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ADEWALE v. STATE (2022)

ADEWALE v. STATE

(2022)LCN/16053(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, July 04, 2022

CA/AS/137C/2020

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

ABDULKABIR ADEWALE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

It is settled law that the respondent is to prove its case against the appellant beyond reasonable doubt. Once that burden has not been discharged any finding holding otherwise would be perverse and the appellate Court reviewing the decision on appeal can interfere with such findings and set aside same. See Iyaro V The State (1988) 1 NWLR (Pt. 69) 256; Sugh v. State (1988) 2 NWLR (PT.77) 75; Onubogu v. The State cited in the case of Ikaria v. State (2013) All FWLR (Pt. 671) 1463. PER DANJUMA, J.C.A.

THE STANDARD OF PROOF IN A CASE OF ARMED ROBBERY

​In a case of armed robbery, it is not enough for the prosecution to prove that, there was robbery and that it was a robbery carried out with the use of weapon, the prosecution must further prove beyond reasonable doubt that the Appellant participated in the robbery. See: Ikemson v. The State (1989) (Pt. 110) 3 NWLR 455; Section 135(1) of the Evidence Act, 2011. PER DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Delta State High Court of Justice delivered by Justice F.N. Azinge (Mrs) sitting at the Udu judicial Division on the 29th day of July, 2019 convicting and sentencing the appellant to death for conspiracy to commit armed Robbery and armed Robbery.

FACTS OF THE CASE
The appellant was arraigned with one other person (2nd defendant) before the trial Court on an information filed on 2/7/2012 upon a three count charge. Whilst the appellant (1st defendant) was charged by the State on a two count charge at the trial Court for the offences of conspiracy to commit arm robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special) Act Cap. R11 Vol. 14 Laws of the Federation of Nigeria, 2004 and Armed Robbery of a Toyota Matrix with Reg. No. GT534 and cash sum of N7,000 (Seven Thousand Naira) on or about 27th day of January, 2012 at Ovwain punishable under Section 1(2)(a) of the Robbery and Firearms (Special) Act Cap. R11 Vol. 14 Laws of the Federation of Nigeria, 2004, the second defendant was charged with one count (count III) receiving property obtained by means of Armed Robbery, punishable under Section 5 of the Robbery and Firearms (Special) Act Cap. R11 Vol. 14 Laws of the Federation of Nigeria, 2004, The prosecution in proof of its case, called three witnesses PW1, PW2 and PW3 and tendered 8 Exhibits which included Exhibits C and C1, i.e the appellants’ extra judicial statement and attestation form and Exhibits D and D1, appellants’ additional extra judicial statement and attestation form respectively. It was the case of the prosecution that the appellant and three others who are now deceased while armed robbed the PW 2 of his Toyota Camry Car with which they also robbed the PW1 of her Toyota Matrix car and cash sum of N7,000 on the same day but at different times and locations on 27/1/2012, at gun point at Ovwain, Delta State. That three of the armed robbers were later killed in a gun duel with the police led by Onyeh Kelechi. The prosecution further stated that the appellant and co-accused (second defendant) were taking the Toyota Matrix car to Kembe, a border town between Nigeria and Niger Republic when they were arrested by the Custom officers at the boarder of Kebbi State and Niger Republic who handed them over to the Police at Kebbi State who in turn handed both persons over to a team of policemen including the PW3, from the A Division Police Station, Warri. That the PW1, the victim and owner of the Toyota Matrix car identified the appellant as one of those who robbed her. The report of the policeman. The appellant testified for himself and called no other witness. The appellant denied having anything to do with the said robbery. It is the appellant’s case that he was arrested in a town in Delta State while going to work with his boss; that he was tortured by PW3 and his team; that his toe was cut with a plier by Pw3 and his team, his penis burnt, his hand was also cut with a cutlass before the confessional statement was obtained from him, the appellant. That the confessional statements are involuntary and were obtained from the appellant under duress. After hearing the case and the argument in support and against the charge, the trial Court in its judgment convicted the appellant on the two counts charge and sentenced the appellant to death by hanging.

​Aggrieved with his conviction and sentence by the learned trial Judge, the appellant lodged this appeal and upon four grounds of appeal.

The parties have filed and exchanged their respective Briefs of Argument and adopted same at the hearing of the appeal. The appellant’s brief of Argument is dated 19/7/2021 and was filed on 22/7/2021. The brief of argument of the respondent dated 25/2/2022 with the leave of Court for enlargement of time granted on 9/2/2022 was filed on 4/3/2022. The Record of Appeal was deemed as properly transmitted to this Court on 24/6/2021.

