SOPURUCHI OBED v. THE STATE (2014)

SOPURUCHI OBED v. THE STATE

(2014)LCN/7298(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/L/502/2010

RATIO

CRIMINAL PROCEDURE: ARRAIGNMENT; WHETHER ARRAIGNMENT IS A VERY IMPORTANT STEP IN THE PROSECUTION OF A PERSON ACCUSED OF COMMITTING A CRIME IN A CRIMINAL TRIAL

Arraignment has been considered as a very important step being the initial step in the prosecution of a person accused of committing a crime in a criminal trial. The Supreme Court in the case of Okeke V. State (2003) 15 NWLR (ft 842) 25 held as follows: “An arraignment is not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge where there is no proper arraignment, there is no trial. Without a valid arraignment of the accused person, no trial in law would have commenced, and no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void.” per. Y. B. NIMPAR, J.C.A.

CRIMINAL PROCEDURE: ARRAIGNMENT; THE EFFECT OF AN IMPROPER ARRAIGNMENT AND THE NECESSARY STEPS TO A VALID ARRAIGNMENT

An improper arraignment invalidates an otherwise proper trial. The authority of EMMANUEL OLABODE V. THE STATE Supra relied upon by the Respondent can be distinguished from the facts on hand here. There the issue of who read and explained the charge to the accused was raised while here there is nothing to show the charge was read out at all, on the face of the record the appellant was not asked the language he understands and the charge was not explained. It is the requirement of the law that necessary steps to a valid arraignment are complied with as provided in section 215 of the Criminal Procedure Act and these are:-

(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;
(b) The charge or information shall be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and
(c)The accused person shall then be called upon to plead to the charge thereto instantly otherwise, such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been dully served therewith;
(d) The plea of the accused shall also be instantly recorded by the court. See the case of MADU V. THE STATE (2012) 15 NWLR PT 1329 405 at 439.

EVIDENCE: BURDEN AND THE STANDARD OF PROOF; THE BURDEN AND THE STANDARD OF PROOF IN CRIMINAL CASES
It is settled beyond citing of authorities that the burden placed on the prosecution is proof beyond reasonable doubt and that is not to say the charge must be proved beyond all shadow of doubt. This burden does not shift from beginning to the end of the trial. per. Y. B. NIMPAR, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHETHER WHERE DIRECT EVIDENCE OF THE COMMISSION OF A CRIME IS ABSENT, THE COURT CAN INFER FROM THE FACTS PROVED THE EXISTENCE OF OTHER FACTS
It is settled that where direct evidence of the commission of a crime is absent, the court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, see AKPA V. STATE (2008) 14 NWLR (PT.1106) 72; AHMED V. STATE (2001) 18 NWLR (PT.746) 622 AND OMONGA VS. STATE (2006) 14 NWLR (Pt.1000) AT 532. There is no direct evidence in this case, neither is there circumstantial evidence that can pin the appellant to the crime without the evidence of a victim on the important aspects of how the offence was carried out. The prosecution failed to call a necessary witness, who incidentally is also the victim. per. Y. B. NIMPAR, J.C.A.

EVIDENCE: CALLING WITNESSES; WHETHER THE PROSECUTION IS NOT BOUND TO CALL A HOST OF WITNESS TO PROVE HIS CASE, WHETHER THE PROSECUTION HOWEVER IS UNDER A DUTY TO CALL MATERIAL WITNESSES NECESSARY TO PROVE THE ESSENTIAL INGREDIENTS OF THE OFFENCE

EVIDENCE: CONFESSIONAL STATEMENT; THE TEST TO BE APPLIED FOR A CONFESSIONAL STATEMENT ALONE CAN GROUND A CONVICTION

The prosecution argued that the confessional statement alone can ground a conviction. That is the correct position of law but with a conditionality attached to it. The test to apply is a set of questions settled in the following terms:
1. Whether there is anything outside the confession to show that it is true
2. Whether the statement is corroborated, no matter how slightly.
3. Whether the facts contained therein, so far as can be tested, are true.
4. Whether the accused person had the opportunity of committing the offence.
5. Whether the confession of the accused person was possible.
6. Whether the confession was consistent with other facts which been ascertained and proved in the matter.
See the case of ASIMIYU ALARAPE & ORS V STATE (2001) LPELR- 412 (SC). The Supreme Court again in the case of NWACHUKWU VS. STATE (2007) had this to say:
“A positive, direct and voluntary confession by an accused person is the best evidence a criminal court can conveniently admit to convict its maker. The admission of a confessional statement which has satisfied all the requirements of the law to be confessional, properly so called can, satisfy the burden of proof required of the prosecution to discharge in order to secure a conviction .” See also YUSUFU V THE STATE (1976) 6 SC 167 AT 173; OKEGBU vs. THE STATE (1980) 5 SC 65 AND KIM V THE STATE (1992) 44 SCNJ 81 AT 110.
The Supreme Court went further in the case of NWACHUKWU VS. THE STATE to state as follows:- “It is desirable to have outside the accused confession, some corroborative evidence no matter how slight, if circumstances which make it probable that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof. The test would include the court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial.” See also IKPASA VS. ATTORNEY GENERAL OF BENDEL STATE (1981) 9 SC 7 AND AKPAN VS. STATE (1992) 6 NWLR (Pt.248) 439. per. Y. B. NIMPAR, J.C.A.

EVIDENCE: IDENTITY EVIDENCE; WHEN IS IDENTIFICATION PARADE NECESSARY

Identification parade is necessary only in circumstances listed by the Supreme court in a number of cases, one of which is TAJUDEEN ALABI V. THE STATE (1993) 7 NWLR (PT.307) 511 where the court held that identification is essential in cases where the victim did not know the accused before and was confronted by the offender for a very short time and in which time and circumstances he might not have had full opportunity of observing the features of the accused. It is therefore not in all cases that identification parade is needed. On when identification parade arises, see also the following cases: PATRICK IKEMSON & ORS V THE STATE (1988) 6 SCNJ (PT 1) 54 AT 65; ALABI v THE STATE (1993) 7 NWLR (PT.307) 511 AT 524; ALIYU WAKALA & ORS V THE STATE (1991) 8 NWLR (PT.211) 552 AT 565; SANNI ADISA v THE STATE (1991) 1 NWLR (PT.168) 490 AT 506. per. Y. B. NIMPAR, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

YARGATA B. NIMPAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

SOPURUCHI OBED Appellant(s)

AND

THE STATE Respondent(s)

Y. B. NIMPAR, J.C.A. (Delivering The Leading Judgment): The Appellant along Oto-Bong Sunday were arraigned before Hon. Justice M. A. Dada of the Lagos State High Court and upon trial, the Court in a considered judgment dated 28th day of May, 2009 found them guilty for the offence of conspiracy and armed robbery and convicted them to death. The offences were contrary to section 403(A) and 402 (2) of the Criminal Code Cap (17) Vol. 2 Laws of Lagos State, 2003. The charge read as follows:

STATEMENT OF OFFENCE – 1st count
Conspiracy contrary to Section 403 (A) of the Criminal Code Law Cap 17 Law of Lagos State.

