ADEKOYA v. STATE (2020)

ADEKOYA v. STATE

(2020)LCN/14915(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, December 15, 2020

CA/IB/374C/2019

RATIO

CRIMINAL JUSTICE: CARDINAL PRINCIPLE OF LAW IN AN ACCUSATORIAL SYSTEM OF ADMINISTRATION OF CRIMINAL JUSTICE

Now, it is the settled principle of law in an accusatorial system of administration of criminal justice, that an accused person is presumed to be innocent until he is proven to be guilty beyond reasonable doubt by a competent Court of law. This is recognized throughout the common law jurisprudence. In Nigeria, this system has been given constitutional imprimatur by Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended), which stipulates that:
”36(5). Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:’
The right to be presumed innocent as constitutionally guaranteed to an accused person has therefore cast the burden on the prosecution to rebut that presumption. PER TSAMMANI, J.C.A.

CRIMINAL LAW: BURDEN OF PROOF IN CRIMINAL CASES

The prosecution, therefore, have the onerous burden to adduce credible evidence to prove the guilt of the accused person beyond reasonable doubt. The charge against the accused person can only be said to have been proved beyond reasonable doubt; if the prosecution adduces credible evidence which proves all and every ingredient of the offence charged. It means therefore, that if the prosecution fails to prove any one of the essential ingredients of the offence, the law holds that they have not proved the offence charged beyond reasonable doubt and the accused will be entitled to an acquittal. See Abdullahi v. State (2008) 17 NWLR (pt.1115) 203; Shehu v. The State (2010) 8 NWLR (pt.1195) 112; Ugboji v. State (2018) 10 NWLR (pt.1627) 346; Ukeje & Anor v. Ukeje (2014) 11 NWLR (pt.1318) and Onwe v. State (2018) 5 NWLR (pt.1612) 217. Thus, inOgunleye Tobi v. The State (2019) LPELR – 46537(SC), Peter-Odili, JSC held as follows:
“It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in the case”.
Proof beyond reasonable doubt does not mean proof beyond every iota of doubt or all doubt. Proof beyond reasonable doubt has been held to mean such proof that dispels with fanciful possibilities. It has also been held to mean establishment of the ingredients of the offence charged in tandem with Section 138 of the Evidence Act, 2011. See Woolmington v D. P. P. (1935) A. C. 462; Ajayi v. State (2013) 9 NWLR (pt.1360) 589, State v. Onyeukwu (2004) 14 NWLR (pt.893) 340; Egharevba v. State (2016) 8 NWLR (pt.1515) 433 and Afolayan v. State (2018) 8 NWLR (pt.1621) 223. In the case ofBakare v. The State (1987) NSCC 267 at 273, Oputa, JSC (of blessed memory) said:
“Also it has to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt. Reasonable doubt will automatically exclude unreasonable doubt, imaginary doubt and speculative doubt, a doubt not borne out by the surrounding circumstances of the case….. Absolute certainty is impossible in human adventure including criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.”
Recently, in the case of Egharevba v. State (supra), my Lord, Ngwuta, JSC cited and relied on the case of K. Gopal Redding V. State AP AIR (1979) SC 387, where the Supreme Court of India held that:
“A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons”.
With the above cited dicta of the Supreme Court of Nigeria, and of India, our path has now been illuminated on what “proof beyond reasonable doubt” means in our jurisprudence. What remains to be pointed out now, is that, the burden of proof in criminal trials is almost always on the prosecution. That is the ultimate duty reposed by law on the prosecution, and it does not shift. The Defendant (accused) has no burden to proof his innocence. See Oluwole Oyetomi v. the State (2018) LPELR – 46146 (CA); Elvis Ezeani v. Federal Republic of Nigeria (2019) LPELR – 46800(SC) and Igabele v. the State (2006) 6 NWLR (pt.975) 100 at 131. The only duty of an accused person is to adduce some evidence which may create some doubt in the prosecution’s case and therefore unlikely to be true. SeeBakare v. The State (supra); Nwodo v. State (2018) LPELR – 46335(SC) and Ndukwe v. State (2009) LPELR – 1979(SC). PER TSAMMANI, J.C.A.

EVIDENCE: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

Now, the prosecution may discharge the burden cast on them by law, to proof the guilt of the accused person beyond reasonable doubt by any one or more of the following ways:
(a) by the evidence of eye witness or witnesses who saw when and how the offence was committed.
(b) by the Confessional Statement of the accused which is direct, positive and unequivocal and duly proved, pointing unambiguously that the accused has admitted to committing the offence charged, and
(c) by circumstantial evidence which leads to the irresistible conclusion that the accused and no other person committed the offence charged. PER TSAMMANI, J.C.A.
EVIDENCE: WHEN WILL EVIDENCE OF A WITNESS BE TERMED AGAINST INTERESTS

Where a party has not declared a witness called by him a hostile witness, he would be bound by the evidence of such witness, as evidence against interests. This is so because, a party is deemed to guarantee the reliability and truthfulness of his witness and must therefore take the result of the evidence of his witness(es). See Ikeni v. Efamo (1966) 5 NWLR (pt.446) 64, Okoya v. Santilli (1994) SCNJ (pt.II) 333 at 375 andElewuju v. Onisaodu(2000) 3 NWLR (pt.647) 95. Thus; in Odi v. Iyala (2004) 8 NWLR (pt. 875) 283 at 308, Tobi, JSC (of blessed memory) said:
“where a witness called by a party gives evidence against his interest, our adjectival law requires the party to urge the Court to declare him a hostile witness for purposes of cross-examination. This is to enable the party discredit the evidence of the witness and reject the evidence.” PER TSAMMANI, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

DARE ADEKOYA APPELANT(S)

And

THE STATE RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ogun State High Court of Justice delivered by A. A. Shobayo, J., on the 13th day of June, 2018 in Charge No: HCJ/16C/2016.

The Appellant and one Adude David were arraigned, tried and convicted for having committed the offences of conspiracy to commit armed robbery and attempt to commit armed robbery, which are offences contrary to Sections 1(2)(a) and 2(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004.

The facts of this case has been concisely summarised by the learned trial Judge at page 173 lines 9 – 24 of the record of appeal as follows:
“On 19th May, 2015 at about 05.04 hours, early in the morning, the Accused Persons stopped one Haruna – PW1, a commercial Motorcyclist at Olisa Road and asked him to take them to Ondo Road. On getting to Ijagun Junction at Ondo Road, the Accused persons asked PW1 to stop for them, and as they came down from the motorcycle, they pointed gun at PW1. They ordered him to surrender the key of his motorcycle to them.

PW1 refused and started struggling with them. PW1 cried for help from passersby who came to rescue him. The 1st Accused was arrested with a gun like metal iron immediately with the aid of some vigilante men, while the 2nd Accused person escaped from the scene.
PW1 accompanied by members of the vigilante lodged complaint at the Divisional Police Headquarters, Igbeba, Ijebu-Ode. PW1 on the very day of the incident made statement to the Police, PW1’s statement at Igbeba Police Station is marked Exhibit “A” while his statement at the State C.I.D; Eleweran is marked Exhibit “B”. The part of the gun recovered on the day of the incident is marked Exhibit “C”.”