The appellant has identified two issues for determination as follows:
1. Whether from the evidence of the prosecution witnesses, the prosecution was able to prove the offences of conspiracy to commit armed robbery and armed robbery against the Appellant (Grounds1 & 2)
2. Whether the learned trial Judge was right when he convicted and sentenced the Appellant to death (Ground 3)

The respondent on its part raised one issue thus:
Whether the learned trial Judge was right when he held that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.

APPELLANT’S ARGUMENT
On issue one, the learned counsel in the appellant’s brief of argument under issue one argued that from the entire evidence by the prosecution witnesses there is no iota of evidence to show any element of conspiracy between the Appellant and the three armed robbery suspects that were killed by the police. In butressing the forgoing submissions he referred to the following: Exhibit B a statement made by a police officer, Onyeh Kelechi, the police team leader who had the first contact with PW1 who was robbed of her Toyota Matrix car on the 27/01/2012, where Onyeh Kelechi stated very clearly that PW1 told his team that she was robbed of her car by three(3) boys and they promptly pursued the said armed robbers and in a subsequent gun duel between the police and the armed robbers, the three armed robbers were killed; the statement of PW2 (whose Toyota Camry was stolen) to the police and his evidence in Court that he was robbed of his Toyota Camry by three boys on bike and the said boys were later killed by the police and under cross-examination, PW2 said that he is seeing the Appellant for the first time; evidence of PW3 (Investigating Police officer) who said he conducted a thorough investigation of the matter, inter-alia said that PW1 who was robbed of her Toyota Matrix was robbed by armed robbers made up of three persons and the three persons were killed by the police and under cross-examination, PW 3 further stated that the only reason the 1st accused (appellant) was charged to Court was because the 1st accused (appellant) was found in the car that was robbed; PW1 earliest Statement to the police made on 28/01/2012 inter alia sad that amongst these three armed robbers, that were killed and brought to the police station, the one that is naked is the one that pointed a gun at her and he is the only person she can identify. The learned counsel submitted that the evidence of the three prosecution witnesses and exhibit B are consistent with the effect the robbery incidents of 27/1/2012 were carried out by three young men who were killed by the police during a gun duel immediately after the robbery of PW1. He submitted that the prosecution failed woefully to prove any element of conspiracy against the Appellant. He refers to Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act cap RII Vol. 14 LFN, 2004 and the case of Salawu vs State (2011) All FWLR (Pt. 594) 35 at 50 paras. D-F where it was held that in proof of the elements constituting an offence such as armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (supra) the elements are: there was a robbery, it was a robbery carried out with the use of offensive weapons, the accused person participated in the robbery; and counsel submitted that there is no evidence linking the appellant to have participated in the armed robbery and that the only reason appellant was charged to Court according to PW3 was because appellant was found in the alleged snatched car; that even PW3 in his evidence testified that from his investigation no weapon was found in possession of the first accused (appellant). Counsel further contended that the prosecution did not discharge the evidential burden of proof beyond reasonable doubt placed on it by the Evidence Act, 2011. He contended that notwithstanding the confessional statements Exhibits C, C1, D and D1 relied on by the Court, the prosecution was still not relieved of that burden of proof. He argued that the appellant denied making the confessional statements and in a trial within trial clearly stated how the statements were extracted from him under duress. He urges this Court to hold that from the circumstances under which the alleged confessional statements were extracted by the police from the appellant, same ought not to have been held to be made voluntarily. That the arrest of the appellant was based on mere suspicion in view of PW3 (IPO) evidence and it is trite that suspicion however strong cannot ground conviction, Adebayo Vs State (2008) 6 ACLR 372 at 390 refers. Counsel further relied on the case of Clark vs State (2007) 5 ACLR 100 at 117 which held that suspicions may be many and sometimes grave, yet they will amount each to a suspicion and no further and combing them do not elevate them beyond the realms of suspicion. The evidence and statements aforementioned, of PW1, PW2 and PW3 clearly created a very big doubt over the culpability of the appellant and once there is doubt in the evidence of the prosecution, as in this case same should be resolved in favour of the appellant. Bassey vs State (2012) All FWLR (Pt. 633) 1816 at 1834 para. C; Onafowokan vs State (2008) 6 ACLR 461at 470 Per Aniagolu JSC. It is the submission of the appellant’s Counsel that although the prosecution is not under obligation to call legion of witnesses, it is however under legal obligation to call vital and material witnesses that will resolve an issue that may be in dispute. He posits that the live wire of the prosecution’s case is that the appellant was arrested by law enforcement agents with another person in a town in Kebbi State, a border between Nigeria and Niger Republic in PW1’s Toyota Matrix snatched by the dead three armed robbers; the appellant denied being arrested in Kebbi but he was arrested in Orhuwhorun in Delta State; PW3 said that the basis for charging the Appellant to Court was because he was found in the snatched vehicle; more so, the PW3 was not among the said Law Enforcement agents that allegedly arrested the appellant in Kebbi State; prosecution never called any of the law enforcement agents as witness nor take their statement or tender any statement made by their team leader or any of them at the trial. In view of the forgoing contention appellant’s Counsel submitted that the law enforcement agents who allegedly arrested the appellant at border town is vital in the case, the prosecution is under obligation to call the said law enforcement agents that arrested the appellant and failure of the prosecution to call any of the alleged Law Enforcement agents as witness seriously vitiates the case of prosecution more so when the appellant said he was arrested in Orhuwhorun Town in Delta State and not Kebbi as alleged by the prosecution. He contended that the circumstances of the arrest of the appellant is vague and uncertain. He cited the cases of Osuagwu vs State (2017) All FWLR (Pt. 872) 1475 at 1507 paras. B-F; Edoho vs State (2003) FWLR (Pt.173) 29 at 54 para. D

