OROBOSA EYONAOWA v. COMMISSIONER OF POLICE (2014)

OROBOSA EYONAOWA v. COMMISSIONER OF POLICE

(2014)LCN/7662(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of February, 2014

CA/B/26C/2008

RATIO

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE DEFINITION OF THE OFFENCE OF ARMED ROBBERY AND THE INGREDIENT THAT CONSTITUTE THE OFFENCE OF ARMED ROBBERY
The offence of armed robbery was more recently defined by Fabiyi, JSC in Emmanuel Eke V. The State (2011) LPELR – SC.364/2009, inter alia:
“Armed robbery simply means stealing plus violence, used or threatened. See Aruna V. State (1990) 9 – 10 SC S.C 87; (1990) 6 NWLR (pt. 155) 125; Aminu Tanko V. The State (2009) 14 WRN 1; (2009) 1 – 2 S.C. (pt. 1) 198.”

EVIDENCE: EYE WITNESS TESTIMONY; WHETHER AN EYE WITNESS TESTIMONY IS USUALLY THE BEST EVIDENCE IN CRIMINAL TRIALS

It has been held that an eye witness testimony is usually the best evidence in criminal trials. See the case of Oyakhere vs. The State (supra). It has also been held that if there is not dispute about the identity and identification of an accused person by a witness, there will be no reason why his evidence alone, if believed cannot ground or sustain a conviction even on a charge for a capital offence. See the following cases:
1. ANI vs. THE STATE (2003) 11 NWLR (PT. 830) 142;
2. EYISI vs. THE STATE (2000) 15 NWLR (PT. 691) 642;
3. BOLANLE vs. THE STATE (SUPRA);
4. OKOSI vs. THE STATE (1989) 1 NWLR (PT. 100) 642;
5. ALONGE vs. I.G.P. (1959) SCLR 156; AND
6. ONAFOWOKAN vs. THE STATE (1987) 3 NWLR (PT. 61) 538. per. TOM SHAIBU YAKUBU, J.C.A.

EVIDENCE: INCONSISTENCY OR CONTRADICTIONS IN EVIDENCE; THE DUTY OF THE DEFENDANT WHO DISCOVER THAT THERE ARE INCONSISTENCIES IN THE EVIDENCE OF A WITNESS FOR THE PROSECUTION IS AT VARIANCE THIS THE EXTRA JUDICIAL STATEMNT TO CALL THE ATTENTION OF THE WITNESS
Therefore, where the defence discovers that there are inconsistencies in the evidence in open court of a witness for the prosecution, is at variance with an extra judicial statement earlier made by that witness to the police in the course of the latter’s investigation, on the case, the defence would then call the attention of the witness to those parts of the earlier statement which contradict the evidence in court. This is done under cross-examination of the witness by the defence and where the witness has been demonstratingly shown to be inconsistent or contradictory in the earlier statement and his piece of evidence in court, learned counsel to the defence, could then apply to tender in evidence, the earlier extra-judicial statement of the witness, for the court to see the inconsistencies or contradictions between the evidence proferred in court and his extra-judicial statement made during the investigation of the case. Olayinka V. The State (2007) All FWLR (pt. 373) 163; (2007) 9 NWLR (pt. 1040) 516; Ozaki V. The State (1990) 1 NWLR (pt. 124) 92.
The apex court more recently, re-echoed the same principle in Ajayi V. The State (2014) All FWLR (pt. 711) 1457 at 1478, per Aka’ahs, JSC, thus:
“None of the prosecution witnesses was confronted with the fact that the evidence they gave contradicted the statements they made to the Police. If such suggestions had been put to the witnesses under cross-examination which they denied, learned counsel could then apply either to tender the statements or invite the trial judge to order the production of the case dairy for his inspection to enable him ascertain if there are discrepancies between the evidence and the statements made during investigation. In Gaji v. The State (1975) 1 All NLR (Pt. 1) 266, (1975) 9 NSCC 294, (1975) 5 SC 61 the defence applied for the production of the statements made to the police by prosecution witnesses but the applications were opposed by the prosecution contending that no foundation was laid for the compulsory production of those statements. The learned trial judge refused the applications because Section 122 of the Criminal Procedure Code prohibits the production but he did not deal with the objections as to the absence of foundation. On appeal, this court held that the trial court has a discretionary power to order the production of documents including such statement, if such production is necessary in the interest of justice. As I have observed, the submission of learned counsel for the appellant was made without any basis since no statements of the witness were ever produced by counsel in cross-examination to contradict the witnesses. The submissions of counsel in the brief can never take the place of evidence.” per. TOM SHAIBU YAKUBU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHAT THE PLEA OF ALIBI POSTULATES

That takes me to the issue of alibi raised by the appellant in his extra-judicial statement – Exhibit A. The learned trial judge found that the said alibi was not investigated by the Police. See page 61 – 62 of the record of appeal. He however formed the opinion that though the alibi of the appellant was not investigated, if there was any strong evidence proferred by the prosecution and which remained uncontroverted that fixed the appellant at the locus criminis, he could still be convicted because such strong and uncontroverted evidence by the prosecution cancelled out the defence of alibi. That is the law. There are so many authorities of the apex court and this court on this position of the law. I do not intend to rehash them. However, in a more recent decision of the Supreme Court in Emmanuel Egwumi V. The State (2013) 13 NWLR (pt. 1372) 525 at 560, the same principle which had been expounded by the apex court, some four decades ago, that is, Patrick Njovens & Ors. V. The State (1973) 5 SC 17 at 65, was re-echoed again; to wit:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulated that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is inflexible and/or invariable way of doing this …. If the prosecution adduced sufficient and acceptable evidence to fix the person at the scene of crime at the material time… his alibi is thereby logically and physically demolished.” See also: Nnamdi Osuagwu V. The State (2013) 1 SCNJ 33 at 52. per. TOM SHAIBU YAKUBU, J.C.A.

ADMINISTRATION OF CRIMINAL JUSTICE: HUMAN JUSTICE; THE PRINCIPLE OF THE COURT THAT IT WOULD BE BETTER TO DISCHARGE TEN(10) CRIMINALS HAN TO CONVICT ONE (1) INNOCENT PERSON

My noble Lords, in the administration of criminal justice, it must always be borne in mind that “the two fold aim of criminal justice is that the guilt shall not escape justice or innocence suffer.” See Berger Vs. U.S. 295 U.S. 78 (1935) referred to in U.S. Vs. Nixon (U.S. President) 418 U.S. 683; Supreme Court 3090. OR put differently, by the spirit of the presumption of innocence guaranteed to an accused person under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the policy of our courts is that it would be better to discharge ten (10) criminals than to convict one (1) innocent person, by mistake or error of law.
Hence, as eloquently admonished by the learned eminent jurist, Oputa, JSC, in Ukwunneyi V. The State (1989) 5 NWLR (pt. 114) 137 at 156, we must be reminded always that:
“Human justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death.”
See also Abdullahi V. The State (2005) All FWLR (Pt. 263) 698 at 715 (CA); Odogwu V. The State (2013) 14 NWLR (pt. 1373) 74 at 127 (SC). per. TOM SHAIBU YAKUBU, J.C.A.

