KAZEEM ADIAMO v. THE STATE (2014)

KAZEEM ADIAMO v. THE STATE

(2014)LCN/7568(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/AK/80C/2012

RATIO

CRIMINAL LAW; THE OFFENCE OF ARMED ROBBERY; THE MEANING OF ARMED ROBBERY AND WHAT THE PROSECUTION MUST PROVE IN A CHARGE OF ARMED ROBBERY

Armed robbery means robbery plus violence used or threatened. Before there can be robbery something must be stolen. A charge for the offence of armed robbery will succeed if the prosecution establishes beyond reasonable doubt, that the accused person stole something capable of being stolen and at the time of stealing the accused person threatened to use violence or used violence before or immediately after the time of stealing. The violence could be on either a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. See Mohammed v. State (2014) 10 NWLR (Pt. 1414) 179, F.R.N. v. Yaro (2012) 3 SCNJ 223 at 236 and 237 reported as F.R.N. v. Usman (2012) 8 NWLR (Pt. 1301) 141. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: CONFESSION; THE MEANING OF CONFESSION AND WHETHER DENIAL BY AN ACCUSED PERSON OF HIS CONFESSIONAL STATEMENT WILL MAKE THE CONFESSION INCAPABLE OF SUSTAINING THE CONVICTION

A confession is an accused person’s oral or written acknowledgement of guilt often including details about the alleged crime. It is an acknowledgement in express words, by an accused person, in a criminal case of the truth of the main fact charged or of some essential part of it. See Jimoh v. State (2014) 10 NWLR (Pt. 1414) 105 at 138 and Blacks Law Dictionary 9th Edition. A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Jimoh v. State (Supra) at 138.
Where an extra judicial confession is proved to have been made voluntarily and it is positive and unequivocal regardless of the fact that the maker has resiled there from or retracted it altogether at the trial, a U-turn does not necessarily make the confession inadmissible. It is not the law that denial by an accused person of his confessional statement provides reason for either rejecting or rendering it unreliable and incapable of sustaining the conviction of the accused for the offences with which he is charged. Where his confessional statement is direct and unequivocal as to the admission of his guilt, the statement is enough to ground an accused person’s conviction not withstanding the fact that he has resiled from the statement. However where the accused person resiles from his statement he must, explain the inconsistency. The Court is however cautioned to look for evidence no matter how slight, outside the confessional statement that makes the confession probable.
The general rule is that free and voluntary confession satisfactorily proved is sufficient proof of the guilt of the accused person without corroborative evidence, though the whole evidence should be weighed with a view to seeing whether they are incompatible with facts stated by the accused person in the statement. See Lasisi v. State (2013) 3 SCNJ 307, Nwaebonyi v. State (1994) 5 NWLR (Pt 347) 13, Dogo v. State (2013) 3 SCNJ 144, Okon v. State (Supra) Jimoh v. State (Supra) and Nwangbo v. State (1994) 2 NWLR (Pt. 327) 380. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: CALLING WITNESSES; WHETHER THE PROSECUTION IS NOT BOUND TO CALL A HOST OF WITNESSES TO PROVE HIS CASE

The prosecution is not bound to call a host of witnesses to prove its case. All the prosecution needs to do is to call enough material witnesses to prove its case and in so doing it has a discretion in the matter. Even one credible witness if believed is enough. See Theophilus v. State (1996) 1 NWLR (Pt. 423) 139 and Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1. The prosecution had a discretion as to who to call as witness/es. It is not for the Appellant to complain that some witness/es was/were not called. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE; WHETHER AN ACCUSE IS ENTITLED TO BE ACQUITTED WHERE HE GAVE AN ACCOUNT WHICH IS CONSISTENT WITH HIS INNOCENCE

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

KAZEEM ADIAMO – Appellant(s)

AND

THE STATE – Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court, Osun State sitting at Ikire on a one Count charge of armed robbery contrary to Section 1(1) and (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 11 Laws of the FRN.

