OTO-OBONG SUNDAY EDET v. THE STATE (2014)

OTO-OBONG SUNDAY EDET v. THE STATE

(2014)LCN/7721(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/L/828/2010

RATIO

CRIMINAL PROCEDURE: ARRAIGNMENT; THE IMPORTANCE OF ARRAIGNMENT IN A CRIMINAL TRIAL

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

CRIMINAL PROCEDURE: ARRAIGNMENT; THE REQUIREMENT OF THE LAW ON THE STEPS TO A VALID ARRAIGNMENT AND THE EFFECT OF THE FAILURE TO COMPLY WITH THE REQUIREMENTS OF A VALID ARRAIGNMENT

It is the requirement of the law that necessary steps to a valid arraignment are complied with as provided in section 215 of the Criminal Procedure Act and these are:-
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;
(b) The charge or information shall be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and
(c)The accused person shall then be called upon to plead to the charge thereto instantly otherwise, such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith;
(d) The plea of the accused shall also be instantly recorded by the court. See the case of MADU v. THE STATE (2012) 15 NWLR (Pt. 1329) 405 at 439.
The Supreme Court in the said case held that the requirements must co-exist and non compliance will warrant an order of a re-trial as the trial will be vitiated and rendered a nullity. The question here is whether those factors co-exist in view of the deficiencies observed on the record of proceedings on the day of arraignment. Those deficiencies have an adverse effect on the arraignment. Arraignment being a very important step towards a valid trial must conform to the required standard. The argument of the Respondent’s counsel that the benefit of regularity be given to the court can apply to other situations not Criminal trials particularly where the charge is a capital one. The necessity to comply is to remove any doubt about a due trial at the end of the day if the accused is found guilty. The failure of the trial court to comply with the requirement of section 215 of the Criminal Procedure Act has rendered the arraignment and trial here a nullity. See the case of JOSIAH v. THE STATE (1985) 1 NWLR (Pt. 1) 215 where the Supreme Court observed that the condition laid down in section 215 of the Criminal Procedure Act must be strictly complied with.” See also EYOROKOOMO v. THE STATE (1979) 0 – 9 SC 3 and furthermore, in the case of IDUMUDIA v. THE STATE (1999) 7 NWLR (Pt. 610) 202 the Supreme Court held that the fundamental part of arraignment is that the charge or information shall be read over and explained to the accused in the language he understands before a plea is taken. The Supreme Court on the non compliance with the provisions of section 215 of the Criminal Procedure Act further held as follows:-
“There appears to be a fairly rigid and inflexible approach to the question of non compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of the citizen. Equally the courts should not ignore the nature of the rights protected and the discharge of their sacred and solemn duty to do justice. There is clearly observable the distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of the case. In the latter case it will not affect the trial. It would seem to me that the mandatory provisions of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie.”
per. Y. B. NIMPAR, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ROBBERY; THE INGREDIENT OF THE OF THE OFFENCE OF ROBBERY

The ingredients required to be proved by the prosecution for robbery are:-
(a) Prove that there was a robbery.
(b) Prove that the robbers were armed with offensive weapons prohibited by the law.
(C) Prove that the accused participated in the robbery, see BOZIN v. STATE (1985) 2 NWLR (Pt. 8) 465.
It is a legal requirement that the prosecution must prove all the ingredients of the offence to ground a conviction. per. Y. B. NIMPAR, J.C.A.

EVIDENCE: HEARSAY ACT; THE DEFINITION OF HEARSAY EVIDENCE ACCORDING TO THE EVIDENCE ACT AND WHETHER IT IS ADMISSIBLE

EVIDENCE: DIRECT EVIDENCE; HOW THE COURT CAN ESTABLISH THE GUILT OF THE ACCUSED IN THE ABSENCE OF DIRECT EVIDENCE OF THE COMMISSION OF A CRIME
The Police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit. It is settled that where direct evidence of the commission of a crime is absent, the court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, see AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72; AHMED v. STATE (2001) 18 NWLR (Pt. 746) 622 AND OMONGA v. STATE (2006) 14 NWLR (Pt. 1000) AT 532. per. Y. B. NIMPAR, J.C.A.

