ADEBAYO OJO V. THE STATE (2012)

ADEBAYO OJO V. THE STATE

(2012)LCN/5709(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of December, 2012

CA/EK/36C/2011

RATIO

EVIDENCE: WHETHER EVIDENCE OF A SINGLE WITNESS CANNOT SUSTAIN THE REQUIREMENT OF PROOF OF THE GUILT

It is not the law that the evidence of a single witness, that is credible, cannot sustain the requirement of proof of the guilt of an accused beyond reasonable doubt. PER EJEMBI EKO, J.C.A

EVIDENCE: NATURE OF PROOF BEYOND REASONABLE DOUBT

The question of proof beyond reasonable doubt depends on the quality, and not the quantum of evidence, tendered by the prosecution. The law on this restated by the Supreme Court in YESUFU V. THE STATE (2008) ALL FWLR (PT.405) 1731 at page 1747 C – D, among others, is that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt and it is not attained by the number of witnesses called by the prosecution. An accused person can be convicted on the evidence of a single witness, if the offence he is charged for is not one requiring corroboration as a matter of law. See YESUFU (Supra) at page 1747. The prosecution that has the duty to prove the guilty of the accused person beyond reasonable doubt needs only to call material witnesses to discharge the duty. PER EJEMBI EKO, J.C.A

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The offence is completed when the accused, armed with a dangerous weapon, is proved to have taken from another person, his victim, any property or chattel. PER EJEMBI EKO, J.C.A

EVIDENCE: MEANING OF CONFESSION

A confession is a statement made by the accused person to the effect that he committed the alleged offense he is being tried for. It is usually in writing. The courts also give probative value to a confession made orally, once the evidence of it is credible. See OKEKE V. THE STATE (2000) 10 NWLR (PT. 675) 423 at 437; (2000) FWLR (PT. 29) 2453 at 2465.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

ADEBAYO OJO Appellant(s)

AND

THE STATE Respondent(s)