At the trial, the prosecution called three witnesses who testified as PW1, PW2 and PW3 respectively. The PW1 was the complainant while PW2 and PW3 were Investigating Police Officers. The Appellant and the co-accused testified in their defence as DW1 and DW2 respectively but called no other witness. The Appellant who was the 1st Accused person before the trial Court testified as the DW1. The prosecution also tendered

eight (8) Exhibits which were marked as Exhibits “A” – “F” respectively. Exhibits “D”, “E” and “H” are the extra-judicial statements of the Appellant while Exhibit “C” is “a short locally made Pistol” said to have been recovered from the Appellant. At the close of evidence, the learned counsel filed and exchanged Written Addresses, and in considered judgment delivered on the 13/6/2018, the Appellant and the co-accused were convicted on both counts and sentenced to death and life imprisonment respectively. Aggrieved by the decision, the Appellant has filed this appeal.

The Original Notice of Appeal was filed on the 11/07/2018. However, by leave of this Court granted on the 25/6/2020, the Notice of Appeal was amended. This appeal was therefore heard on the Amended Notice of Appeal which was filed on the 29/10/2019 but deemed filed on the 25/6/2020. The Appellant’s Brief of Arguments was filed on the 29/10/2019 but deemed filed on the 25/6/2020. Therein, only one issue was distilled for determination as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Whether having regard to the totality of the evidence on record, the trial Court was right to convict and sentence the Appellant for the offences of conspiracy to commit armed robbery and attempted armed robbery under Sections 6(b) and 1(2) and 2(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004?”
[Grounds 1, 2, 3, 4, 5, 6, 7 and 9].

The Respondent also filed a Respondent’s Brief of Argument on 08/7/2020. Like the Appellant, the Respondent raised only one issue for determination as follows:
“Whether, from the totality of the evidence adduced at the trial, the Respondent proved the charge of conspiracy to commit Armed Robbery and Attempted Armed Robbery against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act, No 18 of 2011.”

Having regard to the totality of the evidence adduced at the trial as shown on the record, and the fact that the Appellant was convicted on a two count charge, I shall determine this appeal on two issues as follows:
1. Whether, having regard to the totality of the evidence on the

record, the trial Court was right in convicting the Appellant on the charge of conspiracy to commit armed robbery?
2. Whether, having regard to the totality of the evidence on the record, the trial Court was right in convicting the Appellant on the charge of attempted armed robbery?

In view of the admonition of the Supreme Court in the cases of Osetola v. State (2012) 17 NWLR (pt.1329) 251 and Oladejo v. State (2018) 11 NWLR (pt.1630) 238, I intend to first consider the conviction for the substantive offence before proceeding on the charge of conspiracy.

Now, on the conviction for attempted armed robbery, learned counsel for the Appellant contented that, the case of the prosecution rests heavily on the testimony of the victim of the offence who testified as the PW1. That the said PW1, had contrary to the expectations of the prosecution, denied knowing the Appellant and that he testified at the trial that, he did not see the people that attacked him. Learned Counsel referred to pages 67 line 1 and 68 lines 1 – 2 in support. That shocked by the testimony of PW1, the prosecution decided to brand him as a hostile witness

because, his testimony was at variance with his statements to the Police at Igbeba Police Station and at the State C.I.D, Eleweran, Abeokuta.

Learned Counsel for the Appellant then went on to submit that, the mere fact that the previous statement of a witness is inconsistent with his oral testimony in Court, is not sufficient to declare him a hostile witness. Referring to the book on Law and Practice Relating to Evidence in Nigeria by Dr. T. Akinola Aguda; MIJ Professional Publishers Ltd, 1998 at p.524 paragraph 27.59 and the case of Esan v. The State (1976) NSCC 673 at 677 paragraphs 44 – 47, learned counsel submitted that, the prosecution offered no proof that PW1 habored any hostile animus against the prosecution that called him. Furthermore, that there was no evidence that PW1 gave such evidence with a desire not to tell the truth as espoused in Esan v. The State (supra). It was then submitted that the learned trial Judge fell into the prosecution’s trap and therefore failed to give due weight to what was required before PW1 could be turned into a hostile witness. Learned Counsel then cited the cases of

Esan v State (supra); R v. Golder (1960) 3 All E.R.457 at 459 and Jizurumba v. The State (1976) NSCC (vol.10) 156 to further submit that, it is not every time that a witness is shown to have made an inconsistent statement, that he will be declared a hostile witness. That to allow the prosecution to declare a witness to be hostile whenever they make inconsistent statements to the police, is to prevent witnesses from telling the truth in Court.

It was also contended by learned counsel for the Appellant that, in rejecting the testimony of PW1 using the inconsistency rule, the trial Court failed to avert its mind to the fact that the rule was developed to prevent injustice to the Accused person. That in law, the rule as developed in R v. Golder (supra), proof of inconsistency on material facts would raise a reasonable doubt and thus reduce the worth of the evidence obtained through such a witness.

Learned Counsel for the Appellant went on to submit that, in the evolution of the inconsistency rule in Nigeria, certain safeguards have been embedded to prevent the possibility of injustice that may stem from the application of the rule. First of all, that the rule

does not apply to previous statements made by an Accused person. The cases of Akinlolu v. State (2016) 2 NWLR (pt.1497) 503; Akpan v. The State (2001) 15 NWLR (pt.737) 745; Egboghonome v. The State (1993) SCNJ 1 at 31, etc, were cited in support. That the rule as adopted in Nigeria, applies to the evidence of an ordinary witness. The case of Akinlolu v. State (supra) at 531 paragraph A was cited in support and to further submit that, in the present case, PW1 is not an ordinary witness but the prosecution’s star witness and the only eye witness, being the victim of the offence. That, it therefore means that the Court must avoid the trap of treating or relying on the previous inconsistent statement as evidence upon which it can act. The case of R v. Golder (supra) at 459 paragraphs C – D was again cited in support, and to further submit that, despite declaring PW1 a hostile witness, the trial Court still used the alleged previous statements in arriving at a decision. We were referred to pages 173 lines 8 – 24, 175 lines 20 – 21, 26 – 27 and 176 lines 1 – 9 for this contention. The cases of

Akinlolu v. State (supra) at 531 paragraphs B – D and Jizurumba v. The State (supra) were further cited to submit that, the inconsistency rule will only be applied where the witness was unable to proffer an explanation for the inconsistency to the satisfaction of the Court. That in the instant case, the PW1 was not given the opportunity to explain the inconsistency before he was declared a hostile witness.

Learned Counsel for the Appellant went on to submit that, PW1 consistently denied making the extra-judicial statements (Exhibits “A: and “B”) and that same was recorded through an interpreter but same were admitted in evidence without the interpreter being called to testify. The case of R v. Gidado (1940) 6 WACA 60 at 62 was then cited to submit that, the law requires that where a witness made his statement in his native language before it was interpreted and written down in the English language, both the interpreter and the recorder must be called to testify before such statement can be admitted in evidence. The cases of R v. Ogbuewu (1949) 12 WACA 483; Zakwakwa of Yarro v. Queen (1960) SCNLR 36; R v. Awip (1957) 2

FSC 24; Shievo v. The State (1996) 2 SCNJ 42; Olalekan v. State (2001) 18 NWLR (pt.746) 793 at 826 – 827 paragraphs H – A and Esan v. The State (1976) NSCC (vol.10) 673 at 676 were also cited in support and to further submit that, the rule applies to every situation where an interpreter is used and that it is not limited to statements of an Accused person. That, this was not so in respect of the statements of PW1, and Exhibits “A” and “B” are accordingly inadmissible. We were therefore urged to expunge Exhibits “A” and “B” from the records.