EVIDENCE: EVIDENCE OF RECOGNITION AND EVIDENCE OF IDENTIFICATION; THE DISTINCTION BETWEEN EVIDENCE OF RECOGNITION AND EVIDENCE OF IDENTIFICATION AND HOW A COURT EVALUATE RECOGNITION EVIDENCE PLACED BEFORE IT

There is a clear distinction between evidence of recognition and evidence of identification. When a complainant says “I know who committed the crime against me”, it presupposed that the person is well known to him/her. Whereas when the person says “I can recognize the person who committed the offence” then there is the presumption that he can point out the offender if lined up with other persons before him.
The Supreme Court in Ndukwe v. State (2009) 7 NWLR pt. 1139 pg. 43 at 45 had this to say on recognition of an accused person:
“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened but the poorer the quality, the greater the danger”

How then does a court evaluate recognition evidence placed before it? The Courts in Rasaki v. State (2011) WRN pg. 23 at 37 held as follows:
“In ascribing probative value to the evidence of identity, Courts are warned to guard against mistaken identity. As a guise, the courts have been enjoined to take into consideration the following factors:
(a) The circumstances in which the eye-witness saw the suspect or accused;
(b) The length of time the witness saw the suspect;
(c) The lighting conditions;
(d) The opportunity of close observation; and
(e) The previous contracts between the suspect and the eyewitness.”
In my humble opinion, the above listed guides should be used in the cumulative not alternative and the weakness of any of the requirements should be resolved in favour of the accused person. This is so having in mind the standard of proof required in a criminal trial as opposed to civil matter. per. TOM SHAIBU YAKUBU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; THE ONUS ON THE POLICE TO INVESTIGATE THE DEFENCE OF ALIBI RAISED BY AN ACCUSED PERSON

It is trite law that once an accused person raises the defence of alibi at the earliest opportunity as in this case, the onus rests on the Police to investigate the said alibi. The learned trial judge at pg. 60 of the record conceded that the appellant raised the defence of alibi timeously and at the earliest opportunity. per. TOM SHAIBU YAKUBU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; THE EFFECT OF THE FAILURE OF THE PROSECUTION TO INVESTIGATE A PROPER AND PROMPT PLEA OF ALIBI RAISED BY AN ACCUSED
It is settled that once the prosecution fails entirely to investigate a proper and prompt plea of alibi raised by an accused, such will result in the discharge and acquittal of the accused. The Supreme Court per Muhammed JSC in Onuchukwu v. State (1998) 4 NWLR pt. 547 pg. 576 at 592 held that:
“That law on the issue of alibi is now clear. Once an alibi is unambiguously set up-whereby the accused person states clearly where he was at the time of the commission of the crime in question, with persons who were with him at that place, or who were aware of his presence there, well outside the locus criminis, the alibi must be investigated. Eze v. State (1976) 1 SC 125. To dismiss the alibi properly set up in this issue with a wave of hand as “unreliable and I do not believe it”, the Police investigator abandoned a monumental duty and it renders the alibi uncontradicted. In such a situation the accused person’s story must be believed and he will be entitled to discharge and acquittal.”
See also Ozaki v. State (1990) 1 NWLR pt. 124 pg. 92, Aremu v. State (1991) 7 NWLR pt. 201 pg. 1, Nwabueze v. State (1988) 4 NWLR pt. 86 pg. 16. per. TOM SHAIBU YAKUBU, J.C.A.

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

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

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

Between

OROBOSA EYONAOWAAppellant(s)

AND

COMMISSIONER OF POLICERespondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned and tried at the Edo State High Court of Justice, sitting in Benin City on a four-count charge as follows:

“COUNT I
That you Orobosa Eyonaowa on or about the 3rd day of April, 2000, at Benin City in the Benin Judicial Division conspired with others now at large to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to Section 4(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Laws of the Federation of Nigeria.
COUNT II
That you Orobosa Eyonaowa on or about the 3rd day of April 2000 at Benin City in the Benin Judicial Division robbed one Grace Ogieva of the sum of N29,500, while armed with cutlass and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Laws of the Federation of Nigeria.
COUNT III
That you Orobosa Eyonaowa on or about the 3rd day of April, 2000 at Benin City in the Benin Judicial Division robbed one Elizabeth Omozegbon of the sum of N60.00, while armed with cutlass and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Laws of the Federation of Nigeria.
COUNT IV
That you Orobosa Eyonaowa on or about the 3rd day of April, 2000 at Benin City in the Benin Judicial Division robbed one Rose Obawuyi of the sum of N11, 500 and necklace while armed with cutlass and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Laws of the Federation of Nigeria.”

The plea of the appellant was taken on 29th September, 2005. He denied the charge against him. The prosecution called three witnesses in order to prove the allegations against the appellant. The extra-judicial statements made by the appellant were tendered in evidence. The appellant also gave evidence in his defence. He did not call any other person as a witness.

Both learned counsel for the appellant and the respondent addressed the court. In his judgment, D.I. Okungbowa, J., on 8th November, 2006, convicted the appellant on three of the counts and consequently sentenced him to death. His Lordship said in conclusion:

“From the totality of the evidence before me I am satisfied that the prosecution has proved the guilt of the accused beyond reasonable doubt in counts 1, 2 and 3. I hereby find the accused guilty in counts 1, 2 and 3 and convict him accordingly. The punishment for the offence of armed robbery is the death sentence, and it is mandatory.”

Therefore, the appellant was sentenced to death.
This appeal is against that decision. Initially, the appeal was anchored on the omnibus ground of appeal. Thereafter, with leave of this court, sought and obtained, the appellant filed two more grounds of appeal.

The appellant’s brief of argument, settled by Solomon Odiase, Esq., was dated and filed on 3rd February, 2012, with leave of this court. In it, two issues were identified for determination, to wit:
“1. Whether the learned trial judge was right when he convicted the appellant for the offence of armed robbery and sentenced him to death when the ingredients of the offence and commission thereof were not proved beyond reasonable doubt having regards to the doubts created in the case of the prosecution.
(Distilled from Ground 2).
2. Having regards to the serious nature of the offence for which the appellant was arraigned, whether the lower court was right when it failed to consider the effect of the police to investigate the appellant’s alibi as promptly raised by him.”
(Distilled from Ground 3).
Mrs. P.E. Aziegbemhin, Deputy Director, Ministry of Justice, Edo State, settled the respondent’s brief of argument. It was dated 28th May, 2013 but filed on 12th June, 2013 and with leave of this court, the same was deemed as properly filed and served on 15th January, 2014. Two issues were formulated for determination by the learned Deputy Director for the respondent, thus:
“(i) WHETHER THE INGREDIENTS OF THE OFFENCES FOR WHICH THE APPELLANT WAS CHARGED WAS PROVED BEYOND REASONABLE DOUBT. (Distilled from ground 2).
(ii) WHETHER THE LEARNED TRIAL JUDGE CONSIDERED THE EFFECT OF THE FAILURE OF THE POLICE TO INVESTIGATE THE ALIBI OF THE APPELLANT BEFORE REACHING A VERDICT OF GUILT.”
I am of the considered opinion that the two issues formulated by each of the learned counsel herein, are essentially the same. I therefore adopt the two issues identified for determination by the appellant’s counsel, in my consideration of this appeal.
The appeal was taken on 15th January, 2014. Each of the learned counsel herein adopted their respective briefs of argument and urged us to either allow the appeal or dismiss it, as the case may be.

Issue 1:
Learned appellant’s counsel submitted that it was the duty of the prosecution to have proved the offences against the appellant beyond reasonable doubt by virtue of the Constitution and Section 138(1) of the Evidence Act. He placed reliance on Njovens V. The State (1973)? NWLR 331; Oteki V. Attorney General, Edo State (1986) 2 NWLR (pt. 24) 648.
He highlighted the ingredients of the offences charged which must be proved by the prosecution to include:
– that the accused person stole something;
– that the thing stolen is capable of being stolen;
– that the accused person threatened to use violence or actually used violence immediately before or after the time of stealing the thing;
– the violence could be on either a person or on a property in order to obtain or retain the thing stolen.
Therefore, according to learned appellant’s counsel, the prosecution must prove that there was a robbery and that the appellant participated in it. He placed reliance on Henry Oti V. The State (1991) 8 NWLR (pt. ?) 103 at 118; Bozim V. The State (1985) 2 NWLR (pt. 8) 465.

