EKONG DICKSON V. THE STATE (2011)

EKONG DICKSON V. THE STATE

(2011)LCN/5043(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of May, 2011

CA/I/264/08

RATIO

THE POSITION OF THE LAW WHERE AN ACCUSED IS ARRESTED OR CAUGHT WHEN TRYING TO ESCAPE DURING THE COMMISSION OF AN OFFENCE AND THE VICTIM OF THE CRIME WAS PRESENT

In ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129; (1991) 4 NWLR (PART 186) 399 the Supreme Court had this to say- “The law is sufficiently settled that where an accused is arrested or caught when trying to escape during the commission of an offence and the victim of the crime was present and positively identified the accused person there is no need for an identification parade.” In IKEMSON V. STATE (1989) 3 NWLR (PART 110) @ (1989) 6 SCNJ 54, the Supreme Court also stated that “an identification parade is not a sine qua non.” PER. STANLEY SHENKO ALAGOA J.C.A.

THE PROSECUTORIAL RESPONSIBILITY IN A CRIMINAL CASE

In IJIOFOR v. THE STATE (2006) 6 NSCQR (PART 1) 209 at 237, the Supreme Court per Achike JSC held as follows- “The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will certainly depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or number of persons that they field as witnesses.” PER. STANLEY SHENKO ALAGOA J.C.A.

THE POSITION OF THE LAW ON THE SUBJECT MATTER OF ARMED ROBBERY.

Before dealing with the offence of Attempted Armed Robbery, I shall first of all touch on the subject matter of Attempted Robbery. Attempted Robbery under the Robbery and Firearms (Special Provisions) Act is defined thus – “Any person who with intent to steal anything assaults any other person and at or immediately after the time of assault uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty one Years.” Section 2 sub-section 2(b) of the Act simply provides that if such an offender as has just been described above is armed with any firearms or any offensive weapon such an offender shall upon conviction be sentenced to imprisonment for life. We are therefore concerned with the conviction and sentence of the Appellant for Attempted Armed Robbery under section 2(2)(b) of the Act. The offence of Attempted Armed Robbery is a criminal offence and must be proved beyond reasonable doubt by the prosecution. To this end section 138 of the Evidence Act Laws of the Federation of Nigeria 2004 provides as follows –
“(1) If the commission of a crime by a party to any proceedings is directly in issue in any Proceedings civil or criminal, it must be Proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to section 141 of this act on the Person who asserts it whether the commission of such is or is not in issue in the action.”
The burden on the shoulders of the prosecution to prove the commission of crime never shifts. Thus failure of the offence amounts to failure to prove the guilt of the accused beyond reasonable doubt. Any doubt arising in the circumstances must be resolved in favour of the accused person. The following cases are relevant as illustrating this legal principle NWEKE V. STATE (2001) 15 WRN 96; (2001) 4 NWLR (PART 704) 588; ARUMA V, STATE (1990) 66 NWLR (PART 153) 125; AIGBEDION V. STATE (2000) 7 NWLR (PART 666) 686 at 704; (2000) 4 SCNJ 1; TANKO V. STATE (2008) 31 WRN 117; (2008) 16 NWLR (PART 114) 597 at 636. The purport of all this is that it is the duty of the prosecution to prove the case of Attempted Armed Robbery against the Appellant in this case who is presumed guilty unless and until the contrary is proved. This is illustrated in the case of KIM V. STATE (1992) 4 NWLR (PART 233) 17 where Nnaemeka Agu JSC stated thus, “The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused.”
Other cases on the same point are IGABELE V. STATE (2006) 6 NWLR (PART 975) 100 and WOOLMINGTON V. DPP (1935), AL 462. PER. STANLEY SHENKO ALAGOA J.C.A.

THE TEST FOR DETERMINING WHETHER THE ACT CONSTITUTES AN ATTEMPT OR PREPARATION

Before Their Lordships

STANLEY SHENKO ALAGOAJustice of The Court of Appeal of Nigeria

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

Between

EKONG DICKSONAppellant(s)

AND

THE STATERespondent(s)

