AKPODEE SIMON v. THE STATE (2013)

AKPODEE SIMON v. THE STATE

(2013)LCN/6579(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/AK/82C1/2011

JUSTICES

SOTONYE DENTON WEST (PJ) Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

AKPODEE SIMON Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

There is no doubt that in our criminal jurisprudence, proof of any criminal allegations is on the person who alleges commission of such a crime and the standard of proof required of him is beyond reasonable doubt. It therefore goes without gainsaying that it is not the duty of an accused person to prove his innocence as a matter of law, there is always a presumption of innocence in favor of an accused. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt. See: Fabian Nwaturuocha v. The State (2011) LPELR – 8119 (SC), Agbadion v. The State (2000) 4 SC (Pt.1) pg.1, Agbe v. The State (2006) 6 NWLR (Pt.77) pg. 545. Akinyemi v. The State (1999) 6 NWLR (pt 607) pg.449, Along v. I.G.P (1959) SCNLR (Pt.576), Amadi v. The State (1993) 8 NWLR (Pt.314) pg 644 @ 668.PER WEST, J.C.A.

INGREDIENTS OF THE OFFENCE OF CONSPIRACY

WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE EVIDENCE OF A WITNESS THAT CAN VITITATE A DECISION

It is not every contradiction in the evidence of a witness that can be treated as being substantial enough as to discountenance or resolve such evidence against the person who gave the evidence. It must go to the root of the matter and the contradiction must be grievous. In Eke vs. The State (2011) 3 NWLR 589, it was held by the apex court thus:
“it is basic that testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. For contradictions in the event of witnesses to vitiate a decision, they must be material and substantial. Such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified, or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party. See: Enahoro v. Queen (1965) NMLR 265; Emiator v. The State (1975) 9-11 SC 107; Afulalu v. The State (2009) 3 NWLR (pt.1127) 160; Nasiru v. The State (1999) 2 NWLR (pt.589) 87; Okoziebu v. The State (2003) 11 NWLR (pt.831) 327” PER WEST, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

On the basis of the foregoing, I wish, to and so hold that the prosecution clearly proved the offence of conspiracy to commit robbery, although there were slight contradictions in the evidence of PW1.
In the allegation of the offence of armed robbery, the following ingredients must be established:
i. that there was robbery;
ii that the robbery was armed;
iii. that the accused participated in the robbery
See Tanko v. State (2008) 18 NWLR (Pt. 1114) 591 C.A. See also Bolanle v. The State (2005) 7 NWLR (Pt. 925) 431.
In the case of The State v. Olashehu (2011) LPELR – 8252, our apex court per Adekeye JSC held thus:
“It is trite that for the prosecution to succeed in proof of the offence of Robbery there must be proof beyond reasonable doubt of the following ingredients:
(1) That there must be robbery or series of robberies.
(2) That the robbery or each of the robbery was an armed robbery.
(3) That the accused was one of those who took part in the robbery.” PER WEST, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF IN CRIMINAL CASES SHIFTS FROM THE PROSECUTION

I had to go further to explain that proof of a case beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt. The burden of such proof which lies on the prosecution never shifts. If at the
conclusion of the trial, on the entire evidence of the court is left with no doubt that the offence was committed by the accused, that burden is discharged. Bello v. The State (2007) 10 NWLR (Pt.1043) pg.564; Amina v. The State (1990) 6 NWLR (Pt 155) p9.125; Nwachukwu v. The State (1985) 1 NWLR (pt.11) pg.218 Ani v. The State (2003) 11 NWLR (83) pg. 142; Uwagbo v. The State (2001) 6 NWLR (pt. 103) pg.1
The 1999 constitution of this country as it affects our criminal legal system, Section 36(5) stipulates that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving any particular facts.” Also Section 138(1) of the Evidence Act provides that:“if the commission of a crime by a party to any proceeding is directly in issue in any proceedings civil or criminal it must be proved beyond reasonable doubt” PER WEST, J.C.A.

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Akure presided over by Hon. Justice O. O. Akeredolu, delivered on the 13th July, 2007 (see pages 88 – 118) of the records of appeal.
The appellant was jointly charged before the High Court of Justice, Ondo State, Akure Division on a 2 count charge of conspiracy and robbery contrary to sections 6(b) and 2(b) of the Armed Robbery and Firearms (Special Provisions) Act Cap RII Vol. XIV Laws of the Federation of Nigeria respectively. The appellant and the other 2 accused persons pleaded not guilty to the charges. The prosecution in proof of their case called a total of three witnesses comprising of the complainant and two policemen. The testimony of PW1 (the complainant) is contained on pages 94 – 96 of the records of appeal while pages 96-97 contain evidence of PW2 who was the investigating police constable at Ijapo police station and evidence of PW3 the Investigating Police Officer at the State CID Special Anti-Robbery Squad, is contained on pages 97-99 of the records of appeal. The appellant gave evidence on his behalf as DW1. This evidence is contained on pages 69-74 of the records of appeal. The appellant and two other accused persons were found guilty and sentenced to death by hanging. The appellant being dissatisfied with the said judgment has appealed to this court.