The prosecution’s case according to the PW1 was as follows:
On the 1st November 2005, the PW1 while riding his motorcycle which he used for commercial purposes was stopped by the Appellant. The PW1 charged the Appellant N600. As they were going, the Appellant said they should branch at Ejemu’s compound in Apomu. There the Appellant got down to look for somebody. He came back shortly after and as they continued on the journey, the Appellant asked him to stay by a filling station to buy fuel. The PW1 said he had enough fuel. But the Appellant said they were going a little further than Ajegunle where the PW1 was supposed to be taking him. As they continued the journey after leaving Ajegunle people were calling the Appellant Kazeem the PW1 saw a rock and said the motorcycle could not climb it. He told the Appellant that he could not continue on the journey and that the Appellant should come down. As the PW1 was putting the motorcycle on high gear in order to climb the rock, the Appellant struck him with a cutlass on the head six times before the PW1 left the motorcycle. As the PW1 stretched his hand to protect himself the Appellant cut his fingers on both hands. The fingers were only held in place by a thin muscle.

He told the Appellant not to kill him because of motorcycle. But the Appellant said he would kill him because the PW1 had heard his name. The PW1 therefore pretended to have died. The Appellant then dragged him to the river close by.

After dragging the PW1 to the river, the Appellant cut him with a cutlass again by the waist and it was the belt that prevented his intestines from coming out. The appellant further carried a big stone and hit the PW1 on the mouth and a tooth came out. The Appellant washed the blood from the motorcycle, started it and left the PW1 there.

After about 10-15 minutes the Appellant came back again and cut PW1 with the cutlass on the legs particularly at the ankles so that when he gets up he would not be able to walk. The Appellant finally kept the cutlass and went away.

After the Appellant left him in the water some water entered into the PW1’s mouth and he was able to gain some strength. He crawled close to where he heard the sound of somebody cutting trees. He called out and an old man came out.

The old man went to Ajegunle and called people who brought another motorcycle and carried the PW1, first to the house then to the police station where the incident was reported and finally to Emmanuel Hospital Oluofirin in Ikire.
In his defence the Appellant said that he was a butcher. That he hired the PW1 to carry him to Orile-Owu. When he hired him, he was not carrying anything; he hired the PW1 to take him to Orile-Owu to collect money for the sale of meat. A little before getting to Ajegunle, the PW1’s motorcycle developed a fault. The PW1 tried to repair it but it did not work. He asked the PW1 to let him repair it. After he repaired it, he asked the PW1 to push him and when it started he rode it away. He rode it to where he lived and he was arrested the same day.

According to the Appellant in exhibit D his statement to the police, he said he robbed the victim violently but of course he had said a different thing in Court.
The day the police came to arrest him; he was beaten mercilessly, tied up and shot in the leg. He saw somebody who was already shot dead, he was asked to admit whatever the police said. He agreed and that is why he was not killed.

It was after the beating that one policeman called Victor held his hand to write the Appellant’s name on the statement.
After hearing evidence and addresses of counsel for both parties, the learned trial Judge in a reserved judgment delivered on the 19th March 2012, convicted the Appellant and sentenced him to death.

The Appellant has appealed to this Court initially on four grounds by notice of appeal dated 17th April 2012. By leave of Court the notice of appeal was amended by an amended notice of appeal dated 22nd February 2013, filed on the same day but deemed filed on the 26th February 2013.

From the six grounds of appeal contained in the amended notice of appeal, the Appellant formulated only one issue for determination: whether the conviction of the accused person for armed robbery can be sustained on the strength of the evidence led at the trial.

The Respondent however formulated the following four issues:
“(i) Whether the learned trial Judge was right in convicting the Appellant of armed robbery on the strength of the contents of Exhibit “D2” was corroborated by the evidence of the 1st Prosecution witness.
The issue is covered by grounds 1 and 2 of the Notice of Appeal.
(ii) Whether there are material contradiction in the evidence of the Prosecution witnesses as to warrant their evidence being treated as unreliable.
The issue is covered by ground 3 of the Notice of Appeal.
(iii) Whether in the peculiar circumstances of this case, the prosecution is under an obligation to call all material witnesses in this case.
The issue is covered by ground 5 of the Notice of Appeal.
(iv) Whether by the totality of the evidence adduced, the Respondent proved the Charge of armed robbery against the appellant beyond reasonable doubt.
The issue is covered by ground 4 of the Notice of Appeal

In my view this appeal can be fully considered on the lone issue, formulated by the Appellant which is similar to issue 4 formulated by the Respondent.

Arguing the appeal, learned counsel for the Appellant submitted that a conviction can be based on a confessional statement even if retracted at the trial. We were referred to Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351 and Ubierho v. The State (2005) 5 NWLR (Pt. 919) 644.

