that a person charged with an offence is the same as the person that committed the offence. See the cases of BASSEY AKPAN ARCHIBONG V. THE STATE (2006) All FWLR (pt. 323) 1747; MAIKUDI ALIYU V. STATE (2007) All FWLR (pt. 388) 1123 at 1147. But can this honourable Court take the PW2 seriously on the point that he was called to identify the robbers on 21/9/2015 and that he identified them? We think not, drawing from the submissions above. My Lords are respectfully urged to so hold. Counsel urged this Court to hold that in view of the evidence adduced by the Appellant in proof of the offence of armed robbery, which evidence is heavily contradictory and in great disarray, the Appellant failed to prove Counts 3 and 4 of the Notice of Amended Charge.

Counsel submitted that the offence of conspiracy to commit armed robbery that the ingredients of the said offence was never proved before the trial Court. The ingredients of the conspiracy to commit armed robbery are; (i) that there was an agreement or confederacy between the convict and others to commit the offence of robbery (ii) that in furtherance of the agreement or confederacy, the accused took part in the commission of the offence of robbery or series of robberies; and (iii) that the robberies or each robbery was an armed robbery. See AMOSHIMA V STATE (2009) ALL FWLR (Pt. 488) 328 at 351 paras E-G.
The Appellant failed to prove the ingredients of the offences charged before the trial Court.

Therefore the trial Court was right in dismissing the charges brought against the Respondent.

The burden cast on the prosecution is required to be discharged beyond reasonable doubt. See Section 135 (1) of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt or proof to the hilt. It only means that the evidence adduced points to only one conclusion; that the accused and no one else, committed the offence. In other words, in the determination of whether the offence charged has been proved beyond reasonable doubt, minor doubts may creep in here and there in the course of evaluation of the totality of evidence adduced, which the Court may validly discountenance as irrelevant, then in such a circumstance, it would be said that no reasonable doubt has arisen as to the guilt of the accused. This is because it is only in mathematics that exactitude may be attained. See Dibie v. State (2004) 14 NWLR (Pt. 893) 284; Ewugba v. State (2017) LPELR 43833 (SC), Ukpong v. State (2019) LPELR 46427 (SC) and Umar v. State (2014) 13 NWLR (Pt. 1425) 497.

The Appellant herein, was the prosecution who arraigned, tried the Respondent for the offences of conspiracy to commit armed robbery; armed robbery and murder. The crime of armed robbery is recognized by Section 1 (2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. It stipulates as follows: 1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years. (2) If (a) any offender mentioned in Subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or (b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death. Robbery is defined by Section 11 (1) of the Robbery and Firearms Act (supra) to mean: At stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained; Robbery therefore means stealing by the use of or threat of use of violence to any person or property. Armed robbery on the other hand, is robbery while armed with an offensive weapon. See Arowojolu v. State (2016) LPELR-40156 (CA); Orisa v. State (2018) LPELR-43896(SC) and Suleiman v. State (2015) LPELR 25726 (CA). The essential ingredients required to prove the offence of armed robbery have been laid down in a plethora of cases such as Dawai v. State (2017) LPELR-43835 (SC); Tanko v. State (2008) 18 NWLR (Pt.1114) 591; Sani v. State (2018) LPELR at 44715 (CA); Adeyemo v. State (2015) LPELR 24688 (SC); Pius v. State (2016) LPELR-40657 (SC); etc. Those essential ingredients are as follows: (a) that there was a robbery or series of robberies; (b) that the robbery or each of the robberies was an armed robbery; (c) that the accused person was either the robber or one of the persons that committed the robbery. It should be noted that each of the stated ingredients must be established by credible evidence beyond reasonable doubt. Thus, where any of those ingredients is not proved, then the prosecution have failed to prove the offence beyond reasonable doubt. The prosecution will adduce credible evidence by any one or a combination of the below stated methods:- (i) by the Confessional Statement of the accused person which must be unequivocal and duly proved; or (ii) by circumstantial evidence which leads to the irresistible conclusion that the accused person, and no one else committed the offence; or (iii) by the direct testimony of eye witnesses who were present and who saw when the offence was committed. In the instant case, it appears to me that the prosecution hinged their case on the testimony of the PW1, and PW2 happened to be the victim of the armed robbery charged. The Respondent did not confess to the commission of the offence and there were no other circumstances, apart from the testimony of the PW1, that the guilt of the Appellant could be inferred. Thus, in proof of the fact of robbery, the PW1, testified at pages 31-32 of the Record of Appeal. That is the testimony of the PW1, given in Court, and this aspect of his testimony was contradicted. It is clear therefore that, the fact of robbery committed on the PW1, was never established beyond reasonable doubt. The evidence is clear.

