ADU v. STATE OF EKITI (2020)

ADU v. STATE OF EKITI

(2020)LCN/14379(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/EK/86C/2018

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

ANU ADU APPELANT(S)

And

THE STATE OF EKITI RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings, be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal -Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1324) 119, Njoku v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589.
It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human endeavor including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt but nothing short will suffice.” PER AKINBAMI, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola v. State (2012) 17 NWLR (Pt. 1329) 251, Osuagwu v. State supra, Abiodun v. State (2013) 9 NWLR (Pt. 1358) 138, Ajayi v. State supra. The prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be proved – Sabi v. State supra. PER AKINBAMI, J.C.A.

WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON

It is settled in our law that, in a criminal trial the Prosecution may prove the guilt of the defendant, either by direct eye witness account, or by circumstantial evidence from which the guilt of a defendant can be inferred, or by a free and voluntary confessional statement of guilt which is direct and positive, or by a combination of any of the three modes – Emeka v. State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, Umar v. State (2014) 13 NWLR (Pt. 1425) 497. PER AKINBAMI, J.C.A.

WHETHER OR NOT THE PROSECUTION IS OBLIGATED TO CALL A HOST OF WITNESSES

The firmly settled principle of law from a long line of cases is that there is no obligation on the prosecution to call a host of witnesses. What matters really is not the number of witnesses called but rather the quality of the evidence from the witness called. See Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 526-527; Okonofua v. State(1981) 6-7 SC 1 at 18; Adaje v. State(1979) 6-9 SC 18 at 28.
On the issue of witnesses, the prosecution has a duty to name all the witnesses it intends to call at the back of an information, where it decided not to call any of those witnesses, such witnesses should be produced for the purpose of cross-examination if available. It does not lie in the mouth of the defense to urge the prosecution to call particular witness – as there is nothing stopping the accused himself from calling such witness when defence opens. Okoroji vs. State (2002) 5 NWLR (pt. 758), pg. 21. PER AKINBAMI, J.C.A.

WHETHER OR NOT THE PROSECUTION OS BOUND TO CALL EVERY EYEWITNESS TO TESTIFY

It is the prerogative of the prosecution to call witnesses relevant to its case. It is however a settled principle of law that the prosecution is not bound to call every person that was linked to the scene of crime by physical presence of, to give evidence of what he saw. Once persons who can testify to the actual commission of crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 135 of the Evidence Act, 2011.
It is not also incumbent on the prosecution to call every eye witness to testify, in order to discharge the onus placed on it by law, of proving a criminal case beyond reasonable doubt, and as a matter of fact a single witness who gives cogent eye witness account of the incident will suffice even in a murder charge. Effiong v. State(1998) 1 NWLR (pt. 562), Pg. 362, Usufu vs. The State (2007) 3 NLR (pt. 1020), pg. 504, Gambo vs. State(2006) 6 NWLR (pt.977), pg. 524. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The Appellant herein, was arraigned at the High Court of Ekiti State, Ado-Ekiti Judicial Division on the 29th day of July, 2016 for the offences of armed robbery and malicious damage. Upon the conclusion of the trial, the learned trial judge convicted and sentenced the Appellant to death amongst other punishments.

RELEVANT FACTS
The traditional Governing Council of the town of Ilawe-Ekiti, in Ekiti State headed by Alawe of Ilawe-Ekiti, by some mind-troubling decree proscribed Titilayo Ogunbiyi who was PW1, in this case before the trial judge, from engaging in the business of buying and selling plantains and bananas in the town, having been adjudged a trouble-maker. A task force was constituted to enforce the ‘Banana Ban’ and the Appellant herein was a staunch member of the task force.

And thus on 28/10/2015, PW1, and her aide Adeleye Funmilayo, PW2, were at Igede-Ekiti Market buying bananas, and when they spent up the little cash on them PW1, sent PW2 to go and collect for her the sum of N650,000.00 from her home at Ilawe- Ekiti and to also get a vehicle to bring

down some bunches of bananas from home to the market at Igede-Ekiti. The Appellant saw PW2, inside a vehicle conveying some bananas in Ilawe, and he wasted no time in giving the vehicle a hot chase until he caught up with it, commandeered the vehicle to a halt, offloaded the bunches of bananas, and put the entire bunches to waste by cutting the bananas each into two apiece. The Appellant, armed with sword, gun and cutlass, seized from PW2 the brown bag containing the sum of N650,000.00 she was taking to her boss PW1, at Igede-Ekiti market. All entreaties from both PW1 and PW2 for the Appellant to return the money he snatched off PW2 in the atmosphere of sword-and gun-wielding terror delivered no meaningful message either to the conscience or piety of the Appellant, until the brown bag was found in his room days later, during a police search emptied of its prized N650,000.00.

The Appellant was charged to Court on two count-charge of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004, and Malicious damage contrary to Section 451 of the Criminal Code Law, Cap C16, Laws of Ekiti State, 2012.

The Respondent called 8 witnesses including PW1 and PW2, two investigating police officers, photographers who captured the destruction of the bananas, and persons who sold the bananas to PW1. The appellant testified on his behalf, denying the charge, and without more closed his case before the lower Court. At the close of the trial, the trial Court convicted and sentenced the Appellant to death.

The Appellant, not unexpectedly filed this appeal against the said conviction and death sentence.

The original Notice of Appeal contained on page 230 of the Record of Appeal was dated the 17th day of August, 2017 which contained One (1) Ground of Appeal. The Appellant by Order of Court amended his Notice of Appeal in which he filed eight (8) additional Grounds of Appeal.

