PRINCE EMEKA V. THE STATE (2013)

PRINCE EMEKA V. THE STATE

(2013)LCN/6751(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 12th day of June, 2013

CA/B/370C/2010

RATIO

EFFECT OF NON- OBSERVANCE OF JUDGES RULES

The Judges Rules are rules of caution which makes a judge wonder why they are not followed. None observance of the Judge’s Rules may convince a court of the lack of voluntariness of a confessional statement. See Egboghome v. The State (1993) 7 NWLR Pt. 306 pg. 383. When an extra judicial statement made by an accused is challenged as had been done in this case, on the ground that it was not voluntarily made, and a trial within trial had been conducted, the trial court must bear in mind that the onus is on the prosecution to prove beyond reasonable doubt that the statement was voluntarily made by the accused. See Eke v. The State (2011) 3 NWLR Pt. 1235 Pg. 589. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

Between

PRINCE EMEKAAppellant(s)

AND

THE STATERespondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the conviction of the Appellant by his Lordship the Hon. Justice J. Aigbuloko Oyakhirome J. sitting at High Court Benin City on the 23rd day of April, 2010 in charge No. B/2C/2008, for the offence of Armed Robbery. Being dissatisfied with his sentence and conviction, the appellant who was the only accused person during the trial of the charge at the High Court on the 6th day of September, 2010 filed an appeal seeking his discharge and acquittal.
The facts which led to this appeal are as follows:
The case of the prosecution is that PW1, one Mill Ada Mokobia testified that she lives and sells cooked food at No.34 Zabayo Street Benin City and that she has a motorcycle rider who buys meat for her every morning for her commercial cooking business and that whenever the bike man comes she gives him N1,500.00 for purchase of meat.
That on the 30th day of June 2006 at about 5.55 a.m. she was inside her room washing rice to be cooked that morning when she noticed the accused person in front of her store and that she ignored him as she thought he was waiting for something. She also stated that as she was washing her rice the accused came to her in her store, put a gun to her head and the other hand to her throat and demanded for money and her handset. She also told the court that the accused person on sighting the flashing light from her handset pushed her, picked up the Samsung handset and the sum of N10,000 she left on the table. She testified that she ran outside and started to shout “thief, thief, help, help” and people came out, pursued the accused, caught him and took him to Aideyan police station, Benin City. Following the armed robbery attack on the PW1 the accused was arrested by some people and taken to Aideyan police station, Benin City for investigation.
The appellant was later arraigned in charge No. B/2C/2008 at the High Court of Justice Edo State Holden at Benin City on the 9th day of June, 2008 on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to S.5 (b) and Arms (Special Provision) Act, Cap 398 of the 1990 Laws of the Federation of Nigeria.
The first count of conspiracy was later withdrawn and struck out by the trial court.
In proof of its case, the prosecution called three (3) witnesses and tendered five exhibits. The appellant testified on his own behalf and called no witness.
At the close of trial and in the judgment delivered on the 23rd day of April, 2010 the trial judge convicted the accused person on the one count charge of armed robbery and sentenced him to death by hanging.
Being dissatisfied with the judgment, the appellant has appealed to this Honourable Court.
The appellant’s counsel in the brief settled by E.O. Achukwu Esq. and filed on 25/11/2010 identified 2 issues for determination set out as follows:
1. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.
2. Whether the confessional statement is admissible against the appellant.
ISSUE ONE
Learned Appellant’s counsel submitted that before an accused person will be convicted for an offence of armed robbery the prosecution must prove the following ingredients.
1. That there was a robbery.
2. That it was armed robbery.
3. That the accused person was involved. He cited Bozin vs. the State (1998) 1 ACLR 1, 2 ratio 1.
Counsel argued that only the evidence of PW1 linked the appellant to the crime. He insisted that from the evidence of PW1 it was clear that the appellant was caught by people who heard her shouting thief and calling for help and that the incident happened very early in the morning. He argued that PW1 did not state how she was able to identify the appellant in particular as the person who pointed a gun to her head with one hand and held her throat with the other hand. She did not testify as to the cloth he was wearing or his features or what struck her about the appellant as the person who attacked her.
Counsel submitted that in the case of Sunday Ndidi vs. the State (2007) 41 WRN 1 at 1-16 or (2007) 5 SCNJ 274 at 287-288, the Supreme Court warned on the need for the court to be careful in convicting without proper identification in cases where the accused was not previously known to the witness. He stated that the court must meticulously consider the following issues:
1. Circumstances in which the eye witness saw the suspect or defendant.
2. The length of time the witness saw the suspect or defendant.
3. The opportunity of close observation.
4. The previous contacts between the two parties.
Counsel argued that the statements made by PW1 at Aideyan police station at pg. 26 of the record is different from the statement made by the witness at the special anti robbery squad SCID Benin which is on pg. 20 of the record. In the earlier statement, the witness did not mention that the appellant carried a gun, but mentioned the gun at a later date. Counsel submitted that the trial court should have taken the evidence of PW1 with a pinch of salt and ought not to have convicted the appellant based on contradictory evidence. Counsel referred the case of Okonkwo v. the State (1993) NWLR pt. 561 Pg. 210 at 241 where the court held that where the previous statement of a witness to the police and his evidence in court are conflicting the proper approach for the court to adopt is to disregard both for being of little or no probative value rather than picking or choosing which of them to believe. Counsel also referred to the evidence of PW1 at Pg. 19 of the record where she stated that her money and handset were not recovered from the appellant.
Learned appellant’s counsel also submitted that there was contradiction in the evidence of the prosecution witnesses. That the evidence of PW1 differed from the evidence of PW2 in relation to who first effected the arrest of the appellant. While PW1 swore that the appellant was arrested by a crowd of people who came to her assistance when she shouted for help, PW2 insisted that the appellant was arrested by police anti-crime patrol. Counsel submitted that where there are such contradictions and inconsistencies in the evidence by a prosecution witness before a court, which cast doubt upon the guilt of the accused person, the doubt should be resolved in favour of the accused person, since the court could not choose and pick which evidence to believe. He cited Akosile v. The State (1972) 5 SC Pg. 332; Onubeogu v. The State (1974) SC; Umani v. The State (1988) 1 NWLR Pt. 70 P9.274.
Counsel submitted that neither PW2 nor PW3 were able to state precisely how the gun came about or who it was recovered from. Counsel argued that PW2 did not tender the Samsung GSM handset allegedly stolen by the appellant. It is on the basis of the stolen Samsung GSM handset that the appellant was charged to court and not on the basis that a double barrel gun was found on the appellant. The court in the case of Nwomukoro v. State (1995) 1 NWLR pt.372 P9.432 at 444 paras ‘B-C’ stated that in a criminal case involving robbery it is essential for the prosecution not only to prove that certain items were stolen but also to produce them in court as exhibits.
Learned Appellant’s counsel also complained that since the appellant was actually not arrested on the spot, the police should have conducted an identification parade. The evidence of PW1 did not indicate how she came to recognise that it was her assailant who was arrested by the mob after she raised the alarm. She did not explain whether she identified him by his clothing or his face or stature.
The Respondent’s counsel in the brief settled by P.E. Aziegbemhim Mrs., Asst. Director, Ministry of Justice, Edo State, adopted the same issues as identified by learned Appellant’s counsel and submitted to this court for the determination of this appeal.
Learned Respondent’s counsel reiterated the position of the law regarding the ingredients of the offence of armed robbery as argued by learned appellant’s counsel and cited Bozin v. The State (1998) 1 ACLR 1 at 2 ratio 1; Adedara v. State (2009) 52 WRN 66 at 72 ratio 2. Respondent’s counsel insisted that the prosecution successfully proved beyond reasonable doubt that PW1 was robbed on the 23/12/2005 and that the act was an armed robbery. Counsel referred to the evidence on oath of PW1 on Pg. 19 of the record where she said the appellant put a gun to her head, which evidence was not shaken under cross examination and was further corroborated by PW2 and PW3.
Counsel also insisted that the appellant’s confessional statement Exhibits D and E further corroborates the evidence of PW1. Counsel argued that PW1 was consistent with the identity of the appellant which was not in doubt to her as the one who robbed her. Her evidence remained intact and unshaken even during cross examination. PW1 had noticed the appellant before the robbery and in the course of the robbery the appellant came very close to her and held her throat, so there could not have been any doubt as to the appellant’s identity to her. Furthermore, PW1 testified that the appellant was caught almost immediately after the robbery with the gun with which he used to rob her and she identified him as the one who robbed her upon which he was taken to the police station.