The appellant’s Counsel stated that the evidence of the appellant that he was arrested in Orhuwhorun town in Delta State was not considered by the trial Court and further submitted that the trial Court was under obligation to consider all defences available to the accused no matter how flimsy it may appear. Osuagwu vs State (supra). He submitted that the prosecution has failed to prove the offences of conspiracy to commit armed robbery and armed robbery against the Appellant.

​On Issue 2, the appellant’s Counsel adopted his argument under issue one and submitted that the learned trial Judge acknowledged that there were contradictions in the evidence of the prosecution witnesses but he held that the said contradictions were not material and thus do not vitiate the case of the prosecution. He submitted that the conviction and sentence of the appellant to death by the learned trial Judge was premised on a very wrong foundation which foundation is built on alleged confessional statements (Exhibits C, C1, D and D1) that were extracted involuntarily by the police and contradicting evidence of the prosecution witnesses and this has clearly led to a huge miscarriage of Justice, Counsel refers us to Section 29(2)(b of the Evidence Act) which provides that the Court shall not allow confessions to be given against the person that made it, except the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this Section. Refers to the case of State vs Ajayi (1999) 2 LRCNCC 207 at 222 para. G. to the effect that the burden of proving the voluntariness or otherwise of a confessional statement rests upon the prosecution, he submitted that it was the uncontroverted evidence of the appellant that he was forced to sign the alleged confessional statement and no contrary evidence from the prosecution to show if the appellant’s Counsel was present when the alleged confessional statements were obtained, it has been held that where confessional statement is not obtained in the presence of accused Counsel or in the presence of a legal practitioner such statement should be rejected by the Court, Owhoruke vs C.O.P (2015) 245 LRCN 35 at 59 paras Z-EE, Per Rhodes Vivour JSC.

Appellant’s further pointed out the discrepancies/ contradictions in the prosecution’s case as follows: In Exhibit B, Corporal Onyeh Kelchi reported that PW1 told his patrol team that her vehicle was snatched by three boys, in her statement to police PW1 said of the boys that robbed her she can only identity one of the three robbers, PW2 in his statement to the police and also evidence at the trial Court, confirmed that his vehicle was snatched by a three boys that were later killed and whose dead bodies he identified, PW3, the IPO also confirmed the fact that PW1 was robbed by a three men gang that were subsequently killed however, PW1 in her evidence of 8th of July, 2013 said that four boys robbed her of the said vehicle contrary to her earlier statement to the police that three persons robbed her of her vehicle, again PW1 who had earlier said she could recognise only one of the robbers and indeed identified same to the police, in her said statement, in another twist, later said she recognized the appellant as one of the robbers. Counsel submitted that the prosecution who had the obligation to proffer explanation for the contradictions yet, it did put forward any explanation and the trial Court went ahead to rely on the said evidence of the prosecution witness to convict the appellant. He further submitted that the holding of the trial Court at page 220, lines 1-5 of the Record of Appeal where it held:
“In the case before the Court, the Defendants were found in possession of the vehicle the following day after the vehicle was stolen on the 27th day of January, 2012. They offered no explanation as to how they came into possession of the PW1’s car stolen the previous day and was taken to Benin by the 1st Defendant on the same day 27/1/2012.”
is not supported by any evidence adduced at the trial. Appellant’s Counsel thus, urged this Court to hold the decision was wrong, allow the appeal, set aside the judgment of the trial Court.