On the ingredients of the offences charged, learned counsel for the Appellant contended that those ingredients were never proved by the prosecution. That the offence of attempted armed robbery is a property offence but the prosecution did not establish what happened to the motorcycle, the subject of the offence charged. That, the PW1 who was the victim and eye witness to the offence told the Court that he took the motorcycle to his house. Furthermore, that PW1 stated that the Appellant was not one of those that attacked him and that he saw

the Appellant for the first time at the State C.I.D Office in Eleweran. That despite the testimony of PW1, the learned trial Judge preferred the evidence of PW2 and PW3 who were not eyewitnesses, on the ground that PW1 is a hostile witness.

Learned Counsel for the Appellant also contended that, there were contradictions which the trial Court failed to, or improperly resolved. That one contradiction relates to the time of the commission of the offence of attempted armed robbery. That it was stated that the offence was on the 19/3/2015 but the evidence adduced by the prosecution at the trial, show that it was committed on the 19/5/2015. The cases of Sani v. State (2015) 15 NWLR (pt.1483) 522; Olowoyo v. State (2012) 17 NWLR (pt.1329) 346 at 371 paragraphs D – E; Nwokedi v. C.O.P. (1977) 3 S.C. 35 and Ibrahim v. State (2015) 11 NWLR (pt.1469) 164 at 199 were cited in support, and to further submit that, any evidence contrary to or at variance with the charge will be fatal to the prosecution’s case.

It was also contended that the prosecution failed to prove the locus criminis as stated on the charge, which

contradiction was never resolved. That, while the charge alleged that the locus criminis (place of the offence) was at “Olisa Road, Ijebu-Ode”, PW1 stated that the incident took place at “Ondo Road exactly at Ijagun, Road junction”. That the significance of requiring the prosecution to prove the locus criminis was elucidated by Ngwuta, JSC in Ibrahim v. State (supra) at 198 paragraphs C – D. That, the variance between Olisa Road in the body of the charge and Ondo Road as stated by PW1 was never resolved. The case of Onubogu v. The State (1974) 9 SC.1 at 20 was then cited to urge us to resolve the issue in favour of the Appellant.

Learned Counsel for the Appellant went on to submit that the prosecution did not prove that those who assailed the PW1 were armed with a gun as stated in the charge. That PW2 described the metal object recovered as “a substance that looks like a gun”. That the object was admitted in evidence as Exhibit “C”. That the learned trial Judge stated at page 189 links 26 – 27, that he had examined the object, and that it is not a gun

thereby debunking the case of the prosecution that the assailants of PW1 were armed with a gun. Furthermore, that, there is no evidence on who recovered Exhibit “C” and from who or how it was recovered. That PW2 and PW3 were not witnesses to the commission of the offence which fact was confirmed by PW2 who testified that Exhibit “C” was transferred to him at the State C.I.D. along with the accused persons. That in any case, the PW3 went further to state that he did not know the Vigilante members who arrested the Accused persons as he did not see them nor record their statements. That the said Exhibit “C” was never shown to PW1 to either identify, confirm or deny whether it was the very object allegedly pointed at him at the time of the crime alleged. The cases of State v. Nnolim (1994) 5 NWLR (pt.345) 394; Afolalu v. State (2010) 16 NWLR (pt.1220) 584 and Ogudo v. State (2011) 18 NWLR (pt.1278) 1 were then cited to submit that, in the circumstances, the vigilante members became vital witnesses.

On the issue of identification, learned counsel for the Appellant submitted that there was no

evidence of identification or evidence linking the Appellant to the offences charged. That before PW1 was branded a hostile witness, he had insisted that the Appellant was not among his attackers. The cases of Popoola v. State (2018) 10 NWLR (pt.1628) 485 at 503; Adelani v. State (2018) 5 NWLR (pt.1611) 18 at 50 and Bassey v. State (2012) 12 NWLR (pt.1314) 209 at 232 were then cited to submit that eye witness evidence is one of the best forms of identification but that in the instant case, the eye witness (PW1) did not link the Appellant to the offences for which he was convicted. The cases of Oshodin v. State (2001) 12 NWLR (pt.726) 217; State v. Nnolim (supra) and Osuagwu v. State (2016) 16 NWLR (pt.1537) 31 were also cited to submit that, failure to call those vital witnesses is fatal to the prosecution’s case. That in any case, there was no evidence that the members of the Vigilante Group that arrested the Appellant were dead or that it was practically impossible to produce them in Court. In other words, the Vigilante men who allegedly arrested the Appellant are vital witnesses whose evidence is fundamental to the trial.

On the extra-judicial statements of the Appellant which the prosecution allege is confessional, learned counsel for the Appellant contended first of all, that the learned trial Judge erred in his ruling on the trial-within-trial when he first discredited the Appellant before proceeding to evaluate the evidence of the Appellant. That by that procedure, the trial Court upon summing up the evidence, hastily and wrongly considered the credibility of the prosecution witnesses and thereafter considered the credibility of the Appellant contrary to the accepted guidelines established in Kojo II v. Bonsie & Anor (1957) 1 NLR 1223/1226 and applied by the Supreme Court in Popoola v. Adeyemo (1992) 8 NWLR (pt.251) 1 at 33.

Learned Counsel for the Appellant went on to submit that, the trial Court mis-stated the law on corroboration of confessional statements thereby misapplying the six-way test established in R v. Sykes (1913) 8 CAR.233. That the rule in R v. Sykes requires confessional statement to be corroborated by independent evidence outside the confession. The cases of Kanu v. R (1952) 14 WACA 30; Kopa v. State (1971) 1 ALL NLR 150; Dawa v. State (1980) 9

– 11 SC 236; Stephen v. State (1986) 5 NWLR (pt.46) 978 and Onuoha v. State (1987) 4 NWLR (pt.65) 331 were cited in support. We were accordingly urged to resolve this issue in favour of the Appellant.

In response, learned counsel for the Respondent cited Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that, by the presumption of innocence therefore, the burden of proof in a criminal trial is on the prosecution who must prove its case beyond reasonable doubt. The cases of Richard v. State (2013) LPELR – 22137; Alabi v. The State (1993) 7 NWLR (pt.307) 511 at 531 and Solola v. The State (2005) 5 SC (pt.1) 135 were cited in support. The cases of Aderounmu v. FRN (2019) LPELR – 46923(CA) and Jimoh v. The State (2018) LPELR – 44074 (CA) were then cited to submit that, to secure conviction, the prosecution must prove all the ingredients of the offence charged. That, in the instant case, the prosecution did not prove the offences of conspiracy to commit armed robbery and attempted arm robbery against the Appellant beyond reasonable doubt. That in the instant case, the prosecution proved their case

against the Appellant beyond reasonable doubt.

It is also submitted that the prosecution can establish the guilt of an accused person by one or more of the following ways:
(a) Confessional Statement.
(b) Circumstantial evidence.
(c) Evidence of eye witness(es).