Learned counsel to the appellant contended that the prosecution did not prove the offences against the appellant because according to him, the extra-judicial statements made to the police by the prosecution witnesses (PW1 & PW2) were each in contradiction with their pieces of evidence proferred at the trial. He referred to pages 17 – 19 vis-‘E0-vis pages 8 – 9 of the record of appeal, to demonstrate the inconsistencies in the evidence of PW1 and her two separate statements made to the police prior to the trial. Similarly, he referred to pages 11 to 12 of the record of appeal, with respect to the statement made by the PW2 and her evidence at the trial, to demonstrate that the two victims of the offences alleged against the appellant were not consistent in their extra-judicial statements to the police and their pieces of evidence proferred at the trial. Hence, according to appellant’s counsel, the contradictions and inconsistencies in the evidence led by the prosecution ought to have created doubt in the mind of the court to have warranted a discharge and not a conviction of the appellant, by the learned trial judge. He placed reliance again on Bozim V. The State (supra) and Aruna V. The State (1990) 10 SCNJ 5 at 13.

The tenor of learned appellant’s counsel is that the armed robbery operation on the PW1 and PW2 was put on the head of the appellant in order to settle an old score that is the failure of the appellant to supply wood to the PW1.

Issue 2:
Learned appellant’s counsel with respect to the alibi set up by the appellant in his extra-judicial statement obtained by the police, at the earliest opportunity and its non-investigation by the police, submitted that since the learned trial judge found that the police did not investigate the appellant’s alibi, he ought not to have placed any value on the evidence of the PW1, upon which he convicted the appellant. Learned appellant’s counsel still highlighted the inconsistencies in the evidence of the PW1 at the trial and her extrajudicial statements to the Police and submitted that there were loose ends in the evidence of PW1 which made it unreliable and unsafe, to convict the appellant. He called in aid Almu V. The State (2009) 10 NWLR (pt. 1148) 31 at 53; Arase V. Arase (1981) 5 SC 33; Omotola V. The State (2009) All FWLR (pt. 404) 1490 at 1566 – 1567.

Learned appellant’s counsel insisted that it was obligatory on the part of the police to have investigated the alibi set up promptly by the appellant. He placed reliance on Chukwu V. The State (1996) 9 – 10 SCNJ 18; Oyebola V. The State (2008) All FWLR (pt. 402) 1175 at 1184.
Furthermore, appellant’s learned counsel submitted that the learned trial judge ought to have been wary in convicting the appellant on the uncorroborated evidence of the PW1. He referred to Azeez V. The State (2006) All FWLR (pt. 337) 485 at 498.

Responding to issue 1, Mrs. Aziegbemhin, the learned Deputy Director, for the respondent submitted that there is evidence by the PW1 and PW2 that it was the appellant and two other boys at large who came to their house at about 3.00am on 3rd April, 2000 and armed with a cutlass, stole some money from each of them, that is, PW1 and PW2. And that since conspiracy is hardly capable of direct proof, if there is evidence that there was a meeting of the minds of the conspirators which led to their overt acts, the court can infer conspiracy. She relied on The State V. Okonkwo (1998) 1 LRCN 33; Njovens V. The State (1998) 1 ACLR 224; Oyakhire V. The State (2005) 15 NWLR (pt. 947) 159.

The learned Deputy Director for the respondent outlined the ingredients for the offence of armed robbery to consist of –
(a) That there was robbery;
(b) That the robbers were armed;
(c) That the accused person took part in the armed robbery operation. She relied on Bozim V. The State (1998) 1 ACLR p.(?); Magic V. The State (1999) 1 LRCN 252.

The learned Deputy Director, referred to the pieces of evidence proferred by the PW1 at page 26; PW2 at page 28 and PW3 at page 29 of the record of appeal, all to the effect that there were uncontradicted evidence that there was an armed robbery attack on the PW1 and Pw2 at about 3.00am in their house on 3rd April, 2000. It is her further submission that the identity of the appellant was not in doubt because PW1 who had known the former for about six months prior to the date in question, was able to recognise him on the fateful night, moreso as the latter was not masked on the said night. And that the best evidence of the identity of an accused person, is that by the victim of the crime. She relied on Okosi V. The State (1998) 1 ACLR 281; Oyakhire V. The State (supra).

Mrs. Aziegbemhin, also submitted that since the learned trial judge properly evaluated the pieces of evidence proferred by the witnesses before him, upon which he convicted the appellant, his findings were unassailable. She referred to Ani V. The State (2003) 11 NWLR (pt. 830) 142; Okosi V. The State (supra); Igago V. The State (2001) 2 ACLR 1.

With respect to the submissions of learned appellant’s counsel touching on alleged contradictions and inconsistencies in the extrajudicial statements of the PW1 and PW2 vis-‘E0-vis their evidence at the trial, it is the submission of the learned Deputy Director, that since the said extra-judicial statements of the PW1 and PW2 were not exhibits before the court, those submissions, went to no issue and should be disregarded. And that the court is only bound to decide a case upon the evidence laid before it, on the authority of The State V. Ogbubunjo (2000) 2 ACLR 523 at 530.

She urged us not to interfere with the findings of the learned trial judge because the findings were premised on credible evidence before him. She relied on Oguonze V. The State (1998) 58 LRCN 3512.

Arguing issue 2, the learned Deputy Director, for the respondent, submitted that indeed the learned trial judge at page 62 of the record of appeal found that the alibi set up by the appellant, was not investigated by the Police, but nevertheless, came to the conclusion that since there is positive evidence by the prosecution, which fixed the appellant at the locus of the crime alleged against him, the defence of alibi, remains demolished. She relied on Aiguoeghian V. The State (2004) 13 NWLR (pt. 860) 367; Eyisi V. The State (2000) 15 NWLR (pt. 691) 555; Odu V. The State (2001) 10 NWLR (pt. 722) 660; Njovens V. The State (1973) 5 SC 17.

The learned Deputy Director, therefore urged that there is superior evidence before the trial court which demolished the appellant’s alibi, also on the authority of this court in Dagayya V. The State (2006) 7 NWLR (pt. 980) 30.

Resolution of issues 1 & 2.
The offence of armed robbery was more recently defined by Fabiyi, JSC in Emmanuel Eke V. The State (2011) LPELR – SC.364/2009, inter alia:
“Armed robbery simply means stealing plus violence, used or threatened. See Aruna V. State (1990) 9 – 10 SC S.C 87; (1990) 6 NWLR (pt. 155) 125; Aminu Tanko V. The State (2009) 14 WRN 1; (2009) 1 – 2 S.C. (pt. 1) 198.”