PARTICULARS OF OFFENCE
Sopuruchi Obed (M) and Oto-Bong Sunday Edet (M) on or about the 30th day of September, 2004 at Obele Road, off Malgbon, Lagos in the Lagos Judicial Division conspired to commit a felony to wit: Armed Robbery.

STATEMENT OF OFFENCE 2ND Count:
Armed Robbery contrary to section 402 (2) (a) of the Criminal Code Law CPA C17 Law of Lagos.

PARTICULARS OF OFFENCE
Sopuruchi Obed (M) and Oto-bong Sunday Edet (M) on or about the 30th day of September, 2004 at Obele Road, off Maigbon, Lagos in the Lagos Judicial division while armed with offensive weapons to wit: guns robbed one Praise Lawani of the sum of Fifty Four Thousand Naira, (N54,000.00) a digital Kodak camera worth sixty thousand naira (N60,000.00), a Motorola Handset, two wrist watches valued sixteen Thousand Naira (N16,000.00) two kitchen knives and a cutlass all valued at one Hundred And Thirty Thousand Naira (N130,000.00).

The facts of the case at the trial Court are that the Appellant along one other, Oto-Bong Sunday were charged with Conspiracy and Armed Robbery contrary to section 403 (A) and 402 (2) (a) of the Criminal Code Cap C17, Vol. 2 Laws of Lagos State, 2003. The Appellant and the said Oto-bong were alleged to have robbed one Mrs. Praise Lawani of various items on the 30th September, 2004 at Obele Road, off Maigbon, Lagos while armed with a locally made short gun, a knife and eight cartridges.

The two accused persons pleaded not guilty to the 2 count charge and the matter proceeded to trial with the prosecution calling 2 witnesses and tendered 5 exhibits. The Defendants called 5 witnesses and tendered 8 exhibits.
Thereafter learned counsel for both sides filed and adopted their written addresses. The trial Court upon due consideration found the two defendants guilty. The Appellant dissatisfied with the judgment filed a notice of Appeal dated 26h April 2009 and amended on 15th February, 2013 upon which 4 issues for determination were distilled as follows:

1. Whether the arraignment of the Appellant and consequently the whole trial at the lower Court was not
a nullity?
2. Whether non-signing of the record of proceedings of the lower Court rendered the proceedings of the day a nullity.
3. Whether the finding of the learned trial judge that the prosecution proved its case as required by law can be supported by the totality of the evidence added before the Court.
4. Whether the sentence of the Appellant to death by the learned trial judge based on the opinion of the judge that the Appellant has attained the age of 17 years at the time the alleged armed robbery was committed not contrary to section 368 (3) of the criminal Procedure Act and 2 of the Children and Young Person Act?

The Respondent formulated 3 issues for determination thus:

1. Whether from the evidence before the lower Court the prosecution proved its case beyond reasonable doubt so as to obtain conviction.

2. Whether the sentence of the Appellant to death by the learned trial judge based on the evaluation of evidence before the Court that the Appellant has attained the age of 17 years at the time of commission of the offence is contrary to section 368 (3) of Criminal Procedure Act and 2 of the Children and Young Person Act.

3. Whether the arraignment of the Appellant in the Lower Court fall short of the requirement of the law.

Respondent’s issue 3 is the same as appellant’s issue 1, issue 4 of Appellant covers issue 2 of the Respondent while issue 3 of the Appellant is the same as issue 2 of the Respondent. That being the case, the issues formulated by the Appellant shall be adopted by the Court as the issues for determination in this judgment. They shall be considered in the order presented by the Appellant.

The Appellant in arguing issue 1 which is distilled from ground 3 of the notice of Appeal submitted that the arraignment of the appellant was not properly done and the defect has rendered the trial a nullity. He submitted that the law requires that a charge be read and explained to the accused in a language he understands before he can be called upon to take his plea as per Section 215 of the Criminal Procedure Act now Section 24 of Administration of Criminal Justice Law of Lagos State and Section 36(6) (a) of the 1999 Constitution (as amended). He referred to the record of proceedings where the trial Court merely asked the Appellant thus:

“Court: How do you plead to the 1st count?
1st accused: I plead not guilty and
“Court: How do you plead to 2nd Count Charge?
1st accused: I plead not guilty my Lord”

Appellant contended that there is nothing on the record of Appeal to show that the charge was read, explained or interpreted to the Appellant before the plea was taken; he cited the case of OGUNNYE v. STATE (1999) 5 NWLR (PT 604) 548 where the supreme court held that it is a Constitutional right of a person accused of a crime to have the charge read and explained to the accused in the language he fully understand. Appellant’s counsel argued that being a Constitutional requirement, it cannot be waived whether the accused is represented by counsel or not, he cited the case OF OKEKE V. STATE (2003) 15 NWLR (PT. 842)25 on what an arraignment is and the following authorities:
– KAJUBOR V. STATE (1988) 1 NWLR (PT.73) 721
– EREKANURE V. STATE (1993) 5 NWLR (PT.294) 385
– EFFION V. STATE (1995) 1 NWLR (PT.373) 507
– KALU V. STATE (1998)13 NWLR (PT.294) 385;
AND
– CHRISTOPHER TOBE OKEKE V. STATE (2012) 1 NWLR (PT.1218) 96.

On this issue he finally submitted that failure to comply with the requirement for a proper arraignment has occasioned a miscarriage of justice and he urged the Court to discharge the accused person as it would be unfair to put the Appellant through a second trial.
The Respondent in reaction to Appellant’s issue 1, argued Respondent’s issue 3, and submitted that Section 36 (6) (a) of the Constitution is not relevant and the section was not violated by the judge. Furthermore that the Appellant who was the 2nd accused, the record of appeal shows that he was asked and he told the Court he understand English, that it was the language the charge was read to him by the registrar.