The case of the prosecution was that the victim in this case, one Abu Fatai (PW1) rode a motorcycle for commercial purpose. On 2nd day of June, 2004 the appellant and the other 2 accused persons approached
PW1 for a commercial ride from one High School area to Olufoam area in Akure. On getting to their destination, they asked PW1 to park in a nearby bush where they alighted; they forcibly removed the motorcycles ignition key and one of the accused persons drew a cutlass on PW1 which made him retreat. The appellant and the other accused persons rode the motorcycle away. Immediately, PW1 ran to a nearby, ‘Quarter Guard’ where a policeman was detailed to follow him to the scene of crime. The motorcycle was traced and later found in a bush covered with leaves. The policeman took the motorcycle to the police station and later that day, one of the accused persons (1st accused) was apprehended. At the station, he mentioned the names of the other accused persons (including the appellant) with whom he robbed PW1. (See pages 15-17 of the records of appeal)
At the close of evidence from both sides and addresses by counsel, the learned trial judge in a judgment delivered on the 13th day of July, 2007 found the appellant and the other two accused persons guilty of conspiracy to commit armed robbery and convicted them to death by hanging. (see pages 117 – 118 of the records of appeal).
The appellant being dissatisfied with his conviction and sentence filed his Notice of Appeal on the 24th day of July, 2001, containing four (4) grounds of appeal. The parties filed and exchanged their respective briefs in this appeal. The appellant in his brief dated 10th April, 2012, but deemed properly filed on 12th July, 2012 formulated one issue below for determination:

“whether in view of the nature and quality of evidence adduced by the prosecution, the prosecution proved his case beyond reasonable doubt as to warrant the trial court to have convicted and sentenced the appellant to death by hanging for the offence of armed robbery. Grounds 1, 2, 3 and 4”
The respondent on their own part submitted the two issues below contained in their brief dated 9th day of October, 2012 but deemed properly filed on 30th October, 2012

i) whether there are material contradictions and doubts in the evidence of prosecution witnesses which can be resolved in favour of the accused person. (Grounds 3 & 4 of the appellants grounds of appeal)

ii) whether the prosecution had discharged its burden of “proof beyond reasonable doubt” in respect of this matter to warrant the conviction of the appellant by the trial court (Grounds 1 & 2 of the appellant’s grounds of appeal).

I have taken a cursory look at the issues formulated by the parties in this appeal and I wish to adopt the only issue as formulated by the appellant for being encompassing. Therefore, the issue for determination in this appeal is:

On the above issue, the appellant through his counsel Professor Justus Sokefun Esq. submitted that proving of the guilt of an accused person is always on the prosecution and that in the case of armed robbery, the following ingredients must be proved;
i) That there was a robbery
ii) That the accused was an armed robber
iii) That the accused was one of those who robbed.
The following authorities were relied on: Bello vs. State (2007) 10 NWLR (Pt.1043) 564 at 566., Ani vs State (2003) 8 SCMI.

It was submitted that Exhibit p3 tendered during the trial written trial was not an Exhibit for the purpose of the main trial but for the purpose of testing the admissibility or otherwise of the statements sought to be tendered, which the court rightly rejected after trial within trial. Pages 50 – 60 of the record were made reference to.