RESPONDENT’S ARGUMENT
On his part, the respondent’s Counsel raised a lone issue for determination as earlier in this judgment reproduced above, respondent’s Counsel in his argument submitted that the offence of conspiracy is complete when two or more people agree to do an unlawful act by unlawful means, concluded agreements can be inferred by what each person does or does not do in furtherance of the offence of conspiracy, and it is immaterial that the persons had not met each other. Adejobi vs State (2011) 12 NWLR (Pt. 1216) 347 at 378-379, Paras. H-C, refers. He posits that the Court establish the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned as direct practice evidence of the plot between conspirators is hardly capable of proof and the meeting of minds in conspiracy need not be physical. He submitted that the offence of conspiracy can be inferred in the instant case from the extra-judicial statement of the appellant who opined that he and his co-conspirators on 27/1/2012 all went for robbery in front of Ovwie Aladja Police Station where they blocked one Toyota Matrix car owned by PW1, precious Owolo while armed with gun. As soon the car was snatched they drove it off to Kebbi until subsequently arrested by Customs officers, he posits that the statement of the appellant clearly shows that the appellant acting as the pilot of the snatched car clearly showed he is neck deep into the snatching of cars. Counsel further submitted that from the totality of the evidence assembled and the evaluation of same there is no doubt that there was a meeting of minds of the Appellant and others manifested by the overt act of robbing PW1’s Vehicle while armed with guns and driving off with it. Respondent’s Counsel contended that the trial Court was right in its decision at pages 216-217 of the Record of Appeal when it held inter-alia as follws:
“The prove of conspiracy generally is a matter of inference. The involvement of the 1st defendant can be inferred from the circumstances of the case even if he had not made Exhibit ” C” and “D”

The Court can infer conspiracy and convict on it if it is satisfied that the defendant pushed by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. Even if the role of the 1st defendant was the role of a driver who drives the robbed vehicles away after the robbery, it is performing one part of the armed robbery, it is performing one part of the armed robbery on the PW1 on that fateful day, which was in furtherance of their common and unlawful design.

Respondent’s Counsel urged this Court not to disturb the said finding as same is not perverse but distilled from the evidence on the record.

Respondent’s Counsel argued that the prosecution proved the three elements of armed robbery to wit: that there was a robbery or series of robberies; that the said robbery was an armed robbery and that the appellant was one of those who took part in the armed robbery. He submitted that from the evidence of PW1 at pages 132-133,135 of the Record of Appeal as well as the confessional statements (Exhibits C and D) of the appellant pages 10-14 of the Record of Appeal, the prosecution of the three elements of armed robbery. On the desirability of seeking corroborative evidence outside the confessional statement, respondent’s Counsel submitted that the trial Judge did just that when it held at page 214 of the Record of Appeal as follows:
“Is there any positive evidence on which it can be said that the confessional statements were the accurate record of what the 1st Defendant made to the interrogating officer?
I reiterate that the available evidence before this Honourable Court reveals that the evidence of the prosecution witnesses and the confessional statements of the 1st Defendant correspond in substance and material facts with the crime and also corroborate the events and each other”

On failure to call the Law Enforcement Agents raised by the appellant’s Counsel, the respondent’s Counsel in their brief contended that there is established principle of law to the effect that once a witness to an offence is not called, it is fatal to the prosecution’s case. He submitted that the duty on the prosecution is to call those witnesses it considers material to establish its case and to prove same beyond reasonable doubt. He stated that a Court can convict upon a sole evidence of one witness so long as the evidence is credible, positive and sufficiently probative of the offence with which an accused has been charged. He further submitted that the evidence of PW1, PW3 and the extra-judicial statements of the appellant is sufficient to prove the offence against the appellant and calling the Law Enforcement Agent that arrested the appellant would have been a mere surplusage. He posits that appellant is also at liberty to have called the said Law enforcement agent if he felt that, that would have helped his defence.

The learned Counsel submitted that the trial Court adequately considered, evaluated the defence of the appellant at page 44 of the Record thus:
“The 1st defendant retracted his extra-judicial statement to the police during his oral evidence in Court. The law is settled that a defendant can be safely convicted on the confessional statement if the trial Court is satisfied that the defendant made the statement and as to the circumstances which gave credibility to the contents of the confession.”

