AJAERE v. STATE OF LAGOS
(2020)LCN/14374(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 25, 2020
CA/LAG/CR/304/2019
Before Our Lordships:
Tijjani Abubakar Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
IZUNNA AJAERE APPELANT(S)
And
THE STATE OF LAGOS RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN FORMULATE ITS OWN ISSUE FOR DETERMINATION
The law allows a Court to formulate its own issues for determination; the only caveat is that the issues formulated must arise from the grounds of appeal. See Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) ALL FWLR (Pt. 751) 1480. PER TOBI, J.C.A.
DIFFERENCE BETWEEN A CRIMINAL APPEAL AND CIVIL APPEAL
A criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence. Civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the appellant is weighed against that which is adduced by the respondent. In criminal cases the Court does not embark on such exercise, instead, the prosecution must prove his case beyond reasonable doubt. So it is wrong to couch a ground that is not in conformity with this proof. See Atuyeye & Ors vs Ashamu (1987) 18 NSCC (Pt. 1) 117 at 118 -119. The 8th ground of appeal has not accused the lower Court or any Court for that matter of committing error in the way it attended to the decision of the trial Court. The need for particulars of error as enumerated in support of the 8th ground of appeal does not arise at all. It is a wasteful exercise from which no benefit has accrued to the Appellant. Finally on the 8th ground of appeal, omnibus ground of appeal is not suitable at this stage, as assessment of evidence and ascription of probative value to such evidence was carried out at the trial Court. I find the 8th ground of appeal incompetent and accordingly same is struck out as well.”
See also Aladesuru vs. The Queen (1955) 3 WLR 515.PER TOBI, J.C.A.
BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
The law is trite and of general application that in all criminal proceedings such as this, the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden squarely on the shoulders of the prosecution must be proved beyond reasonable doubt and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him. The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge.
The prosecution in proving beyond reasonable doubt must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. PER TOBI, J.C.A.
WHETHER OR NOT THE PROSECUTION IS OBLIGED TO CALL A HOST OF WITNESSES ON THE SAME POINT
The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the facts that, if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt to have such an effect must be material doubt, that is, doubt that relates to the ingredient of the offence the accused is charged with and not fanciful doubt. See Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530; FRN vs. Abubakar (2019) LPELR-46533 (SC). In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC), the Court held: “Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain and it is not fanciful doubt, is not imagined doubt, and is not doubt that the Court might conjure up to avoid performing unpleasant task or duty. See Black’s Law Dictionary, 6th Edition, page 1265. A reasonable doubt is an honest misgiving generated by the insufficiency of the proof, which reason sanctions as a substantial doubt. It is a doubt which makes the Court hesitate as to the correctness of the conclusion which it arrives at. The principle of proof beyond reasonable doubt is necessary because of the Constitutional presumption of the innocence of the accused, provided in Section 36(5) of the Constitution.”PER TOBI, J.C.A.
THE INGREDIENTS OF THE CRIMINAL OFFENCE OF ARMED ROBBERY
For the offence of armed robbery, the Respondent in the lower Court must prove the three ingredients of the offence, these are:
(i) That there was a robbery
(ii) That the robbery was armed robbery
(iii) That the accused (Appellant) was the robber or one of the robbers.
In Amos vs. The State (2018) LPELR-44694 (SC), the apex Court per Bage, JSC at pages 28-30 stated the above ingredients of the offence of armed robbery when it held:
“The ingredients of the offence of armed robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. See: ALABI VS THE STATE (1993) 7 NWLR (pt. 307) 511 at 523, where this Court highlighted and restated the essential ingredients of the offence of armed robbery. Those elements above have to co-exist and established beyond reasonable doubt. See: AWOSIKA VS THE STATE (2010) 9 NWLR (Pt. 1198) 40 at 71-73.” Per Peter-Odili, JSC. (Page. 27, Paragraphs. B-E).
In OSUAGWU vs. THE STATE (2016) LPELR-40836 (SC), this Court, Per Nweze, JSC, (Pages 31-33, Paragraphs. F-E) referenced the exposition of Niki Tobi JSC (Blessed memory) in FATAI OLAYINKA vs. THE STATE, 30 NSCQR 149, 172 – 173, Niki Tobi JSC (supra) observed that: –
“What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking.”
See also OTTI VS THE STATE (1991) 8 NWLR (pt.207) 103, 118; NWOMUKORO VS THE STATE (1995) 1 NWLR (pt. 372) 432, 443; AJILOYE VS THE STATE (1983) 6 SC 11; OKOBI VS THE STATE (1990) 6 NWLR (pt. 155) 125.” PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The judgment that culminated in this appeal is the judgment of Hon. Justice K.A. Jose (Mrs.) of the High Court of Lagos State sitting in Ikeja delivered on 4/10/2017 in Suit No. ID/243C/2013 – The State of Lagos vs. Izunna Ajaere. The facts of the case are simple and straight forward. The Appellant (then Defendant at the lower Court) was arrested in connection with an armed robbery that occurred on 22/6/2012 at Ajao Estate, Lagos State wherein one Uka Uchenna, the PW1 was robbed of his laptop, phones and other personal effects. The Appellant was then arraigned on an amended charge of two counts of conspiracy to commit armed robbery and the substantive offence of armed robbery wherein he pleaded not guilty. The lower Court in its judgment found on pages 188-198, specifically on pages 197-198 of the record (pages 10-11 of the judgment) while convicting the Appellant held thus:
“From the totality of evidence adduced in this case and the findings already made by the Court, it hereby holds that the prosecution has proved both the charge of conspiracy to commit armed robbery and the charge of
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armed robbery beyond reasonable doubt against the Defendant. He is therefore found guilty in respect of both counts.
Under Section 295(2) of the Criminal Law where the offender armed with any firearms or any offensive weapon or any obnoxious or chemical materials or is in company of any person so armed, the offender is meant to be sentenced to death. Here the robbery was carried out whilst the Defendant was armed with a weapon so the punishment falls under Section 295(2) of the Criminal Law in terms of punishment to be meted out to the Defendant.
With respect to the charge of conspiracy, Section 297 states that any person who conspires with any person to commit an offence under Section 294 of this Law whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly. This means that the punishment for conspiracy is as prescribed in Section 295 which is the punishment section for offences under Section 294.
As the sentences on both counts are mandatory sentences the Defendant is hereby sentenced to death in respect of both
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the 1st count of conspiracy to commit armed robbery as well as count of armed robbery. He is to be hanged by the neck until he is dead. May the Lord have mercy on your soul.”
The Appellant dissatisfied with his conviction and sentence filed this appeal vide a notice of appeal dated and filed 6/11/2018 found on pages 199-202 of the record containing four grounds of appeal. The grounds are as follow:
GROUND ONE:
The trial Judge erred in law and occasioned a miscarriage of justice when he held at page 8 of his judgment that the defense of Alibi raised by the Defendant/Appellant cannot stand.
GROUND TWO:
The learned trial Judge erred in law when he held that the prosecution has proved beyond reasonable doubt the charges of conspiracy to commit armed robbery and armed robbery despite the withholding of vital evidence.
GROUND THREE:
The learned trial Judge erred in law and occasioned (sic) when he sentenced the Appellant to death in the absence of an identification parade by the Police.
GROUND FOUR:
That the judgment of the trial Judge is unreasonable and against the weight of evidence adduced at the trial.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Appellant brief dated and filed 19/8/2019 and deemed on the 3/10/2019 was settled by Adepeju O. Jaiyeoba (Mrs.). Appellant in his brief raised three issues for determination viz:
1. Whether the learned trial Judge was right to have disregarded at page 4 of her judgment, the Appellant’s Plea of Alibi, which was not investigated.