I am in agreement with both learned counsel herein that the ingredients that constitute the offence of armed robbery and each of which must be clearly established by the prosecution, in order to gain or sustain conviction of an accused person are:
i. That there was a robbery operation.
ii. That the robbery was an armed robbery
iii. That the accused person was one of those who took part in the armed robbery operation.
The authority of the apex Court and this court are a legion. Just see a few of them such as Taofeek Adeleke (2013) 16 NWLR (pt. 1381) 556 at 582 – 583; Joshua V. The State (2010) 1 WRN 41; (2010) LPELR S.C. 1999/2009; Oyakhire V. The State (2005) 15 NWLR (pt. 947) 159; Bozin V. The State (1985) 2 NWLR (pt. 8) 465; Olowoyo V. The State (2012) 36 WRN 112.
The PW1 and PW2 were the victims and the eyewitnesses to the armed robbery on them at about 3.00am on 3rd April, 2000, right in their house, at Egor quarters, in Benin City. Hear each of them, in their evidence-in-chief.
“PW1: is sworn on the Holy Bible and states in English language. My name is Grace Ogiefa. I live at Egor Quarters. Benin City. I am a trader. I know the accused person. Before 2nd April, 2000, I had known the accused for over six months in press board sawmill. On 2/4/2000 the accused called me at about 12 – 1.00pm. He was discharging wood in the sawmill for somebody. He told me that it was my turn next and that he was going to bring my wood. I then gave him the sum of N6, 000.00. He said he would return at 10.00pm in the night. Around 10 pm in the night I heard him dropping wood in the sawmill. He shouted to call me it was there and I answered. I said when it is day break I would come and measure the wood. At this time I was sitting outside on top of our well with my sister called Elizabeth Omozagbon. The accused came to my compound. He met me and my sister sitting on top of the well in the house. He asked after “apar” (the husband of the convertor who rented our house). We told him that the man was not at home. The accused said he wants to sleep in my house and that his own wood would arrived at about 3.00 am that night. I said no and that he could not sleep in my house. He left. At about 3.00 am the accused and two boys came to broke my door. Some of the boys were with the convertor in our house because I heard her shouting “who is this”? I saw the accused with a big cutlass one of the other boys was holding an iron rod. They came into the parlour where my elder sister Elizabeth and I were and the accused was pointing his touch light into my eyes and demanding for the money I was to use to buy the wood. I carried the rubber bag with me and I gave it to him. He requested to know how much was in it and I told him N29,500 and he inquired if it was for two loads. My elder sister Elizabeth then replied we still have other monies in our mothers house. He then locked Elizabeth in one room, locked Rose Obameonyi in another room and led me to my mother’s house which is on another street. As we were going on the way, by one cashew tree the accused sad they should kill me there because I know him. The others said they should not kill me yet until they have collected the money in my mother’s house. When we got to my mother’s compound we went to the back yard which is the easier assess to the house. I called on my mother to open the door and as she headed for the place where the key to the gate is kept she shouted for help and her next door neighbour at the back yard where we were opened his door. As soon as the accused saw that the neighbour opened the door he matched me in my hand. He was going to cut me on my head and I defended my head with my hand hence this matchet cut my hand. The accused ran away. My hand was bleeding. My mother was crying. I nearly died from the loss of blood. At day break I ran to the police and at the police station I mentioned my assailant as the accused. The police took me to the general hospital. Eventually I made a statement to the police both at Egor and at the State Police Head Quarters (State C.I.D).”
P.W.2: is sworn on the Holy Bible and states in English Language. My name is Elizabeth Omozagbon. I live at Egor Quarters, Benin City. I am a trader. I know P.W.1. She is my younger sister. I know the accused person. On 2/4/2000 at about 10.00pm in the evening the accused came to our house which is opposite the sawmill where the accused usually drops wood. He called my sister, “mama Americana.” We were sitting outside. Mama Americana is P.W. 1. She answered and she asked if he brought her wood. He said no and that the wood he brought is for his neighbour who is already aware that he went to bring the wood. The accused left the sawmill to come and meet us at home that night. He promised to bring my sisters wood at 3.00am. The accused then inquired about the husband of the tenant in our house. I told the accused that he is not around. He started looking up and down the house. He pleaded with my sister that he wanted to sleep in our house. My sister refused. He promised to bring wood by 3.00 am. The accused left. At about 3.00 am two people entered our room. One tall and the other short. They pointed touch light in my eyes. I could not recognise them. The demanded from my sister the money with which she wants to buy logs. My sister gave them the money. They asked me for my own money I said I did not have except N60.00 (sixty naira) they took it from me. They ask if the money my sister gave them was all she had to buy logs. With fear I told them that the balance money is in our mother’s house. I was locked up in one room in the house. The other tenant who was also attacked was locked up in her room and they led my sister away. When it was a day break I decided to look for my sister to know what may have happened and I saw her on the road shouting/crying. She was matched in her right hand. She was crying that it is one Orobosa who matched her. We were to go to the hospital but we were told that without police she would not be treated so we went to Ogida police station. I made a statement to the police at the State C.I.D.”

From the ipse dixit of the PW1 and PW2, they were attacked in their home at 3.00am on 3rd April, 2000. The attackers were armed with a cutlass and an iron rod.
– The sum of N29, 500.00 was taken from the PW1;
– The PW1 was cut on her right hand with a cutlass by one of the attackers;
– The sum of N60.00 was taken from the PW2;
– The attackers were three in number;
– One of the attackers, the appellant, had earlier in the evening of 2nd April, 2000 visited the PW1 in her home, to discuss wood supply business to the latter;
– The appellant wanted to sleep in the residence of the PW1 and PW2 to await the supply of wood to the PW1 at 3.00 am but the PW1 refused.
– The appellant went away and promised to return at 3.00 am on 3rd April, 2000 with the wood supply to the PW1;
– The appellant and PW1 had known each other for about six months, as they both work in the same Press Board Sawmill Benin City prior to the 3rd April, 2000;
– The appellant was recognized by the PW1 as being one of the attackers and that indeed it was the appellant who cut her on her right hand and even wanted to kill her because she knew him;
– PW1 was taken to the General Hospital and treated;
– PW1 reported the incident to the Police in the morning of the next day and informed the latter that the appellant was one of her attackers in the night of 3rd April, 2000.
– PW2 did not recognise nor identify the appellant as being among the three attackers on her in the night of 3rd April, 2000.
– PW2 was informed by the PW1 that it was the appellant who cut her on the hand.

PW3 was the Investigating Police Officer. His evidence is to the effect essentially that the PW1 reported the attack on her at the Ogida Police Station and when the case was transferred to the Edo State Police State C.I.D, he was assigned to investigate. He was the one who obtained the extra-judicial statements from the PW1, PW2 and the appellant. The latter’s statement was received and admitted in evidence and marked as Exhibit A.
In his defence, the appellant testified thus, to wit:
“My name is Orobosa Eyonaowa. I live at No. 2, Baba Wilson Street, Egor Quarters, Benin City. I am a timber contractor. I know the P.W.1, P.W. 2 and P.W. 3. I did not conspire with anybody to commit the offence of armed robbery on 3/4/2000. I did not rob Mrs. Grace Oriava of the sum of N29, 500.00. I did not also rob one Elizabeth Omozagbon of the sum of N60.00. I did not rob Rose Obamwoyi of the sum of N11,500 and a necklace. I deny the charge. On 2nd April, 2000 I went to the bush. I brought three loads of timber to presbol sawmill. After bringing the load I saw three women i.e. P.W.1, P.W.2 and one other in the sawmill. Their business is one of charcoal. One of the women P.W.1 called me and pleaded with me to give her one out of the three loads of woods I brought. I told her I could not give her the wood. I also told her that the three loads I brought belongs to my elder brother. She kept pleading with me to sell the load to her. I then told her to wait and that when my elder brother comes I will talk to him to see if he will sell one of the loads to her. I told her so because it is my brother who sponsored my timber business. This time around they left. It was now about 6.00pm after they had left my workers started to discharge all the loads and they finished. The sawmill is opposite the house of P.W.1. At the time my boys finished discharging the load, the P.W.1 was in her house. The sawmill is fenced by a block wall which has fallen. Plank was later used to restore the fence. P.W.1 from her compound was calling me through the fence so I went to meet her. I stood by the fence in the sawmill while she stood outside. She asked me how I now want to handle the matter pleading that if my brother will not sell the wood to her I should assist her to get wood within five days. After that I left the sawmill and went to my house at Baba Wilson Street. This was now about past 7.00 pm. I later left to go and see my elder brother, P.A. Igbinovia, the chairman of Ovia North East to inform him that I brought three loads of wood for him and to collect the money from him. He gave me the money and I returned home. This was at about past 9.00 pm. I slept in my house and woke up in the morning to go back to the bush to cut timber. On my way to the bush with my motor cycle, some where along the road in the bush I saw a bus coming from the opposite direction. The driver and occupants were now stopping me. They turned the car and started to pursue me and I had money on me, there was a road block in front so I was running to the road block so that I can stop there. The road block is police road block. At the road block the vehicle pursuing me caught up with me. The occupants came down and one of them slapped me. It turned out that they were police men. I was later taken to Ogida Police Station. At the Police Station I was told that I had robbed a certain woman. I asked to see her and they said she was in hospital. The policemen who slapped me is known to me. He knows me and every member of my family. He is Olugbenga. By the next day the police brought the woman from hospital. When I saw saying that “Are you not the one who came to attack me at home”. I denied it. The policemen there told me to shut up. It is the same police man whom slapped me earlier. Myself and the policeman have been having disagreement in the past over my woman, who is a Yoruba woman. The policeman says he wants to marry my woman. At Ogida Police Station I made a statement to the police, from there I was transferred to the State C.I.D. The police at Ogida demanded the sum of N20,000.00 from me for bail. I refused to pay the money. Later in the night of that day the policeman brought me out and started beating me, whipping me with horse whip saying that he has got me at last. I was eventually transferred to the State C.I.D. Olugbenga was the I.P.O. in the case at Ogida. At the State C.I.D. I made statement to the police. The I.P.O. at the State C.I.D. is P.W. 3 in this case. I was not one of those who went to rob the P.W.1 on 3/4/00.”