STANLEY SHENKO ALAGOA J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Ota, Ogun State of Nigeria, the present Appellant as accused person was arraigned on a two count charge as follows:-
COUNT 1- That you Ekong Dickson (M) and others now at large on or about the 15th day of December 1999 at Johnson Market, Temidire, Sango Ota in the Ota Judicial Division conspired together to commit a felony to wit: Armed robbery and thereby committed an offence contrary to section 5(b) and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential amendments, etc) Act 1999.
COUNT II – That you Ekong Dickson (M) and others now at large on or about the 15th day of December 1999 at Johnson Market, Temidire, Sango Ota in the Ota Judicial Division while armed with gun did attempt to rob one Osabuohien Jeremiah of his money and thereby committed an offence contrary to section 2(2b) of the Robbery and Fire-Arms (Special provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1990.
He pleaded not guilty to each of the two count charge and the case went on to be heard with the prosecution calling three witnesses and tendering as exhibits one locally made double barrel shot gun, one live cartridge and statements of the accused person amongst others. The accused gave evidence on his behalf and called no witnesses. At the end of the trial and after final addresses of Counsel for the prosecution and the defence, the learned trial Judge Akinyemi, J in a considered judgment delivered on the 14th July 2008 found the accused person not guilty on the first count of conspiracy to commit armed robbery and accordingly discharged and acquitted him on that count but guilty on the second count of Attempted Armed Robbery and accordingly sentenced him to imprisonment for life.
At this stage it is pertinent to get to so much of the facts as can be gleaned from the Records. The case for the prosecution is that on or about the 15th December 1999 between the hours of 8 p.m. and 9 p.m. while PW1 Jeremiah Osabuohien and his wife (PW2) Joy Osabuohien were in their shop at Temidire Johnson Market Ota counting the proceeds of their sale for the day, the accused suddenly entered the shop and pointed a gun at PW1 ordering him to handover all the money in his possession or he would be killed. PW1 and PW2 pleaded with the accused but he told them to put all the money they had in a nylon, bag and hand same to him. PW1 pretended to be searching for a nylon bag and in a surprise move held the gun pointed at him by the accused and a life and death struggle for exclusive possession of the gun ensued between the accused and PW1. PW2 at this stage ran outside the shop shouting “thief, thief, thief”. Meanwhile PW1 succeeded in snatching the gun from the accused who then ran out of the shop and into the hands of the crowd that had gathered outside the shop as a result of the alarm raised by PW2. One OPC member who grabbed the accused had his lips bitten off by the accused person. The rest of the crowd held the accused and after beating him up took him to the police station. PW1 then handed over the gun (exhibit A) to the police, The investigating police officer (PW3) Inspector Edward Atiemuwen, at the time a Sergeant attached to the Anti Robbery section Abeokuta had in the course of the trial tendered the statement of the accused (exhibit B) and the gun and cartridge (exhibits “A” and “A1”) which were handed over to him with the accused. PW3 confirmed that he spoke to other eye witnesses who confirmed being present when the accused was arrested but who were reluctant to come to court to testify. PW3 also confirmed in his evidence having met the man described as an OPC member who confirmed that he had assisted in arresting the accused. PW3 said he saw the lips of the alleged OPC man to whose wounds on the lips were yet to heal at the time.
The accused person’s testimony was that he left Lagos where he was working at Divine Restaurant Iyana Ipaja for Sango Ota on the 15th December 1999 to visit his girlfriend whose name he gave as Iyabo and on his way to Iyabo’s house at Temidire Area of Sango he saw a group of people coming in front of him. They stopped him and said they were OPC members. They spoke in Yoruba language which he did not understand, They said “Omo Ibo” and he replied them in English by asking “What is the matter?” They then began to beat him and took his purse containing the sum of N1, 000.00 and his hand watch. They took him to the police station where he was searched and nothing was found on him. He explained his plight to the police and requested to be taken to his girlfriend’s place but the police refused. He said a name was called out to him which he did not know. The police brought out a gun from a drawer and asked him who owned it and he said he did not know and that he was then beaten up in an attempt to make him confess to an offence which he did not commit but he refused and confirmed that exhibit “B” represented his correct statement.
Aggrieved by the judgment of the lower court earlier highlighted in this write-up, the accused person filed a Notice of Appeal contained at page 43 of the Record of Appeal. By a motion on Notice dated the 7th April 2009 and filed on the 9th April 2009 and brought pursuant to Order 6 rules 4 and 15 and Order 7 rule 1 of the Court of Appeal Rules, 2007 which was in operation at the time, the Accused turned Appellant sought leave of this court to amend the Notice of Appeal and to deem the Notice of Appeal which had been filed and served as properly so filed and served on the Respondent. The application was moved and granted by this Court on the 5th October 2009. The Amended Notice of Appeal of the Appellant is reproduced fully below –