He also submitted that the evidence of the Appellant that he was arrested in Orhuwhorun town in Delta state was an afterthought for it was never mentioned anywhere in the Appellant’s extra-judicial statement. As to issue of conflict in the evidence is PW1, PW2 and PW3 in respect to the number of persons that robbed PW1 of her Toyota Matrix, respondent’s Counsel argued that a piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated not just when a minor discrepancy between them. He submitted that the Court is only concerned with testimony on material facts in this case, to wit: was there a robbery; was the Robbery an armed robbery and was the appellant one of those who took part in the armed robbery, and not on peripherals that have no bearing on the substances in issue. It is only if there is contradictions in the testimony of the prosecution witnesses on the above stated facts that grave doubt would be cast on the prosecution case and not whether the number of persons that robbed PW1 while armed with guns were three or four. Egwunu vs State (2013) 13 NWLR (Pt. 1372) page 525 at 555 paras. B-D.

We have, therefore been urged to dismiss the appeal in its entirety as the prosecution proved the two counts offences against the appellant.

RESOLUTION
From the Record of Appeal and in particular the judgment of the trial Court leading to the grounds of appeal, the respective issues for determination formulated by the parties are apt, I have reproduced same above, the lone issue identified by the respondent’s Counsel is similar to the two issues raised by the appellant, it encompasses/ subsumes the two issues raised by the learned Counsel for the appellant.

I shall, therefore, adopt the lone issue as framed by the respondent’s Counsel for the determination of this appeal.

ISSUE FOR DETERMINATION
Whether the learned trial Judge was right when he held that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt?

At the beginning of this judgment, I have recounted the submissions of Counsel for and against this appeal.

It is settled law that the respondent is to prove its case against the appellant beyond reasonable doubt. Once that burden has not been discharged any finding holding otherwise would be perverse and the appellate Court reviewing the decision on appeal can interfere with such findings and set aside same. See Iyaro V The State (1988) 1 NWLR (Pt. 69) 256; Sugh v. State (1988) 2 NWLR (PT.77) 75; Onubogu v. The State cited in the case of Ikaria v. State (2013) All FWLR (Pt. 671) 1463.

In the instant case, the prosecution called three witnesses to establish their case. As rightly said by the Honourable trial Court at page 209 of the Record of Appeal, it does appear that the respondent (prosecution including the investigator) rests its case on Exhibits C and D, the alleged confessional extra judicial statement of the appellant. It should be noted at this juncture that the said confessional statements were keenly contested by the appellant during a trial within trial that he did not write the said statement but was forced to sign same by PW3 (IPO) and his team, under duress and after being tortured to which his three teeth were removed, his penis burnt, part of his body cut with cutlass. Part of the said torture was shown to the trial Court to which the trial Court at page … of the Record of Appeal in her ruling acknowledged to have seen. Yet, surprisingly the trial Court admitted the statements in evidence as being made voluntarily. The appellant still maintained his stand during his oral evidence in chief and under cross-examination to the effect that he was forced to sign the extra-judicial statements (Exhibits C and D) which implicated him as one of the gang members that robbed the PW1 of her Toyota Matrix car and sum of money on 27/1/2012 at gun point, under duress and after being tortured.

It is quite clear from the judgment of the trial Court, that the major/main evidence relied on by the trial Court in arriving at the conviction of the appellant came from the PW1 and extra-judicial statement of the appellant’s Exhibits C and D which after trial within trial, the trial Court admitted same to have been voluntarily made by the appellant.

Learned Counsel for the appellant contended that the conviction and sentence of the appellant to death by the learned trial Judge was premised on a very wrong foundation which foundation is built on alleged confessional statements(Exhibits C, C1, D and D1) that were extracted involuntarily by the police and contradicting evidence of the prosecution witnesses and this has clearly led to a huge miscarriage of Justice. Counsel refers us to Section 29(2)(b) of the Evidence Act.

The learned trial Court in its judgment at page 215 of the Record of Appeal agreed that there was contradiction in the evidence of the prosecution witnesses in respect of PW1’s evidence vis-à-vis the PW3’s evidence, however, it treated the contradiction, as to the number of persons that robbed the PW1 on 27/1/2012, that is whether the robbers were three or four, as a minor discrepancy which it said is not fatal to the case of prosecution.