2. Whether the learned trial Judge was right when she held that the prosecution has proved beyond reasonable doubt, the offences of conspiracy to commit armed robbery and armed robbery against the Appellant.
3. Whether the learned trial Court erred in law when it sentenced the Appellant to death in the absence of an identification parade by the Police.
On issue one, learned counsel cited the cases of Nwaturuocha vs. State (2011) LPELR-8119 (SC) and Mohammed vs. State (2018) LPELR-44130 (CA) in advancing forth the definition of the defence of Alibi. It is the contention of counsel relying on Udo vs. State (2016) 12 NWLR (Pt. 1525) 29-30 that once the accused raised defence of Alibi, then the burden is placed on the prosecution to investigate it and rebut such evidence, failing which it would result in
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the accused’s acquittal. It is the further contention of Appellant’s counsel that the Appellant’s defence of Alibi was raised at the earliest opportunity in the police station. Relying on Onuchukwu & Ors vs. The State (1998) LPELR-2701 (SC); Chukwu vs. The State (1996) 7 NWLR (Pt. 464) 686; Idemudia vs. The State (2015) LPELR-24835 (SC) counsel argued that once there is the slightest defence of Alibi, the plea must be investigated; failure of which, is fatal to the prosecution’s case. Counsel further argued that the Respondent failed in discharging the burden placed on them by the law as the IPO who investigated the case did not testify as to his findings on the Appellant’s plea of Alibi nor was credible evidence provided to disprove the evidence of the Appellant that he was arrested at Ajao bus stop on his way coming from a client’s home where he provided home service to him. Learned counsel called in aid the case of Adebiyi vs. State (2016) LPELR-40008 (SC)and Ekanem vs. State (2012) LPELR-19711 (CA) in urging this Court to discharge and acquit the Appellant for the failure of the police to follow the due process of law
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in investigating the plea of alibi.
It is the contention of counsel that the trial Court relied on the sole testimony of PW1 to disprove the Alibi of the Appellant despite the fact that PW1 barely saw the people that purportedly robbed him as it was around 10pm and he had to use a torchlight to see around him. Counsel further contended that no investigation report of the police was produced before the Court or identification parade was conducted to discredit the Appellant’s Alibi; rather it relied on the inconsistent statement of PW1 despite its apparent inconsistency. In the light of the foregoing, counsel urged this Court to hold that PW1’s evidence is not credible enough to disprove the Appellant’s alibi.
It is submitted by learned counsel further that the trial Judge misdirected herself when she held on page 8 of her judgment that since the Appellant was arrested at Ajao Estate and the robbery occurred at Ajao Estate then the plea of Alibi cannot stand. Counsel further submitted that the exact location where the Appellant was arrested and where the robbery occurred cannot be said to be the same, despite the fact that they all
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fall under the same province at Ajao Estate. Going further, counsel submitted that the Appellant was elsewhere than the place the crime was committed and his alibi was therefore meant to stand, and at least, the police should have investigated it. He relied on Shehu vs. State (2009) LPELR-3578 (CA). counsel argued that the sole evidence of PW1 cannot be said to be sufficient and accepted evidence fixing the accused to the scene of the crime neither can it be said that the testimony of PW1 is proof beyond reasonable doubt of the fact that the accused committed the crime and that his alibi cannot stand. Counsel referred to the fact that PW1 testified that he had to use a torchlight to flash on the face of the thief that robbed him to be able to see his face clearly because it was late at night coupled with the fact that PW1 and his sister were asked to lie down on the ground while they search the house and as such, such fleeting contact cannot be said to be sufficient enough to discredit the entire plea of Alibi made by the Appellant. Finally, on this issue, it is the submission of learned counsel that the Appellant is entitled to be acquitted on the grounds
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that the Alibi was not properly investigated and that the evidence before the Court is not credible and sufficient as to fix him at the scene of the crime.
On issue two, counsel relied on Onukwube vs. State (2018) LPELR-46071 (CA); Bakare vs. The State (1987) LPELR-714 (SC); Akalezi vs. State (1993) 2 NWLR (Pt. 273) 1 @ 12; Nasiru vs. State (1999) 2 NWLR (Pt. 589) 87 in stating the position of the law that for the successful proof of the offence of conspiracy to commit armed robbery and armed robbery, the ingredients listed in the aforementioned cases must be proved beyond reasonable doubt especially as the Appellant is presumed innocent until proved guilty. It is submitted by counsel that the prosecution has failed to prove that there was a conspiracy between the Appellant and anyone as the Appellant denied knowing any of the three persons he was arrested with and none of them in their statement has pointed to any connection or familiarity with him. It is the contention of counsel that the trial Court relied on the unsupported and unsubstantiated evidence of PW1 that he saw someone behind a car and that he was told that the robbers were acting on an
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information, none of these were proved before the trial Court. It is the submission of learned counsel that failure of the Respondent to bring the other suspect that was arrested along with the Appellant to testify as to any collusion or confederacy is fatal to the Respondent’s case. Also fatal to the Respondent’s case is the failure of the Respondent to call the IPO or any of the officers that made the arrest to testify before the Court.
It is the submission of learned counsel that there is no strong, compelling, and convincing evidence to prove beyond reasonable doubt that the Appellant was the one that committed the alleged robbery as the Appellant has tirelessly denied any involvement in the robbery. He relied on Ibrahim vs. State (2015) LPELR-40833 (SC). It is also the contention of counsel that the Respondent failed and/or refused to call the IPO to testify as to the circumstances of the arrest of the Appellant and to provide the supposed gun or other items that were recovered during the arrest as it is fitting that the weapon be brought to Court for the perusal of the Judge being that the victim could not clearly identify the weapon he
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said he was attacked with. On this premise, counsel urged this Court to hold that the Respondent has not been able to prove beyond reasonable doubt that there was an armed robbery or even a conspiracy to commit armed robbery. He cited Adetunji vs. State (2014) LPELR-41065 (CA); Adeyemi vs. State (2017) LPELR-24584 (SC).
On issue three, learned counsel cited Raji vs. State (2012) LPELR-7968 (CA); Ikemson vs. State (1989) LPELR-1473 (SC) in expounding the concept of an identification parade. It is the contention of counsel that the PW1 from his evidence stated that he was just meeting the robbers for the first time and had no prior acquaintance with them and therefore submitted that this falls under the instances where it becomes necessary for the Respondent to conduct an identification parade, which the Respondent in the instant case did not carry out. It is the further submission of counsel that the time within which PW1 was afforded the opportunity to glance at the offender is not enough to warrant the conclusion that he has mastered his face. It is submitted by counsel that taking into cognizance the fact that the robbery took place at night, the poor
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lighting condition and the fact that the victim used a torchlight to flash the faces of the robbers, an identification parade becomes essential as that is the most credible means of ascertaining the identity of the accused in the circumstances of this case. He placed reliance on Ifedayo vs. State (2018) LPELR-44374 (SC); Bolanle vs. State (2004) LPELR-7403 (CA).
It is the submission of counsel that no other credible evidence was presented to the Court to show that the Appellant was indeed the one at the scene of the crime. Counsel argued that the trial Court did not meticulously scrutinize the evidence of identification of PW1 who claimed to have recognized the robber as well as not also paying regard to the above considerations provided in Udofia vs. State (supra). He relied on Ndidi vs. State (2007) 13 NWLR (Pt. 1052) 633 @ 651. Counsel, therefore, concluded by submitting that failure to conduct an identification parade occasioned a miscarriage of justice and the Appellant has been mistakenly identified as the robber even though he was not at the scene of the crime and was unaware of the happening of any robbery. He therefore, urged this Court to
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allow this appeal and overturn the decision of the lower Court while consequently discharging and acquitting the Appellant.