Respondent cited the case OF EMMANUEL OLABODE V. THE STATE (2009) 5 NWLR 315 AT 319 – 321 to buttress the submission that though the requirement of reading and explaining the charge is fundamental, the essence is to see that a person accused of a crime does not plead in error.

That the trial Court should be given the benefit of doubt as it relied on the case of OGUNNYE v. THE STATE (SUPRA) relied upon by the Appellant and also BLESSING TOYIN OMOKUWAYO V. FEDERAL REPUBLIC OF NIGERIA (2013) 2 – 3 S.C. (PT.1184) AT 204 wherein the Supreme Court held that there is nothing in the law that requires that a judge must note in the record that he is satisfied that the charge was read and explained to the accused before the plea. That the test is a subjective test and not an objective one. Counsel further argued that to insist on the recording of such process bother on technically that defeats the end of justice.

“An arraignment is not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge where there is no proper arraignment, there is no trial. Without a valid arraignment of the accused person, no trial in law would have commenced, and no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void.”
What is expected is that the charge be read and explained to the accused in a language he understands before his plea is taken. The reasoning and explanation of the charge is vital to sustaining a trial as the failure to adhere to the set procedure shall nullify the trial. The record of appeal in this case indicates that the court simply asked the appellant how he pleads to the 2 count charge. There is nothing to indicate that the charge was even read to the appellant but it would stretch the provision of Section 24 of the Administration of Criminal Justice Law of Lagos State too far to expect that every word uttered by the judge be recorded. Both the Constitution of the Federal Republic of Nigeria by section 36(6)(a), the Criminal Procedure Act Section 215 and Section 24 of the Criminal Justice Law of Lagos State require that the charge be read over to the accused and explained to him in a language he understands. The combined effect of the provisions do not mean that every word uttered by the judge must be recorded but a simple summary of steps taken to show compliance with the legal requirement is expected on the record. Section 215 of the Criminal Procedure Act further requires that such reading and explanation be to the satisfaction of the judge, the important issue here is that there must at least be reading and explanation of the charge, All the trial court did on the additional record at page 2 indicates the question how do you plead to the 1st and 2nd counts. Did anything transpire before the question was asked by the court? The record does not bear that and it would amount to speculation to hold here that the charge was read and explained to the appellant in the language he understands. An improper arraignment invalidates an otherwise proper trial. The authority of EMMANUEL OLABODE V. THE STATE Supra relied upon by the Respondent can be distinguished from the facts on hand here. There the issue of who read and explained the charge to the accused was raised while here there is nothing to show the charge was read out at all, on the face of the record the appellant was not asked the language he understands and the charge was not explained. It is the requirement of the law that necessary steps to a valid arraignment are complied with as provided in section 215 of the Criminal Procedure Act and these are:-

The Supreme Court in the said case held that the requirements must coexist and non compliance will warrant an order of a re-trial as the trial will be vitiated and rendered a nullity. The question here is whether those factors co-exist in view of the deficiencies observed on the record of proceedings on the day of arraignment? Those deficiencies have an adverse effect on the arraignment. Arraignment being a very important step towards a valid trial must conform with the required standard. The argument of the Respondent’s counsel that the benefit of regularity be given to the court can apply to other situations not Criminal trials particularly where the charge is a capital one. The necessity to comply is to remove any doubt about a due trial at the end of the day the accused is found guilty. The failure of the trial court to comply with the requirement of section 215 of the Criminal Procedure Act has rendered the arraignment and trial here a nullity. See the case of JOSIAH v. THE STATE (1985) 1 NWLR (PT.1) 215 where the Supreme Court observed that the condition laid down in section 215 of the Criminal Procedure Act must be strictly complied with.” See also EYOROKOOMO v. THE STATE (1979) 0 – 9 SC 3 and furthermore, in the case of IDUMUDIA v. THE STATE (1999) 7 NWLR (Pt.610) 202 the Supreme Court held that the fundamental part of arraignment is that the charge or information shall be read over and explained to the accused in the language he understands before a plea is taken. The Supreme Court on the non compliance with the provisions of section 215 of the Criminal Procedure Act further held as follows:-
“There appears to be a fairly rigid and inflexible approach to the question of non compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of the citizen. Equally the courts should not ignore the nature of the rights protected and the discharge of their sacred and solemn duty to do justice. There is case. In the latter case it will not affect the trial. It would seem to me that the mandatory provisions of section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie.”

The deficiency in the record of appeal on arraignment is vital and it has vitiated the trial. The trial is therefore a nullity and this issue is resolved in favour of the appellant.

Appellant’s issue 2 questions the validity of the record of proceedings of the trial Court because the judge did not sign the record of that day. This is distilled from ground 2 of the further amended notice of Appeal. Appellant submitted that by virtue of Section 245 of the Administration of Criminal Justice Law of Lagos State 2007 which is the same as section 294 (1) of the Criminal Procedure Act, it requires the trial Court to maintain a record of proceedings and the judge must sign the notes for each day. Counsel submitted that this requirement is mandatory and any failure to observe same renders the proceedings of that day null and void, he relied on the case of OKOTIE V. STATE SUPRA. He further submitted that the use of the word shall make the provision a mandatory requirement and non compliance goes to the root of the matter. He contended that the additional record were transcribed but were not signed by the trial judge including the proceedings in which the Appellant was arraigned. He urged this Court to nullify the proceedings of those dates that the judge did not sign. He urged the Court to discharge the Appellant.

Appellant was arraigned. He urged this Court to nullify the proceedings of those dates that the judge did not sign. He urged the Court to discharge the Appellant.

The Respondent argued it as part of issue 3 and not under a separate issue for determination. Counsel submitted that the Appellant’s counsel is complaining about the transcribed record of Court duly certified as required by law and Section 145 and 147 of the Evidence Act 2011 provides for presumption of regularity and genuineness of a certified copy of proceedings. Also that Order 17 Rule (9) (1) (c) of the rules of this Court allows for additional record of Appeal as was done in this case by the appellant and that a transcribed copy is allowed as a substitute for judges notes.

Respondent urged the Court to discountenance the argument under this issue and find for the Respondent.