Respectfully, I do not agree with that conclusion of the trial Court. The crucial issue in this case is whether the appellant was amongst the gang of robbers that robbed the PW1 on 27/1/2012, the discrepancies as to the number thus, becomes material in the circumstances of this case which the trial Court failed to properly consider. In reviewing this issue it is important to reproduce some of the relevant testimonies of the prosecution.

​PW3 the investigating police officer in his evidence in chief at page 153 of the Record of Appeal inter-alia stated as follows:
“In the first place complainant came to station and reported that three boys snatched her vehicle under gun point. Police swung into action and in the course of the action there was crossfire with the three armed men of which the three armed men were gunned down” (underlining mine for emphasis)

Further under cross-examination at page 154 of the Record of Appeal PW3 stated:
“… I conducted a thorough investigation. Yes … I obtained statement from corporal Oye Kelechi, he was the one who received the information and he led the action. Yes the document shown to me is the statement I recorded from corporal Oye Kelechi. Yes the Corporal stated that while on duty, on patrol, a woman came to report that her car was snatched from her by three persons and that the three persons were killed in the action. What the PW1 said in Exhibit A is that the police swung into action and the three robbers who snatched my car were kill (sic). Out of the people that were killed that it was only the one who pointed a gun at me that I can identify. Yes the PW2… also made statement to me, he is the owner of the Toyota Camry which was also recovered that day. Yes he said in his statement that the three boys that snatched his Toyota Camry were killed by the police…yes it was the Toyota Camry car of PW2 that was used to rob the PW1 on 27/1/2012 by the three boys…. Yes, the three boys who robbed …PW2 and PW1 and were killed. Yes from investigation no weapon was found in the possession of the 1st accused. Yes the only reason that the 1st accused was charged to Court was because the 1st accused was found in the car that was robbed.” (Underlining mine for emphasis)

It should be noted that PW2 who is the owner of the Toyota Camry which was used to rob the PW1 the same day, in his statement to the police and evidence in Court on record, said that he was robbed on 27/1/2012 by a gang of armed robbers made up of three young men who were subsequently killed by the police and he also identified them at the mortuary. Under cross-examination PW2 said he was seeing the appellant for the first time.

As can be gleaned from exhibit B and confirmed by the PW3 (IPO) in his evidence reproduced above, PW1 in a report made to the Police patrol team led by Corporal Onyeh Kelechi the author of Exhibit B, shortly after the robbery incident mentioned that three boys robbed her. The PW1 in her statement Exhibit A made at the Police Station A Division Warri, on the following day after the said armed robbery incident of 27/1/2012, mentioned for the first time and again in her oral testimony at the trial Court that four persons robbed her at gun point and snatched her Toyota Matrix car. The discrepancy in the said statement vis-à-vis the earlier complaint of PW1 as recorded in Exhibit no doubt raised a doubt in the case of the prosecution.

Throughout her evidence, no reason was given by PW1 (or any other prosecution witness) for missing out or withholding such important information as to the Presence of the 4th person who was alleged to be the “pilot” of the whole robbery incident in which PW1’s Toyota Matrix car was snatched. In a reasonable/ordinary man’s mind, one would have thought that at the time the PW1 met the Police Patrol Team, the first person that should have come readily in the mind of the PW1 is the 4th person who according to PW1 in Exhibit A and evidence in Court later on, was the one (the appellant) that asked her about the tracker and AC in her Toyota Matrix and whom according to her, drove her car away. In fact, she should have ordinarily and naturally at that earliest time be concerned about the person that was allegedly in possession of her car. However, in a bid to clear that doubt the trial Court at page 215 of the Record of Appeal opined/resolved as follows:
“What I understand the PW1 to be saying when the PW3 said she reported that three armed robbers robbed her is referring to the three in the Toyota Camry belonging to the PW2. She stated in Exhibit A that they were four. Three took her away in the Toyota Camry Car while one drove her car, the Toyota Matrix away to an unknown destination. … That person was the 1st defendant, who asked her, if there was tracker in her car and she answered in the negative”

​In my view, the explanation of the trial Court above is not tenable in the light of the other evidence before the Court. As earlier stated Onyeh Kelechi, the patrol team leader who had the first contact with PW1 who was robbed of her Toyota Matrix car on 27/01/2012, stated very clearly in Exhibit B, that PW1 told his team that she was robbed of her car by three(3) boys and they promptly pursued the said armed robbers and in a subsequent gun duel between the police and the armed robbers, the three armed robbers were killed; PW2 the first victim of the robbery who was robbed same day the PW1 was robbed and with whose car was used to rob the PW1, also stated that three men gang robbed him and he identified the three as the ones who were eventually killed same day by the police in a cross fire, also from the evidence of PW3 who investigated the robbery incident thoroughly as he claimed, confirmed the fact that it was three persons that robbed PW1. I thus, agree with the learned Counsel for the appellant that the evidence of the prosecution witnesses and Exhibit B are very manifest to the effect that the robbery incidents of 27/1/2012 were carried out by three young men who were subsequently killed by the police patrol team during a gun duel immediately after the robbery of PW1.