Counsel submitted that the best identification of an accused person is by the victim of the crime or the witness to a crime. She cited Christopher Okosi v. The State (1998) I ACLR 281 at 284 and that identification evidence is that which tends to show that the person charged is the same person at the locus criminis. She cited Nwatubuocha v. The State (2011) Vol. I LRCNCC Pg. 1 at 4 r.2. Counsel argued that there are no material contradictions in the evidence of the prosecution witness in that the evidence of the appellant at pg. 36 II. 19-20 of the record corroborates the evidence of PW1 that he was not arrested by the police. Counsel urged this court to disregard all submission by appellant’s counsel in his brief of argument at pp. 5, 6, 7 touching on the statement made by PW1 at Aideyan police station as same was not tendered in the lower court to discredit PW1 and was not an exhibit which the lower court evaluated in reaching its decision since the court is only bound by evidence before it. She cited State v. Ogbubunjo (2001) 2 ACLR 523 at 530 v. She insisted that the statement not being an exhibit at the lower court, the appellant cannot through back door introduce it on appeal to be considered in his argument in determining whether there are inconsistencies in the evidence of PW1.
Counsel argued that the learned trial judge having considered all the ingredients of armed robbery and appraised the evidence before him rightly held that the prosecution had proved its case beyond reasonable doubt. She then submitted that it is trite law that where a trial court justifiably appraised the facts of a case and arrives at a conclusion on the credible evidence, the appellate will not interfere with such finding of facts. She cited Oguonze v. State (1998) 58 LRCN 3512 at 3539.
To my mind, the two complaints raised by appellant’s counsel in this issue are that there are inconsistencies in the evidence of PW1 and PW2 regarding whether the appellant was armed in the first instance and regarding how he was arrested on the other hand. Counsel also complained about how the gun and cartridge tendered as Exhibits B and C were linked to the appellant. Learned appellant’s counsel tried to say that there is inconsistency in the statements made by PW1 to the police. He claimed that there were inconsistencies in the statement of PW1 to the police made on 30/06/06 at Aideyan police station shown on pg. 13 of the record and her evidence on oath during the trial shown on pg. 19 of the record. Appellant’s counsel said the inconsistencies are to wit that in the former, PW1 did not say categorically that the appellant was holding a gun when he tried to rob her. While on oath, in the later evidence she stated that the appellant held a gun to her head. PW1 also said that the appellant held a gun in a statement to the police made at the anti robbery squad later on the day of the incident. The problem here is that the appellant’s counsel should have tendered the evidence in accordance with S.232 and S.233(c) of the Evidence Act 2011 (formerly S. 209 of the Evidence Act) before it can be considered by the trial court or this court. Sections 232 and 233(c) provides as follows:
S. 232 – A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceedings in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved, or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him.
Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as t shall think fit.
S.233(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
The point being made here is that before the inconsistency rule can be considered by the trial court or this court, the extra judicial statement of the witness which is inconsistent with other extra judicial statements or the evidence on oath of the witness must be put in evidence. The defence counsel would demand for the copy of the extra judicial statement and then put the inconsistencies in the said statement to the witness to explain them. Where the witness is unable to explain the inconsistencies, the extra judicial statements would then be admitted in evidence for the defence counsel to address on and for the trial court to consider and decide if the inconsistency rule is applicable to it. In this case, the first statement made by PW1 at Aideyan police station where she didn’t mention the use of a gun was never admitted in evidence. Therefore that argument made by learned appellant’s counsel cannot be considered since the conditions precedent for the applicability of the inconsistency rule does not apply.