The said Notice of Appeal is comprised of nine (9) Grounds of Appeal. For ease of reference, I reproduce them (but without their particulars) below:-
Ground 1
The learned trial judge erred in law when he dismissed the Appellant’s motion dated 15/6/2017, but filed on the 16/6/2017 which sought for the leave of the lower Court to

recall prosecution witnesses, tender the CTC of Nigeria police crime diary extract, and the statement obtained from the complainant, Anu Adu, Chief Ogunmilade and Adeleye Funmilayo, on the 28/10/2015, either through the police or from the bar.
Ground Two
The learned trial judge erred in law when he convicted the Appellant for the offence of armed robbery, and consequently sentenced the Appellant to death while relying upon the contradictory testimonies of PW1, PW2, and other prosecution witnesses.
Ground Three
The learned trial judge erred in law when he held at page226 of the record that:
“It is in evidence that the brown bag exhibit C was recovered from the house of the defendant by the police… on the allegation that his room was broken to and exhibit C was planted therein, the Prosecution was able to debunk this.”
And thereby occasioned miscarriage of justice.
Ground Four
The learned trial judge erred in law when he held at page 223 of the record that:
“The newly substituted charge contains three counts, while the old charge dated 27/7/16 and filed on 28/7/2016 contained just a two count

charge.”
And thereby occasioned miscarriage of justice.
Ground Five
The learned trial judge erred in law when he admitted exhibits B1-B7 which are digital pictures in clear disregard to the provisions of Section 84 of the Evidence Act, 2011.
Ground Six
The Learned trial judge erred in law when he convicted and sentenced the Appellant without properly evaluating the uncontroverted evidence of the Appellant at the lower Court.
Ground Seven
The learned trial judge erred in law when he convicted and sentenced the Appellant for the offence of malicious damage of bananas belonging to Ogunniyi Titilayo based on the insufficient evidence, inadmissible and contradictory testimonies of the prosecution witnesses.
Ground Eight
The learned trial judge erred in law when he convicted and sentenced the Appellant for the offence of malicious damage of camera belonging to Adeyemi ldowu based on the inadmissible and contradictory testimonies of the prosecution witnesses.
Ground Nine
The judgment of the trial Court is altogether unreasonable, unwarranted and cannot be supported having regard to evidence.

The Appellant distilled four issues for the determination of this appeal as follows:-
A. Whether the learned trial judge was right when he dismissed the Appellant’s application filed on the 16/6/2017, and thus consequently deprived the Appellant the opportunity of placing the whole of his evidence before the Court? (Ground 1)
B. Whether the learned trial judge was right when he convicted the Appellant upon an unspecified and unserved “newly amended charge” while the information dated 27/7/16 and filed on 28/7/2016 was extant and never withdrawn by the prosecution?
(Ground 4)
C. Whether the learned trial judge was right when he convicted the Appellant for armed robbery based upon insufficient and contradictory testimonies of the prosecution witnesses? (Grounds 2, 3, and 9)
D. Whether the learned trial judge was right when it convicted the Appellant for malicious damage of bunches of banana allegedly belonging to Ogunniyi Titilayo? (Grounds 5, 6, 7, and 8).

At the hearing of this appeal on the 13th of March, 2020, Bimpe Olamiteju Esq learned counsel for the Appellant, adopted both the Appellant’s Brief of

Argument and Reply Brief in urging this Court to allow the appeal and discharge and acquit the Appellant.

On behalf of the Respondent, Olawale Fapohunda Attorney-General of Ekiti State adopted the Respondent’s Brief, and urged this Court to dismiss the appeal.

Counsel for the Respondent adopted the four issues for determination as formulated by the Appellant.

Issue 1
“Whether the learned trial judge was right when he dismissed the Appellant’s application filed on the 16/6/2017, and thus consequently deprived the Appellant the opportunity of placing the whole of his evidence before the Court?” Ground 1
The Appellant’s ground No.1, of the grounds of appeal copiously reproduced above, is predicated upon a motion dated 15/6/2017 but filed on the 16/6/2017, which sought for leave of the lower Court to recall prosecution witnesses, tender the CTC of Nigeria Police crime diary extract, and the statement obtained from the complainant, Anu Adu, Chief Ogunmilade and Adeleye Funmilayo on the 28/10/2015, either through the police or from the bar.
Most undoubtedly, particulars (a)-(d) of ground No.1- of the grounds

of appeal are highly preposterous and utterly baseless on the simple, but rather obvious ground that it was not deduced from the judgment being appealed against. Likewise, the said issue No.1 which was said to have been distilled from the grossly defective ground No.1 is incompetent. The reason being predicated on the trite principle popularly propounded by the legendary Lord Denning MR (of most remarkable and blessed memory) that you cannot put something on nothing and expect it to remain there. It will most certainly collapse. See MACFOY VS. UAC (1962) AC. 152.
It is indeed a well established principle of law, that issues for determination must be predicated upon or distilled from competent grounds of appeal; which must itself be based on the ratio decidendi of the decision being appealed against. Thus, where an issue is distilled from, or predicated upon, a defective and incompetent ground of appeal, as in the instant case, both the said issue and ground of appeal must be struck out.
I have carefully perused the issues distilled by the Appellant for the determination of this appeal. I find that the first Ground of appeal was not deduced from

the judgment being appealed against, in the Amended Notice of Appeal. I cannot find the notice of appeal against the Ruling on the motion dated 15/6/2017 referred to in Ground One of the Amended Notice of Appeal.
Thus, both issue No. 1 and the ground of appeal No. 1 upon which it is predicated are deemed incompetent and hereby struck out.
Consequently, this issue one is resolved against the appellant.

Issue Two
“Whether the learned trial judge was right when he convicted the Appellant upon an unspecified and unserved newly amended charge while the information filed on 28/7/2016 was extant and never withdrawn by the prosecution ?”(Ground 4)
In arguing issue Two, Appellant’s counsel referred to the original information filed on the 15th day of March, 2016. On the 29th of July, 2016, the Prosecution applied to withdraw the earlier charge, and substitute same with the one filed on the 28th day of July, 2016. The prosecution’s application was granted by the trial judge. The plea of the Appellant was taken again, and the case proceeded to trial. Counsel submitted that appellant was tried on this charge. But in another

breadth counsel stated that on the 31st of March, 2017, the prosecution applied to correct a name on an unspecified charge sheet, which was never served on the Appellant, as there was no proof of service in the Court’s file.

In his reply on behalf of the prosecution, the Attorney-General debunked the appellant’s argument on this issue stating same is misplaced and misconceived. He stated the law that a charge once amended, has the effect of going back to replace the original charge. He cited the case of Uguru v State (2001) 4 SC (PT2) 13. He referred to Appellant’s cases PML NIG LTD V FRN (2017) LPELR 43480 (SC) 27-29 and Agbanimu v FRN (2018) LPELR (43924) which restate the principle in Uguru v State (2001) 4 SC (PT 2) 13. The A.G urged this Court that this issue be laid to rest in favour of the Respondent, since the Appellant himself confirmed on page 8 of his Brief of argument that the application for amendment of the charge was granted by the lower Court. Therefore, the complaint of unspecified and unserved “newly amended charge” is an afterthought. The Appellant was in Court and he pleaded not guilty to the new charge

that was read to him. His lawyer was also in Court.