That in the instant case, the prosecution relied on the three ways stated above. It was then submitted that to prove a charge of attempted armed robbery, the prosecution must lead evidence of the steps taken by the accused person towards the commission of armed robbery. In other words, that the last act done by the accused person towards the commission of the main act which would have resulted in the offence of armed robbery, had he not been interrupted. That, the essential elements to be proved are the physical act of the accused which is sufficiently proximate to the consummation of the actual offence charged. The cases of Osetola & Anor v. The State (2012) LPELR 9348 (SC) and Obasi v. The State (2019) LPELR – 46862 (CA) were cited in support. The cases of Tope v. State (2019) LPELR 47837(SC)

and Ayomitan v. State (2018) LPELR – 45700 (CA) were then cited to submit that, to prove attempted armed robbery, the following ingredients must be proved beyond reasonable doubt:
(i) That, there was an attempt to rob;
(ii) That the accused was armed; and
(iii) That the accused person participated in the attempt.

On the first ingredient, learned Counsel for the Respondent submitted that, the act of the accused which constitute the offence must be immediately connected with the commission of the particular offence charged, and that it must be more than a mere preparation to commit the offence. The cases of Rev. King v. State (2016) LPELR – 40046 (SC) andShurumo v. State (2011) All FWLR (pt. 568) 864 at 890 were cited in support, and to further submit that, the available evidence reveals that PW1 was attacked by the Appellant and one other at gun point, injured him and took his motorcycle from him. That the Appellant and his co-accused climbed the motorcycle and were about to move it when PW1 pushed them off; shouted for help and people came to his rescue. That in the instant case, the last act of the Appellant which manifested their intention was the

climbing of the motorcycle so as to move it away. Relying on the extra-judicial statements of the Appellant (Exhibits “D”, “E” and “H”), learned counsel submitted that, it was the intervening act that prevented the actual commission of the offence of armed robbery.

Learned Counsel for the Respondent went on to submit that, PW2 and PW3 revealed in their testimonies, that the Appellant and his co-accused were armed with a gun (Exhibit “C”) which was recovered from the Appellant at the scene of the crime. That by the evidence, Exhibit “C” is part of a gun and therefore qualified as an offensive weapon as stipulated by Section 15 of the Robbery and Firearms (Special Provisions) Act (supra). That the Appellant himself admitted in Exhibits “E” and “H” that he was armed with “a half gun” which is Exhibit “C”, and therefore the argument of the Appellant that failure to call the Vigilante members who recovered Exhibit “C” from the Appellant has no substance.

On the issue of failure to call the

vigilante members, learned counsel for the Respondent submitted that a vital witness is a witness whose evidence may determine the case one way or the other. The cases of Okwunna v. State (2015) LPELR – 24757 (CA) and Egberetamu v. State (2014) LPELR – 22615 (CA) were cited in support. The cases of State v. Ajie (2000) 11 NWLR (pt.678) 343 andFRN v. Iweka (2011) LPELR – 9350 were then cited to submit that, the prosecution is only bound to call those witnesses whom it considers to be material and vital to the proof of its case beyond reasonable doubt. That in that respect, one witness whose evidence is cogent and credible will suffice in proof of a charge. It was then submitted that, the vigilante men who recovered Exhibit “C” from the Appellant are not vital witnesses because the charges are conspiracy to commit armed robbery and attempted armed robbery and the prosecution could still succeed even if the weapon used had not been recovered and tendered at the trial. That it is so because, as held in Ameh v. State (2018) LPELR – 44463 (SC) and Elewanna v. State (2019) LPELR – 47605 (CA) failure to tender

the weapon deployed in the robbery cannot prejudice the prosecution’s case.

On whether the accused participated in the attempted robbery of PW1, learned counsel for the Appellant relied on the evidence of PW2 and PW3 who testified that the Appellant was arrested at the scene of crime; and that the Appellant made a Confessional Statement admitting to have committed the offences. That the said Confessional Statements were admitted in evidence as Exhibits “D”, “E” and “H” after a trial within trial was conducted. The cases of Ofordike v. State (2019) LPELR – 46411 (SC) and Fulani v. State (2018) LPELR – 45195 (SC) were then cited to submit that, a Confessional Statement which is direct, positive and unequivocal is sufficient to ground a conviction. The cases of Dibie v. State (2007) All FWLR (pt.363) 83 at 114; Nwachukwu v. State (2007) All FWLR (pt.390) 1380 at 1406; Oche v. State (2007) 5 NWLR (pt.1027) 214 and Akinmoju v. State (2000) FWLR (pt.II) 1893 were also cited to submit that, in relying on a Confessional Statement, Courts are enjoined to consider some other evidence of circumstances, no

matter how slight which make it probable that the confession is true. That by the evidence of PW2 and PW3, it is probable that the confession of the Appellant was true.

On the treatment of PW1 as a hostile witness, learned counsel for the Respondents cited Sections 230 and 232 of the Evidence Act, 2011 which deal with the issue. That by Section 233 of the Evidence Act, 2011, the credit of a witness may be impeached by, inter alia, proof of a previous statement which is inconsistent with any part of his evidence which is liable to be contradicted. That in the instant case, PW1 was treated as a hostile witness by the prosecution upon an application to the Court pursuant to Sections 230 and 232 of the Evidence Act, 2011. That he was so treated when he gave evidence which is inconsistent with his former statements to the Police (Exhibits “A” and “B”.) Learned Counsel then submitted that the trial Court was right in granting the application to declare PW1 as a hostile witness. That in the circumstances, the case of R. V. Gidado (1940) 6 WACA 60 at 62 referred to by the Appellant is only applicable to Confessional

Statement recorded by a person different from the interpreter wherein, it is required that the interpreter be called to give evidence but where the recorder is both the interpreter, and the recorder, as in the instant case, the decision in R. V. Gidado will not apply.

Learned Counsel for the Respondent went on to submit that,Sections 230 – 233 of the Evidence Act do not mandate that the previous statement of a hostile witness be read to him before the witness is treated as a hostile witness. That all the law requires is that, the circumstances of such previous statement be mentioned to the witness and he be asked whether or not he made such statement. That in the instant case the procedure was duly followed before Exhibits “A” and “B” were admitted in evidence. We were accordingly urged not to expunge Exhibits “A” and “B” from the records.

On the application of the inconsistency rule, learned Counsel for the Respondent contended that, the rule is only applicable to the evidence of an ordinary witness, and not an accused person. That an ordinary witness is any other witness in the trial

other than the accused person. It was accordingly submitted that, PW1 not being an accused person in the trial, is therefore an ordinary witness. The cases of Simon v. State (2017) LPELR – 41988 (SC) and Akinlolu v. State (2015) LPELR – 25986(SC) were cited in support. That PW1 having been treated as a hostile witness, his evidence in Court and his Extra-Judicial Statements Exhibits “A” and “B” became useless and cannot be relied upon by the Court. It was thus submitted that, the trial Court was therefore in error when it relied on same in coming to a decision. The cases of Adeleye v. State (2014) LPELR – 23063 (CA) and Ibeh v. State (1997) 1 NWLR (pt.484) 632 were cited in support. We were however urged to hold that, the error did not occasion a miscarriage of justice to the Appellant as there are other evidence which could support the conviction such as the evidence of PW2 and PW3.