From the ipse-dixit of the appellant at the trial, it is manifest that:
– He and PW1 knew each other quite well before 3rd April, 2000.
– PW1 and PW 2 in the company of another woman came to the Press Board Sawmill, which is opposite the home of PW1, on 2nd April, 2000;
– PW1 had pleaded with him, the appellant, to supply wood to her;
– He told the PW1 that he could not oblige her with a load of the wood she had requested;
– After the initial discussion with respect to the wood supply between the PW1 and himself, the two of them later discussed about the same business, when the appellant stood by the fence of the sawmill whilst the PW1 stood outside the fence of the sawmill which was opposite the home of PW1;
– Thereafter, he left the sawmill to his residence;
– After sometime, he left his residence to see his elder brother – P.A. Igbinovia;
– At about 9.00 pm he came to sleep in his residence at Baba Wilson Street;
– On the 3rd April, 2000 as he was riding his motor cycle to the sawmill, somewhere along the road, some persons, who he later realized were policemen in a bus pursued him and arrested him to the Ogida Police Station;
– He was informed of the allegation against him which he denied.

The learned trial judge, having evaluated the pieces of evidence led before him, came to the conclusion at pages 63 – 65 of the record of appeal. He said:
“The evidence of identification can be given either by the victim or some other persons who witnessed the commission of the offence. Thus while PW1 was a victim as to the robbery in count two, she was an eye witness to the commission of the offence in count three. The success of the prosecutions case therefore depends on the value placed on the evidence of PW1. It has been held that an eye witness testimony is usually the best evidence in criminal trials. See the case of Oyakhere vs. The State (supra). It has also been held that if there is not dispute about the identity and identification of an accused person by a witness, there will be no reason why his evidence alone, if believed cannot ground or sustain a conviction even on a charge for a capital offence. See the following cases:
1. ANI vs. THE STATE (2003) 11 NWLR (PT. 830) 142;
2. EYISI vs. THE STATE (2000) 15 NWLR (PT. 691) 642;
3. BOLANLE vs. THE STATE (SUPRA);
4. OKOSI vs. THE STATE (1989) 1 NWLR (PT. 100) 642;
5. ALONGE vs. I.G.P. (1959) SCLR 156; AND
6. ONAFOWOKAN vs. THE STATE (1987) 3 NWLR (PT. 61) 538.
In finding that an accused is properly identified by a witness there must be evidence before the court showing what opportunity the witness had to identify the accused as the assailant or the perpetrator of the alleged offence. See the case of OLALEKAN V. THE STATE (SUPRA).
In the instant case the PW1 was not only robbed at home she was led by somebody she knew very well to some distance. At a point he was to kill her because she knows him very well. In the process of trying to kill her she defended her head and was cut in the hand. The evidence of the P.W. 1 is very clear, direct, cogent and compelling I have no reason not to believe it. The fact that P.W 2 could not recognize any of the assailants is not enough to cast doubt on the ability of PW1 to recognize the accused with whom she had series of encounter which landed her in the hospital.
From the evidence of the prosecution which I accept the accused and some others now at large with the intention of committing armed robbery came to the house of the PW1 at about 3.00 am. That establishes count one on conspiracy. There is also the evidence of the prosecution witnesses which I accept that the PW1 was robbed of the sum of N29, 500.00 by the accused and others now at large while the accused was armed with a cutlass which he eventually used to inflict severe cut on her. The evidence establishes count two. I also accept the evidence of PW2 that the sum of N60.00 belonging to her was stolen by those who came to rob them on the day of the incident. I also believe the PW1 that those who committed the robbery includes the accused and that the accused was armed with a cutlass in the process.”

Let me start with the recognition of the appellant by the PW1. This is because of the obvious reason that the correctness of the identification or recognition of an accused person by an eyewitness and/or victim of the offence alleged against the former, that the latter was the person or among the persons who attacked him is most critical and crucial. The identification or recognition of an accused person and his complicity in an alleged offence seems to be the most serious ingredient in proving an offence of armed robbery, because it is the ingredient which creates the link between the act of stealing and the fact that it was an armed robbery. So, the question would always be: who committed the armed robbery?
Identification of an accused person by a victim and/or an eyewitness to the commission of an offence for which a person is charged, connotes the knowledge of the accused person acquired by the eye witness for the first time, on the day or night of the incident. That is, although the accused person might have known the victim of the attack prior to the day of the incident, the victim or eye witness might not have known the accused person, prior to the day of the incident.
Recognition of an accused person; on the other hand by an eye witness and/or victim of the offence, presupposes that the latter knew the former before the commission of the offence on him/her. Sunday Ndidi V. The State (2007) 5 SCNJ 274 at 287 – 288; Ikemson V. The State (1989) 3 NWLR 455; Bassey Akpan Archibong V. The State (2006) 14 NWLR (pt. 1000) 349; Enesi Lukman Abdullahi V. The State (2008) 5 SCNJ 197; Sunday Ani V. The State (2009) 6 SCNJ 98.

In the circumstances of the present case, the question of identification is of no moment. The pieces of evidence by the PW1 and the appellant himself indicate clearly that they knew each other for about six months prior to the night of the incident on 3rd April, 2000. Therefore, when the PW1 reported the incident to the police on the next day after the attack on her, she informed the police that it was the appellant and two other boys who entered her room on the said night at about 3.00 am, and robbed her. She was emphatic that it was the appellant who collected her N29, 500.00 and when they went to her mother to collect more money, an alarm was raised by her mother which prompted or caused the armed robbers to run away. But that the appellant had suggested to the other two men with him, of the need to kill her, since she knew him, however, appellant’s co travellers in the dark of the night, told the appellant, that the killing of the PW1 would be after they must have gotten more money from her mother. And not unusually, when the appellant and his colleagues could not get more money from the PW1’s mother, according to her, the appellant then struck. He dealt a cutlass blow on her, aiming on her head, but she prevented the blow with her hand, which was why she sustained a cut on her right hand.

Recognition of an accused person by an eye witness and particularly by a victim of the attack, is obviously more reliable than the identification of a stranger whom the victim had never seen nor met before the day/night of the attack. However, even where the eye witness/victim of the attack purports that he recognized someone whom he knows prior to the incident, the judge must be cautious and wary in convicting upon such a piece of evidence, unless he has satisfied himself that there are no features in the recognition evidence by the victim/eye witness, which could make his evidence improbable. For example, if the evidence discloses that the eye witness/victim was in a sore and distressed predicament, like pointing a gun on her head or chest by the assailant/attacker, it could be impossible that he, in that condition, could recognize the assailant/attacker.
Furthermore, if the attacker wore a face mask, to conceal his identity, the question of recognizing him, pales into insignificance. OR, if the victim was told to lie face downwards, whilst the robbery operation was on going, the victim cannot be said to recognize the assailant, while he was lying face downwards.