EVIDENCE: CALLING WITNESSES; WHETHER THE PROSECUTION IS BOUND TO CALL A HOST OF WITNESS TO PROVE ITS CASE
The prosecution is not bound to call a host of witness to prove its case, see VICTOR v. STATE (2013) LPELR-20749 as the Supreme Court restated the principle in these words:
“It is settled principle of law that the prosecution is not bound to call all witnesses but only essential witnesses to prove its case.”
See also OGBODO v. STATE (1997) NSCC 429 AT 437;
AKINYEMI v. STATE (1999) 6 NWLR (Pt. 607) 449.
The prosecution however is under a duty to call material witnesses necessary to prove the essential ingredients of the offence, see STATE v. AJIE (2008) 7 SCNJ 1. per. Y. B. NIMPAR, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER CONFESSIONAL STATEMENT ALONE CAN GROUND A CONVICTION WITHOUT CORROBORATION

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

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

Before Their Lordships

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria

Between

OTO-OBONG SUNDAY EDETAppellant(s)

AND

THE STATERespondent(s)

Y. B. NIMPAR, J.C.A. (Delivering the Leading Judgment): The Appellant as 2nd defendant along Sopuruchi Obed were arraigned before Hon. Justice M. A. Dada of the Lagos State High Court on a two count charge and upon trial, the Court in a considered judgment dated 28th day of May, 2009 found them guilty for the offence of conspiracy and armed robbery and convicted them to death. The offences were contrary to Section 403(4) and 402 (2) of the Criminal Code Cap (17) Vol. 2 Laws of Lagos State, 2003. The charge read as follows:
STATEMENT OF OFFENCE – 1st count
Conspiracy contrary to section 403 (A) of the Criminal Code Law Cap C17 Law of Lagos State.
PARTICULARS OF OFFENCE
Sopuruchi Obed (M) and Oto-Bong Sunday Edet (M) on or about the 30th day of September, 2004 at Obele Road, off Maigbon, Lagos in the Lagos Judicial Division conspired to commit a felony to wit: Armed Robbery.
STATEMENT OF OFFENCE 2nd Count:
Armed Robbery contrary to section 402 (2) (a) of the Criminal Code Law CPA C17 Law of Lagos.
PARTICULARS OF OFFENCE:
Sopuruchi Obed (M) and Oto-bong Sunday Edet (M) on or about the 30th day of September, 2004 at Obele Road, off Maigbon, Lagos in the Lagos Judicial division while armed with offensive weapons to wit: guns robbed one Praise Lawani of the sum of Fifty Four Thousand Naira, (N54,000.00) a digital Kodak Camera worth Sixty thousand naira (N60,000.00), a Motorola Handset, two wrist watches valued sixteen Thousand Naira (N16,000.00) two kitchen knives and a cutlass all valued at One Hundred And Thirty Thousand Naira (N130,000.00).

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

The two accused persons pleaded not guilty to the 2 count charge and the matter proceeded to trial with the prosecution calling 2 witnesses and tendered 5 exhibits. The Defendants called 5 witnesses and tendered 8 exhibits. Thereafter both learned counsel sides filed and adopted their written addresses. The trial Court upon due consideration found the two defendants guilty. The Appellant dissatisfied with the judgment filed a notice of Appeal dated 26th April 2009 of 6 grounds upon which 3 issues for determination were distilled as follows:
1. Whether the arraignment of the Appellant was not in compliance with the law and consequently the entire trial at the lower court was a nullity?
2. Whether non-signing of the record of proceedings of the lower court rendered the proceedings of the day a nullity.
3. Whether the finding of the learned trial judge that the prosecution proved its case as required by law can be supported by the totality of the evidence adduced before the Court.
The Respondent formulated 2 issues for determination thus:
1. Whether the arraignment of the Appellant before the lower court complied with the position of the law.
2. Whether the finding of the Learned Trial Judge that the Prosecution proved its case as required by law can be supported by the totality of evidence adduced before the court.