The appellant under issue two questions the validity of the record of proceedings of the lower court which he alleged was not signed by the trial judge thus rendering the entire proceedings a nullity. It is a legal requirement for the record of proceedings of each day to be signed by the judge, see Section 245 of the Administration of Criminal Justice Law of Lagos State 2007 and Section 294(1) of the Criminal Procedure Act. Failure to comply with the statutory provisions is fatal as the record is rendered null and void, see OKOTIE V. STATE SUPRA. The question to answer is whether the judge in this case failed to sign the record of proceedings for each day in the course of the trial of the appellant. The portion complained about are the additional record of appeal and these are the transcripts of the proceedings which were certified by the officer duly authorized. It is important to note that the portion of the additional record complained about is not directly the note of the trial judge but transcripts from the recording by an officer duly authorized and it was duly certified. Furthermore, the additional record was compiled by the appellant. The additional record not being the notes of the judge but recorded proceedings and duly certified have satisfied the requirement of the Law. This court after all allows for a transcribed record of proceedings for the hearing of appeals. This issue is resolved against the appellant.

The Appellant in arguing issue 3 challenged the findings of the trial Court that the prosecution proved its case as required by law. The issue is distilled from ground 1, 5, 7, and 8 of the Appellant’s further amended notice of Appeal.

Addressing the issue, Counsel for the appellant submitted that the prosecution did not prove the allegation according to law.
He listed the ingredients of the offence of armed robbery as follows:
(a) Proof that there was a robbery
(b) Proof that the robbers were armed with offensive weapon prohibited by the law
(c) Proof that the accused participated in the robbery incident.

He relied on the case of ALABI V. STATE (1993) 7 NWLR (PT.307) 51 AND BOZON V. STATE (1985) 2 NWLR (PT. 8) 465. That to answer the issue the evidence of the two prosecution witnesses will have to be analyzed and when that is done, it can be seen clearly that the evidence was hearsay evidence as both PW1 and PW2 told the Court that Mrs. Praise Lawani told them what they told the court. The said Mrs. Lawani did not testify. The only other evidence is the alleged confessional statement which he attacked for not passing the test established in R.V. Skye adopted and applied in the case of KABIRU v. AG OGUN STATE (2009) 5 NWLR (PT.1134) 209 AT 225 – 226. Appellant’s counsel contended that there are conditions that must be satisfied before the confessional statement can be used as evidence against the Appellant and that the basis of his contention is founded on the following:-

(1) There is no other admissible evidence to support the confessional statement or to suggest that it is true
since the only evidence available is the hearsay evidence
(2) The Appellant raised a plea of non-est. factum that he did not own the content of the confessional statement and the trial Court was bound to make a clear finding as to whether or not the statement belonged to the Appellant. That failure to do so is fatal to the conviction.

Appellant urged the Court to expunge the hearsay evidence of PW1 and PW2 and to discountenance the confessional statement. He referred to the case of ALIMI V. OBAWOLE (1998) 6 NWLR (PT.555) 591 AT 607 on wrongfully admitted evidence.

On the ingredients that must be proved to establish the offence of armed robbery appellant submitted that the first ingredient was not proved. He argued that the evidence of robbery was hearsay and hearsay is not admissible in law. He referred to pages 14 and 18 of the record of appeal. He submitted that Pw1 and Pw2 did not witness the robbery but relied on what Mrs. Lawani told the police. He cited the case of NWACHUKWU V. STATE (2002) 12 NWLR PT.782 543.

He said there is no clear evidence that a robbery took place on the said date as the evidence of PW1 and Pw2 was contradictory. Counsel submitted that PW1 said it was burglary and stealing while PW2 said it as a robbery. This he submitted was conflicting and the prosecution did not resolve the conflict. Counsel submitted that there was no evidence Mrs. Praise Lawani existed. She was not called even when she is a vital witness in proof of whether a robbery actually took place. That in the face of the retracted confessional statement and the Appellant’s alibi which was established, the prosecution failed to prove that a robbery took place. He cited the case of KABIRU V. A.G. OGUN STATE (2009) 5 NWLR PT. 1134 209 AT 225 – 226 for the conditions precedent to the use of a confessional statement to ground a conviction also the case of IKPASA V. BENDEL STATE (1981) 9 SC 7.

Counsel argued that the Appellant’s statement did not pass the required test as there is no evidence outside the statement to verify the facts in the statement. Appellant contended further that the Appellant was forced to sign the statement because there was evidence that he was shot to make him sign the confessional statement. Learned counsel argued that there is no corroboration and the prosecution failed to show that the Appellant had an opportunity of committing the offence.

On the second ingredient that those who committed robbery were armed with offensive weapon, counsel submitted that when there is no evidence of a robbery and therefore the second element cannot be proved.

The 3rd ingredient is that the deceased participated in the robbery. Appellant contended that there was no clear identification of the Appellant as one of those who participated in the robbery and therefore the Court erred in finding that the Appellant participated in the robbery; he referred to the evidence of PW1 in the additional record of appeal.
And furthermore that the report by Mrs. Lawani was on suspicion since she did not identify anybody on the day the alleged robbery took place, that was on the 2nd October, 2004. She told the police she did not recognize any of the robbers and how then could she have recognized them drinking some days later. Appellant disagreed with the case for the prosecution on identification saying it was speculative. That the evidence of Pw1 was that they planted a mole in the group and they were arrested while planning another operation as mere speculation with no evidence linking the Appellant to the attack on Mrs. Lawani.

Appellant contended that failure to conduct identification parade occasioned a miscarriage of justice, he cited the case of NDIDI v. STATE SUPRA in support. That the failure to conduct an identification parade coupled with lack of evidence has defeated the case of the prosecution, he urged the Court to find for the Appellant under this issue.

As observed earlier, the Respondent argued this issue under its issue 1 on several subheads. On the failure to conduct an identification parade, counsel submitted that identification parade is only necessary under certain conditions as enumerated in the case of TAJUDEEN ALABI V. THE STATE (1993) 3 NWLR PT.307 511 relying on IKEMSON V. THE STATE (1989) NWLR (PT.110) 455 as authority that identification parade is only necessary where the victim did not know the accused before, was confronted by the offender for a very short time and in which time and circumstances he might not have had full opportunity of observing the features of the accused; the cases of THE STATE V. OLASHEHU SALAMI (2011) 12 S.C. (PT.IV) 191 AT 222 AND OGOLA V. THE STATE (1991) 2 NWLR PT.175 509 were relied upon to support the submission that identification parade is not necessary in all cases or where the suspect was arrested at the scene of crime. Furthermore, it is never conducted on circumstantial evidence as stated by the trial Court at page 479 of the record of Appeal. That by the confessional statement, the Appellant identified himself and therefore there was no need for an identification parade.