In the instant case, none of the above features seem to be in the evidence of the PW1 pertaining to the recognition by her, of the appellant. I am mindful of the submissions of appellant’s learned counsel, touching on some alleged contradictions and/or inconsistencies in the extra-judicial statements made by the PW1 to the police and her evidence at the trial. However, as rightly contended by the learned Deputy Director, for the respondent, the said extra-judicial statements, made by the PW1 were not admitted into evidence as exhibits.

Learned counsel for the appellant, at the trial court, had ample opportunity to have taken advantage of the law and impeached the evidence of the PW1 through cross-examination. Perhaps he was ignorant of Section 199 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990 (which was applicable at the time of the trial at the court below), with respect to previous statements made by a witness in relation to an offence to which he is testifying vis-a-vis his evidence in court. The said Section 199 of the Evidence Act, Cap. 112 of 1990 say:
“199. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
Cf: Section 231 of the Evidence Act. No. 18 of 2011.
Therefore, where the defence discovers that there are inconsistencies in the evidence in open court of a witness for the prosecution, is at variance with an extra judicial statement earlier made by that witness to the police in the course of the latter’s investigation, on the case, the defence would then call the attention of the witness to those parts of the earlier statement which contradict the evidence in court. This is done under cross-examination of the witness by the defence and where the witness has been demonstratingly shown to be inconsistent or contradictory in the earlier statement and his piece of evidence in court, learned counsel to the defence, could then apply to tender in evidence, the earlier extra-judicial statement of the witness, for the court to see the inconsistencies or contradictions between the evidence proferred in court and his extra-judicial statement made during the investigation of the case. Olayinka V. The State (2007) All FWLR (pt. 373) 163; (2007) 9 NWLR (pt. 1040) 516; Ozaki V. The State (1990) 1 NWLR (pt. 124) 92.
The apex court more recently, re-echoed the same principle in Ajayi V. The State (2014) All FWLR (pt. 711) 1457 at 1478, per Aka’ahs, JSC, thus:
“None of the prosecution witnesses was confronted with the fact that the evidence they gave contradicted the statements they made to the Police. If such suggestions had been put to the witnesses under cross-examination which they denied, learned counsel could then apply either to tender the statements or invite the trial judge to order the production of the case dairy for his inspection to enable him ascertain if there are discrepancies between the evidence and the statements made during investigation. In Gaji v. The State (1975) 1 All NLR (Pt. 1) 266, (1975) 9 NSCC 294, (1975) 5 SC 61 the defence applied for the production of the statements made to the police by prosecution witnesses but the applications were opposed by the prosecution contending that no foundation was laid for the compulsory production of those statements. The learned trial judge refused the applications because Section 122 of the Criminal Procedure Code prohibits the production but he did not deal with the objections as to the absence of foundation. On appeal, this court held that the trial court has a discretionary power to order the production of documents including such statement, if such production is necessary in the interest of justice. As I have observed, the submission of learned counsel for the appellant was made without any basis since no statements of the witness were ever produced by counsel in cross-examination to contradict the witnesses. The submissions of counsel in the brief can never take the place of evidence.”

To my mind the submission of the learned appellant’s counsel touching on the alleged inconsistencies and/or contradictions in the evidence of the PW1 at the trial vis-‘E0-vis her extra-judicial statements to the Police, is tantamount to crying wolf after the head had been cut off. Indeed those submissions go to no issue and they are consequently discountenanced by me.

The facts in this case, are somehow near those in Archibong V. The State (2006) 5 SCNJ 202; (2006) 14 NWLR (pt. 1000) 349: The appellant therein was well known to two of the prosecution witness prior to the commission of the offence of murder in a hotel room, by the appellant. It was the said prosecution witnesses who gave the description of Archibong to the police upon his disappearance after the commission of the said murder. He was arrested later by the police who were guided by his description given to them by the said two prosecution witnesses. It was held that, this was purely a case of recognition and not identification evidence. And that the knowledge of the appellant who was already known to the witnesses prior to the date of the incident in question which was admitted by the appellant in his own evidence, showed clearly that there was no mistaken identity of the appellant.

It is settled law that “when there is only one 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”. Per Oputa, JSC, in Sunday Modupe V. The State (1988) 4 NWLR (pt. 87) 130 at 137. Also see: C.O.P. V. Kwashie 14 WACA 319; Oteki V. Attor. Gen. Bendel State (1986) 2 NWLR (pt. 24) 652; Abdu Mohamed V. The State (1991) 7 SCNJ 114 at 119, 123 & 127.

That takes me to the issue of alibi raised by the appellant in his extra-judicial statement – Exhibit A. The learned trial judge found that the said alibi was not investigated by the Police. See page 61 – 62 of the record of appeal. He however formed the opinion that though the alibi of the appellant was not investigated, if there was any strong evidence proferred by the prosecution and which remained uncontroverted that fixed the appellant at the locus criminis, he could still be convicted because such strong and uncontroverted evidence by the prosecution cancelled out the defence of alibi. That is the law. There are so many authorities of the apex court and this court on this position of the law. I do not intend to rehash them. However, in a more recent decision of the Supreme Court in Emmanuel Egwumi V. The State (2013) 13 NWLR (pt. 1372) 525 at 560, the same principle which had been expounded by the apex court, some four decades ago, that is, Patrick Njovens & Ors. V. The State (1973) 5 SC 17 at 65, was re-echoed again; to wit:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulated that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is inflexible and/or invariable way of doing this …. If the prosecution adduced sufficient and acceptable evidence to fix the person at the scene of crime at the material time… his alibi is thereby logically and physically demolished.”
See also: Nnamdi Osuagwu V. The State (2013) 1 SCNJ 33 at 52.

Now, can the conviction of the appellant on the recognition evidence of the PW1, without more, of the appellant, be sustained? Is the PW1’s evidence so strong a piece of evidence upon which the appellant’s conviction can be sustained?

I have given a very deep thought and consideration of the PW1’s recognition evidence of the appellant who was known to her prior to the night of 3rd April, 2000. Could it be probable and believable that the appellant who had visited the home of the PW1 earlier in the evening of the fateful night, brazenly, expose his identity and attack the PW1 and PW2 on the same night? It seems to me, to be very uncommon, for a person who is well known to another person, to come in the night and attack the latter and even allow the victim of the attack to lead him for a distance to another residence where the PW1’s mother was residing, in order to also rob the latter, on the same night, without the assailant hiding his identity at all. Perhaps if the PW2 who also saw the appellant in the evening of the 3rd April, 2000 when the appellant came visiting the PW1, had also recognized the appellant, my anxiety and doubt could have been assuaged.
Furthermore, there is no evidence by the PW1 that soon after the attack on her, she timeously mentioned the name of the appellant, to her neighbours, as one of her assailants. Olowoyo V. The State (2012) 36 WRN 112 at 153; Sunday Ndidi V. The State (2007) 13 NWLR (pt. 1052) 633; (2007) All FWLR (pt. 381) 1650; (2007) 41 WRN 1; (2007) 5 SCNJ 274 at 287 – 288, 274 & 297; Ikemson V. The State (1989) 6 SCNJ 54; (1989) 3 NWLR (pt. 110) 455; (1989) 1 CLRN 1; (1989) 20 NSCC 471; Abudu V. The State (1988) 1 NWLR (pt. 1) 55.

In the circumstances of this case, I am of the considered opinion that the quality of the recognition evidence proferred by the PW1 against the appellant and his complicity in the commission of the offence of armed robbery on her on 3rd April, 2000 is not strong enough, such that a conviction based on that piece of evidence appears very dangerous as an innocent man may be sent to his early grave, unwittingly.