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

The Appellant in arguing issue 1 which is distilled from ground 3 of the notice of Appeal submitted that the arraignment of the appellant was not properly done and the defect has rendered the trial a nullity. He submitted that the law requires that a charge be read and explained to the accused in a language he understands before he can be called upon to take his plea as per Section 215 of the Criminal Procedure Act now Section 24 of Administration of Criminal Justice Law of Lagos State and 36(6)(a) of the 1999 Constitution. He referred to the record of proceedings page 2 lines 28 – 34 of the additional record where the trial Court merely asked the Appellant thus:
“Court: How do you plead to the 1st count?
1st accused: I plead not guilty.
“Court: How do you plead to 2nd Count charge?
1st accused: I plead not guilty my Lord”
Appellant contended that there is nothing on the record of Appeal to show that the charge was read, explained or interpreted to the Appellant before the plea was taken; he cited the cases of CHRISTOPHER TOBI OKOLIE v. STATE (2012) 1 NWLR (Pt. 1218) 96 and OGUNYE v. STATE (1999) 5 NWLR (Pt. 604) 548 where the Supreme Court held that it is a Constitutional right of a person accused of a crime to have the charge read and explained to the accused in the language he fully understand. Appellant’s counsel argued that being a Constitutional requirement, it cannot be waived whether the accused is represented by counsel or not, he cited the case of OKEKE v. STATE (2003) 15 NWLR (Pt. 842) 25 on what an arraignment is and the following authorities:
– KAJUBOR STATE (1988) 1 NWLR (Pt. 73) 721
– EREKANURE v. STATE (1993) 5 NWLR (Pt. 294) 385
– EFFION v. STATE (1995)1 NWLR (Pt. 373) 507
– KALU v. STATE (1998) 13 NWLR (Pt. 294) 385;
AND
– CHRRISTOPHER TOBE OKEKE v. STATE (2012) 1 NWLR (Pt. 1219) 96.

On this issue he finally submitted that failure to comply with the requirement for a proper arraignment has occasioned a miscarriage of justice and he urged the Court to discharge the accused person as it would be unfair to put the Appellant through a second trial because the case for the prosecution is weak.

Addressing this issue counsel for the Respondent submitted that Section 215 of the CPA, Section 36(6) (a) of the 1999 Constitution provides for how a person accused of an offence shall be brought to court unfettered and the charge to be read over and explained to him in the language he understands to the satisfaction of the court before his plea can be taken. Counsel contended that the provision was not violated by the court and appellant misconceived what an arraignment is and relied on EMMANUEL OLABOSE v. THE STATE (2009) 5 NWLR 315 AT 319 AND OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 548 AT 567 where arraignment was explained.

On judges noting that the charge read and explained to an accused is to the court’s satisfaction. Counsel submitted that it is not the requirement of Section 215 of the Criminal Procedure Act that everything the judge says must be recorded and cited the case BLESSING TOYIN OMOKUNAJO v. FEDERAL REPUBLIC OF NIGERIA (2013) 2 – 3 SC (Pt. 1) 184 AT 204.

Reacting to the appellants argument that the transcribed record of proceedings were unsigned, counsel argued that the proceedings were properly recorded, transcribed and duly certified in compliance with the law and Section 145 and 147 of the Evidence Act 2011 provides for a presumption of genuineness of document produced as record of court.
And furthermore, Order 17 Rule 9(1) (c) of the Court of Appeal Rules provides that additional record compiled by the Appellant’s counsel suffices and it allows for the use of transcribed version in place of judges notes.

What is expected is that the charge be read and explained to the accused in a language he understands before his plea is taken. The reasoning and explanation of the charge is vital to sustaining a trial as the failure to adhere to the set procedure shall nullify the trial.