The Respondent brief dated and filed 3/10/2019 deemed on the same day was settled by Adebayo Haroun Esq. In its brief, Respondent raised two issues for determination before this Honourable Court viz:
1. Whether the Respondent proved the guilt of the Appellant beyond reasonable doubt so as to warrant his conviction and sentencing by the Learned Trial Judge.
2. Whether from the evidence available before the Learned Trial Judge the identity of the Appellant as the perpetrator of the armed robbery incident was an issue.
On issue one, it is the position of counsel that the burden of proof in a criminal prosecution is proof beyond reasonable doubt and this burden is always on the Respondent. He cited Friday Smart vs. The State (2016) LPELR-40827 (SC). It is the contention of counsel that the Appellant was charged for the offences of conspiracy to commit armed robbery and armed robbery as such what the Respondent need to establish before the trial Court were the ingredients for the offence of conspiracy and armed robbery. He
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cited Gabriel Ogogovie vs. The State (2016) LPELR-40501 (SC); Njovens vs. State (1973) 5 SC 12; Ikechukwu Okoh vs. The State (2014) LPELR-22589 (SC). It is the further contention of counsel that by the direct eye witness of PW1 (the victim) and as rightly held by the lower Court, it was two persons including the Appellant that came to rob the victim. For the ingredients to establish in an offence of armed robbery, counsel cited Shina Akinrinlola vs. The State (2016) LPELR-40641 (SC). It is the argument of learned counsel for the Respondent that at the lower Court, the Appellant counsel did not dispute the fact that PW1 was robbed but that his grouse was that it was not armed robbery because no gun was tendered and the victim was not certain he saw a gun. Counsel relied on Giki vs. State (2018) LPELR-43604 (SC) in arguing that failure to tender the offensive weapon used during the armed robbery will not result in the acquittal of the Appellant. Learned counsel also cited Isikilu Olanipekun vs. The State (2016) LPELR-40440 (SC) to the effect that where it is established that the offence of robbery has taken place and it was armed robbery, then the only ingredient
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left to be proved is that the Appellant was the robber or is one of the robbers.
Learned counsel relied on Segun Akinlolu vs. The State (2015) LPELR-25986; Captain K.A. Adeta vs. Nigerian Army (2016) LPELR-40235 (CA) in arguing that the eye witness gave a direct account of the armed robbery incident and he recognized the Appellant as one of the robbers that took part in the armed robbery. He called in aid the cases of Folorunsho Alufohai vs. The State (2014) LPELR-24215 (SC) in laying down the ways the Respondent can prove the guilt of the Appellant. It is the submission of counsel that by the available evidence before the lower Court, especially the testimony of PW1, the Appellant took part in the armed robbery which satisfied the third ingredient in proof of the offence of armed robbery.
On issue two, it is the submission of counsel that an identification parade will only be necessary in the circumstances as enumerated in Tajudeen Alabi vs. The State (1993) 7 NWLR (Pt. 110) 455; The State vs. Olashehu Salawu (2011) 12 SC (Pt. IV) 191 @ 222. He also cited Ikemson vs. The State (supra) 472; Ogoala vs. The State (1991) 2 NWLR (Pt. 175) 509;
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Isikilu Olanipekun vs. The State (supra) on circumstances where an identification parade will be unnecessary. It is the contention of counsel that the identity of the Appellant was not an issue as the PW1 was able to see his face with a torch he had on him when he flashed same on the Appellant’s face and the Appellant was arrested close to the scene of the crime and stolen items recovered; which piece of evidence was not controverted nor disparaged. It is submitted by counsel that the Court can convict on the evidence of a sole witness that is credible, direct and believable and therefore do not need to call a host of witnesses just like the counsel for the Appellant submitted with respect to its failure in calling the Investigating Police Officer to testify. For this position, counsel relied on Ofordike vs. State (2019) LPELR-46411 (SC). Counsel urged this Court not to interfere with the findings of the lower Court that heard and saw the witnesses unless the finding is perverse. He placed reliance on Boniface Adonike vs. The State (2015) LPELR-24281 (SC); Sunday Udor vs. The State (2014) LPELR-23064 (SC).
On the argument on alibi, it is submitted by
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counsel that Appellant’s counsel submitted wrongly that the Appellant is entitled to be acquitted on the ground that the alibi raised by him, was not properly investigated and since no credible and sufficient evidence has been rendered to fix him to the scene of the crime. Counsel argued that an alibi need not be investigated where the accused (the Appellant) was arrested immediately after the commission of the offence, more so, the PW1 identified the Appellant as one of the robbers that robbed him. He cited Atodele Ikumonihan vs. State (2018) LPELR-44362 (SC). It is the final argument of counsel that the Appellant did not give particulars of the alibi as it was raised for the first time in the witness box. He urged this Court to discountenance the issue and affirm the judgment of the lower Court and dismiss the Appeal.
I have gone through the notice of appeal containing the grounds of appeal filed by the Appellant and the respective briefs of counsel to both parties and I wish to formulate my issues for determination which in my opinion captures the issues for determination formulated by the parties. The law allows a Court to formulate its own issues for
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determination; the only caveat is that the issues formulated must arise from the grounds of appeal. See Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) ALL FWLR (Pt. 751) 1480. In the circumstance, I formulate a sole or single issue for determination thus:
Whether from the evidence and materials before the lower Court, the Respondent was able to prove the offences of conspiracy to commit armed robbery and the offence of armed robbery against the Appellant beyond reasonable doubt so as to warrant his conviction and sentencing by the Learned Trial Judge.
Before I go into the resolution of the sole issue for determination, as a preliminary point, I will like to address the ground four of the notice of appeal. The ground four reads:
“That the Judgment of the trial Judge is unreasonable and against the weight of evidence adduced at the trial Court.”
It is to be stated that criminal appeals are not argued on “the weight” of evidence. The phrase “weight” of evidence is unknown and alien to criminal appeals but rather only obtains in civil appeals
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which are fought on the preponderance of evidence. In the light of the above, ground four of the notice of appeal falls short of a competent ground and is bad. In Abasi vs. State (1992) LPELR-20 (SC) the apex Court had this to say:
“A ground of appeal that the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence is not a ground of appeal in criminal cases which are usually not decided on the weight of evidence or balance of probabilities. The ground of appeal is incompetent and ought to have been struck out but for the serious nature of the charge. See Adio v. The State (1986) 2 N.W.L.R. (Pt. 24) 581 at 583.”
More recently, the effect of the phrase ‘weight of evidence’ in a criminal appeal was reiterated by the Supreme Court per Galumje, JSC in Sanmi vs. State (2019) LPELR-47418 (SC) thus:
“The 8th ground of appeal is a ground known to civil appeals only. It reads as follows: – “8. The judgment of the lower Court is against the weight of evidence on the record.