On the contradictions pointed out by learned Counsel for the Appellant, learned Counsel for the Respondent conceded that there are indeed contradictions in the evidence of PW2 and PW3 as to the scene of

crime but argued that the contradictions are not material. That contradictions in the evidence of the prosecution will only be fatal to the prosecution’s case, if they are material. That material contradiction must relate to the substance of the charge; and that trivial or minor contradictions may not be fatal. The cases of Stephen v. State (2018) LPELR – 45207(CA) and Usman v. State (2018) LPELR – 46388(CA) were cited in support and to further submit that, the contradictions must go to the root or essential elements of the offence charged. It was therefore submitted that, the contradictions in the evidence of PW2 and PW3 as to the scene of crime do not go to the root or essential ingredients of the offence charged. The cases of Egwuche v. State (2018) LPELR – 43975(CA) and Yunusa v. State (2017) LPELR – 43151(CA) were cited in support, and to urge us to hold that the contradiction pointed out by the Appellant did not affect the substance of the evidence of PW2 and PW3. We were accordingly urged not to disturb the findings of the learned trial Judge and to affirm the conviction.

Now, it is the settled principle of law in an accusatorial

system of administration of criminal justice, that an accused person is presumed to be innocent until he is proven to be guilty beyond reasonable doubt by a competent Court of law. This is recognized throughout the common law jurisprudence. In Nigeria, this system has been given constitutional imprimatur by Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended), which stipulates that:
”36(5). Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:’
The right to be presumed innocent as constitutionally guaranteed to an accused person has therefore cast the burden on the prosecution to rebut that presumption. The prosecution, therefore, have the onerous burden to adduce credible evidence to prove the guilt of the accused person beyond reasonable doubt. The charge against the accused person can only be said to have been proved beyond reasonable doubt; if the prosecution adduces credible evidence which proves all and every ingredient of the offence charged. It means therefore, that if the prosecution fails to prove

any one of the essential ingredients of the offence, the law holds that they have not proved the offence charged beyond reasonable doubt and the accused will be entitled to an acquittal. See Abdullahi v. State (2008) 17 NWLR (pt.1115) 203; Shehu v. The State (2010) 8 NWLR (pt.1195) 112; Ugboji v. State (2018) 10 NWLR (pt.1627) 346; Ukeje & Anor v. Ukeje (2014) 11 NWLR (pt.1318) and Onwe v. State (2018) 5 NWLR (pt.1612) 217. Thus, inOgunleye Tobi v. The State (2019) LPELR – 46537(SC), Peter-Odili, JSC held as follows:
“It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in the case”.
Proof beyond reasonable doubt does not mean proof beyond every iota of doubt or all doubt. Proof beyond reasonable doubt has been held to mean such proof that dispels with fanciful possibilities. It has also been held to

mean establishment of the ingredients of the offence charged in tandem with Section 138 of the Evidence Act, 2011. See Woolmington v D. P. P. (1935) A. C. 462; Ajayi v. State (2013) 9 NWLR (pt.1360) 589, State v. Onyeukwu (2004) 14 NWLR (pt.893) 340; Egharevba v. State (2016) 8 NWLR (pt.1515) 433 and Afolayan v. State (2018) 8 NWLR (pt.1621) 223. In the case ofBakare v. The State (1987) NSCC 267 at 273, Oputa, JSC (of blessed memory) said:
“Also it has to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt. Reasonable doubt will automatically exclude unreasonable doubt, imaginary doubt and speculative doubt, a doubt not borne out by the surrounding circumstances of the case….. Absolute certainty is impossible in human adventure including criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.”
Recently, in the case of Egharevba v. State (supra), my

Lord, Ngwuta, JSC cited and relied on the case of K. Gopal Redding V. State AP AIR (1979) SC 387, where the Supreme Court of India held that:
“A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons”.
With the above cited dicta of the Supreme Court of Nigeria, and of India, our path has now been illuminated on what “proof beyond reasonable doubt” means in our jurisprudence. What remains to be pointed out now, is that, the burden of proof in criminal trials is almost always on the prosecution. That is the ultimate duty reposed by law on the prosecution, and it does not shift. The Defendant (accused) has no burden to proof his innocence. See Oluwole Oyetomi v. the State (2018) LPELR – 46146 (CA); Elvis Ezeani v. Federal Republic of Nigeria (2019) LPELR – 46800(SC) and Igabele v. the State (2006) 6 NWLR (pt.975) 100 at 131. The only duty of an accused person

is to adduce some evidence which may create some doubt in the prosecution’s case and therefore unlikely to be true. SeeBakare v. The State (supra); Nwodo v. State (2018) LPELR – 46335(SC) and Ndukwe v. State (2009) LPELR – 1979(SC).

Now, the prosecution may discharge the burden cast on them by law, to proof the guilt of the accused person beyond reasonable doubt by any one or more of the following ways:
(a) by the evidence of eye witness or witnesses who saw when and how the offence was committed.
(b) by the Confessional Statement of the accused which is direct, positive and unequivocal and duly proved, pointing unambiguously that the accused has admitted to committing the offence charged, and
(c) by circumstantial evidence which leads to the irresistible conclusion that the accused and no other person committed the offence charged.
In the instant case, the learned trial Judge found at page 175 lines 20 – 21 of the record of appeal, that the prosecution supplied evidence to discharge the burden cast on them through the direct evidence of eye witness and the Confessional Statement of the Appellant. Indeed,

they were entitled to do so. See Igbikis v. State (2017) 11 NWLR (pt.1575) 126, Paul v. State (2015) ALL FWLR (pt.778) 893 and Akwuobi v. State (2017) 2 NWLR (pt.1550) 421.

Now, it is not disputed that the prosecution called three (3) witnesses in proof of their case. The only eye witness is PW1 who is also the victim of the offences charged. PW2 and PW3 are Investigating Police Officers and did not witness ‘first hand”, the commission of the offences charged. The evidence they gave were gotten in the course of their investigative duties. In the evaluation of the evidence of PW1, the learned trial Judge observed at page 175 lines 22 – 25 of the record of appeal as follows:
“Still on the direct evidence of the eye witness, i.e. PW1, it is important to state from the outset this case would have been a very straightforward case but for PW1 who turned hostile while giving his evidence in the witness box.”

The learned trial Judge then held at page 177 lines 3 – 21 of the record of appeal as follows:
“It is the law that if a witness is treated as hostile by the party calling

the witness, both the sworn evidence of that witness as well as the witness’s previous unsworn statement become unreliable and both must be rejected. See Dare Adeleye v. The State (2014) LPELR – 23063 (CA), Okonkwo v. State (1998) 8 NWLR (pt.561) 210. I agree with the prosecuting Counsel that having declared PW1 as hostile witness in this case, his evidence becomes unreliable and same rejected; it cannot be relied upon anymore.
The argument of Learned counsel to the accused persons that PW1, stated in his evidence that the accused persons were not one of those who accosted him or attacked him is misconceived, the Prosecution having declared PW1 as hostile witness, his evidence in this matter becomes rejected and unreliable, and I so hold.”