AMENDED NOTICE OF APPEAL
The Learned trial judge erred in law when he held that the failure to call the OPC man who arrested the accused person and in the process had his lips bitten off was not fatal to the prosecution’s case.
PARTICULARS
a. A witness becomes material/vital in a criminal trial if there is a vital point or essential ingredient of an offence which can only be proved by the evidence of that witness.
b. During cross examination P.W.3 testified as follows-
“Apart from the complainant, there was an independent (sic) who said he helped the complainant to recover the gun and in arresting the accused person, and was given a human bite (sic)…. There were other people at the scene but they declined giving statement. Only the person who helped in arresting spoke.”
(Underlining for emphasis)
c. The decision by the prosecution not to call the OPC boy who allegedly caught the Appellant whilst he tried to escape is indeed very fatal to the prosecution’s case, because there cannot be prove beyond reasonable doubt.
d. The above fact, the Prosecution realised during the conduct of the trial and sought several adjournments to enable the said witness be produced before the Honourable Court.
However, the Prosecution was prevailed upon to close its case after over a year since opening same and to several attempts to produce the said witness proved abortive.
e. The lack of such crucial evidence has created a vacuum which makes it difficult to believe that the prosecution witnesses are witnesses of truth.
f. A witness who knows something significant about a matter is a vital witness and ought to be called by the prosecution. It is the failure to call a vital witness that raises a strong presumption that his evidence if called would be unfavourable to the t Prosecution.
2. The Learned trial judge erred in law to have convicted the Appellant in the absence of Properly conducted identification parade and proper evidence of identification.
PARTICULARS
a. The Complainants’ shop is located by the roadside in a market place and the incident was recorded to have taken place between the hours of 8p.m and 9p.m which leads to the irrefutable presumption that it was dark at the time.
b. During cross examination P.W.1 stated that-
“As at the time, it was dark. Only me and my there when it happened”
c. Similarly, P.W.2 also stated during cross examination that-
“It happened at night and it was dark. It was a market Place with many People moving around”
d. However, the prosecution Counsel tried unsuccessfully to correct the impression which had already been made that the accused Person could not have been properly identified by P.W. 1 and P.W.2 considering it was dark and the encounter was very brief.
“There was no electricity at the time, but we put on a lantern which we were using to count the money.”
e. This leads to the irrepressible conclusion that the identity of the offender which is indeed of crucial importance could only have been properly done by means identification parade.
3. The Learned trial Judge erred in law when he convicted the Appellant on the strength of the evidence of P.W1 and P.W.2 both victims of the attack and held that their testimonies were consistent and credible.
PARTICUI.ARS
a. The evidence of P.W.2, who herself was a victim of the same attack and wife of P.W.1 ought not to have been viewed with as much confidence as the trial Court did, being the evidence of a victim.
b. P.W.2 further testified as to two other purported gang members who pursued her at the door Post, but later ran away when a crowd gathered.
c. The foregoing however, called to question the truth of the statement as rightly discerned by the trial judge who discharged and acquitted the Appellant on the count of conspiracy.
d. Both P.W.1 and P.W.2 in their testimonies to the Honourable Court affirmed the fact that it was dark when the incident occurred and there is strong probability and high likelihood that the identity of the offender could have been mistaken with that of the Appellant.
e. P.W.1 in his testimony which was corroborated by P.W.2 stated that the whole encounter lasted just about five minutes”
4. The decision of the High Court is unreasonable as the prosecution failed to establish its case against the Appellant beyond reasonable doubt.
PARTICULARS
a. There was no link between the accused and the offence committed, save the fact that he was the only person walking in the opposite direction from the crowd. The accused was just at the wrong Place at the wrong time.
b. The accused had stated in his statement to the Police that he does not know the exact house where his girlfriend Iyabo whom he had gone to visit lives, he usually stood by the roadside and waited for her till she came out.
c. The testimonies of P.W.1, P.W.2 and P.W.3 were insufficient and could not have satisfied the standard proof of beyond reasonable doubt such as to ground a conviction of the Appellant for the offence of Attempted Armed Robbery.
d. By reason of the foregoing the decision of the Court cannot be supported having regard to the weight of evidence adduced.