The record of appeal in this case indicates that the court simply asked the appellant how he pleads to the 2 count charge. There is nothing to indicate the charge was even read to the appellant but it would stretch the provision of Section 24 of the Administration of Criminal Justice Law of Lagos State too far to expect that every word uttered by the judge be recorded. Both the Constitution of the Federal Republic of Nigeria by section 36(6)(a), the Criminal procedure Act Section 215 and Section 24 of the Criminal Justice Law of Lagos State require that the charge be read over to the accused and explained to him in a language he understands. The combined effect of the provision do not mean that every word uttered by the judge must be recorded but a simple summary of steps taken to show compliance with the legal requirement is expected to reflect on the record. Section 215 of the Criminal Procedure Act further requires that such reading and explanation be to the satisfaction of the judge, the important issue here is that there must at least be the reading and explanation of the charge. All the trial court did as shown on the additional record at page 2 indicates the question how do you plead to the 1st and 2nd counts. Did anything transpire before the question was asked by the court? The record does not bear that out and it would amount to speculation to hold here that the charge was read and explained to the appellant in the language he understands.

An improper arraignment invalidates an otherwise proper trial. The authority of EMMANUEL OLABODE v. THE STATE SUPRA relied upon by the Respondent can be distinguished from the facts at hand here. There the issue of who read and explained the charge to the accused was raised while here there is nothing to show the charge was read out at all on the face of the record. The appellant by the record was not asked the language he understands and the charge was not explained.

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

The Respondent argued this issue under its issue three. Counsel submitted that the Appellant’s complaint is about the transcribed record of court duly certified as required by law. That section 145 and 147 of the Evidence Act also prescribes a presumption of genuineness of a certified document and also that Order 17 Rule (9) (1) (c) of the rules of this court allow for the use of transcribed copies of record of proceedings as substitute for Judges Notes. Counsel urged the court to discountenance the argument of the appellant under this issue and find for the Respondent.

The appellant under this issue questions the validity of the record of procedure of the lower court which he alleged was not signed by the trial judge thus rendering the entire proceedings a nullity. It is a legal requirement for the record of proceedings of each day to be signed by the judge, see Section 245 of the Administration of Criminal Justice Law of Lagos State 2007 and Section 294(1) of the Criminal Procedure Act. Failure to comply with the statutory provisions is fatal as the record is rendered null and void, see OKOLIE v. STATE Supra.

The question to answer is whether the judge in this case failed to sign the record of proceedings for each day in the course of the trial of the appellant. The portion complained about are the additional record of appeal and these are the transcripts of the proceedings which are certified by the officer duly authorized. It is important to note that the portion of the additional record complained about is not directly the note of the trial judge but transcripts from the recording by an officer authorized to do so. It was duly certified.
Furthermore, the additional record was compiled by the appellant. The additional record not being the notes of the judge but recorded proceedings and duly certified have satisfied the requirement of the Law. This court allows for a transcribed record of proceedings for the hearing of appeals. The complaint of the appellant lacks merit. This issue is resolved against the appellant.

The Appellant in arguing issue 3 challenged the finding of the trial Court that the prosecution proved its case as required by law. The issue is distilled from ground 1, 2, 5, 6, 7 and 8 of the Appellant’s further amended notice of Appeal.

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

He relied on the case of ALABI v. STATE (1993) 7 NWLR (Pt. 307) 51 AND BOZON v. STATE (1985) 2 NWLR (Pt. 8) 465. Counsel submitted that to answer the issue the evidence of the two prosecution witnesses will have to be analyzed and when that is done, it can clearly be seen that the evidence was hearsay evidence as both PW1 and PW2 told the Court that Mrs. Praise Lawani told them what they told the court. The said Mrs. Lawani did not testify. The only other evidence is the alleged confessional statement which he attacked for not passing the test established in R.V. Skye adopted and applied in the case of IGBIRU v. A.G. OGUN STATE (2009) 5 NWLR (Pt. 1134) 209 2 AT 25 – 226. Appellant’s counsel contended that the following conditions must be satisfied before the confessional statement can be used as evidence against the Appellant. These are:
1. Whether there is anything outside the confession to show that it is true.
2. Whether the statement is corroborated, no matter how slightly true.
3. Whether the accused person had the opportunity of committing the offence.
4. Whether the confession of the accused person was possible.
5. Whether the confession was consistent with other facts which has been ascertained and proved in the matter.
See the case of ASIMIYU ALARAPE & ORS v. STATE (2001) LPELR-412 (SC).