Resolution of issue Two
The A.G rightly asked the question, why did the appellant not object to the grant of the application for amendment, if he hadn’t been served with the then proposed new charge? Also why did the Appellant go ahead to plead to the newly amended charge, if at that point in the proceedings, he hadn’t been served with the newly amended charge?
It was rightly pointed out by the A.G. that the Appellant was represented by his counsel throughout his trial.
The Supreme Court in the case of Uguru v State (2002) 4 SC (PT 2) 13 per Kalgo, JSC held “This section empowers a Court to alter, amend or add to any charge in any criminal case before it, at any time before judgment is given in the case. It does not give any condition precedent to its application, but ensures that the amended charge be read out, and explained to the accused. This means that whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so without asking for permission or leave to do so. It then applies to the Court to accept the amendment pursuant to

the provisions of Section 163, and the Court after hearing the parties, may or may not accept or allow the amendment. If it allows the amendment, the amended charge shall replace the original charge, and shall be read and explained to the accused as the new charge. If it rejects the amendment, the original charge remains.”
As can be gleaned from the authority above, the learned trial judge followed the law in allowing the amendment sought by the prosecution. The argument and contention of appellant’s counsel are after thoughts which are discountenanced.
In the circumstance I resolve issue Two against the appellant.

Issue Three
“Whether the learned trial judge was right when he convicted the appellant for armed robbery based upon insufficient and contradictory testimonies of the prosecution witnesses?”
In this appeal, issue 3, as argued has been formulated from grounds 2, 3, and 9 (that complains that the learned trial judge erred in law, when he convicted the Appellant for the offence of armed robbery, and consequently sentenced the Appellant to death while relying on the contradictory testimonies of PW1, PW2,

and other prosecution witnesses. Ground three, that the learned trial judge erred in law when he held at page 226 of the record of appeal:
“It is in evidence that the brown bag exhibit C, was recovered from the house of the defendant by the police…on the allegation that his room was broken into and exhibit C, was planted therein, the prosecution was able to debunk this”.
Ground 9: The judgment of the trial Court is altogether unreasonable, unwarranted and cannot be supported having regard to evidence.

The burden of proving beyond reasonable doubt, the guilt of a criminal defendant sticks firmly on the prosecution. See the case of Haruna v The State (1990) 6 NWLR (PT 125) 137.

To discharge this burden, the law further imposes the duty of proving the commission of the offence of armed robbery through establishing the existence of a set of facts, which are that:
1. There was a robbery.
2. The robbery was effectuated by means of violence, or threatened violence as become evident by the possession of the robbers, or one of the robbers of offensive weapon at the material time when the robbery operation took place and

3.The defendant participated in the robbery. See Ikemson v. The State (1989) 3 NWLR (PT1100)455.

The means of proving an offence was well articulated by both counsel for the parties:-
1. Credible account of eye-witness;
2. Voluntary confession of the criminal defendant; and
3. Circumstantial evidence surrounding the perpetration of the offence.

Appellant’s counsel in arguing this Issue 3, referred to page 224 of the record of appeal wherein the learned trial judge found as follows:
“In the instant case, the evidence of PW2, nailed the Defendant to the crime. It is in evidence that PW1 sent PW2, on an errand to go and bring money to pay her customers, as well as some bananas she earlier on purchased. PW2, testified of how the Defendant stopped their vehicle (confirmed by the Defendant himself) with Defendant wielding dangerous weapon, dragged her down from the vehicle and collected the bag containing the sum of N650,000.00 from her. The story of PW2 is very credible and believable.”

Counsel contended that the finding of the lower Court ran contrary to the evidence adduced at the lower Court. He

referred to Section 135 (1) of the Evidence Act, 2011, while citing the cases ofOguntola v State (2007) 12 NWLR (PT 1049) 617; Amodu v State (2010) 2 NWLR (PT 1177) 47 in buttressing his point.

He submitted further that, the prosecution has the duty to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. The A.G agreed with this correct principle of law. He also elucidated the position of the law that the law imposes on the prosecution the duty of proving the commission of the offence of armed robbery, through the establishing of a set of Trinitarian facts.

Appellant argued that in this instant case, the Appellant is charged with the offence of armed robbery against one Titilayo Ogunniyi, PW1 on 28/10/2015, and to secure a conviction for the offence of armed robbery, the prosecution must prove all the elements of the offence of armed robbery. That on the first ingredient, it was manifest that the prosecution was unable to lead any credible evidence as to factual reality of a robbery. Counsel contended that from the totality of the evidence adduced by the prosecution, that the alleged victim of the armed

robbery PW1, was at Igede-Ekiti at the time of the robbery. In Ilawe-Ekiti, there was no report of armed robbery to the police on the 28th October, 2015. That at the trial of this case, PW1, PW2, PW3, PW7 and PW8 all attested to the fact that the matter was reported at Ilawe Divisional Police Station. Counsel further submitted that the Ilawe Divisional IPO is a vital witness to testify, whether or not there was robbery incident at Ilawe on the said date.

This submission was attacked by the A.G, who put the records straight by pointing out that Appellant’s counsel contradicted himself immediately in his paragraph 6.6 of the Appellant’s brief. The A.G challenged the appellant’s counsel to supply the authority that commands that failure to report the commission of an offence at the Divisional Police Station amounts to lack of proof of armed robbery. I agree with the A. G that the counsel should furnish the Court with such authority.

On the point of failure to call Ilawe Divisional IPO, the A.G submitted that the said lPO is not a vital witness. In that a vital witness is a witness without whose testimonies a party’s evidence will be

inconclusive, unbelievable and incomplete. He cited the case of Chukwuka Ogudo v The State (2011) LPELR SC 341/2010. It was reiterated by the A.G that Ilawe Divisional IPO is not a vital witness.