EJEMBI EKO, J.C.A (Delivering the Leading Judgment): The Appellant, a former student of Ondo State Polytechnic (now Rufus Giwa Polytechnic), Owo in Ondo State was charged and tried for the offence of armed robbery punishable under Section 1(2) of the Robbery and Firearms (special Provisions) Act Cap. 398 LFN 1990, as amended. He was alleged to have, at Ogotun, robbed one Yemi Omolade (F) in the night of 12th July, 2003 of the sum of N22,000.00 and a bag containing clothes, baby shoe and some drugs all valued at N8, 400.00. At the time of the alleged robbery the Appellant was said to have been armed with a cutlass and to have infact inflicted cuts on the hand of the complainant, Yemi Omolade, who testified as PW1, with the said cutlass. The PW1 testified that the Appellant was initially masked and that when the mask fell off his face she was able to recognize him. The Appellant and the PW1, at the material time, were both members of one Church, that is: the Redeemed Christian Church of God, Ogotun. The Appellant and PW1 both affirm this fact. They knew each other very well.
In the considered judgment delivered on 18th May, 2005 the Appellant was convicted. He was on the same date sentenced to death for the offence of armed robbery. The appeal, on six (6) grounds of appeal, is against the conviction of the Appellant for the said armed robbery.
In the Appellant’s Brief of Argument, settled by Edmund Chinonye Obiagwu and filed on 20th February, 2012, the following three (3) issues were formulated for determination in this appeal by the Appellant, i.e –
1. Whether the arraignment of the Appellant and consequently the whole trial at the lower court was a nullity?
2. Whether the Learned trial judge was in error to have disbelieved and consequently rejected the defence put up by the Appellant based on Exhibit A1 and evidence of identification by PW1?
3. Whether the prosecution proved its case beyond reasonable doubt?.
The Respondent is of the opinion that Appellant’s issues 2 and 3 should have been collapsed and argued together under his issue 2. Consequently, in the Respondent’s Brief of Argument, settled jointly by A.O. Familoni, Esq and O.O. Akinlabi Esq, respectively the Director of Public Prosecutions and Senior Legal Officer, both of Ministry of Justice Ekiti State, two issues, herein below reproduced, were formulated for the determination of the appeal. They are:
1. Whether the entire trial was a nullity?
2. Whether the identity of the Appellant as a robber was established by the prosecution and thus proved the case beyond reasonable doubt against him?
I have dispassionately considered the issues formulated by both parties in appeal and taking into consideration the record of appeal and the material facts, I think the two issues formulated by the Respondents are more concise and apt.
They encapsulate the three issues formulated and argued by the Appellant.
Accordingly, I elect to adopt the two issues formulated by the Respondent in this appeal. I will come anon to the issues.
The appeal was first argued on 17th October, 2012. When later we discovered that the Record of Appeal appears to be incomplete, we invited the parties through their respective counsel, to endeavour to liaise with the registry of the trial court to settle additional record if they found it to be necessary. The appeal was relisted for that purpose, and for re-argument, if needs be, on 5th November, 2012. It was further adjourned to 8th November, 2012 for the parties, through their counsel, to get in touch with the Registrar of the trial court for the purpose of preparing additional Record in the appeal. On 8th November, 2012 counsel for the parties and the Registrar (Records) of the Ekiti State High Court, Ado-Ekiti were before us. The Registrar (Records), one Pastor Abraham Nelson Daramola, intimated the court, in the presence of the counsel for the parties, that during the period of renovation of the High Court complex and also within the period of the prolonged strike of Judiciary Staff (JUSUN), termites had damaged some portions of the Record Book of the trial judge containing the minutes of the proceedings in this case at the trial court. At this juncture, Mr. Ezekiel Agunbiade of counsel holding the brief of Edmund Chinonye Obiaguru, Appellant’s counsel, urged us to determine the appeal “on the available record, as transmitted to this court”. He added that the Appellant’s Brief and the Respondent’s Brief were both written and filed “on the available record”. He adopted the Appellant’s Brief as their argument in the appeal and urged that the appeal be allowed.
Mr. A.O. Akinlabi, Learned Senior Legal Officer from the Ministry of Justice, adopted the stance of Mr. Agunbiade. He urged, on behalf of the Respondent, that “the appeal be heard and determined on the available record”. The Learned Senior Legal Officer then, adopted the Respondent’s Brief filed on 25th July, 2012, which was deemed filed and served on 17th October, 2012, as the Respondent’s argument in the appeal and thereafter urged that the appeal be dismissed for lacking in merits.
ISSUES FOR DETERMINATION
I had earlier indicated my preference for the two issues formulated in the Respondent’s Brief of Argument. The first issue in the appeal, whether as formulated by the Appellant or the Respondent, is whether the trial of the Appellant, from the manner his plea was taken at the commencement of the proceedings, was not a nullity.