Learned appellant’s counsel also argued that there was contradiction in the evidence of PW1 and PW2 regarding how he was arrested. While PW1 said he was arrested by the crowd who came to her rescue when she raised the alarm PW2 said he was arrested by the police anti crime patrol squad. This is very important because there seems to me to be a break in the chain of custody of the gun which is the evidence of armed robbery. That is the point the learned appellant’s counsel tried to make. If indeed the appellant was arrested on the spot as it were, the money or the phone stolen from PW1 were never recovered or found on the appellant. None of the crowd which arrested him came to give evidence that a gun was actually found on his person. How did the gun surface? According to PW1 it took about ten minutes for the crowd to catch the appellant after she raised the alarm. According to PW1, she and the crowd took him to the Aideyan police station. Who exactly first saw the appellant with a gun apart from PW1 is of utmost importance to the case of the prosecution. Who took custody of the gun when it was recovered from the appellant and who handed same to the police? The court and the prosecution agreed at Pg.22 of the record that a police patrol team handed over the appellant and Exhibits B and C to the police as opposed to the evidence of PW1. It may not be necessary to call many witnesses but the witness who will prove the case of the prosecution beyond reasonable doubt must be called. See Odili v. The State (1977) 4 SC 1. I am not satisfied that the prosecution was able to establish an incorruptible chain of evidence in relation to Exhibits B and C. The very fact that there is contradiction as regards how he was arrested has made this a cloudy issue.
Furthermore the very circumstances of the arrest of the appellant give room for doubt. He was not someone well known to PW1 and the period the robbery took place was very fleeting with no opportunity for close observation of the appellant by the complainant. She shouted Thief! Thief about 6 a.m. in the morning and a crowd arrested a comparative stranger in the vicinity. There was no proper identification parade conducted to ascertain if the person arrested by the mob was also the person who actually robbed the PW1. What was the particular feature of the appellant which made him recognizable? I am of the view that the circumstances of the arrest of the appellant and recovery of the gun and cartridge are suspect and have raised doubt in my mind as to the guilt of the appellant. Such doubt must be resolved in favour of the appellant and Issue one.
I resolve the first issue in favour of the appellant.
ISSUE TWO
Whether the confessional statement is admissible against the appellant.
On this issue, learned appellant’s counsel argued that a confessional statement is a statement made by any person charged with a crime at any time stating or suggesting the inference that he committed the offence. A conviction for any crime may be based on a single confession if voluntarily made. He cited Girka vs. The State (1996) SCNJ 94. He submitted that one of the fundamental ingredients of a confession is that it must be voluntary; otherwise, it is deemed to be irrelevant and inadmissible. For a confession to be admitted it must be direct, positive and unequivocal. He cited Edamine vs. The State (1996) 3 SCNJ 12. He argued that where a confessional statement was neither direct or positive, it is not admissible. He cited Patrick Njovens & Ors. V. The State (1973) 5 SC 17. A confession is admissible only if it is voluntary and the onus of proving affirmatively beyond reasonable doubt that a confession is voluntary rests on the prosecution. He cited Gbadamosi & Anor. V. The State (1992) 11-12 SCNJ 269.
Counsel further argued that in order to render a confession admissible, it must be perfectly voluntary and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority vitiates a confession. Counsel argued that there is a difference between the first purported statement made by the appellant at Aideyan police station and the one made at the SARS office in Benin. Counsel argued that even though the two statements indicated that the appellant confessed to going to that street several times to rob there was no direct admission by the appellant in the statements that he actually robbed PW1.
Counsel urged this court to believe the evidence of the appellant that he was tortured nearly to death before making Exhibits D and E and to reject the said statements admitted by the learned trial judge. Counsel submitted that where the statement is not voluntary, it must be rejected. He cited R v. Ebhomiew & Anor. (1963) 1 All NLR 365. Counsel argued that the appellant claimed he could write his own statement himself but was not allowed to do so. Counsel also argued that DW1 the appellant’s father gave evidence that the appellant had injuries on his body which were not there before he was arrested.
On this issue, learned Respondent’s counsel submitted that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role placed by him and upon which the court can convict on it alone. He cited Ogoala v. State (1991) 2 NWLR Pt. 175 Pg. 509 at 534. It was submitted for the respondent that where a confessional statement has admitted all the essential elements of an offence, and shows unequivocal, direct and positive involvement of the accused in the crime alleged, the court can rely on it alone to convict the accused. The cases of Major Amachree v. Nig. Army (2003) 3 NWLR Pt. 807 Pg. 255; Odu v. F.R.N. (2002) 5 NWLR pt.761 Pg. 615 were cited as authority.
Counsel also argued that where there are facts and circumstances outside the confession which make it probably that the confession is true, the court can convict upon the confession. Counsel cited Olabode v. The State (2011) Vol. 9 LRCNCC Pg. 49 at 55 ratio 6; Obiasa v. Queen (1962) 2 SCNLR 402; Onoche v. Republic (1966) NMLR 307.