The testimony of PW1 is instructive on this point. She said on page 51 of the record of appeal that:
“Myself and Funmi went and lodged a complaint in the police station. At the station the DPO told me that the Chiefs have called them that we stole the banana…We wrote statements at the police station. The DPO then instructed that we should be brought to Area Command. Area Commander then invited those l bought banana from. They also wrote their own statements. The Chiefs were arrested and were granted bail.”

It was clearly pointed out by the A.G that there was no serious investigation of the crime by the Ilawe Divisional Police Station. Therefore he deduced correctly that there was no vital evidence for the IPO to produce before the Court. An affirmation that he is not a vital witness. I hold that all the arguments of the Appellant’s counsel on non calling Ilawe Divisional IPO is of no moment.

The Appellant’s counsel further argued that, the statements made on the 28/10/2015 by the PW1, and PW2 at the Ilawe Divisional Police station which were not tendered, revealed whether there was armed robbery on the said date. The A.G in his reply to Appellant’s contention referred to the argument as unhelpful. That it is never a requirement of our law that a prosecution witness’s statement to the police be tendered in evidence when the witness himself has already mounted the witness stand. This may only become needful if the defendant wants to contradict the witness viva voce evidence with his inconsistent statement to the police. The A.G stated that it is not the requirement of our criminal litigation nor is it a practice, he urged this Court to disregard every line of the argument in respect of this point made by the appellant.

It was further submitted by Appellant’s counsel that Exhibits C, D, E, F, G, and H ought not to have been accorded any evidential value by the learned trial judge. That the Appellant alleged that his room was broken into by unknown persons while he was in police custody. On the issue of lack of evidential value of Exhibits C, D, E, F, G and H,

the A.G urged this Court to discountenance same as mere smoke screen. That the break-in defence was an after thought. In that PW8, the IPO who investigated the case earlier at Ado Area Command testified that, the Appellant did not raise the issue of his house being broken into, when he was conducting his investigation. He PW8, was the one who recovered the exhibits from the house of the Appellant, yet he did not deem it fit to inform him of any break-in. That it was after the items had been recovered that he raised an alarm at the State Police Headquarters.

Arguing further, Appellant’s counsel stated that the Respondent’s case at the lower Court is riddled with material contradictions as can be gleaned from the record of appeal. In that PW1 stated that the police at Ilawe did not visit the scene of the incident. Whilst PW2 stated that the police at Ilawe visited the scene of the incident together with PW1. PW8 confirmed that the police at Ilawe visited the scene of the incident, and transferred the case to the Area Command Office at Ado-Ekiti on 30/10/2015. PW7, confirmed that the police in Ilawe visited the scene of the incident. PW3 gave

evidence that the matter was transferred from Ilawe Divisional Police Station to the State CID. Appellant’s counsel insisted that the material inconsistencies are fatal to the case of the prosecution.

On the issue of contradictions, A.G submitted that there is nowhere in the record of appeal that PW1 said the police at Ilawe did not visit the scene of crime. He referred to the law, that contradictions that do not affect the substance of the issue to be decided are irrelevant. He cited the case ofIsibor v State (2002) 3 NWLR (PT 754) 250; Ahmed v The State (2002) FWLR (PT 90) 1358 @1358; Uwani v The State (2002) FWLR (PT 95) 211@217. The A.G reiterated the fact that the brown bag containing the money was found in Appellant’s room, the Appellant himself admitted he was at the scene of crime at all time material. A host of prosecution witnesses testified that they saw the Appellant with offensive weapon at the scene of crime, where he robbed PW2, armed with the weapon.

Resolution of Issue Three
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who

asserts it and this is more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings, be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal -Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1324) 119, Njoku v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589.
It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human endeavor including the administration of justice. Proof beyond reasonable doubt thus simply means

establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt but nothing short will suffice.”

The charge against the Appellant before the lower Court was three counts of armed robbery and

malicious damage.

NWLR (Pt. 1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, Umar v. State (2014) 13 NWLR (Pt. 1425) 497.

It was not in contest in this appeal that a robbery indeed took place on 28/10/2015 at Imogun, when the Appellant and Chief Ogunmolade pursued the vehicle in which Funmilayo Adeleye PW2, traveled from Ilawe. The duo were armed with cutlass and gun and they ordered the driver to stop. PW2 was pulled down from the vehicle, and Appellant snatched the bag containing the sum of N650,000:00 from her. He moved near the vehicle and began to cut the bananas PW2 was conveying to Igede which were in the vehicle. This was the robbery and malicious damage for which the Appellant was charged.

The learned trial judge based on the evidence adduced before the trial Court on page 224, held as follows:-
“In the instant case, the evidence of PW2, nailed the Defendant to the crime. It is in evidence that PW1, sent PW2, on an errand to go and bring money to pay her customers as well as some bananas she earlier on purchased. PW2 testified of how the Defendant stopped their vehicle (confirmed by the Defendant himself) with Defendant wielding

dangerous weapon, dragged her down from the vehicle and collected the bag containing the sum of N650,000.00 from her. The story of PW2 is very credible and believable.”

In the instant case, the evidence of PW2, nailed the Appellant to the robbery scene.

The finding of the learned trial judge above, is based on evidence adduced before him during the trial of the Appellant. It established the first ingredient of the three count charge against the Appellant. The Court rightly accepted the first ingredient as proved and established. This correct finding of the learned trial judge is unassailable, and ought not to be disturbed.

In proving the second and third ingredients of the offence of armed robbery and malicious damage, it is obvious from the record of appeal that the Respondent relied on the statements of the PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8.

Now, the case of the Respondent against the Appellant as contained and related in the testimonies of the eight prosecution witnesses was that on the 28/10/2015, PW1, Ogunniyi Titilayo a trader in Banana went to the market at Igede and having exhausted the money on her, she instructed

PW2, Adeleye Funmilayo, to go back to llawe and collect money she kept under her bed and bananas she had purchased earlier. PW1 proceeded to collect bananas, and the money as she was instructed. But on her way back PW2, narrated that the Appellant and one Chief Ogunmolade pursued their vehicle, eventually when they reached Imogun, the Appellant and Chief Ogunmolade stopped the vehicle with a cutlass and gun and ordered the driver to stop. PW2, testified that the Appellant pulled her down from the vehicle and ordered the driver to lie down. All the while the Appellant was wielding a gun. PW2, testified that the accused snatched the bag from her even as she was crying, pleading with them that the money belonged to someone else. That as she drew near the Appellant pleading with him, Appellant went to the vehicle and began to cut the bananas. PW2, stated that she begged the Appellant that having destroyed the bananas, he should release the money for the sake of the child on her back, rather Appellant threatened to waste PW2 and her child if she did not leave him alone. PW2 stated that the Appellant ordered the driver to move away if he needed his life. The

driver left, and PW2 was there weeping when PW1 met her and asked her what happened.