On the defence of alibi, the respondent submitted that the trial judge rightly found that the Appellant raised alibi as an afterthought because exhibit P1 and D6 confirm that the 1st Defendant was handed over to elders of his church at Ibiye and not to any uncle at Ajegunle. Respondent further argued that the defence was not raised at the time of investigation as the police are duty bound to investigate an alibi where raised at an early stage, during investigation, counsel relied on ESANGBEDO V. THE STATE (1999)4 NWLR (PT.113) 57. Furthermore, that the failure to investigate alibi cannot be basis for discharging a suspect as the available evidence must be considered. That the defence of alibi cannot be treated in isolation as it can fail in the face of superior evidence.

Counsel submitted that the prosecution is not bound to call every person linked to the scene of crime once those who can establish the commission of the crime testify, it would suffice to prove the charge to the required standard of proof beyond reasonable doubt, the case of BELLO SHUNUMO V. THE STATE (2010) 19 NWLR (PT.1226) 73 AT 94 cited in support.

On proof beyond reasonable doubt, learned counsel to the Respondent recited the age long statement that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt but that the prosecution must establish the guilt of the accused person with compelling and conclusive evidence. That it means a degree of compulsion which is consistent with a high degree of probabilities as held in BELLO SHUNUMO V. THE STATE SUPRA AT 109.

Counsel argued that once a confessional statement has been admitted, the burden of proof is made light on the need to prove the guilt of the accused, reliance was placed on MONSUNI SOLOLA & ORS V. THE STATE (2005) 2 NWLR PT 937, 460. Counsel submitted that the Court relied on the confessional statement to convict the Appellant. Arguing further, counsel submitted that upon proof of the charge beyond reasonable doubt, the burden of proving reasonable doubt shifts on to the accused person, on the authority of ALONGE V. I.G.P (1959) 4 FSC 203, FATOYINBO V A. G. W/N (1966) NWLR 4 AND STATE V. DANJUMA (1997) 5 SCNJ 126.

The Appellant in his reply brief submitted that the confessional statement was wrongly admitted; he relied on OGUDO V. STATE (2011) and that the statement was based on a question and answer format which is invalid in law as held in the case of STATE V. SALAM (2011) 18 NWLR PT 1279 580, ALSO ONOBU V. I.G.P (1957) NWLR 25, MAKANDE V. JOS N.A (1966) NWLR 52 AND STATE V. AUDU (1971) NWLR 91. Appellant urged the Court to hold that the confessional statement obtained in a question and answer fashion is not admissible and therefore the confessional statement was wrongly admitted and in the alternative that without facts outside of the confessional statement to verify, makes it unreasonable to ground a conviction. He relied on the test of 6 questions before a confessional statement can be used as held in the case of KABIRU V. AG OGUN STATE (2009) 5 NWLR (PT.1134) 209 AT 225 – 226 AND IKPASA V. STATE (1981) 9 SC 7. Appellant submitted that the trial Court did not pass the confessional statement through the test and again analysed the evidence before the Court and highlighted the fact that there is no evidence to answer the 6 questions in testing a confessional statement and concluded on this point that the confessional statement was not possible because it did not pass the required test. Furthermore, that the law is that where a victim or eye witness fails to mention the name of assailants at the earliest opportunity and failure of trial Court to take that into account at evaluation of evidence any decision would amount to a non direction that could entitle the accused to discharge and acquittal, he cited the case of UDEH V. STATE (1999) 7 NWLR (PT.609) 1 AND EYISI V. STATE (2000) 15 NWLR (PT. 691) 555.

Learned counsel to the Appellant furthers argued that inconsistency rule does not apply were the extra judicial statement of an accused person is contrary to the testimony in Court, he relied on OGUDO v. STATE (2011) 18 NWLR (PT.1278) 1.
This issue question whether the findings of the trial judge can be supported by evidence. The offence charged is conspiracy and Armed Robbery. The ingredients required to be proved by the prosecution are:-
(a) Prove that there was a robbery.
(b) Prove that the robbers were armed with offensive weapons prohibited by the law.
(c) Prove that the accused participated in the robbery, see BOZIN V. STATE (1985) 2 NWLR (PT.8) 465.
It is a legal requirement that the prosecution must prove all the ingredients of the offence to ground a conviction. In proof, the prosecution called 2 witnesses, PW1 and PW2, their evidence is at page 3 – 22 of the record of appeal. In addition to the two witnesses, the prosecution tendered 5 Exhibits.
It is settled beyond citing of authorities that the burden placed on the prosecution is proof beyond reasonable doubt and that is not to say the charge must be proved beyond all shadow of doubt. This burden does not shift from beginning to the end of the trial. PW1 was Kingley Ayo, a Police officer attached to Morobo Police Divisional Area, Lagos, he told the court that on 2nd October there was a case of burglary and stealing reported by one Mrs. Praise Lawani, he was Inspector of Crime then. He detailed a constable to investigate. All the details of the offence were what the complainant told him. PW2 is another Police man, Sergeant Femi Amore, attached to Force CID Alagbon, Lagos, he told the court the circumstances he came to know the appellant and that he took over the matter as collected and registered the Exhibits transferred along with the defendants. These included one locally made gun, 1 knife and 8 live cartridges. The contention of the appellant is that the complainant did not testify and that made the evidence of PW1 and PW2 hearsay since they did not witness the act of robbery, never visited the scene of crime and only relied on what one Mrs. Praise Lawani told PW1. It is uncontestable that there was no direct evidence of a robbery before the trial court. Mrs. Praise Lawani was the victim of the alleged crime who lodged a complaint at the Police Station. PW1 told the court what she told him when she first reported the incident and subsequently when she allegedly identified the appellant as one of those who attacked her. PW2 never met the said Mrs. Praise Lawani.
The law requires proof of the fact of a robbery. Did the evidence before the court establish such proof? We agree with the appellant that PW1 gave hearsay evidence as all he told the court was what Mrs. Praise
Lawani told him. There was no evidence of the robbery. THE EVIDENCE ACT, 2011 by section 37 defined hearsay evidence as follows:-
“Hearsay means a statement;
(a) Oral or written made otherwise than by a witness in a proceedings; or
Section 38 of the same Act goes further to state categorically thus:-
“Hearsay evidence is not admissible except as provided by or under any other provision of this or any other Act.”

Consequently, the evidence of PW1 was a narration of what Mrs. Lawani said and not what PW1 witnessed or knows personally. Such evidence is unacceptable and offends Section 38 of the Evidence Act 2011. That piece of evidence must be expunged from the record of court. PW2 was an investigating police officer and he told the court what he did in the course of his investigations. That cannot be hearsay evidence. When the evidence of PW1 is expunged can the evidence of PW2 sustain the charge? The obvious answer is No. There is no evidence of the fact of a robbery because nobody told the court how, where and when the robbery took place. All that expectedly must come from somebody who witnessed the robbery or who was a victim of the robbery. All these are essential aspects relevant to the proof of armed robbery.