Learned counsel submitted that further basis for his contention is reflected in the following points:
(1) That there is no other admissible evidence to support the confessional statement or to suggest that it is true since the only evidence available is the hearsay evidence.
(2) The Appellant raised a plea of non-est factum that he did not own the content of the confessional statement and the trial Court was bound to make a clear finding as to whether or not the statement belonged to the Appellant. That failure to do so is fatal to the conviction.

Appellant urged the Court to expunge the hearsay evidence of PW1 and PW2 and to discharge the appellant. He referred to the case of ALIMI v. OBAWOLE (1998) 6 NWLR (Pt. 555) 591 AT 607 on wrongly admitted evidence.

On the ingredients that must be proved to establish the offence of armed robbery, appellant submitted that the first ingredient was not proved.

He argued that the evidence of robbery was hearsay and hearsay is not admissible in law. He referred to pages 14 and 18 of the record of appeal. He argued that PW1 and PW2 did not witness the robbery but relied on what Mrs. Lawani told the police. He cited the case of NWACHUKWU v. STATE (2002) 12 NWLR (Pt. 792) 543.

He contended that there is no clear evidence that a robbery took place on the said date as the evidence of PW1 and PW2 was contradictory.

Counsel submitted that PW1 said it was burglary and stealing while PW2 said it was a robbery. This he submitted was conflicting and the prosecution did not resolve the conflict. Counsel submitted there was no evidence Mrs. Praise Lawani existed. She was not called even when she is a vital witness in proof of whether a robbery actually took place. That in the face of the retracted confessional statement and the Appellant’s alibi which was established, the prosecution failed to prove that a robbery took place. He cited the case of KABIRU v. A.G. OGUN STATE (2009) 5 NWLR (Pt. 1134) 209 AT 225 – 226 for the conditions precedent for the use of a confessional statement to ground a conviction also the case of IKPASA v. BENDEL STATE (1991) 9 SC 7.

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

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

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

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

Counsel for the Respondent addressed this issue under different subheads, and started with identification parade. Counsel relied an TAJUDEEN ALABI v. THE STATE (1993) 7 NWLR (Pt. 307) 54 AND IKEMBON v. THE STATE (1989) NWLR (Pt. 110) 455 for when identification parade is necessary. On the essentials of identification parade, counsel cited the case of THE STATE v. OLASHEHU SALAWU (2011) 12 S.C. (Pt IV) 191 AT 222 and submitted that identification parade is not required where the suspect is caught at the scene of crime or closely connected as in this case. Counsel cited the case of OGOLA v. THE STATE (1991) 2 NWLR (Pt. 175) 509 AND PAGE 115 – 116 of the record of appeal where the trial judge held that identification parade was not necessary in this case relying on BOLANLE v. THE STATE (2005) 7 NWLR (Pt. 925) 431 AT 453 – 454 and the confessional statement of the appellant.

The next sub issue is Alibi, counsel submitted that the trial judge at page 117 of the record of appeal over ruled the defence of Alibi raised by the appellant. Counsel conceded that once raised, Alibi must be investigated except if there is superior evidence pinning the accused to the scene of crime.

Counsel submitted that prosecution is not bound to call witnesses if it can prove its case by those called, he relied on BELLO SHURUMO v. THE STATE (2010) 19 NWLR 9 (Pt. 1226) 73 AT 94. On proof beyond reasonable doubt counsel reiterated the age long test and cited BELLO SHURUMO v. THE STATE SUPRA in support and argued that a confessional statement ends the need to prove the guilt of the accused and relied on MANSURU SOLOLA & ANR v. THE STATE (2005) 2 NWLR (Pt. 937) 460. He argued that the trial judge relied an Exhibit P1, P2, D6 and D7 to find the appellant guilty upon further evidence in Exhibit P3, P4, P5 being the locally made short gun, a knife and B cartridges recovered from the appellant and his co accused. Counsel argued that all these pieces of evidence corroborate the confessional statements of the defendants in Exhibit P1, P2, D6 and D7, citing ONAH v. THE STATE (1985) 3 NWLR (Pt. 12) 236 in support.