The first prosecution witness PW1, was Ogunniyi Titilayo. She testified on the 28/10/2015 that she knows Adeleye Funmilayo, Oluremi Adeleye Idowu – a photographer. She also knows the Appellant very well. She remembered 28/10/2015. That day she went to the market at Igede, and having exhausted the money on her, she instructed Adeleye Funmilayo to go back to Ilawe to look for a vehicle and bring money from under her bed. PW1, then proceeded to collect bananas from the sellers, and because the sellers were getting impatient, PW1, asked her other assistant to wait, while she herself took an Okada back to Ilawe. According to her, on getting to Orimogun in Ilawe, she saw bananas in bunches on the ground and lots of people as if there was a market. On alighting from the motorcycle, she saw Amate’s child, she saw Tosin, she saw the Appellant and she saw Obadofin. They were lifting up bunches of bananas and slashing them into two.

PW1 also saw PW2, crying and she asked her what the matter was with her bananas. PW2, replied that the Appellant had collected the money from

her. PW2 then informed PW1, that it was one Oisa that chased her with a motorcycle while the Appellant collected money from her.

PW1, testified that when she demanded for her money from the Appellant even though they had destroyed the bananas, the Appellant just brought out a gun and threatened to waste her.
PW1 stated that she left the Appellant, and went to beg baba Odofin, Oisa, Patrick that she bought the bananas on credit, and that the Appellant should be asked to release her money, all to no avail.

PW1 and PW2, then went and lodged a complaint at the Police Station, the D.P.O told her that the chiefs had called them and told them that they stole the bananas.

PW1, stated that a photographer took the photograph of the scene. She stated that they wrote statement at the police station, but the D.P.O instructed that they should be taken to the Area Command. According to her, the chiefs were also arrested and were granted bail. They were taken to Ilawe and the police searched the houses of Amate’s child and that of Tosin, but nothing incriminating was found there.

PW1 stated that when the house of the Appellant was searched,

her bag was found underneath a wardrobe, and the inventory of the contents of the bag was taken. She stated that the bag was where she kept the N650,000:00.
The bag was admitted as an l.D and photographs of the scene of the alleged crime was also admitted as an ID.

When cross-examined, PW1 stated that no letter was written to her when she was banned from trading in bananas in Ilawe, but that H.R.M the Alawe of Ilawe and some chiefs banned her at the Alawe’s palace.

When further cross-examined whether she was robbed, PW1 confirmed same and stated that she was robbed at Orimogun, Ilawe. She stated that she reported the incident at Ilawe Police Station, and made a statement. She also stated that the same day the matter was taken to Area Command Ado, and she also wrote a statement. PW1, later stated in reply to a question that she wouldn’t remember the date.

When asked, PW1 replied that she knows the Appellant very well but that there has not been an encounter between them before the incident. When asked, PW1, replied that the Appellant was not among those who destroyed her mother’s house.

When cross-examined further, PW1, admitted that on the day of incident she did not get to Imogun with N650,000:00, and was only told by PW2, whom she sent, that the money was snatched.

When it was suggested to her that such an allegation can be made by a dubious person, PW1 replied that PW2 is not dubious as she actually pointed at the Appellant as the one who snatched the money. When asked, PW1 admitted that she was not there when the money was snatched from PW2.

When asked whether she entered the room of the Appellant when they were searched, the PW1, replied in the negative. She also admitted that only the police knew when the search was conducted and would not know when ld1, ld2, ld3 and ld4 got to the house of the Appellant.

When asked whether other people saw the accused pull out a gun on her, PW1 would not know, but she insisted that Appellant pulled a gun on her. She denied that this case is a revenge mission since Appellant did not offend her.

PW2, Adeleye Funmilayo who gave vivid evidence of the robbery. She remembered the 28/10/2015, the day of the robbery. She stated that she and PW1 left Ilawe for Igede to buy bananas. That PW1, instructed her to go to

Ilawe to bring money from under PW1’s bed in the house. She picked the bananas and money as instructed. But on her way back, the Appellant and one Chief Ogunmolade pursued their vehicle, eventually when they reached Imogun, the Appellant and Chief Ogunmolade stopped the vehicle with a cutlass and gun and asked the driver to stop. She testified that the accused pulled her down from the vehicle and ordered the driver to lie down. All the while, the Appellant was wielding a gun. PW2, testified that the Appellant snatched the bag from her even as she was crying, pleading with them that the money belonged to someone else. And that as she drew near the Appellant pleading with him, Appellant went to the vehicle and began to cut the bananas. PW2 begged the Appellant that having destroyed the bananas, he should release the money. It was there that PW1 met her, and asked her what happened.

PW1 also went to beg the Appellant, that having destroyed the bananas, he should release her money, so that she could pay those people waiting for her at Igede. PW2 and PW1 reported the matter at the police station.

PW2, testified further that she followed the PW1,

and the police to search the Appellant’s room, and the bag that contained the money was recovered from the Appellant’s room.

When cross-examined, PW2 replied that when she was attacked, PW1 was not there, but at Igede, and that the incident took place around 11a.m.
PW2, would not know if the driver went and lodged an armed robbery complaint in the police station that day. She stated there was no crowd when the incident happened.

When asked why Appellant was not apprehended when he came back, PW2 stated that because he held a gun and cutlass.
PW2, stated that on the day of the incident, she clearly saw the Appellant and Mr. Ogunmolade.

When asked, if she followed the police to search the Appellant’s room, PW2, replied in the affirmative and stated that it was the Appellant who went in first and opened the door to his room.

When it was suggested to the PW2, that she would not know exactly where the bag was recovered from, PW2 replied emphatically that it was recovered from the room of the Appellant and that when asked, Appellant said that he was not the owner of the bag, and that the bag does not belong to his wife.