PARTICULARS OF ERRORS
1. The evidence of the Appellant was not properly evaluated and appraised by the
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lower Court. 2. The judgment of the lower Court is in utter contradictions with the evidence on Record. 3. The decision of the lower Court cannot be supported by the weight of evidence on the Record. 4. There is no evidence which supports the finding of the lower Court. 5. When the evidence adduced by the Appellant is weighed against that given by the Respondent the judgment rendered to the Respondent is against the totality of the evidence on the Record. 6. By reason of the premise of sub-paragraphs 1 – 7 above, the judgment of the lower Court is unreasonable, unwarranted and unmeritorious.” A criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence. Civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the appellant is weighed against that which is adduced by the respondent. In criminal cases the Court does not embark on such exercise, instead, the prosecution must
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prove his case beyond reasonable doubt. So it is wrong to couch a ground that is not in conformity with this proof. See Atuyeye & Ors vs Ashamu (1987) 18 NSCC (Pt. 1) 117 at 118 -119. The 8th ground of appeal has not accused the lower Court or any Court for that matter of committing error in the way it attended to the decision of the trial Court. The need for particulars of error as enumerated in support of the 8th ground of appeal does not arise at all. It is a wasteful exercise from which no benefit has accrued to the Appellant. Finally on the 8th ground of appeal, omnibus ground of appeal is not suitable at this stage, as assessment of evidence and ascription of probative value to such evidence was carried out at the trial Court. I find the 8th ground of appeal incompetent and accordingly same is struck out as well.”
See also Aladesuru vs. The Queen (1955) 3 WLR 515.
The defective ground of appeal ought to be struck out ordinarily but for the fact that the appeal is in respect of a capital offence, it will be accommodated in the interest of justice and also for the very fact that the Respondent did not make an issue out of it.
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See Obisi vs. Chief of Naval Staff (2004) LPELR-2184 (SC); Omoju vs. FRN (2008) LPELR-2647 (SC). That apart, there are other grounds of appeal that can sustain the appeal, and therefore the striking out of ground 4 is of no moment.
Now, to the issue at hand, that is to say, I will now address the sole issue formulated for determination in this appeal. The lower Court convicted and sentenced the Appellant to death on the evidence of PW1 alone and there are no exhibits in this case. The implication is that the Respondent did not tender the statement of the PW1, the complainant, and the victim of the robbery. The Investigating Police Officer was not called as a witness and the statement of the Appellant was not tendered. The lower Court came to the decision based solely on the evidence of PW1. To answer the question contained in the sole issue, which is the ultimate question in this appeal, I am inclined to take a little excursion to some general and trite legal principles which applicability will assist this Court towards deciding this appeal. The law is trite and of general application that in all criminal proceedings such as this, the burden of proof rests heavily
21
on the prosecution to prove the guilt of the accused person. This burden squarely on the shoulders of the prosecution must be proved beyond reasonable doubt and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be
22
convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
23
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or disbelief. The learned trial judge should ask himself the six
24
questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving beyond reasonable doubt must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the
25
crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the facts that, if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt to have such an effect must be material doubt, that is, doubt that relates to the ingredient of the offence the accused is charged with and not fanciful doubt. See Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530; FRN vs. Abubakar (2019) LPELR-46533 (SC). In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC), the Court held:
“Reasonable doubt which will justify
26
acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain and it is not fanciful doubt, is not imagined doubt, and is not doubt that the Court might conjure up to avoid performing unpleasant task or duty. See Black’s Law Dictionary, 6th Edition, page 1265. A reasonable doubt is an honest misgiving generated by the insufficiency of the proof, which reason sanctions as a substantial doubt. It is a doubt which makes the Court hesitate as to the correctness of the conclusion which it arrives at. The principle of proof beyond reasonable doubt is necessary because of the Constitutional presumption of the innocence of the accused, provided in Section 36(5) of the Constitution.”
This legal principle is based on the premise that it is better for ten guilty people to go free than for one innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave
27
the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78. In Ahmed vs. State (2001) LPELR-262 (SC), the apex Court put it succinctly thus:
“It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1 NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that: “…to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did.” and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted
28
on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.”
It will be necessary at this stage to address the specific issues raised in this appeal and the addresses by counsel in their various briefs. The Appellant was charged for the offence of conspiracy to commit armed robbery and the substantive offence of armed robbery punishable under Sections 297 and 295 (2)(a) respectively of the Criminal Law of Lagos State 2011. The ingredients of the offences are stated therein in the law under which the Appellant is charged with and in a line of cases. For the offence of armed robbery, the Respondent in the lower Court must prove the three ingredients of the offence, these are:
(i) That there was a robbery
(ii) That the robbery was armed robbery
(iii) That the accused (Appellant) was the robber or one of the robbers.
In Amos vs. The State (2018) LPELR-44694 (SC), the apex Court per
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Bage, JSC at pages 28-30 stated the above ingredients of the offence of armed robbery when it held:
“The ingredients of the offence of armed robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. See: ALABI VS THE STATE (1993) 7 NWLR (pt. 307) 511 at 523, where this Court highlighted and restated the essential ingredients of the offence of armed robbery. Those elements above have to co-exist and established beyond reasonable doubt. See: AWOSIKA VS THE STATE (2010) 9 NWLR (Pt. 1198) 40 at 71-73.” Per Peter-Odili, JSC. (Page. 27, Paragraphs. B-E).
In OSUAGWU vs. THE STATE (2016) LPELR-40836 (SC), this Court, Per Nweze, JSC, (Pages 31-33, Paragraphs. F-E) referenced the exposition of Niki Tobi JSC (Blessed memory) in FATAI OLAYINKA vs. THE STATE, 30 NSCQR 149, 172 – 173, Niki Tobi JSC (supra) observed that: –
“What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed
30
robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking.”
See also OTTI VS THE STATE (1991) 8 NWLR (pt.207) 103, 118; NWOMUKORO VS THE STATE (1995) 1 NWLR (pt. 372) 432, 443; AJILOYE VS THE STATE (1983) 6 SC 11; OKOBI VS THE STATE (1990) 6 NWLR (pt. 155) 125.”
Similarly in Awosika vs. State (2018) LPELR-4435 (SC), the apex Court per Sanusi, JSC at pages 27-28 held:
“It is settled law, that in order to establish the offence of armed robbery, contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 (as amended) the prosecution must prove the under listed salient ingredients of the offence which include:-
(a) That there was a
31
robbery or series of robbery incident(s)
(b) That the robbers or any of the robbers was armed with offensive weapons
(c) That the accused person(s) was/were the ones responsible of committing the offence
See State vs Adedamola Bello &Ors (1989) 1 CLRN 370; Bozin vs The State (1985) 7 SC (Reprint) 276; Balogun v AG Ogun State (2001) FWLR (Pt.78) 1144 at 1160. The settled law is that in order to obtain conviction on the offence of armed robbery like in any other criminal matters the prosecution must prove the guilt of the accused person beyond reasonable doubt as required and provided by Section 135 of the Evidence Act 2011 (as amended) See Woolmington v DPP (1935) AC 462; Uche v State (2015) 4-5 SC (Pt.11) 140 at 157; State v Oladotun (2011) 5 SC (Pt.11) 133; Sani v. State (2015) 6/7 SC (pt 11)1 at 17. It must be emphasized here, that where doubt exists as to the guilt of the accused person, the trial Court must give him the benefit of such doubt and acquit him of the offence charged. Now reflecting on the evidence adduced in this case vis a vis the above mentioned ingredients, it is incumbent on the prosecution to prove stealing of
32
something capable of being stolen by the accused or any of the accused persons. See Offoing vs The State (1991) 8 NWLR (Pt.103) 118; Okoko v. State (1964) ALL NLR 423; Obue v State (1976) 2 SC 141.”
See Kareem Olatinwo vs. The State (2013) 8 NWLR (Pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (Pt. 1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (Pt. 923) 123.
For the offence of conspiracy, it is established when there is an agreement between two or more people to do a lawful act by unlawful means or outright agreement to do an unlawful act. The apex Court in this regard stated the ingredients of the offence of conspiracy in Taiye vs. The State (2018) LPELR-44466(SC) per Sanusi, JSC at pages 21-22 when it held thus:
“This brings me to the offence of conspiracy to commit armed robbery. Conspiracy simply needs an agreement by two or more persons to do or cause to be done an illegal act, or an act which is legal but by illegal means.