For the Appellant it was argued that the proceedings at the arraignment of the Appellant on 12th July, 2004, at page 19 of the Record, did not follow the mandatory procedure laid down in Section 215 of the Criminal Procedure Act read together with Section 36 (6) (a) of the 1999 Constitution. The said provisions are herein below reproduced. Section 215 of the Criminal Procedure Act provides:
215. 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 grant of such service and the court finds that he has not been duly served therewith.
Section 36 (6)(a) of the 1999 on its part provides:
36. (6) Every person who is charged with a Criminal offence shall be entitled-
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence.
The grouse of the Appellant, under this issue, is that, even though the record shows that the Appellant said that he understood the charge read to him, the proceeding was vitiated by the fact that the minutes of the proceedings of that day did not show that the charge read was explained to him or that the charge was read in English language and then interpreted to him in Yoruba. It is not contended that the Appellant did not understand the charge read and interpreted to him in Yoruba language, which he elected as the language he understood, even though the Appellant, was at the material time, a student of Rufus Giwa Polytechnic, a tertiary institution. In what appears to be mere semantics, if not equivocation, at page 6 of the Appellant’s Brief it is stated-
The Appellant could only understand what was read to him, but since the charge was not explained to him, he could not understand the details of the charge.
Did the Appellant understand the charge read to him? That is the material question.
The argument concludes with the statement that “since the charge was not explained to (him), the arraignment (ought to be) nullified”. This argument was posited heavily on (KAJUBO V. THE STATE (1988) 1 NWLR (PT.73)721. The absence of explanation of the charge before the court asked the Appellant if he understood the charge as read to him is the fulcrum of the contention that the entire proceedings at the arraignment, the plea and the subsequent trial were rendered a nullity. I would have thought that the explanation of the charge was only necessary when or if the Appellant, as the accused person, did not understand the charge as read to him. The presence of Appellant’s counsel at proceedings leading up to the taking of his plea to the charge makes it a reasonable to me to believe, and I so hold, that the mere fact of the absence of the explanation of the charge before the Appellant was asked if he understood the charge as read and his answer in affirmative that he understood does not vitiate the plea and there had no miscarriage of justice to the Appellant thereby.
I am fortified in this reasoning by what Brett, JSC stated in a similar situation in JAMES EFUN & OTHERS V. INSPECTOR – GENERAL OF POLICE (1966) 1 ALL NLR 17, where upon an amendment of the original charge at the instance of the prosecutor the Chief Magistrate, Warri merely recorded:
Amendment granted Amended charge read to accused persons and they plead not guilty.
The trial of the accused persons proceeded thereafter and they were convicted.
The High Court affirmed their convictions and sentence. At the Supreme Court, one of the issues, on which the appeal was argued, was that the record failed to show that each accused was called upon to plead separately to the amended charge and that this irregularity was fatal to their conviction. The Supreme Court dismissed this submission. At page 21 Brett, JSC reading the opinion of the court stated thus:-
We do not regard this submission as well founded, it would have been better if the Chief Magistrate had written “Each pleads not guilty” instead of “They plead not guilty”, but they were represented – by counsel, who took no objection to the course adopted; and no attempt was made to supplement the record by any further evidence of what took place, We think it may safely be assumed that the I have no doubt, whatsoever, that the KAJUBO’s case (Supra) that was flaunted by the Appellant under this issue is, from the peculiar facts or circumstances of the instant case, clearly inapplicable. In the KAJUBO case (Supra) there was nothing on the face of the record showing that the charge was read, much less explained, to the accused person. The KAJUBO case (Supra) and EREKANURE V. THE STATE (1993) 5 NWLR (PT 294) 385 are on all fours. They are however, on facts, distinguishable from the instant case.
Page 19 of the record of appeal shows clearly that the Appellant understood the charge before the learned trial judge took his plea of “not guilty” to the charge. The record ex facie warrants the invocation of the presumption of regularity under Section 150 (1) Evidence Act as was done in KALU V. THE STATE (1998) 13 NWLR (PT. 583) 531. The plea of the Appellant to the charge read to him was taken after he indicated that he understood the charge. From this, it must be taken that the Appellant understood the charge against him. One therefore is entitled to presume under Section 150 (1) of the then extant Evidence Act (now Section 168 (1) of the Evidence Act, 2011) that the learned trial judge took the plea of the Appellant in the regular and correct manner of this presumption of regularity Ogundare, JSC at page 617 of KALU V. THE STATE states –