It was further argued that assuming the trial court could rely on the statement, i.e. Exhibit P3; the witness through whom it was tendered failed to make himself available for cross-examination after the initial statements were rejected. Page 113 lines 24-25 of the record was referred to. Further that having not appeared for cross-examination, the trial court ought not to have made use of his evidence; that it was a breach of fair hearing of the Appellant and any proceeding conducted in breach of fair hearing amounts to a nullity.
It was also argued that the said Exhibit p3 was not voluntary in view of the cautionary words contained at the opening paragraph and that the trial court ought to have expunged Exhibit p3 from his record, as evidence wrongly admitted can be expunged while a Judge is writing his judgment. Timitimi v Amabebe (153) 13 WACA 274 was referred.
Furthermore, it was submitted that the prosecution having failed to make PW3 available for cross-examination, it meant that the evidence the said PW3 would have given under cross-examination would be against the prosecution. Section 149 (d) of the Evidence Act was referred to.
Also, that if the evidence of PW3 was expunged, it would have been right) to say that the prosecution called only 2 witnesses whose evidence were contradictory.
The learned counsel submitted that considering the unreliability of the evidence of the PW1 and PW3 coupled with the failure of the prosecution witnesses to give the name and tender the item robbed or the instrument used in the robbery, the trial court ought to have held that the prosecution has failed to prove armed robbery and ought to have discharged the accused person/appellant.
This court was urged to discharge the appellant on this issue. The respondent’s counsel R.T. Olubodun Esq. in a swift reaction submitted that there were no material contradictions and doubts in the prosecution’s evidence before the trial court which can be of assistance to the appellant in this case. That whatever contradictions or doubt complained about by the appellant hold no water as they are not capable of upsetting the trial court’s judgment. It was argued that the oral evidence of the three accused persons including the appellant in this case corroborate the PW1’s oral testimony to the effect that he gave the three (not two) of them a ride on his commercial bike on this fateful day. Pages 62-75 of the records of appeal were referred to. It was submitted that it was rather the evidence of the appellant and the two accused persons that were fraught with contradictions and inconsistencies as can be garnered from the oral evidence of DW3 on page 73, lines 9 – 11 of the record of appeal.
It was further submitted that the prosecution proved the case of conspiracy and armed robbery against the appellant beyond reasonable doubt as to warrant conviction of the appellant.
Further that the ingredients of the offences were established and the contention of the appellant that exhibit P1 contradicts PW1 should be discountenanced with since the gravamen remains that the three boys given a ride by the PW1 on his bike on this fateful day threatened him with a cutlass with a view to robbing him of his bike, Exhibit P1 does not affirm the opposite of this and therefore not prejudicial to the prosecution’s case. It was also argued that none of the accused persons, including the appellant called the 1st accused person’s neighbours who they claimed intervened in the disagreement between the two parties as witness.
It was finally submitted that there were no material contradictions in the case which the appellant can benefit from. This court was urged to affirm the judgment of the lower court and dismiss the appeal.

RESOLUTION OF THE SOLE ISSUE ADOPTED IN THIS APPEAL

“Whether in view of the nature and quality of evidence adduced by the prosecution, the prosecution proved his case beyond reasonable doubt as to warrant the trial court to have convicted and sentenced the appellant to death by hanging for the offence of armed robbery.”

There is no doubt that in our criminal jurisprudence, proof of any criminal allegations is on the person who alleges commission of such a crime and the standard of proof required of him is beyond reasonable doubt. It therefore goes without gainsaying that it is not the duty of an accused person to prove his innocence as a matter of law, there is always a presumption of innocence in favor of an accused. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt. See: Fabian Nwaturuocha v. The State (2011) LPELR – 8119 (SC), Agbadion v. The State (2000) 4 SC (Pt.1) pg.1, Agbe v. The State (2006) 6 NWLR (Pt.77) pg. 545. Akinyemi v. The State (1999) 6 NWLR (pt 607) pg.449, Along v. I.G.P (1959) SCNLR (Pt.576), Amadi v. The State (1993) 8 NWLR (Pt.314) pg 644 @ 668.

To prove conspiracy, the following ingredients must be established:
i. an agreement between two or more persons to do an unlawful act or an act which is not illegal by unlawful means; and
ii. an act in furtherance of this agreement in which each of the accused is actively involved.
See the case of Abdullahi v. The State (2008) 17 NWLR (Pt.1115) 221 – 222 paras H – C. See also Usman Kaza v. The State (2008) 7 NWLR (Pt.1085) 125 S.C.
The oral evidence of the Appellant and the other two accused persons is to the effect that PW1 gave them a ride on his commercial bike on that fateful day. See pages 62-75 of the Records of Appeal. PW1 was the complainant in the matter culminating in this appeal and his statement at the police station were marked as Exhibits P1 and P2.
In Exhibit P1 contained at page 111 of the record of appeal, PW1 wrote as follows:
“…I came across two boys who stopped me that they were going to Olufoam area…As I was about collection (sic) my money from them one other boy came out of the bush with a cutlass while one out of the two I brought there equally brought out a cutlass from his trouser slapped me and forcefully ceased my ignition key from me. After sometime, they snatched my motorcycle from me as they were going away with my motor cycle; I have to run to Mobile Police Quarter Guard to lodge report…”

The same PW1 in Exhibit P2 contained at page 112 of the record of appeal wrote as follows:

“Three men stopped me that they are going to Olufoam. I charged them 60 and they didn’t talk. When I got to Olufoam, I wanted to stop Akpodee (one of the accused persons) said I should branch inside the bush. As I moved forward, he said ok. The moment I stopped, one of them emerged from nowhere and off the ignition key and kept it in his pocket…The man said I should come and collect my fare. As I was following him, he was moving towards the bush. As I wanted to go back, the other one brought out cutlass and l ran backward. The one climbed the motorcycle and drove off”

This same witness under cross examination testified that at page 19 of the records of appeal that “….I told the police that the person who brought out the cutlass emerged from the bush”

One can draw from the above pieces of evidence that there are contradictions having said in one breath that two men stopped him and that he picked them on his motorcycle. In another breath, he said he picked three men. Secondly, he said one boy came out of the bush with a cutlass while one out of the two he picked also brought out a cutlass from his trouser. Yet in another instance, in Exhibit P3, he said as he was about to follow one of the boys into the bush, one of them brought out a cutlass whereupon he ran back.
It is noteworthy that the trial judge identified this disparity between the various stages of the evidence of PW1 at page 112 of the judgment of the lower court. His Lordship concluded that it was “inconsequential” The vital question at this point is: whether these contradictions are substantial enough to upturn the decision of the lower court? It is discoverable that the PW1 gave a narration of how the Appellant and the other two accused persons carried out their agreement to rob him of his bike in both his judicial and extra judicial statements. See pages 15-19 and 110-112 of the Records of Appeal.
It is not every contradiction in the evidence of a witness that can be treated as being substantial enough as to discountenance or resolve such evidence against the person who gave the evidence. It must go to the root of the matter and the contradiction must be grievous. In Eke vs. The State (2011) 3 NWLR 589, it was held by the apex court thus:
“it is basic that testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. For contradictions in the event of witnesses to vitiate a decision, they must be material and substantial. Such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified, or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party. See: Enahoro v. Queen (1965) NMLR 265; Emiator v. The State (1975) 9-11 SC 107; Afulalu v. The State (2009) 3 NWLR (pt.1127) 160; Nasiru v. The State (1999) 2 NWLR (pt.589) 87; Okoziebu v. The State (2003) 11 NWLR (pt.831) 327”
The voluntary confessional statement of the 1st accused which graphically described the modus operandi adopted by the Appellant and two others to rob PW1 of his bike was sufficiently corroborated, particularly by the evidence of PW1 and thus admissible against the Appellant. See Sule v. The State (2009) 8 SCM 177 at Page 1894. See also Ogoala v. The State (1991) 2 NWLR (Pt. 195) 509 at 523.
The overt act of the Appellant and the other two accused persons recorded in Exhibit P3 which was sufficiently corroborated by the evidence of PW1 before the trial court is adequate ground to infer conspiracy. See the case of Omotola & Others v. The State (2009) 3 SCM, 127.
Conspiracy to commit an offence is often inferred from circumstantial evidence. See Mbang v. The State (2009) 12 (Pt.2) SCM, 63.
It is noteworthy that all the accused persons including the Appellant were unanimous in their statement that PW1 gave them a ride on his bike on this fateful day.
On the basis of the foregoing, I wish, to and so hold that the prosecution clearly proved the offence of conspiracy to commit robbery, although there were slight contradictions in the evidence of PW1.
In the allegation of the offence of armed robbery, the following ingredients must be established:
i. that there was robbery;
ii that the robbery was armed;
iii. that the accused participated in the robbery
See Tanko v. State (2008) 18 NWLR (Pt. 1114) 591 C.A. See also Bolanle v. The State (2005) 7 NWLR (Pt. 925) 431.
In the case of The State v. Olashehu (2011) LPELR – 8252, our apex court per Adekeye JSC held thus:
“It is trite that for the prosecution to succeed in proof of the offence of Robbery there must be proof beyond reasonable doubt of the following ingredients:
(1) That there must be robbery or series of robberies.
(2) That the robbery or each of the robbery was an armed robbery.
(3) That the accused was one of those who took part in the robbery.”

Also Section 138(1) of the Evidence Act provides that:

“if the commission of a crime by a party to any proceeding is directly in issue in any proceedings civil or criminal it must be proved beyond reasonable doubt”

Before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the offence charged. Amadi v. The State (1993) 8 NWLR (Pt.314) P9.644; Alor v. State (1997) 4 NWLR (Pt.501) Pg.511.”
See further Igabele v. The State (2006) 6 NWLR (Pt.975) Pg.100;
Agbo v. The State (2006) (Pt. 977) Pg .5456
PW1 who was a victim of this robbery incident narrated in the trial court how he gave the three accused persons, including the Appellant, a ride on his commercial bike and he was robbed of his bike by the trio upon demanding for his fare when he took them to their destination. The robbery incident was reported at Ijapo Police Station, Akure and later forwarded for further investigation at the Special Anti-Robbery Section, Akure. See pages 17 – 18 of the Records of Appeal. Thus, it was not in dispute that there was robbery, but whether there was armed robbery is in serious contention.
Exhibit P3 which is the voluntary confessional statement of the 1st accused person which seems to corroborate the oral evidence of PW1 before the trial court, was tendered and admitted without objection. It thus became part of the evidence for the prosecution. See 17-18 of the records of appeal.
See also Princewill v. The State (1994) 7-8 S. (Pt.11) 226 at 240.