Counsel contended that the burden of proof has been discharged and relied on ALONGE v. I.G.P. (1959) 11 FSC 203; FATOYINBO v. A.G. WN (1966) WNLR 4; STATE v. DANJUMA (1997) 5 SCNJ 126 to urge the court to dismiss the appeal and uphold the judgment of the lower court.

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

Learned counsel to the Appellant further argued that inconsistency rule does not apply were the extra judicial statement of an accused person is contrary to his testimony in Court, he relied on OGUDO v. STATE (2011) 18 NWLR (Pt. 1278) 1.

This issue questions whether the findings of the trial judge can be supported by evidence. The offence charged is conspiracy and Armed Robbery. The ingredients required to be proved by the prosecution for robbery are:-
(a) Prove that there was a robbery.
(b) Prove that the robbers were armed with offensive weapons prohibited by the law.
(C) Prove that the accused participated in the robbery, see BOZIN v. STATE (1985) 2 NWLR (Pt. 8) 465.
It is a legal requirement that the prosecution must prove all the ingredients of the offence to ground a conviction. In proof, the prosecution called 2 witnesses, PW1 and PW2, their evidence is at page 3 – 22 of the record of appeal. In addition to the two witnesses, the prosecution tendered 5 Exhibits.
It is settled beyond citing of authorities that the burden placed on the prosecution is proof beyond reasonable doubt that is not to say the charge must be proved beyond all shadow of doubt. This burden does not shift from beginning to the end of the trial.PW1 was Kingsley Ayo, a police officer attached to Morobo Police Divisional Area, Lagos, he told the court that on 2nd October there was a case of burglary and stealing reported by one Mrs. Praise Lawani, he was Inspector of Crime then. He detailed a constable to investigate. All the details of the offence were what the complainant told him. PW2 is another Police man, Sergeant Femi Amore, attached to Force CID Alagbon, Lagos, he told the court the circumstances he came to know the appellant and that he took over the matter as investigating Police Officer, collected and registered the Exhibits transferred along with the defendants. These included one locally made gun, 1 knife and 8 live cartridges.
The contention of the appellant is that the complainant did not testify and that made the evidence of PW1 and PW2 hearsay since they did not witness the act of robbery, never visited the scene of crime and only relied on what one Mrs. Praise Lawani told PW1. It is uncontestable that there was no direct evidence of a robbery before the trial court. Mrs. Praise Lawani was the victim of the alleged crime who lodged a complaint at the Police Station. PW1 told the court what she told him when she first reported the incident and subsequently when she allegedly identified the accused person as those who attacked her. PW2 never met the said Mrs. Praise Lawani.

The law requires proof of the fact of a robbery. Did the evidence before the court establish such fact? We agree with the appellant that PW1 gave hearsay evidence as all he told the court was what Mrs. Praise Lawani told him. There was no evidence of the robbery.

The Evidence Act, 2011 by Section 37 defined hearsay evidence as follows:-
“Hearsay means a statement;
(a) Oral or written made otherwise than by a witness in a proceedings; or
(b) Contained or recorded in a book, document or and record whatsoever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
Section 38 of the same Act goes further to state categorically thus:-
“Hearsay evidence is not admissible except as provided by or under any other provision of this or any other Act.”
Consequently, the evidence of PW1 was a narration of what Mrs. Lawani said and not what PW1 witnessed or knows personally. Such evidence is unacceptable and offends Section 38 of the Evidence Act 2011. That piece of evidence must be expunged from the record of court. PW2 was an investigating police officer and he told the court what he did in the course of his investigations. That cannot be hearsay evidence. When the evidence of PW1 is expunged can the evidence of PW2 sustain the charge? The obvious answer is No. There is no evidence of the fact of a robbery because nobody told the court how, where and when the robbery took place. All that expectedly must come from somebody who witnessed the robbery or who was a victim of the robbery. All these are essential aspects relevant to the proof of armed robbery.