The mere agreement alone constitutes the offence of conspiracy and it is immaterial to prove that the act was in fact committed. See Obiakor V The State (2002) 6 SC (pt. II) 33 at 39/40.
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The offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted. See Balogun v AG Ogun State (2002)2 SC (pt. II) 89.
It needs to be stressed here, that the essential ingredients of the offence of conspiracy to commit armed robbery lies in the agreement and association to do an unlawful thing or act which is contrary to or forbidden by law, whether that thing/act is criminal or not and whether the accused person has knowledge of its unlawfulness. The offence of conspiracy is often not proved through direct evidence but the Courts normally infers such agreement or plot from the facts of doing things towards a common purpose. See Clark v The State (1986) 4 NWLR (pt.35) 381; Oduneye v State (2001)1 SC 1; Nwankwoala v The State (2006) All FWLR (pt.339) 801.”
See also Philip vs. State (2019) 13 NWLR (Pt. 1690) 509 @ 545-546
The case of the Appellant in this appeal is that the Respondent has not proved the above ingredients of the offences of conspiracy and armed robbery beyond reasonable doubt, particularly with respect to the fact that the Appellant was the one who committed
34
the offence and consequent upon that, the Appellant should have been discharged and acquitted on both counts. I will first deal with the offence of armed robbery and then the offence of conspiracy later in this judgment.
I had stated above the burden of proof and the standard of proof required to establish the criminal liability of the Appellant which is that the burden of proving the guilt of the accused person, in this case, the Appellant is on the prosecution, that is, the Respondent herein and this burden does not shift. Also, the standard of proof is beyond reasonable doubt, just to mention a few more cases in this regard. See Nweze vs. State (2017) LPELR-42344 (SC); Chidozie vs. C.O.P (2018) LPELR-43602 (SC); Olaoye vs. State (2018) LPELR-43601 (SC); Kamila vs. State (2018) LPELR-43603 (SC) and Section 135 of the Evidence Act, 2011. The Respondent could use any of the three methods of proving criminal liability to establish its case. These are direct evidence or eye witness, circumstantial evidence, or confessional statement of the accused person. The Supreme Court made this point in Musa vs. State (2019) LPELR-46350 (SC), when it held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
35
“Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: – (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).”
I feel obliged to cite one more case which to my mind combines the ingredients of the offence of armed robbery and the methods of proving same. It is the case of this Court. The case is Koku vs. State (2019) LPELR-48121 (CA), where this Court per Ojo, JCA held thus:
“On the ingredients of the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11, Laws of the Federation 2004, it has been judicially settled in a plethora of authorities
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including the cases of FEDERAL REPUBLIC OF NIGERIA VS. BARMIWAS (2017) 15 NWLR (PT. 1588) PAGE 177 AT 210 PARAGRAPHS C – D; OWOLABI VS. THE STATE (2019) 2 NWLR (PT. 1657) 525 AT 539 PARAGRAPHS A – C; STATE VS. BALOGUN (2018) 10 NWLR (PT. 1627) 207 AT 213 PARAGRAPHS B – C; UGBOJI VS.THE STATE (2018) 10 NWLR (PT. 1627) 346 AT 368 – 369 PARAGRAPHS H – B and ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 605) 74 that to secure a conviction, the prosecution must prove the following: (1) That there was a robbery or series of robbery (2) That the robbery or each of the robbery was an armed robbery (3) That the accused was the robber or one of those who took part in the robbery. Each of the ingredients must co-exist and must be proved beyond reasonable doubt. It is also a settled principle of law that the recognized methods to prove the guilt of an accused person by the prosecution are: (1) Evidence of eye witness(es) (2) Circumstantial evidence or (3) Extra judicial statements made by the accused person. See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 PARAGRAPHS E – F; KOLADE VS. THE STATE (2017) 8 NWLR (PT. 1566) PAGE 60 AT 89 and DIBIA VS. THE STATE (2017) 12
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NWLR (PT. 1579) PAGE 196.”
See also Orode vs. State (2018) LPELR-43788 (CA); Adeyemo vs. State (2015) LPELR-24688 (SC); Bille vs. State (2016) LPELR-40832 (SC).
From the foregoing cases, it therefore means that for the Respondent to successfully secure a conviction against the Appellant, he must prove that there was a robbery or series of robberies, that the robbery was an armed robbery and that the accused was the robber or took part in the robbery. The ingredients are mutually inclusive, that is, the Respondent must prove all the ingredients against the Appellant. Where he fails to prove one or more of the ingredients of the offence, there will be no proof of the offence as that will create material doubt which will be resolved in favour of the Appellant.
It is trite law that where there is doubt in the case of the prosecution, such doubt should be resolved in favour of the accused person. See Afolahan vs. State (2017) LPELR-43825 (SC); FRN vs. Abubakar (2019) LPELR-46533 (SC).In Odogwu vs. State (2013) LPELR-42802 (SC) the apex Court had this to say:
“…Above was communicated to the Chief Registrar of the Supreme Court on 6th June 2012 and
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the matter appeared laid to rest. In the circumstances, this Court is not in a position to determine whether or not the documentary evidence was properly evaluated. And given the antecedents of the trial Court and the Court below with respect to the oral evidence in this case, it is dangerous to assume that the documentary evidence was properly evaluated by either Court. The seeming flight of the exhibits from the custody of the trial Court speaks eloquently to the plan to railroad the appellant to the gallows. In the circumstances, the doubt created by the disappearance of the vital exhibits and the resultant inability of this Court to evaluate same enures to the benefit of the appellant.”
From the record of appeal and the judgment, it is clear that the method the Respondent relied on to prove the guilt of the Appellant was an eye witness account or what is referred to as direct evidence. The lower Court based the conviction of the Appellant more on the evidence of PW1 who was an eye witness of the crime and indeed the victim of the robbery. At this point, it becomes expedient that I restate the facts of the case for a better understanding and ease
39
of reference and proper flow of the judgment. Even if it appears repetitive, it will cost no harm. The Appellant was arrested in connection with an armed robbery that occurred on 22/6/2012 at Ajao Estate, Lagos State wherein one Uka Uchenna, the PW1 was robbed of his laptop, phones, and other personal effects. The case of the Respondent was that late in the night on 22/6/2012, two people including the Appellant bailed him up downstairs with a gun on his way to pick up something. He was made to go into his flat where he was robbed with a gun. He was locked inside the flat with his sister who was present during the robbery. As the robbers left, they raised alarm and the OPC people around chased them and the Appellant was arrested with some other persons. He went to Ajao Police station the next day to make his statement and subsequently to The Special Anti Robbery Squad office in Ikeja, where he also made a statement. The PW1 made two statements. The Appellant was then arraigned on an amended charge of two counts of conspiracy to commit armed robbery and the substantive offence of armed robbery wherein he pleaded not guilty. Is this evidence enough to prove the
40
guilt of the Appellant beyond reasonable doubt? If the answer is yes, then the need will arise to consider the defence of the Appellant. If it is not enough there will be no need to consider the defence of the Appellant. The main issue before this Court is therefore; whether the lower Court properly considered the evidence before it in coming to the conclusion it did. In deciding this point, I must caution myself that this Court as an appellate Court will not interfere with the finding of the facts in the lower Court except such finding is perverse, that is to say, the finding does not correspond with the evidence before it. If the lower Court properly evaluated the evidence, I will not interfere with same even if I would have held a different finding. See CPC vs. INEC & Ors (2011) LPELR-8257 (SC); Okonkwo & Ors vs. Okonkwo & Ors (2010) LPELR-9357 (SC).