In a situation where the accused denies making the statement as in this case, the trial court, it was submitted is this case, is entitled to admit it and make specific findings on whether the statement was made by the accused. We were referred to Oseni v. The State (Supra).

Whether the statement is retracted or not a trial court, it was submitted, must subject it to the test propounded in R v. Skyes (1913) 8 CR APPR 233 and Kanu v. King (1952) 14 WACA 30 before deciding on the weight to attach to such statement.
Although the learned trial Judge subjected the confessional statement of the Appellant to the test, he relied on the contents of the confessional statement rather than evidence outside the confessional statement.

It was submitted that in carrying out this evaluation, the only other material testimony on record is that of PW1 and PW2 and the Appellants have shown that their testimonies are unreliable because of material contradictions between them. So they cannot be used as a basis for showing that the confession is true. For the same reason the PW1’s and PW2’s testimonies do not corroborate the confessional statement.

It was submitted that the testimony of the accused in Court vis-a-vis Exhibit D2 show that the confessional statement is not possible. Firstly the confessional statement is written partly in Yoruba and partly in English. While the additional statement appears to have been taken down in Yoruba, the original statement was in English. That PW2 who took down the statement did not say it was partly in English and partly in Yoruba. That the PW2 did not say if he was the one that recorded the Yoruba and English versions. That the trial court did not advert itself to this fact and this court cannot speculate on this vital aspect of Exhibit D2.

Learned counsel further argued that it is difficult to believe the contents of the confession because it suggests that the accused must have been acting under some influence. How could a man who had allegedly committed such a dastardly act, knowing that people saw him, go to his house and wait to be arrested by the police, learned counsel asked.

It was further submitted that there were material contradictions I the evidence of the prosecution witnesses. That the PW1 said he was taken to Emmanuel Hospital and PW2 stated that investigation took them to UCH Ibadan in Oyo State where the victim was hospitalized. It was submitted that these are material contradictions.

It was submitted that it was the PW2 who obtained Exhibit D2 and also tendered Exhibit D1 (the motorcycle) in evidence. It was submitted that if as it turned out from this piece of evidence, that PW2’s team conducted investigation in relation to a victim hospitalized at University College Hospital (UCH), Ibadan then his evidence is totally unreliable. It means that Exhibits D1, D2 and his account are of no ——-:

It was submitted that the prosecution neither declared PW1 nor PW2 hostile witness or explain the contradiction. The Lower Court, it was submitted, did not advert its mind to this material conflict in the evidence of the prosecution witnesses.

It was submitted that if this Court comes to the conclusion that the two testimonies are unreliable or that the conflicts create doubt, then this Court ought to allow the appeal. We were referred to Archibong v. The State (2006) 14 NWLR (Pt. 1020) 349 and Gabriel v. State (Supra).

The prosecution, it was submitted, failed to all material witnesses. These are Chief David Alamu, the first man to meet the complainant after the attack and a witness either from Emmanuel Hospital or University College Hospital, Ibadan to resolve the issue of hospital. Also the prosecution did not explain why it did not call the IPO who recovered the Jincheng Motorcycle, the matchet, arrested the receiver of the motorcycle and handed him over to the PW2 at State CID, Abeokuta. The weapon allegedly recovered by the same IPO was not tendered or reasonable explanation given as to why it was not brought to Court.

The failure to call the IPO it was submitted reduces the probative value of Exhibit D1 (the motorcycle) because PW2 cannot give evidence as to how Exhibit D1 was recovered. To compound the story of the prosecution, it was submitted, the motorcycle was allegedly recovered without a number though the complainant said at the police station that his motorcycle was registered with Registration No: QB 762 KRE.

All these, It was submitted, created doubt in the prosecution’s case. We were referred to Usufu v. The State (2007) 3 NWLR (Pt. 1020) 94 at 120 and Section 167(d) of the Evidence Act, 2011. It was submitted that the failure to call material witness was fatal to the case of the prosecution.

It was submitted that the Lower Court wrongly evaluated evidence. That at page 95 of the record of appeal, it asserted that the complainant showed it the scars of the place where the Appellant inflicted the matchet cuts on him when this fact was not recorded at the trial and the Lower Court’s summary of the evidence given at the trial. Also at page 95 the learned trial Judge asserted that “the accused gave the motorcycle to one Ahemed Ayoni” when this was not stated in the statement of the accused on oath.