​Further, the trial Court in the resolution of the issue of conflict and contradiction in testimony of the prosecution witnesses, PW1 vis-à-vis PW2 and PW3, relied on the extra-judicial statement of the Appellant Exhibit C wherein the trial Court at 215 stated that the Appellant in Exhibit C dated 12/2/2012 stated inter alia that they were four that robbed PW1 and that he asked the PW1 on that day of robbery whether her motor has a tracker, then he told her she will see her car. The trial Court used the same Exhibit C (which she ought to have treated with caution in view of the gory circumstance in which same was extracted as shown by the appellant on record) as a hanger in accepting PW1’s testimony and that the prosecution has proved its case beyond reasonable doubt. I agree with the appellant’s Counsel that the circumstances under which Exhibits C and D were extracted by the police as clearly shown on Record (see: pages 147-148 of the Record of Appeal) by the appellant, the trial Court, who even acknowledged on record, the scars and the gaps on the appellant’s mouth from where the appellant stated his teeth were pulled out, ought to have exercised caution in relying on the said exhibits. I hold in my humble view that the said extra judicial statements, Exhibits C and D were not made voluntarily.

​In a case of armed robbery, it is not enough for the prosecution to prove that, there was robbery and that it was a robbery carried out with the use of weapon, the prosecution must further prove beyond reasonable doubt that the Appellant participated in the robbery. See: Ikemson v. The State (1989) (Pt. 110) 3 NWLR 455; Section 135(1) of the Evidence Act, 2011.

The PW3, IPO testified that the only reason Appellant was charged to Court was because he was seen with the second defendant in the alleged snatched car. He further testified that no gun was seen in the possession of the appellant. It is worthy to note, from the evidence on record that the appellant was allegedly arrested at a border town between Kebbi State and Niger Republic by Custom officers (law enforcement agents) who later on handed them over to police officers at Kebbi and subsequently the said persons were handed over to the PW3’s team from A Division. PW3 did not make the arrest, he is not among the officers that arrested the appellant none of the custom officers nor the police officers in Kebbi was called as a witness at the trial and no statement or report from any of the officers was tendered by the prosecution. More, importantly the appellant strongly in his evidence and cross-examination maintained that he was never arrested at Kebbi State or anywhere near there and was not arrested by any custom officer, but was arrested in Orhuwhorun town in Delta State sometime in February, 2012 and was incarcerated at A Division police Station, Warri. Permit me to also say that even the second defendant (not a party in this appeal) who was tried with the Appellant and alleged to have been arrested with the appellant the same day, place and in the snatched car, in his evidence on record at page 163 line 6 stated that he was arrested on the 9/1/2012 that is even before the robbery on 27/1/2012, he further testified at page 164 that he was not arrested with the appellant at Kembe village, (Kebbi) but at Benin Bye pass. The PW2 who identified all the three armed robbers, at the trial also stated that he was seeing the Appellant for the first time. I agree with the respondent’s Counsel submission at paragraph 3.10 of his brief of argument to the extent that it is the duty on the prosecution to call those witnesses it considers as material to establish its case and that a Court can convict on a sole evidence of one witness so long as the evidence is credible, however, it is my humble view that in the face of the lingering doubt in the evidence of the prosecution witnesses especially the PW1, the controversial nature of the extra-judicial statement, Exhibits C and D, and especially the denial by the appellant that he was not arrested at the alleged place and by the said custom officers, it is material and vital for the prosecution whose evidential burden of proof is upon, to have called any of the persons that allegedly arrested the appellant at Kebbi State whose evidence will be direct. See: Edoho v. State (2003) FWLR (Pt. 173) 29 at 54 para. D; Osuagwu v. State (2017) All FWLR (Pt. 872)1475 at 1507 paras. B-F, 1511 paras. C-D.