When asked that she would not know how the bag got to the room of the Appellant, PW2 replied that it was the Appellant who collected the bag from her. When it was put to her, that PW1 was not the one robbed, PW2, replied that she was the one robbed, but it was PW1 who sent her to go and bring the money from inside her house.

On ingredient number two- That the robbery was an armed robbery by Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11, Laws of the Federation, where the accused is armed with dangerous weapon, the offence of armed robbery is committed. The evidence of both PW2 and PW1 were very direct that the Appellant carried a gun and cutlass on the day of the incident. The learned trial judge was right not to have believed the evidence of the Appellant, that he only carried a horse-whip on the day of the incident. PW2 testified that-
“Defendant crossed our vehicle and brought out a gun and cutlass…the driver stopped and Anu Adu forcefully brought
me down from the car…” she testified that “the accused snatched the bag from her… and threatened to waste her and her child if

PW2 did not leave him…”

The evidence of PW2, remained unshaken even in the face of cross-examination. In her own testimony also, PW1, stated that when she begged the Appellant to release her money, Appellant brought out a gun and threatened to kill her.

Appellant’s counsel made heavy weather of the non-tendering of the weapon used to commit the offence. The learned trial judge rightly agreed with the submission of prosecution counsel that there is no principle of law which requires the prosecution to tender the weapon used in an armed robbery to establish the guilt of an accused. See Joel Adamu v The State (2017) LPELR 41436 (SC) where it was held:
“On the non tendering of the weapons used at the robbery and the recovered stolen items, the learned trial judge said there was nothing reducing the probity and cogency of the evidence as there was enough evidence to establish the fact that there was a robbery. That is correct summation in the circumstances, as it is not often that weapons used during such transactions are recovered, or the stolen items retrieved, and so such failure to tender recovered weapons or items stolen would

new_annonot adversely affect the required proof once other parameters exist in the evidence. It is therefore farfetched to invoke the presumption of withholding evidence as provided in Section 167(d) of the Evidence Act, 2011, that is that the evidence withheld would have been unfavorable to the prosecution.”

defence opens. Okoroji vs. State (2002) 5 NWLR (pt. 758), pg. 21.
It is the prerogative of the prosecution to call witnesses relevant to its case.
It is however a settled principle of law that the prosecution is not bound to call every person that was linked to the scene of crime by physical presence of, to give evidence of what he saw. Once persons who can testify to the actual commission of crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 135 of the Evidence Act, 2011.
It is not also incumbent on the prosecution to call every eye witness to testify, in order to discharge the onus placed on it by law, of proving a criminal case beyond reasonable doubt, and as a matter of fact a single witness who gives cogent eye witness account of the incident will suffice even in a murder charge. Effiong v. State(1998) 1 NWLR (pt. 562), Pg. 362, Usufu vs. The State (2007) 3 NLR (pt. 1020), pg. 504, Gambo vs. State(2006) 6 NWLR (pt.977), pg. 524.
The appellant assessed the witnesses not called as vital witnesses. A vital witness is a witness whose evidence may determine the case

one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.
I have carefully studied the testimonies recorded in the record of Appeal. In the last paragraph on page 95-96 of the Record, the Appellant himself gave evidence as follows:-
“She then ran to police station, llawe. When the police came, they said that there was nothing they could do as PW1 has been forbidden from trading in llawe… l left the place thereafter to my father’s house. It was the fourth day after, that Chief Oisa called me, and told me that my presence was requested at the palace… The Kabiyesi later called me, and told me to follow Chief to Ado the next day. The next day myself, Chief Odofin and two other chiefs came to Ado. As soon as we got to the police Station Okesha…”
On pages 86-91 PW8, Sgt Abiola Olusoji who investigated the case at Area Commander’s Office, Okesha, Ado-Ekiti also gave evidence of how no action beyond the

police at Ilawe visiting the scene, was carried out by the police at Ilawe before the case was transferred to the Area Commander’s Office at Okesha, Ado-Ekiti. Also PW7’s evidence on page 82 of Record also buttresses this point that nothing more was done at the Ilawe Police Station than visiting the crime scene, even the photographs that he took were not received by the police at llawe, but by the police at Okesha in Ado-Ekiti.
From the evidence adduced before the Court, there was no serious investigation of the crime by the llawe Divisional Police Station. Therefore, there was no evidence for the IPO to give at the trial. In the case of N.M. Ali & Anor v The State (1988) LPELR-SC 203/1986 Oputa, JSC held:-
“As far back as 1848, in the case of Reg. v Edward Underwood & Edwards (1848) 3 Cox C.C.82, the law has been that counsel for the prosecution is not bound to call all the witnesses whose names appear at the back of the bill of indictment. In 1941, the West African Court of Appeal in R v George Kure (1941) 7 W.A.C.A. 175 at 177 noted that the duty of the prosecution is to place before the Court all available and

relevant evidence. Unless and except in cases where corroboration is needed by law, or by practice, one solitary relevant and credible witness can establish the case for the prosecution on an essential point. The need to call witnesses at all arises from the duty the law imposes on the prosecution to prove the essential ingredients of the offence charged.”
A vital witness is a witness whose evidence is fundamental, in that it determines the case one way or the other. It is such a witness without whose evidence, the prosecution’s case could not be said to have been proved beyond reasonable doubt. He is a witness who is expected to supply a missing piece of evidence that is necessary for establishing an ingredient of an offence that has hitherto not been established. It is a witness without whose evidence there will be grave gaps and loopholes in the story of a party, leaving his case riddled with serious doubts and or incompleteness.
The argument of Appellant’s counsel on non -calling the llawe Divisional Police Officer is of no moment, that is not the law.
It was argued by Appellant’s counsel that the non-tendering of

the statements of PW1 and PW2, operates against the Prosecution as withholding evidence contrary to Section 167(d) of the Evidence Act, 2011. It is never a requirement of the law that a prosecution witness’s statement to the police must be tendered in evidence, when the witness himself has already mounted the witness stand. This may only become needful if the defendant wants to contradict the witness viva voce evidence, with his inconsistent statement to the police. It is the duty of the Appellant, as a defendant in a criminal proceedings to bring out inconsistencies between the viva voce evidence of a prosecution witness and his statement to the police. It is not the requirement of our criminal litigation, nor is it a practice. The learned trial judge properly disregarded the appellant’s argument. I also agree that the argument be disregarded.
Appellant’s counsel submitted that even though there was a crowd at the scene of crime, the Respondent bore the duty to call a crowd. This also is not the law, all the Prosecution has to do is to call witnesses to give evidence on the ingredients of the crime.