Learned Counsel for the Appellant now argues that it was not proper for the trial Court to accede to the prayer of the prosecution to convert PW1 into a hostile witness, as the PW1 was merely telling the truth. That doing that resulted into injustice to the Appellant as he was deprived of the benefit of evidence from the PW1 which was beneficial to him. The question we have

to resolve now, is to determine who a hostile witness is. The Evidence Act, 2011 does not specifically define who “a hostile witness” is, but it gives us a clue under Section 230 of the same Act by stipulating that:
“230. The party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Court, prove hostile contradict him by other evidence, or by leave of Court, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances or the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement.”
Before a party calling a witness can Cross-Examine such witness as to a former statement made by him relative to the subject matter of the trial, which previous statement is inconsistent with his testimony in Court, he must first of all brand such witness a hostile one by leave of the Court. Where a party has not declared a

witness called by him a hostile witness, he would be bound by the evidence of such witness, as evidence against interests. This is so because, a party is deemed to guarantee the reliability and truthfulness of his witness and must therefore take the result of the evidence of his witness(es). See Ikeni v. Efamo (1966) 5 NWLR (pt.446) 64, Okoya v. Santilli (1994) SCNJ (pt.II) 333 at 375 andElewuju v. Onisaodu(2000) 3 NWLR (pt.647) 95. Thus; in Odi v. Iyala (2004) 8 NWLR (pt. 875) 283 at 308, Tobi, JSC (of blessed memory) said:
“where a witness called by a party gives evidence against his interest, our adjectival law requires the party to urge the Court to declare him a hostile witness for purposes of cross-examination. This is to enable the party discredit the evidence of the witness and reject the evidence.”
I think that is what transpired in the instant case when PW1 testified in Court. When the PW1 testified, the prosecution wanted him to inform the Court whether he was able to identify his assailants but he was not forthcoming. This is despite the fact that he had made two previous statements to the Police, immediately

after he was attacked; one at Igbeba Police Station and the other at State C.I.D, Eleweran, Abeokuta, wherein he stated that he was able to identify the Appellant. Indeed, he admitted to making those statements. Consequently, the prosecution applied that PW1 be designated a hostile witness, which the Court granted. From the record, I am of the view that, the right thing was done when the Court granted the application but learned Counsel for the Appellant would not agree with that. He wants the prosecution to be stuck with the testimony of their witness which would obviously be against the interest of the prosecution. Thus, he wishes so that the Appellant can take the benefit of it. As it is, the law gives the prosecution the right to reject the testimony of their witness which is against their interest. The learned trial Judge therefore rightly acted in accordance withSections 230, 231 and 232 of the Evidence Act, 2011. See also, Federal Housing Authority v. Sommer (1986) 1 NWLR (pt.17) 533; Ibeh v. State (1997) 1 NWLR (pt.484) 632; Famuroti v. Agbeke (1991) 5 NWLR (pt.189) 1 and Senator Ibrahim Saminu Turaki & Anor v. Alhaji Danladi Abdullahi Sankara & Ors

(2011) LPELR – 9203 (CA). Thus, in Ibeh v. State (supra), Belgore, JSC elucidated the point as follows:
“… Once the prosecution discovers a witness is giving contrary evidence to what he already said in his depositions to the Police, the options are as follows: one, if the witness intimates before he goes into witness box that he would change his story, the prosecution will apply to the Court that he would be called only for Cross-Examination as his evidence is contrary to his previous deposition. The Court would accede to this and the evidence of this witness will be of no value to either side. Secondly, if the witness resiles on getting into the witness box on his previous deposition on the same case, the prosecution applies to treat him as a hostile witness. In such cases the witness will be declared a hostile witness if the Court rules so. But before ruling, the Court must be satisfied as to the discrepancy in his previous deposition and evidence on Oath. Once satisfied, the Court will rule the witness a hostile witness to be Cross-Examined by the prosecution.”

Now, what is the effect of the evidence of a witness who has been declared hostile? The law, as settled by plethora of authorities is that, if a witness has been declared hostile by the Court, then the sworn testimony of such witness as well as the witness’s previous unsworn statement(s) become unreliable and both must be rejected. See Okonkwo v. State (1998) 8 NWLR (pt.561) 210; Adebambo v. Olowosago (1985) 3 NWLR (pt.11) 740; Awuse v. Odili (2005) 16 NWLR (pt.952) 416. The position is akin to the inconsistency rule. It is therefore my view that, the learned trial Judge was right when he held the evidence of PW1 to be unreliable and rejected same.

Having thus held, I am of the view that the other issues raised by Appellant on the Statement of the PW1 have become unnecessary. To bother about them now, will in my view, amount to academic exercise in that they will not add any value to evidence of PW1 one way or the other. See Plateau State of Nigeria v. Attorney-General of the Federation (2006) 25 N.S.C.Q.R. 17 and C.P.C. v. INEC & Ors (2011) 18 NWLR (pt.1279) 493.

As pointed out earlier, having rejected the evidence of PW1 who was allegedly the

victim and eye witness to the incident leading to the trial and conviction of the Appellant, the learned trial Judge decided to rely on the Confessional Statements of the Appellant to convict. Those Statements are in evidence as Exhibits “D”, “E” and “H”. The learned trial Judge then found that, in the circumstances, the Appellant stands or falls solely on the strength of his alleged Confessional Statement. It is the law that, the Extra-Judicial Statement of an accused person made to the Police, which is found to admit of the crime charged, will be sufficient to base a conviction thereon. In fact, it has been held that, such statement admitting to the commission of the offence, is the best evidence the Court can rely on to convict. It also relieves the prosecution of the onerous burden of calling other evidence and shortens the time and cost of litigation. However, before such statement can qualify as a Confession, it must be direct, positive and unequivocal to the fact that the accused person committed the offence charged. SeeSections 28 and 29 of the Evidence Act, 2011. See also Ikpo v. State

(2016) 10 NWLR (pt.521) 501; Adeyemi v. State (2013) 14 NWLR (pt.1373) 129, Saliu v. State (2014) 12 NWLR (pt.1420) 65; Imoh v. State (2016) 17 NWLR (pt.1540) 117 and Abiodun v. State (2013) 9 NWLR (pt.1358) 138. Thus, in Alabi Tope v. The State (2019) LPELR – 47837 (SC), Abba Aji, JSC held as follows:
“It is settled law that an accused person can be convicted solely on his Confessional Statement. If a Court of law comes to the conclusion that a Statement made by an accused person satisfies all the legal requirements of a Confessional Statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt. The reason is simply that, the Court can and does convict an accused person; solely on his Confessional Statement.”

However, there may be occasions where, and is often the case, the accused person will admit to have committed the offence but at the trial, retract or resile on Oath from the Confessional Statement. In such circumstances, the Supreme Court has held in a legion of cases, that the fact that the accused has resiled from the confessional would not make the

Court to reject or discard the Confessional Statement. The Court may still rely on the said confessional Statement to convict, but before doing that, the Courts have been enjoined to ascertain the probability or the truth of the confession by endeavoring to find out from the totality of the evidence adduced at the trial, whether there are other evidence outside the confession which make it probable that the confession is true. The Court will do that by considering the following questions:
(a) Is there anything outside the confession to show that it is true?
(b) Is the confession corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity to commit the crime charged?
(e) Was the confession true?
(f) Is the confession consistent with other facts which have been ascertained and proved?
Generally, therefore, Courts have been enjoined to have the above listed questions in mind, so as to ascertain the truthfulness of the confession by looking for other evidence outside the confession before proceeding to convict. See Kareem v. F.R.N. (No.2)

(2002) 8 NWLR (pt.770) 604 and 683; Aliu v. State (2014) LPELR – 23253 (CA); Isong v. State (2016) LPELR – 40609 (SC); Tanko v. State (2008) 16 NWLR (pt.1114) 594 and Awosika v. State (2018) LPELR – 44351 (SC).