Where the identity of an accused person has been put in issue, it is necessary that the evidence adduced is concrete, cogent and credible, pointing beyond reasonable doubt that the accused person has been properly linked with the commission of the offence charged.

That is why the learned trial Judge could easily find as follows:
“The PW3, who said he recorded Exhibits 1, to 4 did not say that he told the accused persons of any allegation or allegations against them for which he was asked to record their statements. His evidence is simply that he cautioned them and recorded their statements. Cautioned them to make statements for what? How on earth does the prosecution want me to believe that somebody can be arrested just like that, for no reason given to him, for no allegation made against him and then he begins to confess as claimed by the prosecution? It appears to me that there is more than meets the eye in this case. The absence of evidence of the identity of who arrested the accused persons, where he arrested them, when he arrested them and why he arrested them lends credence to the evidence of the accused persons that they were in custody at the State C.I.D as at 21/9/2015, when the robbery in the houses of PW1, and PW2 was committed. It will therefore be most unreasonable of this Court to accord any weight to exhibits 1 to 4 in the facts, evidence and circumstances of this case. I hold that counts three and four of the charge have not been proved beyond reasonable doubt as required by law. And for the same reason, l cannot infer from the contents of the Exhibits that there was an agreement by the accused to commit armed robbery. I hold, therefore, that count two has equally not been proved. I hold that the accused are entitled to a discharge and acquittal and they are hereby discharged and acquitted of all the counts of the charge.”

From the evidence on the record, I am of the view that the above findings of the trial Court are unassailable. The result is that there is sufficient credible evidence which fixed the Appellant at the scene and also identified him as a participant in the crime charged. The law is that, if the prosecution adduced sufficient and credible evidence which fixed the accused person at the scene of crime at the material time, the alibi raised would have been logically and effectively demolished. See Kolade v. The State (2017) LPELR at 42382 (SC); Ebenehi v. The State (2009) 6 NWLR (Pt. 1138) 431 at 448; Victor v. State (2013) 12 NWLR (Pt. 1369) 465 and Idiok v. State (2008) 13 NWLR (Pt. 1104) 225. Thus, State v. Ekanem (2016) LPELR-41304 (SC). In the instant case, the evidence adduced at the trial did not fix the Respondent at the scene of crime. The learned trial Judge, in my view, rightly relied on such evidence to discountenance the evidence proffered by the Respondent.

On that note, I find, in agreement with the learned trial Judge that the Respondent was not sufficiently identified as a participant in the crime charged. This issue is, therefore resolved against the Appellant. On the whole therefore, I hold that this appeal is lacking in merit. It is accordingly dismissed. The judgment of Kaduna State High Court, sitting in Kaduna, delivered on the 24th day of July, 2017 in Suit No: KDH /41C/2016, is hereby affirmed.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment delivered by my Learned Brother, FATIMA OMORO AKINBAMI, JCA wherein the facts and issues in contention are set out in extenso.

I affirm my agreement with the reasoning and conclusion reached in the leading judgment dismissing this appeal.

Appearances:

Olanrewaju D. Olaoluwa, Esq, For Appellant(s)

Ikani S.O., Esq, For Respondent(s)