I hold therefore that the appeal is not lacking in merits. I, allow it accordingly,
The judgment of D.I. Okungbowa, J., delivered on 8th November, 2006, in respect of Suit No. B/55C/2001 is set aside.
In its stead, a verdict of not guilty is entered for the appellant. He is therefore, discharged and acquitted of the charges leveled against him.

HELEN MORONKEJI OGUNWUMIJU J.C.A.: I have read before now the judgment just delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with his reasoning and conclusions that the appeal be allowed. I will add a few words.

This is an appeal against the judgment of Edo State High Court delivered by Hon. Justice D.I. Okungbowa on 8/11/2006 wherein the learned judge sentenced the appellant to death by hanging. Here are the facts that led to this appeal:

The appellant was a wood seller in a sawmill in Egor, Benin. His sawmill was located directly opposite the residence of PW1 and PW2. PW1 was a wood and charcoal trader. On 03/04/2000, PW1 had during the day visited the appellant’s shop in the sawmill to order for wood but the latter told her that he had no wood on ground. It was reported that later that night at about 10:00 pm, the appellant after closing from the sawmill went to PW1’s house where he met PW1 and PW2 outside. The appellant was reported to have apologized to PW1 for his inability to supply her wood and that the wood he had was for his brother, P.A. Igbinova. PW1 and PW2 also testified that the appellant requested that they allow him sleep in their house because his boys would bring wood for him from the bush at about 3:00am but they refused to allow him sleep. The appellant left.

Both PW1 and PW2 on oath stated that at about 3am they were attacked by robbers who were armed with cutlass and iron rod. The rubbers were also holding torch with which they flashed lights in the eyes of their victims. PW1 on oath insisted that the appellant was the exact robber who held cutlass and collected N29,500 from her. It was reported that N60 was collected from PW2. Their neighbour, one Rose was also robbed and dispossessed of a gold chain and N11, 000. PW1 was later led to her mother’s house close-by by the robbers to collect money with the mother. PW1’s mother upon seeing the robbers, raised alarm and one of the robbers matcheted PW1 on her arm and fled.

PW2 reported that she met PW1 on the road crying and shouting that it was the appellant who matcheted her. They both went to report the matter at the Egor Police Station. The appellant was arrested early that morning while he was riding his motor cycle to the bush to get wood.

Upon interrogation, the appellant informed the Police that after he left PW’1’s house before, he went to see his brother P.A. Igbinova, the Chairman of Ovia Local Government. Appellant insisted that from his brother’s house, he went straight to his house in Baba Wilson Street, Egor to sleep in the room he shared with his friend, Godwin. He insisted that he had just woken up and was on his way to the bush when he was arrested.

The appellant was arraigned and tried before the trial court on a four count charge which states as follows:
“COUNT 1
That you Erobosa Eyonayowa on or about the 3rd day of April, 2000, at Benin Judicial Division conspired with others now at large to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to Section 4(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Laws of the Federation of Nigeria.
COUNT II
That you Orobosa Eyonayowa on or about the 3rd day of April 2000 at Benin City in the Benin Judicial Division robbed one Grace Ogieva of the sum of N29,500 while armed with cutlass and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Laws of the Federation of Nigeria.
COUNT III
That you Orobosa Eyonayowa on or about the 3rd day of April, 2000 at Benin City in the Benin Judicial Division robbed one Elizabeth Omozagbon of the sum of N60.00, while armed with cutlass and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Law of the Federation of Nigeria.
COUNT IV
That you Orobosa Eyonayowa on or about the 3rd day of April, 2000 at Benin City in the Benin Judicial Division robbed one Rose Obawuyi of the sum of N11,500 and necklace while armed with cutlass and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of 1990 Law of the Federation of Nigeria.

The prosecution called three witnesses thus:
PW1- Grace Ogieva, victim of the robbery
PW2- Elizabeth Omozagbon, victim of the robbery
PE3- Gabriel Udohi, Investigating Police Officer

The appellant was the sole witness for the defence. On 8/11/2006, Hon. Justice D.I. Okungbowa convicted the appellant on three counts of the charge and sentenced him to death.

The appellant on 09/01/2007 filed a notice of appeal first anchored on the omnibus ground of appeal but two more grounds of appeal were later added with the leave of this Honourable Court. The appellant filed his brief of argument on 3/02/2012 and the respondent filed its brief on 12/06/2013 which was deemed filed on 15/01/2014.

In the appellant’s, brief settled by Solomon Odiase the appellant raised the following issues for determination:
1. Whether the learned trial judge was right when he convicted the appellant for the offence of armed robbery and sentenced him to death when the ingredients of the offence and commission thereof were not proved beyond reasonable doubt having regards to the doubts created in the case of the prosecution.
2. Having regards to the serious nature of the offence for which the appellant was arraigned, whether the lower court was right when it failed to consider the effect of the Police to investigate the appellant’s alibi as promptly raised by him.

The respondent, in the brief settled by Mrs P.E. Aziegbemhin, Deputy Director, Edo State Ministry of Justice raised the following issues for determination:
1. Whether the ingredients of the offences for which the appellant was charged was proved beyond reasonable doubt.
2. Whether the learned trial Judge considered the effect of the failure of the Police to investigate the alibi of the appellant before reaching the verdict of guilt.”

The appellant was charged for armed robbery. All through the trial, he insisted that he was innocent and was not at the crime scene at the material time. He pleaded alibi. The trial court relying on recognition evidence of PW1 convicted him. Identification of an accused person in a case of armed robbery is essential and cannot be overemphasized. It is important to state that, the identification of the accused person is an essential ingredient of the offence of armed robbery. It must be ascertained that an accused person actually took part in the incident of armed robbery.

Now let us briefly examine the quality of the recognition evidence of PW1. On the number of robbers that attacked them, PW2 stated in her evidence that two robbers attacked them; PW1 on the other hand said the robbers were three or more. PW2 in her evidence at page 28 of the record stated that:
“At about 3am two people entered our room. One tall and the other short.”
PW1 on the other hand, in her evidence on page 26 of the record said:
“At about 3.00 am the accused and two boys came to broke my door. Some of the boys were with the convertor in our house because I heard her shouting ‘who is this’.”

Since both PW1 and PW2 were in the same room, when the robbers attacked them why was there discrepancy on oath in their accounts of the number of their attackers?

The robbery occurred at 3:00 am and that time not being daytime, visibility was reasonably expected to be poor except where there was electricity. PW2, who was also robbed but admitted during examination that she could not see the face of the robbers because they flashed torch into her eyes. The robbers using torch raises the presumption that the place was poorly lit and there was no electricity or other source of light. How then did PW1 recognize the appellant as one of the robbers? PW1 in her evidence on page 26 of the record said:
“The accused was pointing his torch light into my eyes and demanding for the money I want to use to buy wood”
Niki Tobi JCA (as he then was) in Onuoha v. State (1998) 5 NWLR pt. 548 pg. 118 at 135 held that:
“There are however instances where a Court of law may not accept the evidence of a witness who said that he saw the accused person committing the offence. One such instance is where there is darkness or poor light to the extent that a human being with the best sight will not be able to identify the accused. Another instance is where in the situation or circumstance of hurry-skurry on the part of the witness to save life it becomes humanly impossible to properly identify the accused in the act of committing the offence”

PW1 did not state how she recognized the appellant whether it was by his voice, height, face or some other means. Alternatively, did PW1 recognize the accused through the question posed to her by a robber as to where the money she wanted to use to buy logs was?