The PW1 stated, while giving evidence before the trial court, stated that he was robbed of his bike by robbers and one of them was armed with a cutlass. See page 16, lines 8-10 of the Records of Appeal. It reads as follows:

“I turned to the person who took my keys, suddenly the person who asked me whether I knew him raised a cutlass with a view of hitting me on the head and I dodged it.”

Going by the above, the respondent was saying that more than one of the accused persons were armed with a cutlass during this incident. But it was in doubt. It is neither here nor there.
Since the offence of robbery does not require corroboration in our criminal justice system, I hold that a court can act on the evidence of only PW1 to the effect that this is robbery not armed robbery as established by Exhibits P1, P2 and PW1’s oral evidence before the trial court.
See the case of Ugwumba v. The State (1993) 5 NWLR (Pt.296) 660 at 674. See also Akalezi v. The State (1993) 3 NWLR (Pt.273) 1 at 13.
Exhibit P3 which is the voluntary confessional statement of the accused in this case is sufficiently supported by the statements of the PW1 and having been tendered without objection and admitted by the court, it thus became part of the prosecution’s evidence.
See the case of Stephen John & Anor. The State (2011) LPELR, it was held by the apex court per MUKHTAR JSC (now CJN) as follows:

“The contention that exhibit 3 was inadmissible because it was not tendered by the maker, is in the circumstance of no moment. Besides, when the said exhibit 3 was about to be tendered, there was no objection by the learned counsel for the defence, as is reflected on pages 67-68 of the printed records of proceedings. Having not objected to the admissibility of the confessional statement (exhibit 3), this omission translated to the fact that the 1st appellant was comfortable with the admission, saw no reason to challenge its admissibility”

In a situation like this, the court is at liberty to ascribe probative value to the document, as is succinctly put in the case of Alade v. Olukade (1976) S.C. 183, which categorized the effect of the admissibility of inadmissible evidence thus:
“However, in civil cases where the trial has been before a judge and jury the wrongful admission of evidence cannot be made a ground of appeal unless the appellant had formally objected to the evidence at trial. In a trial by a judge alone as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstance admissible in law and where the evidence complained of is admissible under certain conditions. In the former class of cases, the evidence cannot be acted upon even if parties admitted it by consent and the court of appeal will entertain a complaint on the admissibility of such evidence by the tower court(although the evidence was admitted at the lower court without objection), in the latter class of cases, if the evidence was admitted at the lower court without objection or by consent of the parties or was used by the opposite party (e.g. for the purpose of cross examination) then it would be within the competence of the trial court to act on it and the court of appeal will not entertain any complaint on the admissibility of such evidence.”
I wish to posit that Exhibit P3 is an exposition of the active participation of all the accused persons including the appellant in the commission of this robbery as sufficiently supported by Exhibits P1, P2 and the oral evidence of PW1. Its excerpt is on pages 109 -110 of the Records of Appeal. It reads as follows:
“…Mumuni and Sunday stopped one Okada man that he should carry us to Olu-foam from Maronu Market and he carried three of us, on getting to Olu-foam junction he demanded for his fares and I told him that none of us have money, though when the Okada man carried us none of us discuss with him that we don’t have any money to pay… then with my consent, Mumuni suggested that he will carry the motorcycle down to inside bush and hide it, then we all planned that when it is 8.00a.m. on the same date we will come back to place where we hide it, to my surprise at about 8.00a.m. of the same date two mobile policemen came down to my mum shop and arrested me…”