The trial judge’s finding is indisputable in view of the evidence adduced by both the Prosecution and the Defence in the circumstances, relevant law, and decided authorities.

On the third ingredient i.e that the Appellant was the person or one of those who committed the offence. The evidence of PW2 is crystal clear and it pinned the Appellant as the person that collected the brown bag which contained the N650,000:00. The finding of the trial judge in my view shows the depth of his understanding of the law, the way he adduced and found the Appellant guilty as charged in Count 1, especially as the snatched bag was recovered from the Appellant’s house.

The finding of guilty as charged in Count 2, i.e Malicious Damage of bananas belonging to Ogunniyi Titilayo, by learned trial judge is one that ought not to be disturbed. Also the finding by the trial judge that the evidence weighs heavily against the Appellant is one based on the uncontroverted evidence of PW6, and PW7, which corroborate the evidence of PW2.

On the third Count of Malicious Damage contrary to Section 457 of the Criminal Code Law i.e malicious damage of Adeyemi Idowu’s camera. The

finding of the trial Court is based on evidence adduced by PW3, PW6, PW7 and PW8 which all corroborated the fact that the Appellant maliciously damaged the camera. This finding is one that flows directly from evidence adduced before the trial Court:- PW3, was one Oladele Oyedeji of C.I.I.B, Police Headquarters, Ado-Ekiti with force Number 455256. He stated that he was serving with SARS, and he knows the PW1, PW2, Anu Damilola, Ogunniyi Florence, Ijaodola Tunde, Asubiojo Odunayo, Oluremi Adeleye, Joseph Christiana and Funmilayo Adeleye. He also knows the Appellant.

His evidence was that on 31/11/2015 a case of assault, malicious damage and armed robbery was reported by Ogunniyi Titilayo against the Appellant along with two others, and that the case was transferred to his department from the Divisional Headquarters, Ilawe-Ekiti through one Corporal Abiola Olusoji, and he was detailed for further investigation of the case. According to him, he obtained the statements of the complainants and her witnesses including her preliminary I.P.O, Corporal Abiola Olusoji.

PW3, testified that the Appellant was charged and cautioned in English language, and

Appellant volunteered his statement with regards to the charge against him and he PW3, recorded it. In the statement, the Appellant denied robbing the complainant or damaging her stock of bananas, but he admitted the fact of attacking the vehicle containing the stock of complainant’s bananas at Imogun area of Ilawe, and also attested to the fact that a brown leather bag identified by the complainant to be the container of the alleged stolen money was found and recovered by police during execution of a search warrant inside his dwelling house.

PW3 testified that the statement was read over and interpreted to Appellant in Yoruba language, and he agreed that all facts contained in the statement was exactly what he had said. He endorsed it as the maker while PW3 countersigned as the recorder. PW3, stated that Appellant was taken before his superior officer, ASP Adamu in whose presence he narrated all that he had stated to PW3, and a confessional statement form was endorsed in his name.

PW3, stated that suspect was searched and detained. He testified that items recovered include- a damaged Digital Camera, a sword, one cable whip, a brown leather bag and

Union Bank money wrapper, and two-N200 MTN recharge cards- said to have been recovered during preliminary investigation of the matter were handed over to him by the Preliminary Investigation Officer, Corporal Abiola Olusoji and PW3, registered them as exhibits.

PW3, further stated that he visited the scene of crime, and the fingerprint of the Appellant was taken. That the three suspects i.e Appellant and two others were subsequently arraigned at the Chief Magistrate Court, Ado-Ekiti, while the case file was duplicated and forwarded to the office of the D.P.P for legal advice.

PW3 when asked, answered that he investigated the crime and his investigation revealed that PW1 was robbed by the Appellant.

PW6, was one Adeyemi ldowu, a professional photographer. He knows both the complainant and the Appellant very well. He remembered 28/10/2015. He stated that he was in his shop when one boy called Damilola, invited him to take photographs. On getting to the place PW6, saw that he was to take pictures of destroyed bananas, as he and his assistant brought out the camera, PW6, saw area boys hooligans led by the Appellant, who smashed the camera on the

ground.

Later when things calmed down, PW6, testified that he tried to search for the memory card of the camera, a D40 NIKKON camera because he had wedding and burial pictures saved on it. PW6, stated that as he was looking for it, the Appellant pursued him until he was rescued. He said that he even went and challenged the Mr. Dami who invited him to come and work in such a dangerous environment.
The witness recognized his damaged camera and it was admitted as ld.5.

PW7, was one Oladele Busuyi also a professional photographer. He knows PW1. On the day of the incident, PW1 called him and he met her at the Police Station from where they were carried to the scene of the incident. PW7, testified that there he saw damaged bananas on the ground. The police directed him to take photograph of the scene including a damaged camera which was on the ground.

PW7, stated that he used a digital camera to snap the picture on that day. Photographs were tendered through him and were admitted as exhibits.
When cross-examined PW7, said that PW1, only told him to come and take pictures.

PW8, was Sergeant Abidola Olusoji of Area Command Office Okesha

Ado-Ekiti. He knows PW1, PW2, Corporal Ayodeji Oladele and the Appellant.

PW8, remembered 28/10/2015, he reiterated the evidence of PW1, and said that the case was referred to his team led by Inspector Ogundipe Gabriel. According to PW8, the complainant volunteered her statement under caution in English language.

PW8, stated that on 2/11/2015, they executed the search warrant in the house of the Appellant, and recovered one brown bag containing UBA money wrapper, MTN recharge cards, and some papers. He gave evidence that they also recovered a cutlass and cable wire.