Whether the appellant is among the persons who robbed the PW1 to have made it 4 persons gang as alleged by the prosecution at one breath, specifically by the PW1, or not among the gang which is three persons gang and who are all dead as also testified by the prosecution (though the latter is more believable in view of the chain of events that happened on the material day 27/1/2012) is not a peripheral matter as wrongly concluded by the Respondent’s Counsel in his brief of argument or minor discrepancy as erroneously decided by the trial Court. It is indeed a material issue which must be proved beyond reasonable doubt by the prosecution and this the prosecution has failed to do in the instant case.

Again the trial Court in lines 1-5 at page 220 of the Record of Appeal held that the “Defendants” were found in possession of the vehicle the following day after the vehicle was stolen on 27/1/2012 and they offered no explanation as to how they came into possession of the PW1’s car. I quite agree with the appellant’s Counsel that the foregoing position of the trial Court is not supported by any evidence adduced at trial on Record. None of the prosecution witnesses arrested the Appellant at the border or anywhere with the vehicle and none testified to that fact. The custom officers did not testify at the trial.

​On the other hand, PW1 in her statement to the police on 28/1/2012 at pages 5 and 6 of the Record of Appeal inter-alia stated as follows:
“Amongst these three (3) armed robbers, that were killed and brought to the Police station, the one that is naked is the one that pointed a gun at me and he is the only person I can identify” (underline mine for emphasis)

A careful examination of PW1’s statement in Exhibit A and her evidence it is crystal clear that there is serious gap in the identification made by the PW1. The PW1 never pointed out the identity of the fourth person in Exhibit A, or the particular features that gave the appellant as being a member of the gang, she never described the alleged fourth person in her statement or evidence. It was only sometime in February, 2012 when the police invited her to the station that her car has been found that she was shown the appellant whom she therein allegedly identified despite the fact that in Exhibit A, she categorically stated that “the one that is naked is the one that pointed a gun at me and he is the only person I can identify”. That person obviously is not the Appellant. The person that is naked whom she identified was killed by the police. It is not on record that the PW1 knew the appellant before the robbery incident. There was no identification parade carried out by the police. Even though it is not mandatory that an identification parade must be carried out in order to identify a suspect or accused, in the circumstances of this case, same ought to have been done. Respondent’s evidence on the identity of appellant as one of the robbers is no doubt, weak and the circumstances for which respondent’s witnesses associated the appellant with the offences of conspiracy and armed robbery, which he has been convicted induces doubt and suspicion. See: Ikaria v. The State (supra) 1471-1473; Ndidi v. The State (2007) All FWLR (Pt. 381)1617.

PW1, PW2 and PW3 clearly created a very big doubt over the culpability of the appellant and once there is doubt in the evidence of the prosecution, as in this case same should be resolved in favour of the appellant. Bassey vs State (2012) All FWLR (Pt. 633) 1816 at 1834 para. C; Onafowokan vs State (2008) 6 ACLR 461 at 470 Per Aniagolu, JSC.

The robbers who carried out the armed robbery incident on 27/1/2012 were the same persons who robbed PW2 and were shot dead same day by the police not the appellant. The charge of conspiracy was not proved beyond reasonable doubt against the appellant by the prosecution from the evidence on record.

In the light of the above reasonings, I resolve this issue in favour of the appellant, the prosecution failed to prove the offences of conspiracy to commit armed robbery and robbery against the appellant.

Finally, my lords I hold that this appeal has merit, and it is allowed. The judgment of the trial Court delivered by Justice F.N. Azinge (Mrs) sitting at the Udu judicial Division on the 29th day of July, 2019 convicting and sentencing the appellant to death by hanging is hereby set aside. The appellant is hereby discharged and acquitted.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the leading judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, PJCA. My Lord has fully covered the issues in his leading judgment. I agree with his reasoning and conclusion that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt. The appellant is entitled to a verdict of discharge and acquittal. I too allow the appeal.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance, the judgment of my learned brother MOHAMMED AMBI-USI DANJUMA, JCA.

​I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.

I too hold that the appeal has merit and the judgment of the trial Court is hereby set aside. The appellant is hereby discharged and acquitted.
I abide by all consequential order(s) in the lead judgment.

Appearances:

F. I. Agboroh, Esq. For Appellant(s)

Omamuzo Erebe, Esq, (Solicitor-General Permanent Secretary Ministry of Justice, Asaba, Delta State), with him, J. A. Otite, Esq, (Deputy Director), C. O. Agbagwu, Esq, (Deputy Director) and O. Eyesio, (Mrs) (SSC) For Respondent(s)