I am of the humble opinion that it is not enough for a witness to state that he recognized an accused person. Such witness must go further to state by what means the recognition was enhanced. Recognition could be by face, height, voice, clothing etc. This is to give more credibility to the recognition evidence of such witness as mistake of identity can occur even in the recognition of close relatives, friends and acquaintances. I am of the humble view that the failure of PW1 to state her means of identity and appellant should be resolved in the appellant’s favour.

There is reasonable presumption also that the time PW1 spent with the robbers was enough for her to see the faces of the robbers. However, PW1 was not the only person that could have seen and recognized the appellant. PW2 who also claimed to have known the appellant long before the incident said in truth, that she could not see the faces of the robbers. Rose, the neighbour who also saw the robbers and knew the appellant long before the incident was not called as a witness. PW1’s mother also had opportunity of recognizing the robbers but she was neither questioned by the Police nor called to testify. There were persons who also had close encounters with the robbers and who could have given corroborated PW’1s testimony.

The appellant while explaining his movements on the fateful day in his evidence on oath at page 32 of the record said:

“PW1 from her compound was calling me through the fence so I went to meet her. I stood by the fence in the sawmill while she stood outside. She asked me how I now want to handle the matter pleading that if my brother will not sell the wood to her I should assist her to get wood within five days. After that I left the sawmill and went to my house at Baba Wilson Street. This was now about 7.00pm. I later left to go and see my elder brother P.A. Igbinova, the chairman of Ovia North East to inform him that I brought three loads of wood for him and to collect money from him. He gave me the money and I returned home. I slept in my house and wake up this morning to go back to the bush to cut timber. On my way to the bush I saw a bus coming from the opposite direction. The driver and the occupants were now stopping me. They turned the car and started to pursue me and I had money on me. There was a road block in front so I was running to the road block so that I can stop there. The road block was police road block. At the road block the vehicle pursuing me caught up with me. The occupants came down and one of them slapped me. It turned out that they were policemen. I was later taken to Ogida Police station.”

The appellant further stated on page 33 of the record that:

“By the next day the Police brought one woman from the hospital. When I saw the woman I shouted ‘Mummy what happened’ and she replied saying ‘Are you not the one who came to attack me at home’. I denied it. The policemen there told me to shut up.”

What exactly does investigation entail? According to Bryan A. Garner Black’s Law Dictionary, 9th Edition, Thomas Reuters USA at page 902, to investigate means:
“1. To inquire into (a matter) systematically; to make (a criminal) subject of a Criminal inquiry.
2. To make an official inquiry”

The learned trial judge held as follows on Pg. 61-62 of the record:
“It is the law that where an accused person who was not caught at the scene of a crime raises the defence of alibi and the defence is not investigated, it will cost serious doubt on the evidence adduce by the prosecution. Also once the accused has set forth his alibi, it is not his duty to establish by evidence the alibi but for the prosecution to disprove it. See the following cases – Nsofor v. The State (supra); Aiguoreghian v. The State (supra); Adekunle v. The State (1989) 5 NWLR pt. 123, 505; Umani v. The State (1988) 1 NWLR Pt. 70, 274; Nwabueze v. The State (1988) 4 NWLR pt. 86, 16; Salami v. The State (1988) 3 NWLR pt. 85, 670 and Onafowokan v. The State (1986) 2 NWLR pt. 23 at 496.
The Investigating Police Officer who obtained Exhibit “B” the very first statement where the accused stated that he went back to Baba Wilson’s house where he lives was not called as a witness and so there is no evidence whether he investigated the alibi or not. The law is that where as in the instant case, the evidence of the investigating officer is very vital and the prosecution fails to call him as a witness, the presumption is that his evidence would have been more favourable to the accused. The prosecution would be taken to have failed to prove the charge against the accused and the accused would be entitled to an acquittal. See the case of Oshodin v. The State (2001) 12 NWLR pt. 726, 217.

The PW3 the Investigating Police Officer from the State CID testified in his evidence-in-chief that he investigated the alibi which was not established. However under cross-examination when his memory was refreshed with his police investigation report and the minute sheet it became clear that this important aspect of the investigation was omitted. The logical deducting from the failure of the investigation police officer to include it in his report or for it to be reflected in the minute sheet in the case file is that the PW3 did not investigate the alibi.”
It is settled that once the prosecution fails entirely to investigate a proper and prompt plea of alibi raised by an accused, such will result in the discharge and acquittal of the accused. The Supreme Court per Muhammed JSC in Onuchukwu v. State (1998) 4 NWLR pt. 547 pg. 576 at 592 held that:
“That law on the issue of alibi is now clear. Once an alibi is unambiguously set up-whereby the accused person states clearly where he was at the time of the commission of the crime in question, with persons who were with him at that place, or who were aware of his presence there, well outside the locus criminis, the alibi must be investigated. Eze v. State (1976) 1 SC 125. To dismiss the alibi properly set up in this issue with a wave of hand as “unreliable and I do not believe it”, the Police investigator abandoned a monumental duty and it renders the alibi uncontradicted. In such a situation the accused person’s story must be believed and he will be entitled to discharge and acquittal.”
See also Ozaki v. State (1990) 1 NWLR pt. 124 pg. 92, Aremu v. State (1991) 7 NWLR pt. 201 pg. 1, Nwabueze v. State (1988) 4 NWLR pt. 86 pg. 16.

The learned trial judge was of the view that even without the investigation of the alibi put up by the appellant, in view of the evidence of PW1 which in his Lordship’s view fixed the appellant at the scene of crime at the material time, the alibi whether investigated or not had been cancelled. Hence his Lordship’s conviction of the appellant.

What struck me forcefully in the determination of this appeal is the fact that the appellant was well known to the complainants particularly PW1. It goes against the order of nature for the appellant to have attacked a person well known to him and to have followed her about knowing fully well that she would recognize him and cause his apprehension by law enforcement agents.

Is it logical that a neighbour would rob another neighbour, unmasked, follow his victim about to steal properties and even go to the extent of attempting to matchet his victim and still wake up the next day in the same neighborhood undisturbed, unperturbed and making no attempt at fleeing? I do not think so.

At this juncture, it is pertinent to state that there were two conflicting evidence before the trial court which have to be considered. There is the questionable recognition evidence of PW1 against the uninvestigated alibi of the appellant. It was PW1’s oath against the appellant’s oath. In a situation like this, I am of the humble opinion that the court must be wary of conviction more so because the offence of armed robbery carries the ultimate penalty of death. Blackstone’s ratio as propounded by William Blackstone must be kept mind that:
“It is better that ten guilty persons escape than one innocent suffer.”

Having established that PW1, the star witness of the prosecution’s recognition evidence was unreliable and plagued with doubts, the evidence cannot be used to fix the appellant at the scene of the crime. Invariably, this court must find in favour of the appellant due to the woeful failure of the prosecution to investigate the appellant’s alibi. I agree with my learned brother that the death sentence passed by Hon Justice D.I. Okungbowa on 8/11/2006 on the appellant be hereby set aside. The appellant is discharged and acquitted.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. In my considered view his lordship has dealt incisively with the issues that call for determination in the appeal and I am in complete agreement with the reasoning and conclusion thereon. I wholeheartedly adopt the lead Judgment as mine as any attempt on my part to take up any of the issues dealt with in the lead judgment will only amount to a rehash of his lordship’s reasoning and conclusions.

In the circumstance, I too find the appeal to be meritorious and allow the same. Accordingly, I set aside the judgment of the lower court delivered on 8/11/2006 in suit No. B/55C/2001 and in its stead enter a verdict of not guilty for the Appellant. The Appellant is therefore discharged and acquitted of the charges preferred against him.

Appearances

Solomon Odiase, Esq.For Appellant

AND

Mrs. P.E. Aziegbemhin, Director, Citizens’ Rights, Ministry of Justice, Edo State (with: Mrs. I. Okungbowa, Senior State Counsel; Mrs. F.E. Oseh-Kayode, Senior State Counsel)For Respondent

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