The above being an extract of the 1st accused’s confessional statement, I hold that since the Exhibit P3 above has been sufficiently supported by exhibits P1, P2 and PW1’s oral evidence, it is admissible against all the accused persons, including the Appellant to establish their active participation in the commission of this crime of robbery of motorcycle. See: Sule v. State (SUPRA).
As contended by the defence counsel, the fact remains, that if a witness is struck down by illness, death or any other catastrophe before the completion of his oral evidence in court, it stands to reason that the prosecution will dispense with the witness’ evidence and proceed with its case, armed with the belief that the exclusion of such evidence is not prejudicial to its case. I, therefore hold that the exclusion of the evidence of PW3, who could not complete his evidence before the trial court, is fatal to the case of prosecution unless there is still sufficient credible evidence to establish the guilt of the Appellant and the other accused persons in this case. See the case of Abubakar v. Chuk (2008) WRN (Vol. 20) 27 at 35 – 36, P.57 lines 30, 37 (SC). See also Nwaeze v. State (1996) Pt.428, p.33, Paras A-C.
This goes to echo the age long principle of law that the prosecution is not bound to call a truck load of witnesses. See Oluwole Akindipe v. The State (2012) LPELR- 9345, where the Supreme court per Ngwuta JSC held thus:
“In Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 15 SC. s. 148(d) now s. 149 (d) of the Evidence Act deals with the failure to call evidence and not the failure to call a particular witness”
It was also held that before the presumption can operate, it must be shown and established that:
(a) Such evidence existed, and
(b) It was the party that withheld it.
“If it was shown as in this case, that the evidence is withheld, the question of who withheld it can hardly be relevant. In any case, in all criminal trials, the prosecution is not obliged to call any number of witnesses to prove its case. A single witness, if believed by the court, can establish a criminal case even if it is a murder charge. See Effiong v. The State (1998) 5 NWLR (pt.562) 362 SC. success or failure in a criminal trial is not a function of the number of witnesses called or not called by the prosecution. What is the decisive factor is the quality of the evidence offered at the trial in discharge of the burden of proof on the prosecution”
Moreso, it is obvious from the records of the appeal that Exhibit P3 was not tendered, through PW3; rather it was tendered without any objection from the defence, through DW1 during trial within a trial. (See pages 27 & 28 of the Record of Appeal).
It is a trite law that admitting a piece of evidence during a trial within trial does not in any way vitiate a trial since it is not how a piece of evidence is obtained that the court will consider, but whether what is admitted is relevant. Exhibit P3 is relevant going by the definition of relevancy provided under Sections 6, 7 & 8 of Evidence Act, 2011 (As amended).
See Igbinovia v. The State (1981) 2 S.C. (pt.638) at P.267, Paras D-F; Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250 at Pt.267, Paras D – F
There is no principle of law requiring the tendering of the weapon used in the commission of an alleged robbery as decided and there is no weapon tendered in the case of Fatai Olayinka v. The State (2007) ALL FWLR (Pt. 373) 163 at 173-174.
It is also noteworthy that the prosecution did not produce robbed items in court in order to establish the ingredients of armed robbery. As I held earlier that the offence of armed robbery is not one of the classes of an offence in which corroboration is statutorily required, the evidence of PW1 who has been adjudged a credible witness by the trial court as material enough to be capable of being believed and deemed to have established all the ingredients of conspiracy and armed robbery beyond reasonable doubt has not been established, instead what was established was robbery against the Appellant.
The trial judge who conducted the grassroot of the matter was convinced that the prosecution proved all the ingredients of this offence beyond reasonable doubt against the Appellant and the two other accused persons and therefore convicted them accordingly.
Most importantly, I wish to emphasize that the assessment of credibility of a witness is a matter within the province of the trial court as it is only the court that has the advantage of seeing, watching and observing the witness box. An appellate court cannot on printed evidence usurp the essential function of the trial court which saw, heard and watched the witnesses testify, except if the trial lower court could not properly, and judiciously exercise its power of evaluation of evidence as a court of first instance, but where it is not clear that armed robbery was actually committed appellate court can interfer. See Olayinka Afolalu v. The State (2010) 11 SCM 1 at Pg.22.
On whether there are material contradictions and doubts in the prosecution’s case which can be of assistance to the accused person (Appellant).
It is my considered view that there were material contradictions and doubts in the prosecution’s evidence before the trial court which can be of assistance to the Appellant in this case.
The PW1 stated in his evidence before the trial court that he gave the Appellant and two other accused persons a ride on his commercial bike on this fateful day. An excerpt of Pw1’s evidence on pages 15-17 of the Record of Appeal is as follows:
“…I remember 2nd June, 2004. at about 6a.m. that day I took my Motorcycle to work, when I got to high school junction, I met the 3 accused persons. They stopped me for a commercial ride to Olufoam on the Express Way… when I got to the place I asked them whether they were okay…”
The following are further excerpts of PW1’s oral testimony before the trial court on the above pages of the Records of Appeal.