Furthermore, what were the dangerous weapons that the appellant had or another member of the group carried on that day. What the police tendered were recovered days after the incident and nobody identified them as the weapons the appellant had on the day of the robbery. Part of the hearsay evidence was that the knife was taken from the victim’s house. That must have been identified in the open court. The Police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit. It is settled that where direct evidence of the commission of a crime is of the hearsay evidence was that the knife was taken from the victim’s house. That must have been identified in the open court. The Police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit.
It is settled that where direct evidence of the commission of a crime is absent, the court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, see AKPA V. STATE (2008) 14 NWLR (PT.1106) 72; AHMED V. STATE (2001) 18 NWLR (PT.746) 622 AND OMONGA VS. STATE (2006) 14 NWLR (Pt.1000) AT 532. There is no direct evidence in this case, neither is there circumstantial evidence that can pin the appellant to the crime without the evidence of a victim on the important aspects of how the offence was carried out. The prosecution failed to call a necessary witness, who incidentally is also the victim.

The prosecution is not bound to call a host of witness to prove its case, see VICTOR V STATE (2013) LPELR – 20749 as the Supreme Court restated the principle in these words:
“It is settled principle of law that the prosecution is not bound to call all witnesses but only essential witnesses to prove its case.”
See also OGBODO V STATE (1987) NSCC 429 AT 437; AKINYEMI V STATE (1999) 6 NWLR (PT.607) 449.
The prosecution however is under a duty to call material witnesses necessary to prove the essential ingredients of the offence, see STATE V AJIE (2008) 7 SCNJ 1. Considering the circumstances of this case, Mrs Praise Lawani is an essential witness without whose testimony the charge must fail. Failure to call her is fatal to the case of the prosecution. There are no other facts to actually pin the appellant to the
offence. The prosecution argued that the confessional statement alone can ground a conviction. That is the correct position of law but with a conditionality attached to it. The test to apply is a set of questions settled in the following terms:
1. Whether there is anything outside the confession to show that it is true
2. Whether the statement is corroborated, no matter how slightly.
3. Whether the facts contained therein, so far as can be tested, are true.
4. Whether the accused person had the opportunity of committing the offence.
5. Whether the confession of the accused person was possible.
6. Whether the confession was consistent with other facts which been ascertained and proved in the matter.
See the case of ASIMIYU ALARAPE & ORS V STATE (2001) LPELR- 412 (SC). The Supreme Court again in the case of NWACHUKWU VS. STATE (2007) had this to say:
“A positive, direct and voluntary confession by an accused person is the best evidence a criminal court can conveniently admit to convict its maker. The admission of a confessional statement which has satisfied all the requirements of the law to be confessional, properly so called can, satisfy the burden of proof required of the prosecution to discharge in order to secure a conviction .”
See also YUSUFU V THE STATE (1976) 6 SC 167 AT 173; OKEGBU vs. THE STATE (1980) 5 SC 65 AND KIM V THE STATE (1992) 44 SCNJ 81 AT 110.
The Supreme Court went further in the case of NWACHUKWU VS. THE STATE to state as follows:-
“It is desirable to have outside the accused confession, some corroborative evidence no matter how slight, if circumstances which make it probable that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof. The test would include the court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial.”
See also IKPASA VS. ATTORNEY GENERAL OF BENDEL STATE (1981) 9 SC 7 AND AKPAN VS. STATE (1992) 6 NWLR (Pt.248) 439.

Flowing from above, before a confession can be used to find an accused person guilty, it must be corroborated. The appellant in this appeal stoutly challenged the prosecution on lack of corroboration.
Reviewing the evidence before the court here, there are no facts outside the confession to corroborate the confession. The facts should have come from the complainant. She should have also identified the dangerous weapon tendered as Exhibit P3- P5 before the court. There is no link between the said exhibit and the attack on the said Mrs Praise Lawani. Having failed the test, the confessional statement also cannot be used to find the appellant guilty. The trial court erred in relying on the confessional statement without first proving same as required. The conviction of the appellant cannot therefore stand.

The appellant also made heavy on the failure to conduct identification parade. Identification parade is necessary only in circumstances listed by the Supreme court in a number of cases, one of which is TAJUDEEN ALABI V. THE STATE (1993) 7 NWLR (PT.307) 511 where the court held that identification is essential in cases where the victim did not know the accused before and was confronted by the offender for a very short time and in which time and circumstances he might not have had full opportunity of observing the features of the accused. It is therefore not in all cases that identification parade is needed. On when identification parade arises, see also the following cases: PATRICK IKEMSON & ORS V THE STATE (1988) 6 SCNJ (PT 1) 54 AT 65; ALABI v THE STATE (1993) 7 NWLR (PT.307) 511 AT 524; ALIYU WAKALA & ORS V THE STATE (1991) 8 NWLR (PT.211) 552 AT 565; SANNI ADISA v THE STATE (1991) 1 NWLR (PT.168) 490 AT 506. In the instant case there was nobody who testified as to seeing the appellant and who had not known him before but could still pick him out from the crowd. There is no evidence.
The next issue questions whether the sentence of the Appellant on the opinion of the trial Court that the Appellant has attained the age of 17 years at the time of the alleged armed robbery is not contrary to section 368(3) of the Criminal Procedure Act and section 2 of the children and Young Persons Act. Issue 4 is distilled from ground 9 of the Appellant’s further amended notice of Appeal.

Addressing the issue counsel submitted that the trial Judge at page 119 of the record of Appeal made findings on the age of the Appellant with the relevant evidence that the best evidence of age before the Court was the Appellant’s statement of result showed that by September, 2004, Appellant was 16 years old which places the Appellant below the age of a person to the sentenced to death. That it was therefore wrong for the Court to disregard the evidence but rely on Exhibit D6 which the Appellant denied. Counsel contended that the court was under a duty to make on objective inquiry on the age of the Appellant and without evidence the trial judge is not in a position to make findings on age and the benefit of doubt should have been resolved in favour of the Appellant. Appellant lamented that the trial Court made findings without evidence in support. That Exhibits D1 – D5 present contrary evidence on the age of the Appellant and placing it at 16 years of age between 2003 – 2004 which includes the day the alleged offence was committed.