“After all the maxim is : omnia praesumntur rite et est solenniter esse acta, That is to say: All acts are presumed to have been done rightly and regularly”.
In DERBY V. BURY IMP CONNOR L.R. 4 Ex 222 at page 226 it was held that in absence of proof to the contrary, credit should be given to public officers who have acted, prima facie, within the limits of their authority, for having done so with honesty and discretion.
The maxim apart there is section 150 (1) of the Evidence Act which provides:-
150 (1) “when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”.
The presumption of regularity avails in this case.
Learned counsel for the Appellant seems, in my view, to have taken the provisions of Section 215 of the Criminal Procedure Act and Section 36 (6) (a) of the Constitution out of their con and purport. As Ogundare JSC stated in his speech in KALU V. THE STATE (Supra) at page 617, these two provisions “are designed to ensure that an accused person not only understands but equally appreciates the nature of the charge against him before his plea thereto is taken” See also EFFIOM V. THE STATE (1995) 1 NWLR (PT. 373) 507.
The Appellant was represented by counsel who was on hand when the plea of the Appellant was taken. Neither of them complained at this proceeding that the Appellant had any difficulty understanding the charge read to him. I am in complete agreement with the Respondent’s counsel, when he submitted, that where it is apparent on the face of the record that the accused understands the proceedings and the charge read to him before he takes his plea to the charge, no miscarriage of justice would have been occasioned by the failure only that the charge was not shown to have been explained to him before he affirmed that he understood the charge and thereafter pleaded “not guilty” to the charge as read.
This Appellant, having averred that he understood the charge read to him in the presence of his counsel and thereafter pleaded not guilty to the charge as read, cannot now be heard to complain that the charge was not explained to him by the learned trial judge in accordance with Section 215 of the Criminal Procedure Act and Section 36 (6)(a) of the 1999 Constitution. The Appellant is estopped, by operation of Section 151 of the Evidence Act (now Section 169 Evidence Act, 2011), from complaining that he did not understand the charge read to him and to which he pleaded not guilty. This clearly is estoppel by conduct, and on this estoppel or issue he cannot possibly approbate and reprobate at the same time or other times subsequently.
The appeal, on this issue, lacks substance.
Under the Respondent’s issue 2, which in my opinion covers Appellant’s issues 2 and 3, the crux of the matter is whether the prosecution proved beyond reasonable doubt that it was the Appellant who committed the robbery, the subject of the charge. When the arguments of the Appellant are properly dissected it would be found that the dismembered parts fall into the following categories. That is:-
i. Exhibit A1, the alleged confessional statement of the Appellant, is unreliable. That the Appellant denied its making.
ii. The evidence of PW.1 that fixed the Appellant to the scene of crime was not corroborated by Exhibit A1, and vice-versa.
iii. The evidence of PW.1 through which the Appellant was identified is suspect. The Appellant was not properly identified, there being no identification parade.
Now, as rightly submitted for the Appellant, a reasonable doubt as to the guilt of the accused person arises if anyone or more of the circumstances proved in the criminal trial are inconsistent with the guilt of and at the same time may be inconsistent with his innocence. See AIGUOREGHIAN V. THE STATE (2004) 3 NWLR (PT. 860) 367. Having read the Appellant’s brief, the question that readily comes to my mind is; what evidence or material renders the case of the prosecution, particularly the evidence of PW.1, unreliable. Prima facie, the evidence of PW1, without Exhibit A1, the alleged confessional statement, proves the guilt of the Appellant beyond reasonable doubt. The cross-examination of the PW1 did not discredit her evidence. Her evidence was left unscathed. No reasonable doubt about the credibility of the evidence of PW.1 was successfully established.
It is not the law that the evidence of a single witness, that is credible, cannot sustain the requirement of proof of the guilt of an accused beyond reasonable doubt. The question of proof beyond reasonable doubt depends on the quality, and not the quantum of evidence, tendered by the prosecution. The law on this restated by the Supreme Court in YESUFU V. THE STATE (2008) ALL FWLR (PT.405) 1731 at page 1747 C – D, among others, is that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt and it is not attained by the number of witnesses called by the prosecution. An accused person can be convicted on the evidence of a single witness, if the offence he is charged for is not one requiring corroboration as a matter of law. See YESUFU (Supra) at page 1747. The prosecution that has the duty to prove the guilty of the accused person beyond reasonable doubt needs only to call material witnesses to discharge the duty.
All that the prosecution need do to discharge this burden is call the evidence that proves the elements of the offence for which the accused is charged. In this case the Appellant was tried and convicted for armed robbery.