“…when we got to the place where there was a bush, they told me they were okay. I stepped on the brake, one of them alighted, I requested to be paid. The two others went to my right side and one of them switched off the ignition, removed the key to the motorcycle and put it in his pocket. I faced one of them and requested for the reason why the key of my motorcycle was removed. He told me that it would be better for me to cooperate at that stage. I asked him what was happening. He retorted by asking me whether I knew him and I said I did not. I turned to the person who took my key, suddenly the person who asked me whether I knew him raised a cutlass with a view of hitting me in the head and I dodged it…”
Exhibit P2 which is PW1’s extra-judicial statement made at the special Anti-Robbery section does in a way contradict the foregoing statement which the PW1 made before the trial court viva voce. Exhibit P2 is reproduced at pages 111-112 of the Records of Appeal.
The oral evidence of the three accused persons including Appellant in this case does not support the PW1’s oral testimony to effect that he gave the two (not three) of them a ride on his commercial bike on this fateful day (see pages 62-75 of the Records of Appeal).
Thus, Exhibit P1 which is PW1’s statement made at Ijapo Police Station to the effect that he gave a ride to two instead of three boys and that one other boy emerged from a bush armed with a cutlass aside from one of the accused persons including the Appellant, who threatened him with a cutlass should be regarded as contradictory to his oral evidence before the trial court and his statement before the police and I hereby so hold. An excerpt of Exhibit P1 reproduced on page 110-111 of the Records of Appeal is as follows:
“… I came across two boys who stopped me that they are going to Olufoam area and t carried both of them..as them, one other boy came out from the bush with a cutlass while one out of the two I brought there equally brought out a cutlass from, his trouser…”