It was submitted that one of the lapses in the case is absence of medical report in relation to the grievous injuries allegedly inflicted on the complainant. Neither Emmanuel Hospital nor UCH, it was pointed out, issued a medical report. It was submitted that in order to fill the gap and substantiate the robbery story, the Lower Court said in its judgment that the complainant showed the scars of the injury to the Court when there was no note of this on the record. That if this happened in the open Court then it was not to the knowledge of both counsels.

Furthermore, that the Lower Court relied on suspicion when it said at page 96 of the record that it was obvious that PW1 would not have willingly parted with his motorcycle. That the only reason he parted with it was because he had been dealt with by the accused to conclude that the complainant must have been gravely assaulted before he parted with the motorcycle. The learned trial Judge, it was submitted, is not allowed to rely on suspicion to convict. We were referred to Akpabio v. The State (1994) 7 NWLR (Pt. 350) 635 at 669-670.

Learned counsel for the Respondent submitted that the learned trial Judge having found that Exhibit D2 which was confessional statement in nature was corroborated by the evidence of PW1 Salimonu Saburi and having concluded that Exhibit D2 was direct and positive true and unequivocal about the commission of the offence, convicted the Appellant for the offence he was charged with.

It was submitted that an accused person can be convicted on his confession alone regardless of the fact that he resided there from or retracted it altogether. We were referred to Hassan v. State (2001) 11 SCM 100 at 108 and 110, Nwaebonyi v. State (1994) 5 NWLR (Pt. 343) 138 at 150-151.
It was submitted that the learned trial Judge by placing Exhibit D2 alongside the testimony of PW1 and by holding that Exhibit D2 was corroborated by the said testimony of PW1 the requirement laid down in the case of R v. Skyes (supra) had been complied with. It was submitted that the trial court having concluded that Exhibit D2 was direct, positive, true and unequivocal about the commission of the offence and having relied on same, the conviction is good and has basis in law. The law is that the Court can admit and convict on a confessional statement which the accused person retracted from if it satisfied that:-
a) the accused person made the statement and
b) there are circumstances which give credence to the contents of the confession. It is also desirable as in this case if the confession is subsequently retracted, that there should be some corroboration even if slight.

It was submitted that it is the corroborative evidence that is placed alongside the contents the confessional statement which must lead to the conclusion that the confession is true and it is not necessary to outline the six tests each against available evidence once a Court had found corroborative evidence independent of the confessional statement before it could rely on such confessional statement to convict the accused. We were referred to Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt. 751) 400 at 416.

It was submitted that the role of corroborative evidence in a case of this nature is to find out whether the accused person made the statement and to test the authenticity of the confession.
It was submitted that corroboration required need not be direct evidence but can be sustained by any material in the proceeding which could even come from the maker of the confessional statement himself or by way of conduct or demeanor.

It was submitted that there were no material contradictions in the evidence of PW1 and PW2. That the PW1 stated in his evidence that he was carried to Emmanuel Hospital, Ikire and that he finally said that that was all he could remember. That PW2 also stated that PW1 was first taken to one hospital at Ikire for First Aid before he was transferred to U.C.H. Ibadan. We were referred to pages 69 and 74 of the record of appeal. There is therefore no contradiction is the evidence of PW1 and PW2. We were referred to Dibie v. State (2007) 7 SCM 101 at 113 and Akpa v. The State (2008) 8 SCM 58 at 81.

On the argument that vital witnesses were not called, it was submitted that the prosecution only needs to call witnesses that if feels will help prove its case and not all witnesses.

It was submitted that the prosecution has proved the case beyond reasonable doubt.
The standard of proof required of the prosecution in a criminal case is a heavy one. The prosecution must prove its case beyond reasonable doubt. The burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few cases, such as where the accused raises the defence of insanity. There is no obligation on an accused person to prove his innocence. In order to discharge the onus on it, the prosecution must establish all the ingredients of the offence charged. See Okon v. State (2014) 57 NSCQR 732.

The Appellant in this case was tried and convicted for armed robbery mainly on his confessional statement Exhibit D2.

Armed robbery means robbery plus violence used or threatened. Before there can be robbery something must be stolen.