It was argued that the learned trial judge submitted the statements to the veracity rule and found that the contents of the confession were possible and consistent with other facts which have been ascertained and proved in evidence. Counsel argued that Exhibits D and E were voluntarily made and duly admissible and this court should affirm its admissibility without more and also affirm the conviction of the appellant.
It may be helpful to observe that during the two trials within trials held to decide on the admissibility of the two confessional statements, the appellant emphatically denied that the two statements were made voluntarily. After each trial within trial, the learned trial judge held that they were admissible.
I have read the record and lam also convinced that in the first instance, the learned trial judge’s admission of the confessional statements exhibits D and E was not proper. The learned trial judge held as follows at Pg. 34 of the record while ruling on the trial within trial.
“Admissibility is one thing, evaluation or the probative value put on a document is another. From evidence led so far, I am convinced that in obtaining exhibit ‘TT’, there was no threat, torture, inducement or promise from anyone in authority. The failure of O/C SARS to testify is of no moment at this stage of trial within trial as no one has claimed that the O/C SARS was present before, during the period exhibit ‘TT’ was obtained from the accused person.”
The main point raised against the admissibility of Exhibits D and E is that the two statements contradict each other. I cannot see any contradiction in the two statements. The inconsistency of saying in one breath that he had robbed twice and in the other breath that he had robbed four times is to me of no moment. It is an inconsequential inconsistency that cannot ordinarily affect the probative value of the said statements.
Having said that, I have looked at the documents transmitted from the trial court. They are exhibit A – the entry in police Form D20 at Aideyan police station which incidented the incident on 30/6/2005 and indicated that the appellant was arrested by the surveillance team. Exhibit A1 – the details of entry by Inspector Peter Ternande. Exhibit A2 – the minute sheet by Cpl Bartholomew Okosun, Exhibit E is “the admission for confession by accused person made to police” made at the Special anti robbery squad office at the State Headquarters in Benin. The statement was filled out by police and the appellant supposedly appended his signature. A superior police officer without indication of name and rank signed it. Exhibit D is also another statement written out in the hand of the police at Aideyan police station and admitted as Exhibit D but dated 31/05/2005. What puzzled me is that the statement filled out at the anti-robbery squad was dated 14.30 hrs on 30/06/06 while the statement made by the appellant at Aideyan police station Exhibit D was dated 31/06/2005 – a day later. It is obvious that the police got their stories wrong. The evidence was that the appellant was arrested on 30/6/2006 by the crowd or the anti crime patrol and taken to Aideyan Police Station. There he made a statement. Thereafter he was taken to the anti robbery squad SARS at the police headquarters. Apparently the statement he made at SARS pre-dated the statement he made at Aideyan police station.
As if that was not enough to cast doubt on the said statements, why was the appellant not allowed to write the statements himself when he claimed to be able to read and write and was not incapacitated in any manner.
DW2, the father of the appellant confirmed the injuries on his son as a result of the beating he received from the police. What makes this of interest is the fact that the police both at Aideyan and at SARS insisted that he was not hurt in any way when he was brought to them. The problem with the learned trial judge’s admission of Exhibit E1 – the attestation is the manner in which his Lordship waived aside the importance of the evidence of O/C SARS. It is not in my view enough, in asserting that a confessional statement was volunteered, for the prosecution to waive an attestation form around. The prosecution is obliged to call as witness the superior police officer who attested to the fact that upon being taken before a superior officer after the statement was volunteered, the accused confirmed that he volunteered the statement. That is the whole essence of the Judges’ Rules which have been enforced for decades by our courts. In Obue v. The State (1976) 2 SC 79; (1976) All NLR 134, the Supreme Court held that a superior officer must be satisfied that the accused volunteered the statement. This is because the courts will give weight to a confessional statement confirmed by an accused before an independent and responsible person, namely, a superior police officer. Thus, it is important that the laid down procedure in such matters be strictly followed. I am not saying here that non attestation of the confessional statement is fatal to its admissibility as a voluntary statement.