Appellant argued further that the evidence of age by Exhibit D1 – D5 qualifies as expert opinion under section 57 of the Evidence Act and the trial court was bound to accept it, he relied on GEORGE v. STATE (1999) 1 NWLR PT.214 199.

Appellant argued further that the evidence of age by Exhibit D1 – D5 qualifies as expert opinion under section 57 of the Evidence Act and the trial Court was bound to accept it, he relied on GEORGE v. STATE (1999) 1 NWLR W. 214 199.

Appellant contended that Exhibit P1 and D6 were written by the Police and age was written by the police before the word of caution and that marked it the statement of the Police, which makes the age the opinion of the Police and not the Appellant as the Appellant cannot be said to have made a statement before the word of caution. He relied ON MODUPE v. STATE (1988) 4 NWLR PT.87 130. Counsel argued that the trial Court speculated on the age of the Appellant contrary to Exhibit D1 – D5 thereby reaching a wrong conclusion on the sentence contrary to section 268 (30) of the Criminal procedure Law of Lagos State, he cited GUOBADIA v. STATE (2004) 6 NWLR (Pt.869) 360. He finally urged the Court to resolve this issue in favour of the Appellant.

The Respondent argued this issue under issue 2 and submitted that by virtue of section of section 2 of the Criminal Procedure Law Cap C 18 vol.2 Law of Lagos state, 2003, a child is a person below the age of 14, while adult means a person who has attained the age of 17 years of age.

Respondent argued that the findings of the trial Court took all relevant statutory provisions into account before arriving at the sentence of death. That the Court analysed the evidence before it and came to the conclusion at page 119 of the record of Appeal that the Appellant was 17 years of age.

On the provision of the Law, the children and Young Persons Act which defines a young person, counsel submitted that the provisions are of general application while the Criminal Procedure Law is very specific and that it has been held that where there are general and a specific provision, the specific is excluded from the general provision, it relied on Government of KADUNA STATE V. KOGOMA (1982) 13 S.C. 87 AND ABUBAKAR V. ATTORNEY GENERAL OF FEDERATION (2007) 3 NWLR (PT.1022) 601 to urge the Court to find for the respondent under this issue.

The challenge under this issue is the age of the appellant at the time of the alleged offence. The appellant contended that it was the opinion of the trial judge that the appellant had attainted 17 years of age at the time of the alleged offence.
The trial court at page 119 of the record of appeal had this to say on the age of the appellant;

“The UNICEF definition of a child which is adopted by Nigeria is any human being below the age of 18. This however must not affect his criminal responsibility once he has reached the age of accountability. Therefore by virtue of section 30 of the Criminal Code Law, supra a person under the age of seven is not criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission, he had capacity to know that he ought not to do the act or making the omission, it defines on infant as a person who has not attained the age of 17 years, and a young person as a person who has attained the age of fourteen years but has not attained the age of 17 years. By these definitions, the 1st defendant is neither a child in the general use of it as defined by UNICEF, nor is he a juvenile, nor a young person. See Section 2 of the Criminal Procedure Law, Cap C. 18 Laws of Lagos State (Vol.2) 2003. In this case, the 1st defendant stated in Exhibit D6 that he was born on 23rd May 1987 while he merely stated in Exhibit P1 that he was born in 1987. I am therefore satisfied that he was born In 1987 and on the 23rd of May 1987 as the further and deeper investigation at the State C.I.D. Panti Yaba, Lagos with more experienced investigating Police officer reveals. His statement of results in Exhibit Dl – D5 also said he was 15 years old in 2002 – 2003 and 16 years in 2003 – 2004. This does not debunk that as at September – October 2004 when the offence was committed, he had already attained the age of 17 years. He is therefore for the purpose of criminal responsibility an adult and the court is at liberty to make necessary pronouncement on the two defendants who are hereby found guilty of the two count charge.”

The trial court rightly captured the definitions of a child and young people to enable it determine whether the appellant was a young person or an adult for the purpose of criminal responsibility. The issue here is the age of the appellant at the time of crime. Where the defendant gives his age and it scales the bar for criminal responsibility, there is no problem. But, where there is a conflict as to the age of the defendant, the court is required to make further enquiry to determine the actual age of the defendant to enable it pass an appropriate sentence. In this appeal, the court relied on Exhibits P1 and D6 which are not in agreement but the court went on to use its opinion to ascribe age to the appellant. It is settled that where age is in issue, the court should proceed to take evidence in order to determine age, see MODUPE v. THE STATE (1988) 4 NWLR (PT 87) 130 AT 137 where Oputa J.S.C. held at follows:-
“When there is only are version of an essential fact and. that version is not patently and obviously improbable, a trial court is not left with any option than to believe that which has not been controverted or contradicted in any way. If the learned trial judge was in any doubt as to age, when as in this case evidence of the proper age is material, he was obliged and obligated by the provision of Section 208 of the Criminal Procedure Act not to estimate in vacuum the age of the Appellant but to make due enquiry as to the age of that person and for that purpose may take such evidence as may be for the forthcoming at the time or at the time to which the enquiry may be adjourned. If the trial judge felt that the appellant put his age rather low, he was at liberty to adjourn the case and call a medical witness to testify to the age of the in Exhibit D6, the appellant’s date of birth was given as 23’d May, 1987, in Exhibit Pl it merely stated that he was born in 1987. Furthermore Exhibit Dl – D5 said the appellant was 15 years old in 2002 – 2003 and 16 years in 2003 – 2004. The offence was committed in September 2004 with the uncertain position as to the age of the appellant; the court should after finding him guilty go into an enquiry to determine the age before sentence. This is informed by fact that age of the appellant has not been established by any of the Exhibits giving the age of the appellant. The trial court must be certain about the age of a person who appears to be a young person at the time of conviction. The court cannot speculate or estimate the age of such a person. It must be determined upon acceptable and verifiable evidence. Failure to act upon an established age of the appellant has occasioned a miscarriage of justice.

The issue is resolved in favour of the appellant.

Flowing from the above therefore the appeal succeeds, the judgment wherein the conviction and sentence of the appellant by the Lagos High court presided over by HON. JUSTICE M. A. DADA and delivered on the 28th day of May, 2009 is hereby set aside. The appellant is hereby discharged and acquitted.

SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft, the leading judgment, just delivered by my brother Y. NIMPAR, JCA. I am in complete agreement with the reasonings, and the conclusion reached. I will only add strength to the requirements of a valid arraignment, as elaborately explained and decided upon in the lead judgment. The Supreme Court was lavish in those requirements see RUFAI V. THE STATE (2001) 7 SC (Pt.7) 140 at 144-146 from para 6, wherein it was stated as follows:
“Court’s Record read as follows:
“THE STATE VS. ISIAKA RUFAI & 2 ORS.
Accused persons present Mr. O. Oyesina legal officer represents the prosecution, Mr. O. O. Sonibare for 2nd & 3rd Accused.
PLEA TAKEN
1st accused pleaded not guilty 2nd accused pleaded not guilty 3rd accused pleaded not guilty.
Prosecution opens its case.”
The Supreme Court said that with all seriousness that the provision of Section 215 CPA/CPL was not complied with as laid down in the decided cases interpreting the section. Section 215 of the Criminal Procedure Law/Act provides as follows:
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court find that he has not been duly served/therewith.”
In KAJUBO vs. THE STATE (1988) 1 NWLR (Pt.73) 721, the court provided the following guideline on arraignment of an accused person and the taking of his plea:
1) That the accused person to be tried shall be pleaded before the court unfettered.
2) The charge shall be read and explained to him in the language he understands to the satisfaction of the tried court by the registrar of the court or other officer of the court, and
3) The accused person shall then be called upon to plead instantly to the charge, and
4) The plea of the accused shall also be instantly recorded. The provision of section 215 of Criminal Procedure Law (supra) has been further reinforced by section 33 (6) (a) of the 1979 Constitution in order to guarantee fair hearing and tried of the accused.

The situation in the present case is almost on all fours with that in KAJUBO’S case supra. it has even been made worse in that in the case at hand and from all available evidence contained in the proceeding, the Appellant speaks Yoruba. See pages 22, 24, 25 and 26 of record where it was recorded respectively as follows after raking down the Appellant’s statements made under caution. Page 22: “Today 7 /6/89 at about 1300 hours the suspect Isiaka Rufai (M) was brought before (sic) by Inspector Ogundepo the statement he made in Yoruba language was read to him and translated to me in English language. The suspect admitted that he made the statement voluntarily to Police. On the top of pages 24, 25, and 26 of the record of proceeding the following words appear:
“Cautionary words administered in Yoruba Language and duly (sgd) Isiaka Rufai'”

The Appellant as first accused in the trial court gave sworn evidence in his own defence, and before he testified the record (p. 54) shows that he speaks Yoruba Language as in lines 2 and 3 on that page it was recorded as follows:
“Isiaka Rufai” sworn on Holy Quaran and speaks in Yoruba Language’ PW7 sgt Rapheal Salako stated in his evidence on page 47 (lines 18-20) as follows:
On 12/6/89, the 1st accused was arrested charged and cautioned in Yoruba Language and he made voluntary statement.

All the pieces of evidence referred to go to show that the 1st accused Appellant understands no other language than Yoruba, I need not emphasis that the language in the High Court in Nigeria is English. This is a notorious fact. The record did not show that the charge was read and explained to the Appellant in Yoruba Language in compliance with section 215 of Criminal Procedure Law and section 33 (6) (a) of the 1979 Constitution.

I therefore agree with learned counsel for the Appellant that the plea of the Appellant purportedly taken was in contravention of section 215 of the Criminal Procedure Law Oyo State and section 33 (6) (a) of the 1979 Constitution and the trial was null and void. See KAJUBO VS. THE STATE (supra), EWE VS. THE STATE (1992) 6 NWLR (Pt 246) 147, EREKANURE vs. THE STATE (1993) 5 NWLR (pt 294), 385, OYEDIRAN VS. REPUBLIC (1967) NWLR 122; ADENIJI vs. THE STATE (2001) 5 SC (Pt.1) 100 at 104 para 5″

From the above therefore, the record of the court in the instant appeal particularly page 2 on the additional record, only indicate the question “how do you plead to the 1st and 2nd counts. Did anything transpire before the question was asked by the trial court, the record does not bear that. Such an arraignment by the court, from the authority of RUFAI VS. THE STATE (supra) constitute as improper arraignment, which invalidates an otherwise proper trial. I agree with the leading judgment that, the trial of the present Appellant is a nullity.

For all the other reasonings contained in the elaborate leading judgment, I too have allowed the appeal. The conviction and sentence of the Appellant by the Lagos High Court presided over by Honourable Justice M. A. Dada delivered on the 28th day of March, 2009 is also set aside by me. The Appellant is hereby discharged and acquitted.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege to read the draft copy judgment delivered by my learned brother YARGATA NIMPAR JCA.

I agree with the reasoning and conclusion reached therein except to add that, in a criminal matter the burden of proof lies only on the persecution and such proof is beyond reasonable doubt, the prosecution called all its witness but the complainant – (‘victim’) (Mrs. Praise Lawani) and failed to tender her statement – there was no link between the accused and the charge. Even the Agent provocateur, Dada Abimbola was not called, he was the person who heard them discussing the alleged criminal activities; Items mentioned as recovered said to be taken from Mrs Praise Lawani’s house was not identified by her.

Robbery and/or attempted Robbery was not established.
Mere suspicions of a commission of an offence cannot amount to proof that the accused person committed the offence for which they are being charged. See Aigbadian V State (2001) 2 A CLR P. 48 AT 62. State V Isah (2012) 16 NWLR Pt (1327) 613 at 592; The Supreme Court per Rhodes-Vivour JSC held in a charge of armed robbery the following vital witness are expected to give evidence for the prosecution, and where the prosecution fails in that regard very serious doubts arise as to whether the accused person really committed the offence;
“1. The victim of the armed robbery if still alive;
2. The police officers who arrested the accused persons
3. Evidence of the circumstances in which the accuses persons were arrested
4. Eye witnesses who should give credible evidence of armed robbery.
5. If reliance is placed on circumstantial evidence, it must be compelling and lead to one conclusion and that is, that it was the accused persons were responsible for the armed robbery.”

In the case at hand 1, 4 & 5 are missing, and therefore nothing is on record to test the statement of the accused in order to determine the weight to be attached to it.

The crux of the matter is “Whether indeed it has been established that there was a robbery attack? In the absence of proof of this ingredient of offence of armed Robbery, the prosecution has failed to prove its case and this issue is resolved in favor the accused.

I too allow the appeal, I discharge and acquit the accused person.

Appearances

Chino Edmund Obingwo Esq Ayo Ogundeji (Mrs.)For Appellant

AND

Mrs M. B. Olumiyi Director – DPP’S Office, Ministry Of Justice Lagos State Adebayo Haroun Chief State Counsel.For Respondent