A charge for the offence of armed robbery will succeed if the prosecution establishes beyond reasonable doubt, that the accused person stole something capable of being stolen and at the time of stealing the accused person threatened to use violence or used violence before or immediately after the time of stealing. The violence could be on either a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. See Mohammed v. State (2014) 10 NWLR (Pt. 1414) 179, F.R.N. v. Yaro (2012) 3 SCNJ 223 at 236 and 237 reported as F.R.N. v. Usman (2012) 8 NWLR (Pt. 1301) 141.

A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Jimoh v. State (Supra) at 138.
Where an extra judicial confession is proved to have been made voluntarily and it is positive and unequivocal regardless of the fact that the maker has resiled there from or retracted it altogether at the trial, a U-turn does not necessarily make the confession inadmissible.

It is not the law that denial by an accused person of his confessional statement provides reason for either rejecting or rendering it unreliable and incapable of sustaining the conviction of the accused for the offences with which he is charged. Where his confessional statement is direct and unequivocal as to the admission of his guilt, the statement is enough to ground an accused person’s conviction not withstanding the fact that he has resiled from the statement.

However where the accused person resiles from his statement he must, explain the inconsistency. The Court is however cautioned to look for evidence no matter how slight, outside the confessional statement that makes the confession probable.
The general rule is that free and voluntary confession satisfactorily proved is sufficient proof of the guilt of the accused person without corroborative evidence, though the whole evidence should be weighed with a view to seeing whether they are incompatible with facts stated by the accused person in the statement. See Lasisi v. State (2013) 3 SCNJ 307, Nwaebonyi v. State (1994) 5 NWLR (Pt 347) 13, Dogo v. State (2013) 3 SCNJ 144, Okon v. State (Supra) Jimoh v. State (Supra) and Nwangbo v. State (1994) 2 NWLR (Pt. 327) 380.

At page 96 of the record of the learned trial Judge stated thus:
“Apart from the detailed description of the evidence of PW1 and the confirmation of the evidence of the accused person, the accused made a confessional statement.”

What then is the confessional statement which the Appellant made? The statement reproduced immediately hereunder reads as follows:
“I am a free born of Apomu in Osun State of Nigeria, I attended primary school, while I stopped schooling when I was in S.S.1, before I later engaged myself in trading by butchering and selling of cow meat. On 1st of October year 2005, at about 0400 p.m., I boarded a motorcyclist from Aponmu going to Orile Owu. So as to collect sum amount of money from an Ibo man who bought meat from me on credit I was with a sharp cutlasses in my possession, which I kept in a baco bag. On our way going we got to an area in the bush, where there was nobody coming very close to a stream, I ordered the Okada man to stop and he stopped and started struggling with the motorcycle with him so as to snatched away the motorcycle from him. At a time I brought out the cutlass in my possession and gave him a deep cut in his head in several places and felt unconscious, while he was in a pool of blood, I did this to him so as not to recognize me if I have gone away with the motorcycle and later threw him into a flowing stream. I rode on the motorcycle and took it to one of my friend in person of Hammed Ayoni who is a motorcycle mechanic and handed over it to him and told him that I want to sell the motorcycle and I want it to be sold at the rate of N35,000:00k. He did not ask me of how I came about it, he is the person repairing my own personal motorcycle for me and later sold it for me. He only asked me to go and bring the particulars of the motorcycle and I left him and went to my house. At about 1200 am, I was in my room watching television when some police men and some other peoples that saw me with the motorcycle when I was coming inn to the village with it They asked me of where I kept the motorcycle and I took them to Hammed Ayoni’s house and recovered the motorcycle from him. This is the first time I committed this type of act and this is the first time I took a stolen motorcycle to Hammed Ayoni for sale. That is all.”

When the above statement was being tendered the Appellant did not allege that it was involuntarily made. He only denied making it and so it was rightly admitted without conducting a trial within trial as none was necessary in the circumstances. The Appellant only denied making it. Although the Appellant denied making the statement, he gave it a stamp of authority in his evidence in chief and under cross-examination in Court.

In his evidence in chief he boasted that his evidence in Court was different. But was it?
In his evidence in Court he admitted that he was a butcher. That he engaged the services of the PW1 to carry him on his motorcycle to Orile-Owu to collect money for the sale of meat, he admitted riding away with the motorcycle leaving the PW1 behind. Under cross-examination, he said he took the motorcycle to Ahmed Ayoni. All these facts surprisingly are contained in the extra judicial statement of the Appellant.