From the evidence before the lower Court, and the record before this Court, it is not in dispute that there was a robbery and that the robbers were armed. That alone does not amount to anything as the most important ingredient in relation to this appeal is whether the Appellant participated in
41
the armed robbery. That is the real issue here and the point of contention. In other words, what is in contention in the appeal before this Court is whether the Respondent was able to prove at the lower Court that the Appellant was the one or among others who carried out the armed robbery? It is the contention of the Appellant’s counsel that from the testimony of the sole witness called by the Respondent, the Respondent was not able to prove that important ingredient of the offence and specifically that the Respondent did not present before the Court cogent evidence fixing the Appellant to the scene of the crime. The doubt created in the evidence of the Respondent’s sole witness and the inconsistency therein in the PW1 evidence, the lower Court should not have convicted the Appellant but rather should have resolved the doubt in favour of the Appellant and thereby discharge and acquit him.
This argument is premised on the ground that the inability of the Respondent to tender the robbery weapon is fatal to the case of the Respondent. The Appellant is also arguing that the failure of the Respondent to investigate the Alibi raised by him and the
42
inability to conduct identification parade are all vital omissions in the case of the Respondent which creates material doubt. It is the firm submission of the Appellant counsel that the Respondent could not have established the guilt of the Appellant by the sole witness of the Respondent being PW1.
On the part of the Respondent, it is its case that the evidence of PW1, an eye witness is credible enough to prove all the ingredients of the offence of armed robbery.
The argument of the Appellant’s counsel to the effect that the Respondent could not have established the guilt of the Appellant by the evidence of PW1 alone does not represent the legal position. The law is settled as laid down in a plethora of cases that a Court can convict on the testimony of a sole witness and the prosecution need not call a host of witnesses to prove its case provided the evidence of the sole witness is cogent, compelling, direct and positive. The Supreme Court stated this trite principle in Chidozie vs. COP (2018) LPELR-43602 (SC) where it held thus:
“My attention has been attracted by the submission of the learned counsel for the appellant when he
43
raised some insinuations or sentiments that the trial Court relied only on the testimony of one witness i.e the PW1, to convict the appellant. With due defence to the learned counsel, once the prosecution was able to discharge its burden of proof of the offence charged, the Court of trial can convict the accused even on evidence of a single witness as in this instant case. Aruna v The State (1990)6 NWLR (pt.155)125; Okosi vs AG Bendel State (1985) 1 NWLR (pt.100) 642; Nwachukwu v The State (1985) 1 NWLR (pt. 11) 218; Ani v The State (2003)11 NWLR (pt.830)142; Afolalu v The State (supra). It is a well settled principle of law, that the prosecution is not bound to call every person that was linked to the offence by physical presence or otherwise to give evidence what he perceived. Once person who can testify to the actual commission of the crime and the other relevant ingredients has done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 of the Evidence Act. See Obue v State (1976) 2 SC 141; Sadau v State (1968) All NLR 124; The State v John Ogbubunjo & Anor (2001) 12 NWLR (pt.698) 576;
44
Shurumo vs The State (2010) 44 NSCQR 159. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. See Odili vs State (1977) 4 SC 1; Shurumo v The State (supra).”
The point is therefore settled that the lower Court could rely on PW1’s evidence alone to convict the Appellant. The issue is, whether PW1’s evidence is credible, cogent, compelling, positive and direct enough to be used to convict the Appellant. I will consider that later in this judgment.
At this point, it is necessary to address the submission of Appellant’s counsel that the refusal of the Respondent to call the police officer that investigated the offence against the Appellant is fatal to the case of the Respondent. While it is the law that the Respondent could secure a conviction by the evidence of a sole witness, the law is also settled that the Court can only convict if the evidence of the sole witness establishes all the ingredients of the offence. It is also the law that the failure of the prosecution to call a vital witness can be fatal to the case of the prosecution as the Court
45
will be on the right side of the law to make the presumption that if the evidence were produced, it would have been against the prosecution. See Ochiba vs. State (2011) 17 NWLR (Pt. 1277) 663; State vs. Nnolim & Anor (1994) 5 NWLR (Pt. 345) 395.
The question is whether the failure of the Respondent to call the IPO who investigated the offence is fatal to the case of the Respondent at the lower Court? The answer to this question is dependent on whether the IPO is a vital witness. If he is a vital witness, then the failure to call him will be fatal to the case of the Respondent. Whether he is a vital witness or not will depend on the evidence the IPO will be giving in Court, that is, if the evidence is of such a nature that it is significant and without which the ingredient of the offence cannot be proved, then the IPO is a vital witness. In such a situation, the failure to call the IPO will be damaging to the prosecution’s case. For instance, if there is a defence raised for Alibi, the Police Officer who investigated the Alibi will be necessary and vital. Failure to call him, the presumption will be in favour of the accused, Appellant in this
46
case. This presumption will introduce doubt in the case of the prosecution (Respondent) which will be resolved in favour of the Appellant. See Smart vs. State (2016) 9 NWLR (Pt. 1518) 447; Oshodin vs. State (2001) 12 NWLR (Pt. 726) 217; Isah vs. State (2010) 16 NWLR (Pt. 1218) 132; Yakubu vs. State (2018) LPELR-45044 (CA). It can be argued that if the Respondent can prove all the ingredients of the offence the Appellant is charged with by any of the three ways of establishing criminal liability, that is, either by direct eye witness, confessional statement or circumstantial evidence, there will be no need to call the IPO. This argument would not hold water in this case as the evidence of the IPO is necessary to show that the offence was investigated and particularly, that the Alibi was investigated. See Okoro vs. The State (1993) 3 NWLR (Pt. 2830) 425.
The issue, therefore, is whether the Respondent using the evidence of PW1 without calling the IPO has been able to prove all the ingredients of the offence. As earlier stated, the Respondent has the sole responsibility to prove that the Appellant was among those that robbed PW1 with a gun. I do not consider
47
the argument that the inability to present the weapon as an exhibit is in anyway fatal to the case of the Respondent. It is not, as there is no requirement of the law that the arm used for the robbery must be tendered in Court. See Chukwunyere vs. The State (2018) 9 NWLR (Pt. 1624) 249; Abiodun vs. The State (2012) 7 NWLR (Pt. 1299) 394. In State vs. Fadezi (2018) LPELR-44731 (SC) the Supreme Court had this to say:
“I must emphasise here that there is no principle of law that insists that the prosecution must tender weapons used in the alleged robbery in order to prove the guilt of an accused person. The tendering of the weapons used depends on the circumstance of the case, for instance, where the prosecution stated that any weapon used in the robbery was recovered. See Olayinka’s case (supra). This therefore knocks the bottom of the fact relied upon by the Court below, that PW3 did not tender any empty shell or gun at the prosecution of the case. See also Abiodun vs The State (2013) All FWLR (pt. 700) 1257 at 1269 Para E.”
More instructive is the case of Adeyemo vs. State (2010) LPELR-3622 (CA) where this Court per Kekere-Ekun, JSC held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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“In order to secure a conviction for armed robbery, the prosecution must prove that the accused person was armed with an offensive weapon. The weapon may be a gun or any other object likely to induce fear of bodily harm in the victim such as a cutlass or machete. Even where a gun or other offensive weapon is used in the commission of the offence, it is not essential to tender the weapon to secure a conviction, provided there is cogent eye witness evidence or in the absence of eye witness evidence, there is enough unequivocal circumstantial evidence that points to the guilt of the accused. See: Alor vs the State (1996) 4 NWLR (445) 726 @ 742 -743 H – A. In the case of Dibie Vs the State (2004) 14 NWLR (893) 257 @ 280 – 281 H – A.”