In the instant case, the learned trial Judge found the following facts as providing corroboration as to the truth of the Confessional Statements of the Appellant:
(a) that in Exhibit “H”, the Appellant stated that he learned Mechanics and stated same in his testimony on Oath.
(b) that in Exhibit “E”, he stated that he could not go further than Secondary School Education because his father was financially in capacitated; and that he repeated same in Cross-examination.
(c) that it was the Appellant who took the Police to the 2nd accused person’s house.

The learned trial Judge then concluded at page 191 lines 26 – 192 line 4 as follows:
“In sum, I hold that the two Accused persons definitely had the opportunity to commit the crime, DW1 having been caught almost at the scene immediately after the crime and he, also leading PW3 and other Policemen to the house of DW2

where he was arrested. Considering the circumstances of this case, I have no doubt at all in my mind that the Confessions of the two Accused persons in “Exhibits “D”, “E”, “F”, “G” and “H” are true. I am satisfied that the contents of “Exhibits “D”, “E”, “F”, “G” and “H” are consistent with other facts which have been proved both by the evidence of PW2, PW3 and the two Accused persons before the Court.”

I wish to point out that the evidence which will corroborate a Confessional Statement and therefore establishing its truthfulness must come from outside the confessional statement itself. In the instant case, the facts listed above, which the learned trial Judge relied on as establishing the truth of the contents, are facts intrinsic in the statements. They therefore cannot supply the required corroboration, especially when they are not material facts to the proof of the offences charged. A perusal of the judgment of the trial Court, particularly at pages 177 – 181 of the record of appeal will show that the learned trial judge also placed premium

on the testimonies of PW2 and PW3 in arriving at the guilt of the Appellant.

It should be noted that apart from the PW1, there was no other eye witness called by the prosecution. The other two witnesses who testified as PW2 and PW3 are Investigating Police Officers. Their evidence is limited to their roles in the course of the investigation. They did not witness the commission of the offence nor were they present when the Appellant was arrested. The PW2 and PW3 are therefore not competent to testify as to the circumstances leading to the arrest of the Appellant. The PW2 in his sworn testimony in Court at the time of the arrest of the Appellant, he was at the State C.I.D, Eleweran, Abeokuta. That while there, a case of armed robbery was transferred from the Divisional Police Station, Igbeba, and that he was assigned to investigate. Under Cross-Examination by Mrs. Awofeso, PW2 stated that he was not the one who arrested the Appellant. That the Appellant was only handed to him in the Police Station together with Exhibit “C”. He was therefore not in a position to say how and when

the Appellant was arrested nor Exhibit “C” recovered.

The PW3 was the first Police Officer to come into contact with the Appellant. He testified that he was on duty at the Igbeba Police Station, Ijebu-Ode when one Haruna Yusuf PW1 came to the station in company of 2 members of Vigilante to lodge a complaint that the Appellant and one other attempted to rob him at gun point on the 19/5/2015. Under Cross-Examination by Mrs. Awofeso, the PW3 stated that:
“I was not the one who arrested the 1st Accused person at the scene of crime. I did not therefore witness what transpired at the scene between those who arrested the 2nd Accused person and the 1st Accused person himself. I do not know the names of the Vigilante who arrested the Accused person. I did not see the Vigilante men who arrested the 1st Accused person and did not obtain statements from them. I was given the information at the Charge Room that Vigilante men assisted the PW1 to arrest the 1st Accused person is not important and that was why I did not invite them to make statements…”

It is apparent therefore, that the PW3 had no knowledge of the arrest of

the Appellant. He did not participate at all in the arrest of the Appellant. He also had no contact with the Vigilante that allegedly arrested the Appellant. I am also of the view that PW1 and the Vigilante members were at the center of the arrest of the Appellant. The PW1 and the Vigilante members were therefore vital witnesses in the prosecution of the case of the Appellant. Their evidence was fundamental to a successful prosecution of the case, since their testimony would have clarified the fundamental issues of the incident and the role, if any, played by the Appellant in the execution of the alleged crime. See Ogudo v. State (2011) LPELR – 860 (SC); Adamu v. State (2019) LPELR – 46902 (SC); State v. Nnolim & Anor (1994) 5 NWLR (pt.345) 394; Smart v. State (2016) All FWLR (pt.826) 548; and Lase v. State (2018) 3 NWLR (pt.1607) 502. In the case of Hassan v. State (2017) 5 NWLR (pt.1557) 1, the Supreme Court, per Rhodes-Vivour, JSC said:
“A vital witness is an eyewitness to the commission of a crime or/and a witness who can give very truthful and relevant evidence that would resolve the case one way or the other. A witness

who gives evidence on what is logical and true is a vital witness.”
In Smart v. State (supra), Rhodes-Vivour, JSC again stated that:
“A vital witness is a witness whose evidence is very important, since his testimony decides the case either way. If follows that where the prosecution fails to call a vital witness, the prosecution’s case may crumble like a park of cards.”
In the instant case, the members of the vigilante Group who were said to have interrupted the act of robbery and also arrested the Appellant were vital witnesses. Failure to call them is therefore fatal to the prosecution’s case. The learned trial Judge was therefore in grave error when he relied on the Confessional Statements of the Appellant and the testimonies of PW3 as supplying proof that the Appellant was been fixed or fixed to the scene of crime. I accordingly hold that, the prosecution failed to prove the fact of attempted armed robbery and the fact that the Appellant was linked to the commission of the offence beyond reasonable doubt. The prosecution has therefore failed to prove that the Appellant is guilty of attempted

armed robbery. Issue one (1) formulated by me is therefore resolved in favour of the Appellant.

Now, on the issue of conspiracy to commit armed robbery, learned Counsel for the Appellant contended that, the prosecution failed woefully and absolutely to prove the charge of conspiracy to commit armed robbery. The argument of learned Counsel for the Appellant in support of that submission is that, the trial Court’s consideration of the inchoate offence of conspiracy to commit armed robbery before considering the substantive offence of armed robbery is premature and inappropriate.

Learned Counsel for the Appellant went on to submit that, the crime of conspiracy is almost hatched in secrecy and that Courts always recognize the difficulty of seeking direct evidence in prove of the conspiracy. That in the circumstances, it is open to the trial Court to infer conspiracy from the facts of the case. In other words, that conspiracy is an offence that is inferentially deduced from the acts of the parties, done towards the realization of the common criminal objective. The cases of Ndozie v. State (2016) 8 NWLR (pt.1513) 1 at 13; Oduneye v. State (2001) 2

NWLR (pt.697) 311 and Daboh v. State (1977) 5 SC 197 were cited in support. We were accordingly urged to resolve the issue in favour of the Appellant.