The only thing contained in the extra judicial statement which the Appellant did not admit in Court and of course which he denied is the case of violence against the PW1 before snatching the motorcycle. To me this is not surprising. It would have been abnormal if he repeated the violence he inflicted on the PW1 in Court. It is even surprising that he repeated much of the facts contained in Exhibit D2 in Court.
The Appellant in Court belatedly claimed that he did not make exhibit D2 voluntarily. Of coursed this is an after thought and should be treated as such.

On his confessional statement Exhibit D2 to which he gave a stamp of authority in Court, the learned trial Judge in my view was entitled to convict him. The testimony of the Appellant in Court which was quiet similar to the statement Exhibit D2 which in my view was an admission of the offence was something outside the confessionable statement which made it probable. Therefore the trial court was entitled to convict the Appellant of the offence of armed robbery on which the Appellant was charged.

Learned counsel for the Appellant contended that the confessional statement was partly in Yoruba and partly in English. I have looked at the statement reproduced above and I am unable to see which part was in Yoruba.

Learned counsel for the Appellant did not say which part was in Yoruba and which was in English. I do not see what that argument was intended to achieve in spite of the fact that it was faulty.

Learned counsel for the Appellant wondered how the Appellant could have returned to his house after committing such a dastardly act knowing that people saw him. With respect to learned counsel there is no evidence before this Court that people saw the Appellant when he committed the alleged offence. The PW1 did not say so. The Appellant himself in his statement did not say so. The argument is therefore not supported by the evidence before the Court. For the sake of argument it is not surprising anyway that the Appellant returned to his house after committing the alleged robbery since he had left the motorcycle somewhere else to be sold for him.

Learned counsel for the Appellant argued further that there was material contradiction in the evidence of the PW1 and PW2 in that the PW1 said he was admitted at Emmanuel Hospital and PW2 testified to the effect that he want to see the PW1 at University College Hospital, Ibadan. I agree entirely with learned counsel for the Respondent that there was no contradiction here. As learned counsel for the Respondent rightly pointed out the PW1 said and I quote:
“I was carried to Emmanuel Hospital Oluofirin Ikire and that is all I could remember;”
And PW2 on his part stated as follows:
“The victim was first taken to one hospital in Ikire for first aid before been taken to U.C.H. It was at U.C.H. that I went to meet the victim.”
Surely there is no contradiction in the above evidence. The evidence clearly shows that the PW1 was initially taken to Emmanuel Hospital but later transferred to U.C.H. Ibadan, a contuicious but not contradictory process.

Learned counsel for the Appellant contended that material witnesses that is the first person to whom the PW1 sought help, staff of any of the two hospital and medical evidence were not called. The prosecution is not bound to call a host of witnesses to prove its case. All the prosecution needs to do is to call enough material witnesses to prove its case and in so doing it has a discretion in the matter. Even one credible witness if believed is enough. See Theophilus v. State (1996) 1 NWLR (Pt. 423) 139 and Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1. The prosecution had a discretion as to who to call as witness/es. It is not for the Appellant to complain that some witness/es was/were not called.

If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstance there must be a doubt with regard to his guilt. See Okafor v. State (2006) 4 NWLR (Pt. 969) 1. In the instant case the account given by the Appellant in Court was very incriminating and made his confessional statement probable. In my view, he is not entitled to a discharge and acquittal.
I resolve the only issue for determination in favour of the Respondent.
The appeal of the Appellant is hereby dismissed. His conviction and sentence are affirmed by me.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother James Shehu Abiriyi, JCA. I am in agreement with his reasoning and conclusion that the appeal is lacking in merit and ought to be dismissed. I dismiss it accordingly. I affirm the judgment of the trial court and uphold the conviction and sentence of the Appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: A relay of horror movie transmuted to a life of orgy, leading to the undoubted proof of the crime charged.
Evidence in proof of the Monstrosity of Murder and Armed Robbery had been disclosed.
The leading Judgment of My Lord, Abiriyi, JCA, confirming the conviction and sentence as made at the trial court cannot but be concurred in.
In agree that the appeal be dismissed.

Appearances

Uche C. Ihediwa Esq. For Appellant

AND

‘wale Afolabi Hon. Attorney-General Osun State For Respondent