In criminal cases, the Appellant at the lower Court as defendant has no obligation to prove his innocence and so even if the Appellant lies it does not really work against him as that does not help the case of the Respondent to prove its case beyond reasonable doubt. That the Appellant lied is not proof of guilt. See Vincent Kachebry vs. The State (2019) LPELR-46453 (CA); Samuel & Ors vs. Nigerian Army (2006)
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LPELR-11751 (CA).
I will now look at the evidence of the only witness of the Respondent PW1, the victim of the robbery before the lower Court to determine whether the evidence proved beyond reasonable doubt that the Appellant committed the offence for which he is charged. From the evidence of PW1 found on pages 138-147 of the records, there is no real doubt that there was a robbery and the robbers were armed. This makes the identity of the robber an essential ingredient of the offence. The Respondent must prove beyond reasonable doubt that the Appellant was among the robbers. The evidence must be clear on that which can be established by either recognition or identification parade. Recognition arises when a person sees and identifies a person he knows before the commission of the offence. See Onyekwere vs. State (2016) ALL FWLR (Pt. 841) 1415; Rasheed vs. State (2014) LPELR-22456 (CA). When a person does not know the offender before the commission of the offence and the arrest was not done within the scene of the crime, the identity of the offender can be established by identification parade. See Ogu vs. C.O.P. (2018) 8 NWLR (Pt. 1620) 134;
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Adebayo vs. State (2014) ALL FWLR (Pt. 743) 1994.
The Respondent must establish through the evidence of PW1 either by recognition or identification parade that the Appellant was among those who robbed him. It is not in dispute looking at the evidence of PW1 on pages 138-147 that there is no evidence that identification parade was conducted by the police for the PW1 to identify the Appellant as the one who robbed him. The essence of an identification parade is to enable an eye witness who never knew the accused to pick him out from the line up of people including the accused. Since finding the perpetrator of a crime is a major ingredient of a crime, both the police, the ministry of justice must be sure that the person brought to Court is the person who actually committed the offence. In Okiemute vs. The State (2016) 15 NWLR (Pt. 1535) 297, the apex Court per Okoro, JSC held:
“Issue of identification of an accused person is very crucial in criminal proceedings, and the real purpose of identification is to ensure that there is no miscarriage of justice. Identification of an accused person can be done by the victim of the crime if he is alive or by witnesses
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who saw when the offence was committed. An accused can also be identified under Section 167 (a) of the Evidence Act 2011.”
If both the police and the ministry of justice or the prosecution makes a mistake on this, the Court must be vigilant to ensure that it is convicting the right person. The Court must ensure mistaken identity is avoided. The law is trite as to when an identification parade will be necessary. An identification parade will be necessary under the following circumstances:
1. When the victim of the crime never knew the offender or accused before
2. Where the victim was confronted by the offender for a very short while
3. Where the victim, due to time and circumstance might not have the opportunity of observing the features of the accused person or offender
The principle as to when identification parade will be needed and when it will not be needed is spelled out in a number of cases. In Adesina & Anor vs. The State (2012) 14 NWLR (Pt. 1321) 429, the apex Court held:
“I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence
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actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues-
1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions
2. The length of the time the witness saw the suspect or defendant at a glance or longer observation.
3. The opportunity of close observation.
4. Previous contact between the two parties.
5. The lighting conditions.
Eyisi v. The State (2000) 15 NWLR (pt.697) pg.553.
Okosi v. State (1989) 1 NWLR (pt.100) pg.642.
Alonge v. I.G.P .(1959) SCNLR pg.156.
Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455.
Ukorah v. State (1977) 4 SC pg.167.
Ukpabi v. State (2004) 11 NWLR (pt.884) pg.439.
Ebri v. State (2004) 11 NWLR (pt.885) pg.589.
It is trite however that where an accused person by his confession has identified
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himself, there would be no need for any further identification parade.
Archibong v. State (2004) 1 NWLR (pt.855)”
Similarly, in Ugwu vs. The State (2020) LPELR-49375 (SC), the apex Court took the same position but in different words thus:
“It is settled that an identification parade is not necessary where there is other evidence leading conclusively to the identity of the perpetrators of the offence – See Ikemson V. State (1989) 3 NWLR (Pt. 110) 455 SC, wherein this Court held that an identification parade is only essential in the following situations:
– Where the victim of the crime did not know the Accused before;
– Where the victim was confronted by the offender for a very short time; and
– Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person.
The essence of an identification parade is, therefore, to enable an eye witness, who never knew the person accused of the crime before, to pick him out from amongst other people – See Adebayo V. State (2014) LPELR- 22988 (SC).
See also the case of Alufohai V. The State (2014) LPELR-
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24215 (SC), wherein my learned brother, Ariwoola, JSC, explained the rationale as follows –
It is trite law that identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused Person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.
So, an identification parade becomes necessary when there is a need to establish the identity of a suspect. But there are many cases where an identification parade is of no use; such as when the suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness; and when evidence adduced is sufficient to establish that the suspect is the person that committed the crime – See Moses Jua V. State (2010) 4 NWLR (Pt. 1154) 217 SC, Bassey Akpan Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors V. State (2000) 15 NWLR
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(Pt.691) 555 SC.”
As to when and how identification parade is done the case of Okanlawon vs. State (2015) 6-7 S.C (Pt. 1) 115 is instructive where the apex Court per Ariwoola, JSC held thus:
“Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with evidence of identification, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was actually the person who committed the offence with which he is charged. See; Patrick Ikemson v. The State (1989) 3 NWLR (Pt. 110) 445; (1981) CLRN 1; Agboola v. The State (supra).
Identification parade, otherwise known as “line up”, is a Police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See; Black’s Law Dictionary, 9th Edition page 1014; Agboola Vs State (supra).
Identification parade is ordinarily not a sine
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qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence.
Generally, an identification parade would become necessary only in the following situations of visual identification –
(i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence:
(ii) Where the victim was confronted by the offender for a very short time; and
(iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
See; R v. Turnbull (1976) 3 ALL ER 549 or (1977) 2B 224 at 228-231; Ikemson v. The State (supra).”
The PW1 in his evidence testified that he has never seen the Appellant before that incident. It is his evidence that the incident took place in the night and that the place the incident took place was dark. It is also his testimony that the whole incident happened so fast. It is also PW1’s evidence that he was able to see the
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Appellant’s face by the torchlight he flashed on his face during the robbery which happened so fast. With this kind of evidence, should the lower Court have placed value on the identification of the Appellant as the person who robbed the PW1? All the criteria stated in the above cases which will require identification parade are present in the evidence of the PW1. He had no prior knowledge of the Appellant, the lighting was bad as it was dark at night, the robbery happened very fast and there was no opportunity to observe the person who robbed him. The identification of the Appellant as the robber by the PW1 in the light of the evidence is very weak and the fact that there was no identification parade makes the decision of the lower Court erroneous as it does not conform with the evidence before the Court.
There would have been no need for the identification parade if the PW1 knew the Appellant before then or he was arrested at the scene of the crime. In Ogu vs. C.O.P (2018) 8 NWLR (Pt. 1620) 134, the Supreme Court Kekere- Ekun, JSC held:
“An identification parade is only one of several ways of identifying the perpetrator of a crime.