PW8, stated that the case was later referred to the State C.I.D for further investigation. The brown bag was tendered and admitted as Exhibit C. White paper was tendered and admitted through him as Exhibit D. Money wrapper was tendered and admitted through him as Exhibit E. MTN, recharge card was tendered and admitted through PW8 as Exhibit F. A cutlass recovered was tendered and admitted through PW8, as Exhibit H. Search warrant was tendered and admitted through him as Exhibit l. While damaged camera was admitted as Exhibit J.

When cross-examined, PW8, replied that investigation

was carried out at three levels i.e Ilawe Police Station, Area Commanders Office and the State C.I.D.
When asked, PW8 replied that at the time of conducting their investigation, the Appellant did not complain that his residence was broken into.

From the evidence adduced by PW2, PW3, PW6, PW7 and PW8 which all corroborated the fact that the Appellant maliciously damaged the camera. The learned trial judge rightly surmised that the evidence weighs heavily against the Appellant. This finding is one that flows directly from evidence adduced before the trial Court which confirms the fact that the Appellant actually maliciously damaged the camera, contrary to Section 457, of the Criminal Code Law.
The judgment of the lower Court is supported by evidence adduced before the Court, and also not being perverse had not occasioned any miscarriage of justice. It therefore ought to be upheld. See Osayeme v. State (1966) NMLR 399 and Sanyaolu v. State (1976) 6 S.C 37.
This third issue is resolved against the Appellant.

Issue Four
“Whether the learned trial judge was right, when he convicted the Appellant for malicious damage of

bunches of banana allegedly belonging to Ogunniyi Titilayo and the camera?”

The charge brought against the appellant under Section 451 of the Criminal Code Law Cap. C16 Vol. 1 of the Laws of Ekiti State, 2012 is one for unlawful damage to property.

The Appellant was arraigned for the offence of malicious damage of bunches of banana belonging to Ogunniyi Titilayo, and camera property of one Adeyemi ldowu.

Appellant in Issue 4, argued that the prosecution ought to lead evidence, to prove the commission of the offence by the Appellant. But that the Prosecution was unable to discharge this duty at the lower Court. In that the Prosecution failed to tender, the three statements made by the PW1. That this is withholding evidence contrary to Section 167(d) of the Evidence Act,2011. The A.G. referred to the unequivocal evidence of PW2, how she was inside a vehicle conveying some bananas and the Appellant stopped the vehicle, offloaded the bunches of bananas and wasted them by cutting them into two apiece. This testimony of PW2 was not rebutted. The fact of cutting the bananas into pieces was also corroborated by PW1 on page 50 of the record

of appeal, and her testimony was not discredited. On page 76 of the record of appeal, PW4, Ijaodola Tunde, testified that he saw the defendant cutting the bananas. PW6, testified that the Appellant smashed his camera on the ground. These pieces of uncontroverted evidence, with the admitted photographs showing the destroyed bananas and camera, all laid to rest any doubt about the culpability of the Appellant in respect of the charge of malicious damage of the bananas, and the camera as alleged in the charge.

Malicious damage is damage caused on purpose to the property of another person. In order to be found guilty of this offence, the Prosecution must prove the following elements:-
1. The property belonged to someone other than the defendant.
2. The defendant destroyed or damaged the property.
3. The defendant did so knowing it was wrong without just cause or excuse, and with intent to damage the property.

There is no doubt that at the close of the case for the prosecution there was evidence from PW1, PW2, PW3, PW6 and PW7 that the appellant had been seen destroying the bananas and camera.

From the above, the damage must not only be

unlawful but also malicious.

In this case, it is clear that the damage was not a mistake, there is evidence showing that the act was done unlawfully. In the case at hand, there is no evidence of any genuine dispute between the Appellant and PW6 before the Court. From the uncontroverted evidence of PW1, PW2, PW6, PW7, before the Court, the elements of the offence under Section 475 have been well established. At this stage, the Court is not considering the issue of sufficiency of evidence for conviction, but rather whether the prosecution has made out a prima facie case, requiring at least some explanation from the accused person. I have taken the whole evidence of the prosecution into consideration and I am satisfied that a prima facie case has been made out against the Appellant, requiring to be called upon to make his defense.

Now, looking at the evidence of PW1, and PW2, could one say that there was no evidence linking appellant with the crime alleged?

I think not. It may well be that when at the conclusion of the case for the prosecution and the defense, the sufficiency of the evidence called through prosecution witnesses, and their

credibility may become the crucial determinants of the guilt or otherwise of the appellant, that would not be a reason to cast overboard the testimony of PW1, and PW2, PW6 who had testified that they saw the appellant destroying the camera of PW6. The pieces of uncontroverted testimonies, with the admitted photographs showing the destroyed bananas and camera laid to rest, any doubt about the culpability of the Appellant in respect of the charge of malicious damage of the bananas, and the camera as alleged in the charge. I see no reason to disturb the finding of the learned trial judge on this count.

Counsel for the Appellant had opined that the conviction of the appellant for the armed robbery charged was upon insufficient and contradictory testimonies of the prosecution witness. He did not seem to appreciate that the evidence of the PW.2, found credible by the Court below, was direct evidence which fixed the Appellant to the venue of armed robbery charged. That direct evidence has been corroborated by the fact that the bag containing the money snatched from PW2, whilst Appellant was armed, was found in Appellant’s bedroom soon after the

robbery.
Thus even I should apply the test, that to ground a conviction the totality of evidence must be cogent, compelling and unequivocal: that it must point only at the direction of the accused and no other person, and that it must lead conclusively and indisputably at his guilt; my answer on the totality of evidence in the printed record is that there is no reasonable doubt about the guilt of the Appellant for the offence of armed robbery charged. The trial Court rightly found him guilty, holding that his guilt was proved beyond reasonable doubt. No good cause has been shown why I should disturb the findings of the lower Court. Accordingly, I resolve issue 4 also against the Appellant.

On the whole, there is no substance in this appeal, and it is accordingly dismissed in its entirety. The decision of the High Court of Ekiti delivered in charge NO:HAD/26C/2016 on 28th June, 2017 convicting and sentencing the Appellant to death by hanging is hereby affirmed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

BIMPE OLATEMIJU, ESQ. For Appellant(s)

OLAWALE FAPOHUNDA A.G EKITI STATE, with him, L. B OJO SOLICITOR GENERAL EKITI STATE and JULIUS AJIBARE D.P.P EKITI STATE For Respondent(s)