It is my considered view that there is a distinction between contradictions and discrepancies in evidence of witnesses. These terms received judicial interpretation in the case of Jerry Ikuepenikan v. The State (2011) 1 NWLR (Pt.1229) 2449 when it was held that contradictions go to the essentiality of something, but minor discrepancies depend on astuteness and capacity to observe meticulous details.
The Supreme court, in Dibie & Ors v The State (2008) 6 ACLAR at page 329 Ration 35, espoused the foregoing view when it held as follows:
“On the question of whether there are material contradictions, it is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the afore-mentioned class are usually expected in every trial since human memories do not have equal capacities of storing and retrieving events that happened”
A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated. See Akpa v. The State (2008) 6 ACLR 514 at 518.
Irrespective of my findings above, it is not crystal clear that burden in criminal cases even though it seem same has been discharged in this appeal is nevertheless fraught with a lot of contradictions to the effect that a reasonable tribunal may not rely on such contradictions as herein exist to condemn the appellant to death.
Yes the offence of armed robbery if proved attract a death penalty but nevertheless before a court pronounce such a sentence, every iota of doubt as to the guilt of the appellant must be present. In this appeal, inter alia that the punishment of death as prescribed in Section 1 (2) of the Robbery Act does not confer any judicial discretion on the trial judge or even the appellate court to reduce it and neither is there any judicial power that can be exercised by a judex to reduce that sentence. It has been decided that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and, no other have to be adopted, but if that method is against the provisions of the constitution, then that statute cannot be upheld.
Constitutionally, we all have a right to life and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence. I am not convinced that the guilt of the appellant has been proved beyond reasonable doubt because inter alia towards the close of the Respondent’s case, doubts have been cast on their case in view of the fact that even the respondent listed 3 witnesses and 7 exhibits for tendering at the trial, they only produced two witnesses and third witness was not even available for cross examination and did not even finish his examination in chief.
See Okonli vs. The State (1981) 1 NWLR (pt.s2) 659; Bozin vs. The State (1985) 2 NWLR (pt. 8) 465
Further, the prosecution is duty bound to prove its case beyond reasonable doubt so that a wrong person will not be convicted for an offence he never committed.
By virtue of the inherent powers and sanctions of a court as enshrined in the constitution in section 6(a) & b of the 1999 constitution as amended and by virtue of the express provisions of section 33(i) of the same constitution which proves that:
“Every person has a right to life, and no one shall be deprived of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria…”
Life is sacrosanct and the prosecution in a criminal matter must prove its case beyond reasonable doubt so that a wrong person may not face a firing squad or be hanged until he dies and thus be convicted for an offence he never committed. Death sentence, if carried out is an irreversible act especially if such act is exercised on an innocent person. A person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. See Usman vs. The State (2010) 6 NWLR (pt.1191) 454 at 456; Obiakor vs. State (2002) 10 NWLR (pt. 776) 612
By virtue of Section 138 (2) of the Evidence Act 2011, the prosecution’s duty inter-alia is to prove the offence beyond reasonable doubt against the accused. Yes the prosecution tried to lead evidence to prove each count of the charge and they were not so successful as there were contradictions in the evidence of PW1, (the complainant) because of this contradictions, it would not be save to uphold the offence of armed robbery as charged, rather at best the offence of robbery against the appellant is what was clearly proved.
Further, it is better to let go off the hook one thousand men than to hang to death one innocent man. The recent decision of the Supreme Court in the corruption case involving Chief Olabode George in Suit Nos. SC.180/2012 (per John Afolabi Fabiyi, JSC) and SC.217/2012 (per Kumai Bayang Akaahs) underscores the need for judicial officers to exercise caution in sending an accused person to the gallows. Chief Olabode George has completed serving the prison term only to be cleared of any criminal wrong doing by the apex court. Had he been hanged, same cannot be reversed. Death sentence once carried out can never be reversed. Nobody can create life. It is better to err on the side of caution. Exhibit 3 did not show that the accused persons were armed during the incident. Must three men be armed to be able to dispossess one man of his motorcycle? It is doubtful. The respondent has proved that he was disposed of his motorcycle by the appellant and his co-accused.
The sum total of my posit here is to the effect that despite the findings by the trial court, the fact that the appellant fails to cross-examine a star prosecution witness would not relieve the prosecution of the duty to prove the appellant’s guilt beyond all reasonable doubt as it is not the duty of the appellant to prove his innocence. See Alabi vs. The State (1993) 9 SCNJ (pt.1) 109.
From the forgoing, I hereby set aside the conviction and sentence of death by hanging imposed on the appellant by the lower court and commute same to life imprisonment.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment of my learned brother Sotonye Denton-West JCA, I do agree with the judicial conclusion that the appeal lacks merit. In the instant case, the only logical consequence of the judicial conclusion is to affirm the judgment of the Court below.
For this reason I am unable to agree with the post-script sentiment expressed by my learned brother Sotonye Denton-West JCA of commutating the appropriate sentence of death penalty to life imprisonment.
Such powers of commutation of death penalty to life imprisonment as expressed by my learned brother is ultra vires the Courts, it properly belongs to the executive and/or legislative arm of Government, It does not lie within the province of the judicial arm of government to execute or to make laws. At the same time, the Courts have frowned on the usurpation of the powers of one arm of government by another arm of government. Indeed, the principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach into the powers of the other.
See A-G, Abia State V. A-G, Fed. (2003) 4 NWLR (Pt.809) 124.
Amadi V. NNPC (2000) 6SC (Part 1) 66 at 94 – 95.
For a Court of Law to competently interfere with Constitutional duties of the Executive and/or the Legislature there must be controversy. Controversy in this sense must be one that is appropriate for judicial determination.
See Asogwa v. Chukwu (2003) 4 NWLR (Pt, 811) 540.
In the instant case, there was no appeal on the sentence imposed by the Court below on the Appellant neither was there any other controversy in relation to the appeal that called for the commutation of the death penalty imposed on the appellant to life imprisonment after affirming the judgment of the Court below.
In any event, where a mandatory sentence is prescribed by law as in the instant case death penalty, the court cannot impose a lesser sentence.
See: Balogun v. A-G, Ogun State (2002) 6 NWLR (Pt.1029) 1.
Also, in Nigeria, the offence of murder as well as armed robbery carries the maximum capital punishment. In the cases of Okoro V. State (1988) 14 NWLR (Pt. 184) 181 and Akinyemi v. State (1999) 6 NWLR (Pt. 607) 449t It was held that death penalty and its method of execution is lawful and valid in Nigeria as it is sanctioned by Sections 30 (1) and 31 (1) (a) of the then Constitution of Nigeria 1979.
This is such that neither life imprisonment nor a sentence of ten years can be regarded as sufficient punishment for murder, notwithstanding the fact that the accused had remained in prison custody for ten years awaiting trial. See: Yahaya v. State (2002) 3 NWLR (Pt.754) 289. For these reasons, I affirm the conviction and sentence imposed on the Appellant by the court below (the High Court) in this case.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading before now the lead judgment of my learned brother DENTON-WEST, JCA. I agree with all the reasoning and conclusion reached therein.
The prosecution at the trial court discharged the burden placed on it thus proving their case beyond reasonable doubt. In effect the learned trial Judge having found the appellant guilty of conspiracy with two others to commit armed robbery and armed robbery, duly convicted the said accused to death by hanging. I shall and do affirm the death sentence duly pronounced on the appellant being that the sentence is mandatory in the circumstance.

Appearances

Professor Justice SokefunFor Appellant

AND

Taiwo Olubodun (DDCL) M. O. J., Ondo StateFor Respondent