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Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade. See: Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555: R v. Turnbull (1976) 3 Ch. App. R. 132; Peter Adewunmi Vs The State (2016) LPELR-40106 (SC); Fatai Vs The State (2013) LPELR-20182 (SC); Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455.”
Peter-Odili, JSC in Nomayo vs. State (2018) LPELR-44729 (SC) at pages 12-14 held in the same voice thus:
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reiterated that it is not in all instances that an identification parade is a necessity as in this case at hand where PW1 made a prompt identification of the appellant when he was caught immediately after the incident after the shout of thief, thief early hours of the morning of the following day. The spontaneity of PW1’s reaction on seeing appellant when he was accosted made further identification parade unnecessary. My learned brother Ariwoola JSC had shown the way aptly even for this purpose in the case of Folorunsho Alufohai v The State (2014) LPELR-24215 at pages 25-26 thus:-
“I am not in the slightest doubt that the appellant was properly identified by the victims and there was no need for any formal identification parade any longer.”
In Mathew Orimoloye v The State (1984) 10 SC 138, this Court in a case almost on all fours had stated as follows:-
“It is not in every case that parade is necessary to identify culprits. The appellant was identified by PW1 as soon as the latter saw him at the Police Satiation and even before he was asked to identify him.”
In the same case, this Court went further as follows:-
“It is necessary to
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point out that the spontaneous reaction towards the recognition of the appellant in respect of the offence committed 6 hours earlier is a more acceptable identification of the appellant than a programmed identification”.
“In the same case at hand, it was clear from the evidence that the victims – PW3 and her late husband did not go to the Police Station for purpose of identifying the appellant. They merely went to lodge complaint to the police of the attack on their family. In the result, the appellant was properly identified by PW1 and PW3, hence identification parade was rightly dispensed with by the Police. It was not necessary any longer.”
The case of Alufohai v State (Supra) was a reiteration of earlier decisions of this Court such as Mathew Orinmoloye v The State (1984) 10 SC 134 at 139-140 per ESO JSC; Olabowale Aderemi v The State (1984) 11 SC 56.”
The PW1 gave the impression that the Appellant was arrested at the scene of the crime by OPC people who retrieved his laptop and other items from the Appellant for him. He was not there when the OPC people retrieved the items from the Appellant. His evidence in this respect is hearsay
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and particularly when the Respondent did not call those who arrested the Appellant at the scene of the crime to testify. There is also no evidence before the lower Court that the PW1 identified the Appellant as the robber when he was purportedly arrested at the scene of the crime. There is indeed no evidence anywhere to show that the PW1 identified the Appellant to the OPC people or the Police either at the Ajao Police station or the Special Anti Robbery Squad in Ikeja as the person who robbed him. The Respondent in my view did not prove or establish this very important ingredient of the offence of armed robbery. The evidence before the lower Court could not connect the Appellant to the offence. So much doubt is created by the omission in the evidence of the PW1 and the case as stated by the Respondent in the lower Court as prosecution. With all the shortcomings in the case of the Respondent at the lower Court, I am at a loss how the lower Court could convict the Appellant for conspiracy and armed robbery with the mandatory punishment of death by hanging. The death sentence is the highest that can be placed on a person as when executed that ends the story of
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the life of a person. He will now face his creator to account for his life. In view of the seriousness of the sentence, a Court of law must be very certain before pronouncing a death sentence. A Court should turn the case over and over again and have watertight evidence that points without reasonable doubt to the accused that he either alone or in conjunction with others committed the offence. If there is an offence where the legal principle that it is better to allow 10 guilty people to go free than for one innocent person to be convicted comes into play, it is in capital offences that carry the death sentence.
A case like this where some vital witnesses, that is the IPO and those who purportedly arrested the Appellant were not called and the statements of the PW1 and the Appellant were not tendered, how the lower Court came to the conclusion that the Respondent has proved its case beyond reasonable doubt beats my imagination. My stand is strengthened and anchors on the fact that where a vital witness is required to prove an offence against an accused and such is witness is not called, it spells doom for the case of the prosecution; especially where the
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witness called at the trial cannot by his evidence prove his case against the accused. In the Supreme Court’s case of State vs. Isah & Ors (2012) LPELR-15519 (SC), the apex Court while pronouncing on which witness is regarded as a vital witness in a charge of armed robbery and the need to call such a witness, had this to say:
“In a charge of armed robbery, the following vital witnesses are expected to give evidence for the prosecution, and where the prosecution fails in that regard, very serious doubts arise as to whether the accused persons really committed the offence. 1. The victim of the armed robbery if still alive; 2. The Police Officers who arrested the accused persons; 3. Evidence of the circumstances in which the accused persons were arrested. 4. Eye witnesses or any witness who should give credible evidence of the armed robbery. 5. If reliance is placed on circumstantial evidence, it must be compelling and lead to only one conclusion, and that is the accused persons’ were responsible for the armed robbery.”
I had mentioned earlier, the fact that the IPO and those who purportedly arrested the Appellant were not called to
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testify at the lower Court, and that the statements of the PW1 and the Appellant were not tendered is fatal to the Respondent’s case and therefore the presumption under Section 167(d) of the Evidence Act 2011 will avail the Appellant. This Court in Nwocha vs. State (2012) LPELR-9223 (CA) lends its voice to this presumption when it held thus:
“Section 149 (d) of the Evidence Act provides as follows: “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume – (d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” Ordinarily, the Court has to be careful in holding this presumption. The failure of the Prosecution to tender in evidence the statement made by the Appellant in Ozubulu police station begs the question why. That was the statement made by the Appellant contemporaneous with his arrest. PW1 agreed that he made a statement at Ozubulu police station. If it
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was the same as Exhibit A, why was it not tendered by the prosecution? The production of the statement might have thrown light into some of the issues raised in this appeal. The prosecution is obliged to place before the Court all available relevant evidence. If there is a vital point in issue and there is a document or vital witness whose evidence could settle the point one way or another, the evidence ought to be adduced. See STATE V. FATAI AZEEZ & ORS (2008) 14 NWLR Pt. 1108 Pg.439. I have no doubt in my mind that there was a deliberate suppression of the original statement made by the Appellant and Section 149 (d) should be invoked against the prosecution.”
In the circumstance that the evidence of PW1 could not properly identify the Appellant as the person who robbed him either by recognition or identification, it is worrisome that the lower Court could find the Appellant guilty as charged and sentence him to death. If only the lower Court had considered the evidence of the Appellant that he was returning from a customer with his working tools, the lower Court may have looked at the case differently. I will not go into the viability of the
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defence of Alibi as it is no more necessary in this appeal having held that the prosecution did not prove his case beyond reasonable doubt but this was a piece of valid evidence from the Appellant which the lower Court should have considered since it was not contradicted. The Appellant said that when he was arrested he showed the police his work tools as a hair dresser. The police were not called to deny that evidence. In totality, I make bold to say that the lower Court finding and conclusion that the Respondent had proved its case beyond reasonable doubt does not conform or correspond with the evidence before the Court and therefore there is a miscarriage of justice.
In the circumstance, this appeal succeeds and it is allowed. The judgment of Hon. Justice K.A. Jose (Mrs.) delivered on 4/10/2017- The State of Lagos vs. Izunna Ajaere is hereby set aside. The Appellant in the circumstance is declared not guilty of the offence of conspiracy and armed robbery. He is hereby discharged and acquitted.
TIJJANI ABUBAKAR, J.C.A.: I read the leading Judgment prepared and rendered in this appeal by my learned brother Ebiowei Tobi JCA. I am in agreement and have
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nothing extra to add. I adopt the Judgment as my own.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
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Appearances:
…For Appellant(s)
…For Respondent(s)