The offence of armed robbery is committed where, at the material time of the robbery; the accused is proved to have been armed with “firearms” or offensive weapon within the meaning of Section 9 of the Robbery and Firearms (special Provisions) Act. See IKEMSON V. THE STATE (1989) 6 SC (PT.1) 114 at 132.
The offence is completed when the accused, armed with a dangerous weapon, is proved to have taken from another person, his victim, any property or chattel.
The charge read to the Appellant which he pleaded not guilty to at page 19 of the Record alleges that the Appellant “on or about the 12th day of July, 2003 at Koda Street, Ogotun Ekiti State robbed” the PW.1 “of the sum of N22,000.00” and “a bag containing clothes, baby shoe and some drugs valued N8,400.00” and that he was at the time of the robbery armed with a cutlass, offensive weapon. The evidence of the PW.1 is at pages 19 – 21 of the Record. The PW.1 testified that she was waylaid and attacked at 9:00pm on 12th July, 2003 on her way home after she had closed from her shop; that the initially masked man, who was armed with a cutlass, snatched and ran away with her bag containing money, clothes and baby rug. She was able to see the face of the assailant when the mask fell off. And that it was the Appellant. The material or salient portion of her evidence fixing the Appellant to the crime and the scene of crime is herein below reproduced. That is:-
The accused person was wearing a mask at the time, he cut my left hand with the cutlass and inflicted a cuts between the thumb and the index finger of my left hand, it was when (he) wanted to deal the second machetes blow on me that the mask he was wearing got removed and I was able to see his face very well because the moon was on and bright and I had a torch light with me.
I shouted the accused person ran away with my bag containing money, clothes and my child’s rugs. I shouted for help and some people came and took me to the police station at Ogotun Ekiti from where I was got removed to one private hospital, Ray Hospital, Ogotun Ekiti by two policemen in company of some of my relatives for treatment. I know the accused person very well, he is Ojo Adebayo after my treatment at the hospital, I went back to the police station and told the police that it was (he) Ojo Adebayo that attacked me he also confessed to the crime. The accused person when the case got to Ado begged me to forgive him and I told him that I am not the one to beg or appeal to. I went to school and I finished my secondary school at Ogotun High school. The police at Ado asked me what actually happened on the night in question and I explained to them just the way I just did to the court my statement was recorded by one police man whose name I cannot remember I volunteered the said statement in Yoruba language.
That’s all for the witness.
CROSS EXAMINATION
It was around 9:00pm on 12/7/03 that the accused person attacked me. I fell down as he machetes me for the first time, I was not unconscious even though I fell down. It was only the accused person that attacked me and he was the one I saw.
I have know Ojo Adebayo for long, we attend the same church I was holding the torch light with my right hand, while I held my bag with my left hand.
When I fell down, the torch light fell down from hand, both at the Ogotun and Ilawe stolen by the accused person. The police obtained my statement both at the Ogotun and Ilawe police station. I volunteered my statements at both stations in Yoruba language but they were recorded in English language. I have not forgiven the accused person for what he did to me because knowing fully well that we are members of the same church, he should not have attacked me the way he did knowing fully well I was pregnant and carrying a child on my back the night he attacked me. That is all for the witness.
RE- EXAMINATION
None.
The PW.1 is the only eyewitness of this robbery. She is a material witness and her evidence is very relevant. The cross-examination left the evidence intact and unscathed. The salient portions of her evidence by which the person who robbed her was identified as the Appellant stood tall and firm against the Appellant.
The fact that the Appellant and the PW.1 are members of the same church, who know each other well, further corroborates the evidence of the PW.1 that she knew and recognized the person who robbed her as the Appellant. At page 26 the Appellant testified, and I reproduce the evidence for emphasis:
I know PW.1, Mrs Yemi Omolade very well as my towns mate. We attend the same church i.e Redeemed Christian Church of God, Ogotun.
This piece of evidence reinforces and corroborates the PW.1’s evidence at page 20 that:-
It was when (the Appellant wanted to deal the second machete blow on me) that the mask he was wearing got removed and I was able to see his face very well because the moon was on and bright and I had a torchlight on with me I know the accused person very well. He is Ojo Adebayo. After my treatment at the hospital, I went back to the police station and told the police that it was Ojo Adebayo that attacked me.
He also confessed to the crime. The accused when the case got to Ado begged me to forgive him and I told him that I am not the one he is to beg or appeal to.
This piece of evidence is quite damaging. It is evidence of a confession.
And it establishes that when the bubble had burst the Appellant melted, admitted the allegation and pleaded for forgiveness. Yet, the Appellant and his team remained mute and chose not to challenge or test it by cross-examination. A confession is a statement made by the accused person to the effect that he committed the alleged offense he is being tried for. It is usually in writing. The courts also give probative value to a confession made orally, once the evidence of it is credible. See OKEKE V. THE STATE (2000) 10 NWLR (PT. 675) 423 at 437; (2000) FWLR (PT. 29) 2453 at 2465.