Furthermore, what were the dangerous weapons that the appellant had or another member of the group carried on that day. What the Police tendered were recovered days after the incident and nobody identified them as the weapons the appellant had on the day of the robbery. Part of the hearsay evidence was that the knife was taken from the victim’s house. That must have been identified in the open court.
The Police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit. It is settled that where direct evidence of the commission of a crime is absent, the court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, see AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72; AHMED v. STATE (2001) 18 NWLR (Pt. 746) 622 AND OMONGA v. STATE (2006) 14 NWLR (Pt. 1000) AT 532. There is no direct evidence in this case, neither is there circumstantial evidence that can pin the appellant to the crime without the evidence of a victim on the important aspects of how the offence was carried out. The prosecution failed to call a necessary witness, who incidentally is also the victim.
The prosecution is not bound to call a host of witness to prove its case, see VICTOR v. STATE (2013) LPELR-20749 as the Supreme Court restated the principle in these words:
“It is settled principle of law that the prosecution is not bound to call all witnesses but only essential witnesses to prove its case.”
See also OGBODO v. STATE (1997) NSCC 429 AT 437;
AKINYEMI v. STATE (1999) 6 NWLR (Pt. 607) 449.
The prosecution however is under a duty to call material witnesses necessary to prove the essential ingredients of the offence, see STATE v. AJIE (2008) 7 SCNJ 1. Considering the circumstances of this case, Mrs. Praise Lawani is an essential witness without whose testimony the charge must fail. Failure to call her is fatal to the case of the prosecution. There are no other facts to actually pin the appellant to the offence.

Flowing from above, before a confession can be used to find an accused person guilty, it must be corroborated. The appellant in this appeal stoutly challenged the prosecution on lack of corroboration. Reviewing the evidence before the court here, there are no facts outside the confession to corroborate the confession. The facts should have come from the complainant. She should have also identified the dangerous weapon tendered as Exhibit P3- P5 before the court. There is no link between the said exhibit and the attack on the said Mrs. Praise Lawani. Having failed the test, the confessional statement also cannot be used to find the appellant guilty. The trial court erred in relying on the confessional statement without first proving same as required. The conviction of the appellant cannot therefore stand.
The appellant also made heavy on the failure to conduct identification parade. Identification parade is necessary only in circumstances listed by the Supreme Court in a number of cases, one of which is TAJUDEEN ALABI v. THE STATE (1993) 7 NWLR (Pt. 307) 511 where the court held that identification is essential in cases where the victim did not know the accused before and was confronted by the offender for a very short time and on which time and circumstances he might not have had full opportunity of observing the features of the accused. It is therefore not in all cases that identification parade is needed, on when identification parade arises, see also the following cases: PATRICK IKEMSON & ORS v. THE STATE (1988) 6 SCNJ (PT 1) 54 AT 65; ALABI v. THE STATE (1993) 7 NWLR (Pt. 307) 511 AT 524; ALIYU WAKALA & ORS v. THE STATE (1991) 8 NWLR (Pt. 211) 552 AT 565; SANNI ADISA v. THE STATE (1991) 1 NWLR (Pt. 168) 490 AT 506. In the instant case there was nobody who testified to seeing the appellant and who had not know him before but could still pick him out from the crowd. There is no evidence that Mrs. Praise said she could identify them. Identification parade was therefore not necessary.

We find for the appellant under this issue, the conviction was wrong in law and cannot be supported by the evidence before the court.