S. 29 (2) of the Evidence Act 2011 provides as follows:
S.29 (2) if, in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
Where the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the judge to determine whether or not the prosecution have established that it was made voluntarily to the extent that the judge is satisfied so that he feels sure about it. Where this question is raised, it is the duty of the judge to rule upon it. I will reiterate what Lord Sumner said as far back as Ibrahim v. R (1914) AC 599 at 609:
“It has long been established as a positive rule of Nigeria Criminal Law and procedure that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Hale”.
Thus the onus is on the prosecution to establish beyond reasonable doubt that the statement in question had been made voluntarily. This is supported by S.28 of the Evidence Act, now S.29 (1) and (2) of the Evidence Act 2011 and S.34 (2) of the 1999 Constitution.
In this case, the first statement made by the appellant at Aideyan police station which the prosecution tendered as a confessional statement and which was challenged was not attested by a superior officer. The second statement purportedly made at SARS dated apparently before the accused was taken to SARS did not contain the name and rank of the superior officer who attested to it. Ordinarily it would go against the grain for an appellate court to set aside the findings of the trial judge. However on a careful reading of the printed record, lam obliged to set aside the findings of the trial judge on the truthfulness of the prosecution witnesses on the issue of the admissibility of Exhibits D and E. In the circumstances, I am of the view that the prosecution did not prove beyond reasonable doubt that the appellant volunteered any of the confessional statements tendered in evidence against the appellant to warrant any weight being attached to the statements and the appellant being convicted on the basis of said statements.
I have looked at the totality of the evidence led by the prosecution in this case. I pause to wonder that if the Samsung handset and the N10,000 were not recovered from the appellant by the police, how come they were able to recover a gun with live cartridge? It was either the appellant was caught with everything or they caught him with nothing as he claimed. As I earlier held, the chain of custody of the said robbery weapon is shown to have been broken and is doubtful.
I also agree with the learned appellant’s counsel that the evidence of PW1, the complainant and star witness leaves a lot of doubt to be resolved in favour of the appellant. How could she, not being a ballistic or gun expert know the kind of gun the appellant held to her head? How could she have recognised the appellant not having seen him before that day when she did not state categorically that he was standing on a well lit road and she had a lot of time to familiarize herself with his features, his clothes etc? By her evidence, the period of contact during the robbery was very short. Her evidence in my view was perfunctory and bereft of enough details to convince me beyond reasonable doubt that she recognised positively the appellant as the person who attacked her. All these doubts must be resolved in favour of the appellant. I hereby do so.
I must emphasise the fact that inspite of the prevalence of the offence of armed robbery, it would be a wrong attitude for the courts not to insist that the police ensure proper investigation and prosecution of criminal offences. The police must be held to a high standard. It is better for ten guilty men to escape punishment where there is doubt as to their guilt, than for one innocent man to be convicted when there is doubt as to his guilt. The sanction here is capital punishment for the offence of armed robbery. I am not convinced that the prosecution proved that the appellant committed armed robbery beyond reasonable doubt.
In the circumstances, I cannot affirm the judgment of the trial court in suit No. B/2C/2008 delivered on 23/4/2010 and I hereby set aside same. In its stead, I enter a verdict of not guilty and hereby discharge and acquit the appellant. Appeal Allowed.

SIDI DAUDA BAGE, J.C.A: I read in draft the leading Judgment of my learned brother Hon. Justice H.M. Ogunwumiju JCA; I am in complete agreement with him. I am also not convinced that the prosecution has proved beyond reasonable doubt that the Appellant committed the offence for which he was charged with, armed robbery. In the circumstance therefore, the Judgment of the trial court in Suit No. B/2c/2008 delivered on 23/4/2010 is also set aside by me. Appeal is allowed also by me. I also enter a verdict of not guilty on the Appellant. I also discharge and acquit him accordingly.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt extensively and incisively too, with the Issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add to the Judgment. Indeed I hereby adopt the lucid lead Judgment as mine.
Accordingly, I too, resolve the issues in the appeal in the same manner they have been resolved in the lead Judgment and set aside the judgment delivered on 23/4/2010 by the lower court in Suit No: B/2C/2008. In its place, I enter a verdict of not guilty and accordingly discharge and acquit the Appellant – Prince Emeka.

Appearances

EMMANUEL O. ACHUKWU ESQ.For Appellant

AND

P.E. AZIEGBEMHIN (MRS) Asst. Director, Ministry of JusticeFor Respondent