Learned Counsel for the Respondent concluded that, when act of conspiracy is charged along with the substantive charge, the appropriate thing is to deal with the charge for the substantive offence first before proceeding to consider the charge of conspiracy. The cases of Agugua v. State (2017) LPELR – 42021 (SC) and Farouk v. State & Ors (2019) LPELR – 48127 (CA) were cited in support. It was however submitted that, the issue is not one of substantive law but of practice which will not affect the decision of the trial Court save where miscarriage of justice has been occasioned thereby. That, conspiracy to commit an offence is separate and distinct offence from the substantive offence charged. The cases of Martins v. State (2019) LPELR – 48889 (SC) and Agugua v. State (supra) were then cited to submit that the learned trial Judge was right when he found the Appellant guilty of the charge of conspiracy. We were accordingly urged to resolve this issue against the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, I had observed from the beginning of this judgment that, where a charge of conspiracy to commit an offence is charged along with the commission of the substantive offence for which the conspiracy is hatched, it will be appropriate to first consider the substantive offence before proceeding to consider the charge of conspiracy. This is recommended as a matter of practice and convenience and not a matter of law. In other words, the Supreme Court has not laid down a rule of law by such recommendation which must be followed by Courts.

Now, it is the law that conspiracy is an agreement between two or more persons to commit an unlawful act, or to do a lawful act by unlawful means. The overt act or omission of each of the conspirators is the actus reus and it is by reference to the acts of each conspirator that the fact of conspiracy or the agreement can be adduced. The gist of conspiracy is, therefore, the meeting of the minds of the conspirators which is a fact hardly capable of direct proof. The Court saddled with the duty of determining the issue will therefore consider the various acts or omissions of the various

conspirators in order to determine whether they point to a pre-determined end. As it is said, “by their fruits, you shall know them”. It therefore means that conspiracy is a matter of inference to be determined from certain acts of the parties done in pursuance of a criminal purpose between them. See Ndozie v. State (2016) 18 NWLR (pt.1513) 1, Iboji v. State (2016) 9 NWLR (pt.1517) 216; Njovens v. State (1975) LPELR – 2042 (SC) and Osareren v. F.R.N (2018) 10 NWLR (pt.1627) 221.

In the instant case, the learned trial Judge considered the facts and the law applicable in a charge of conspiracy to commit an offence generally. Without more, the learned trial Judge concluded that the charge of conspiracy to commit armed robbery was also proved against the Appellant beyond reasonable doubt. Generally, in law, a charge of conspiracy is a distinct offence separate from a charge on the substantive offence. Therefore, though the charge for the substantive offence might fail but the offence of conspiracy may still succeed. However, for that to happen, there must be some evidence which point independently of

the substantive offence that there was indeed a conspiracy to commit the substantive offence. See Alonge Temitope v. The State (2010) LPELR – 3752 (CA); Amadi v. State (1993) NWLR (pt.314) 644 and Adelarin Lateef & Ors v. F.R.N. (2010) LPELR – 9144 (CA). Accordingly, where the prosecution relied on the same facts or evidence in proof of the substantive charge, to prove the charge of conspiracy, the charge of conspiracy will fail if the substantive charge has failed. Thus, in Kazeem Oseni v. The State (2017) LPELR – 42546 (CA), I said:
“In the instant case, there is no independent evidence adduced by the prosecution to prove the charge of conspiracy. In other words, the prosecution relied on the same facts or evidence in prove of the substantive charge(s) of murder and to prove the charge of conspiracy. The law therefore is that, where the prosecution did not adduce independent evidence of the conspiracy, but relied on the evidence in proof of the substantive offence to infer conspiracy, where the conviction for the substantive offence is set aside on appeal, the charge of conspiracy will also fail…”

In the instant case, the prosecution did not point to any evidence which point to the fact of conspiracy to commit armed robbery. The result is that the prosecution also failed to proof the charge of conspiracy to commit armed robbery beyond reasonable doubt. This issue is also resolved in favour of the Appellant.

Having resolved the two issues formulated by me in favour of the Appellant, it is obvious that the appeal has merit. It is accordingly allowed. The judgment of the Ogun State High Court of Justice, delivered on the 13th day of June, 2018 in Suit No. HCJ/16C/2016 is hereby set aside. The Appellant (Dare Adekoya) is accordingly acquitted and discharged.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, HARUNA SIMON TSAMMANI, JCA just delivered and 1 agree with my Lord’s reasoning and conclusion.

Having read the record of appeal as well as the briefs of argument filed on behalf of Counsel for both parties, I am of the view that the Prosecution failed to prove that the Appellant is guilty of attempted Armed Robbery and it also failed to prove the

charge of conspiracy to commit Armed Robbery beyond reasonable doubt.

This appeal has merit and it is allowed by me and the Accused/Appellant is accordingly discharged and acquitted.

FOLASADE AYODEJI OJO, J.C.A.: I read before now the lead judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, JCA. I agree with his Lordship that the prosecution has failed to prove the case against the appellant beyond reasonable doubt as required by law and that the decision of the lower Court convicting him of the offences of conspiracy to commit armed robbery and attempt to commit armed robbery should be set aside.

The law is trite that for an accused person to be convicted of an offence the prosecution must adduce cogent evidence linking him to the offence for which he is charged. He must be connected with the commission of the offence. He must be identified as the person who committed the offence. The identification of an accused person is a key ingredient in establishing he committed the alleged offence. Where an accused person is not properly identified or sufficiently linked with the commission of the alleged offence, a doubt is created

which must be resolved in his favour. See DIBIA VS STATE (2017) 12 NWLR (PT. 1579)196: LAWAL VS. STATE (2016) 14 NWLR (PT. 1531)69; OSETOLA VS. STATE (2012) 17 NWLR (PT. 1329) 251.
In the instant appeal, none of the members of the Vigilante Group who were alleged to have interrupted the act of robbery and arrested the appellant was called as a witness by the prosecution. They are vital witnesses whose evidence is very important. The prosecution called three witnesses who testified as P.W.I, P.W. 2 and P.W. 3 respectively. P.W. 1 is the victim of the offence and thus an eye witness. P.W.2 and P.W.3 are investigating officers who were not present at the scene of crime but only gave evidence of what they were told and what they did in the course of investigation. P.W. 1 the only eye witness was however declared hostile and his evidence rejected by the trial Court. The evidence of P.W.2 and P.W.3 was not sufficient to establish the guilt of the Appellant. All the ingredients of the offences for which the Appellant was charged were not proved. There was no credible evidence linking him with the offences. The prosecution did not discharge the onus of proof

beyond reasonable doubt placed on him by law.
In CHUKWUMA VS. FEDERAL REPUBLIC OF NIGERIA (2011) 13 NWLR (PT. 1264)391 AT 408, PARASE D-F, the Supreme Court, per Muhammad, JSC held as follows:
“The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In the process, the requirement of the law is that the prosecution has the duty to prove all the essential elements of an offence as contained in the charge, The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during the proceedings before a trial Court comes to the conclusion that an offence had been committed by an accused person.”
It is in the light of all the above and the more detailed reasons given in the lead Judgment that I also set aside the judgment of the trial Court and enter a verdict of discharge and acquitted in favour of the Appellant.

Appearances:

Dr. Wunmi Bewaji, Esq., with him, K. O. Kareem, Esq. For Appellant(s)

M. Adebayo Esq. (Chief State Counsel, Ogun State Ministry of Justice) For Respondent(s)