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

SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my brother Y. NIMPAR, JCA. I am in complete agreement with the reasonings, and the conclusion reached. I will only add strength to the requirements of a valid arraignment, as elaborately explained and decided upon in the lead judgment.
The Supreme Court was lavish in those requirements, see RUFAI v. THE STATE (2001) 7 SC (Pt. 7) 140 at 144-146 from para 6, wherein it was stated as follows:
“Court’s Record read as follows:
“THE STATE v. ISIAKA RUFAI & 2 ORS.
Accused persons present Mr. O. Oyesina legal officer represents the prosecution, Mr. O. O. Sonibare for 2nd & 3rd Accused.
PLEA TAKEN
1st accused pleaded not guilty 2nd accused pleaded not guilty 3rd accused pleaded not guilty.
Prosecution opens its case.”
The Supreme Court said that with all seriousness that the provision of section 215 CPA/CPL was complied with as laid down in the decided cases interpreting the section. Section 215 of the Criminal Procedure Law/Act provides as follows:
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court find that he has not been duly served/therewith.”
In KAJUBO v. THE STATE (1988) 1 NWLR (Pt. 73) 721, the court provided the following guideline on arraignment of an accused person and the taking of his plea:
1) That the accused person to be tried shall be pleaded before the court unfettered.
2) The charge shall be read and explained to him in the language he understands to the satisfaction of the tried court by the registrar of the court or other officer of the court, and
3) The accused person shall then be called upon to plead instantly to the charge, and
4) The plea of the accused shall also be instantly recorded. The provision of Section 215 of Criminal Procedure Law (supra) has been further reinforced by section 33 (6) (a) of the 1979 Constitution in order to guarantee fair hearing and tried of the accused.
The situation in the present case is almost on all fours with that in KAJUBO’S case supra. It has even been made worse in that in the case at hand and from all available evidence contained in the proceeding, the Appellant speaks Yoruba. See pages 22, 24, 25 and 26 of record where it was recorded respectively as follows after raking down the Appellant’s statements made under caution. Page 22: “Today 7/6/89 at about 1300 hours the suspect Isiaka Rufai (M) was brought before (sic) by Inspector Ogundepo the statement he made in Yoruba language was read to him and translated to me in English language. The suspect admitted that he made the statement voluntarily to Police. On the top of pages 24, 25, and 26 of the record of proceeding the following words appear:
“Cautionary words administered in Yoruba Language and duly (sgd) Isiaka Rufai.”
The Appellant as first accused in the trial court gave sworn evidence in his own defence, and before he testified the record (p. 54) shows that he speaks Yoruba Language as in lines 2 and 3 on that page it was recorded as follows:
“Isiaka Rufai” sworn on Holy Quaran and speaks in Yoruba Language. PW7 sgt Rapheal Salako stated in his evidence on page 47 (lines 18-20) as follows:
On 12/6/89, the 1st accused was arrested charged and cautioned in Yoruba Language and he made voluntary statement.
All the pieces of evidence referred to go to show that the 1st accused Appellant understands no other language than Yoruba, I need not emphasis that the language in the High Court in Nigeria is English. This is a notorious fact. The record did not show that the charge was read and explained to the Appellant in Yoruba Language in compliance with section 215 of Criminal Procedure Law and section 33 (6) (a) of the 1979 Constitution.
I therefore agree with learned counsel for the Appellant that the plea of the Appellant purportedly taken was in contravention of section 215 of the Criminal Procedure Law Oyo State and section 33 (6) (a) of the 1979 Constitution and the trial was null and void. See KAJUBO v. THE STATE (supra), EWE v. THE STATE (1992) 6 NWLR (Pt. 246) 147, EREKANURE v. THE STATE (1993) 5 NWLR (Pt. 294), 385, OYEDIRAN v. REPUBLIC (1967) NWLR 122; ADENIJI v. THE STATE (2001) 5 SC (Pt. 1) 100 at 104 para 5.

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

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

JAMILU YAMMAMA TUKUR, J.C.A.: I have had a preview of the judgment of my brother YARGATA BYENCHIT NIMPAR, J.C.A.

I agree with the reasoning and conclusions therein. A strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a prerequisite of a valid trial and where there is a failure to comply with the mandatory requirement of the law as in the instant case the trial is a nullity. “OMOSAYE v. STATE 2014 LPELR-22059(SC)”

Based on the above and the fuller reasons in the lead judgment, I also allow the appeal and hereby set aside the judgment of Hon. Justice M.A. Dada of the Lagos High Court delivered on the 28th day of March, 2009.
The Appellant is discharged and acquitted.

Appearances

Chinon Edmud Obuagwo Esq., Ayo Ogundeji (Ms.)For Appellant

AND

Adebayo Haroun Chief State Counsel, Pius Anyiador Senor State CounselFor Respondent