The accused person has a duty to object to any damaging piece of evidence tendered against him at the earliest opportunity. See OLATEKAN V. THE STATE (2001) 18 NWLR (PT. 746) 793 at 809 & 824; (2001) 12 SC (PT. 1) 38 at 45 – 46 & 67. In ALARAPE V. THE STATE (2001) 5 NWLR (PT.705) 79 at 100 B the Supreme Court affirmed the decision of the trial court dismissing on objection to a piece of evidence belatedly made at the close of the case of the prosecution. The approach of the Appellant to the damaging piece of evidence at the appeal level is what the Supreme Court rejected in the ALARAPE case (Supra).
This lucid and material evidence identifying the Appellant and fixing him to the robbery alleged was not discredited. It is a credible piece of evidence that the trial court could act on to convict the Appellant for the alleged robbery. The law, as pointed out in USUFU case (Supra) at page 1747 – one of the authorities cited by the Appellant, is that an accused person can be convicted, on the evidence of a single witness, if the evidence is credible and the offence is not one that requires corroboration as a matter of law. See also KAREEM V. FRN (NO 1) (2002) NWLR (PT. 770) 536 at 651 – 653, cited by the Respondent, among others.
I know of no rule of law that says that a person, accused of committing armed robbery cannot be convicted on a credible and unimpeached evidence of a single witness. It was submitted for the Appellant that the learned trial judge should not have attached any probative value to the evidence of PW.1. The submission is not well founded. The evidence of PW.1 has probative value. It is credible. It was not discredited. The conviction, for the offence of armed robbery of the Appellant can be sustained by the evidence of PW.1 alone. In the circumstance the conviction of the Appellant cannot be said to be perverse.
I have just demonstrated that, even without Exhibit A1, the conviction of the Appellant could still be sustained and that his conviction is not perverse in view of the damaging evidence of PW.1 that was left unscathed and undiscredited. From the PW.1’s evidence the identification of the Appellant as the armed robber who attacked her with machete, injured her on the hand and snatched her bag is not in doubt. Identification parade, in the circumstances, is completely superfluous and unnecessary as submitted by the Respondent. See; OKEKE V. THE STATE (1995) 4 NWLR (PT. 392) 676 at 708 D – F Appellant counsel made so much fuss about Exhibit A1 being not a reliable confessional statement as it had been allegedly retracted by the Appellant in his defence evidence. Counsel, himself, cannot be more catholic than the Pope. At page 26 the Appellant himself, as DW.2, testified, under cross-examination, on the making of Exhibit A1 as follows:-
I volunteered a statement to the police i.e Exhibit A1, but it was the police that wrote it, I didn’t write it myself.
This piece of evidence does not suggest the retraction or disowning of the substance or contents of Exhibit A1. Appellant, in my view, seems to admit or own up the contents or substance of Exhibit A1. All he in saying is that he did not do the recording of Exhibit A1 though he volunteered the contents or substance of the document to the police who did recording or transcription on the piece of paper.
Like the learned trial judge, I have no doubt whatsoever in me that the Appellant admitted, at page 26 of the Record, that he “volunteered” the statement, Exhibit A1, to the police. Even if the Appellant had pleaded non est factum as regards Exhibit A1, which I have doubts about, it is my finding of fact that the statement was actually made by him voluntarily to the police.
Accordingly, AIGOUREGHIAN V. THE STATE (Supra) – at page 403 where the Supreme Court stated:-
Where a plea of non est factum is raised by an accused person with respect to an extra-judicial statement ascribed to him, it will be incumbent on the court to make a finding on whether the statement was actually made by the said accused person before putting it into any use in convicting the said accused person, does not avail the Appellant on this issue so as to empower me to set aside his conviction. The Learned trial judge found, correctly in my view, in her judgment that the Appellant did not, at his trial, raise any objection to the admissibility of Exhibit A1 in evidence against him. The voluntariness or otherwise of Exhibit A1 was not made an issue at the trial. It could not have been, in view of the admission at page 26 of the Record, by the Appellant under cross-examination that he volunteered the statement contained in Exhibit A1, to the police. I had earlier demonstrated that if the Appellant had intended to object to any piece of evidence, tendered in evidence against him, the appropriate time to do so was when the evidence was being tendered or put into the body of evidence against him and not at the close of proceedings or even at this belated time of hearing of the appeal.
The conviction of the Appellant for armed robbery or robbery while armed with dangerous weapon contrary to or punishable under Section 1(2)(a) of the Armed Robbery and Firearms (special Provisions) Act was sustained beyond reasonable doubt. The conviction of the Appellant for the offence by the learned trial judge is unassailable. As rightly submitted for the Respondent the mere fact that the offensive weapon was not tendered in evidence would not defeat the case of the prosecution as there was cogent, reliable and authentic oral evidence of the PW.1, which the trial court believed, to sustain the conviction, See GBADAMOSI V. THE STATE (1991) 6 NWLR (PT.196) 182. In the circumstance of this case the production or proof of the weapon is not necessary to establish the guilt of the accused. See OLAYINKA V. THE STATE (2007) 9 NWLR (PT. 1040) 561. The injury inflicted on the PW.1 by the Appellant, using the machete he was armed with, is not in any doubt. I agree with the Respondent that the evidence of the injury remains unchallenged and unassailable.
My lords, I find nothing, from the issues formulated from the grounds of appeal and issues argued in the Appellant’s Brief of Argument, that would warrant our interfering with the findings of fact and conviction of the Appellant as recorded by the trial court in the judgment delivered on 18th May, 2005. It is only when the decision of the trial court is either perverse or illegal, or is a product of improper use of the opportunity the trial court had in hearing and watching the witnesses testify that we are, as an appellate court, empowered to interfere with the findings or decision of the court of trial. See NDILI V. THE STATE (2007) ALL FWLR (PT. 381) 161 – at page 1645 G – H. That situation is lacking in this case.
On all the issues canvassed the appeal lacks substance and it is accordingly dismissed in its entirety. The conviction and sentence of the Appellant by the trial court are hereby affirmed. This however does not prevent the exercise of our discretion to recommend the Appellant to the State’s committee on Prerogative of Mercy for reconsideration of the sentence. Accordingly, I order that the Honourable the Attorney-General of Ekiti State be notified of this judgment for his office to put the case of the Appellant before the committee on Prerogative of Mercy for consideration. The convict/Appellant, from the evidence of PW.1, was remorseful even at the police station and before his trial commenced. He had asked PW.1 for forgiveness. The quality of mercy at the disposal of the State can never be strained towards this young or youthful convict.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the Lead Judgment of my learned brother, EJEMBI EKO, J.C.A, just delivered and I agree entirely with reasons given herein and the conclusion reached.
The only eye witness of the Robbery is PW1. She testified among others as follows:
“The accused person was wearing a mask at the time, he cut my left hand with the cutlass ….. it was when he wanted to deal the second matchet on me …that the mask he was wearing got removed and I was able to see his face very well…”
The said PW1 was not cross-examined.
I have no doubt in my mind that the accused committed the offence for which he was charged.
For the foregoing and the well articulated reasons in the lead judgment, it is clear that this appeal is lacking in merit and same is accordingly dismissed.
The conviction and sentence of the Appellant by the trial court are hereby affirmed.

MODUPE FASANMI, J.C.A.: I have read in draft the judgment just delivered by my learned brother Ejembi Eko, J.C.A.
P.W.1 Mrs. Yemi Omolade in her evidence stated that they are members of the same church. Her evidence fixing the Appellant to the robbery was not discredited. A trial does not depend on the number of witnesses except where the law requires more than one witness. Thus the evidence of one witness accepted and believed by the court is sufficient to justify a conviction in a criminal case. See Agbi v. Ogbeh (2006) All F.W.L.R. Part 329 page 941 at 983 paras A – D.
I am in complete agreement with his reasoning and conclusion that the appeal is unmeritorious.
The judgment of the lower court delivered on the 18th of May 2005 is hereby affirmed. I also abide by the consequential order contained therein.

Appearances

Sebastine U. Nweze Esq, Adeymi Adewumi, Esq and Ezekiel Agunbiade, Esq variously held brief of Edmund Chinonye Obiagwu (who settled the brief)For Appellant

AND

O.O. Akinlabi, Esq S.L.O, O.T. Olatunbosun (Mrs) SLO and A.Y Oluwaseyi (Mrs) L.O. all of ministry of Justice Ekiti State.For Respondent