From the four Grounds of Appeal contained in the Amended Notice of Appeal, the Appellant in his Brief of Argument dated the 22nd October 2009 and filed same day distilled the following issues for the determination of this Court and which issues are contained in paragraph 3 at pages 3 and 4 of the said Brief –
(1) Whether having regard to the facts of this case the Appellant was properly identified by PW1 and PW2 in the circumstance such as to warrant or support his conviction.
(2) If the answer to the above is negative, whether there was not the need for identification.
(3) What is the effect of the prosecution calling a vital witness?
(4) Whether the trial court adequately evaluated the evidence before it, before arriving at its judgment and/or whether the learned trial Judge was right to have relied on the evidence of PW1 and PW2 in convicting and sentencing the Appellant to life imprisonment for attempted armed robbery.
(5) Having regard to the facts of this case whether the prosecution fully discharged the burden of proof placed upon it and also proved the guilt of the Appellant beyond reasonable doubt.
The Respondent (the State) for its part formulated the following two issues in paragraph 4.01 at page 5 of the Respondent’s Brief of Argument –
(a) Whether there was need for any formal identification parade in this case considering how the Appellant was arrested,
(b) Whether from the totality of the evidence adduced, the Prosecution proved its case beyond reasonable doubt.
The said Respondent’s Brief of Argument is dated the 25th January 2011 and filed on the 26th January 2011 but deemed properly filed and served on the Appellant on the 24th March 2011 following the grant on that day of a motion on Notice dated the 25th January 2011 and filed on the 26th January 2011 brought by the Respondent pursuant to Order 7 rule t0 of the Court of Appeal Rules 2007 which was in operation at that time praying the Court for extension of time for the Respondent to file her Brief of Argument and to deem the filed Respondent’s Brief of Argument which had already been served on the Appellant as properly so filed and served. These respective Briefs of Argument of the parties were on the 11th April 2011 when this appeal came up for hearing relied upon and adopted by the respective Counsel as arguments in support of their positions. While Mr. Ahmed Akanbi Counsel to the Appellant urged this Court to allow the appeal and set aside the judgment of the trial High Court delivered on the 14th July 2008, Mr. W. A. Onawole, State Counsel Ministry of Justice Ogun State urged us to dismiss the appeal and affirm the judgment of the trial court below.
After a very careful consideration of the issues formulated by the parties, I consider the following as the proper issues to determine this appeal –
1. Was the learned trial Judge right in convicting and sentencing the Appellant to life imprisonment for the offence of Attempted Armed Robbery in the absence of a formal identification parade?
2. Was the learned trial Judge right in placing heavy reliance on the evidence of PW1 and PW2 in convicting and sentencing the Appellant when more vital witnesses could have been called by the prosecution?
3. Having regards to the facts of this case, did the prosecution prove its case beyond reasonable doubt as required by law?
On issue 1 as to identification of the Appellant, Appellant has placed reliance on UKPABI V. THE STATE (2004) 11 NWLR (PART 884) 439 at 441. 455 where Uwaifo JSC said as follows –
“Identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was shown committing the offence. Where a trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt.” (Underlining supplied).
Appellant’s Counsel went further to submit that the Courts are enjoined to act with caution whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused. Counsel submitted that both PW1 and PW2 admitted in evidence that the incident happened between 8p.m. and 9p.m. when it was dark but was quick to concede that under re-examination PW2 had stated that although there was no electricity at the time, a lantern had been put on which PW1 and PW2 had used to count the money realised from their sales for the day. Counsel tried to distinguish the position in BOLANLE V. THE STATE (2005) 7 NWLR (PART 925) 431 at 453 where the prosecution witnesses had the opportunity to see the Appellant as there was electric light available (underlining supplied) and the robbers were not masked, with the present situation where there was no electricity at the time and the only form of light available was that provided by a lantern which must have been very poor as the entire shop must have been dimly lit.
Appellant’s, Counsel has also relied on ANSHA V. STATE (1998) 2 NWLR (PART 537) page 246 at 250 at 261-262 where certain guidelines which a trial court should examine closely for the evaluation of evidence of identification of accused persons by witnesses were highlighted and they are as follows
(i) How long did the witness have the accused under observation?
(ii) At what distance?
(iii) In what light?
(iv) Was the observation impeded in any way as for example by Passing traffic or a press of people?
(v) How often? Had he any special reason for remembering the accused?
(vi) If only occasionally;
(vii) How much time elapsed between the original observation and the subsequent identification to the police?
Applying these guidelines to the present situation Counsel for the Appellant submitted that the period of five minutes which PW1 and PW2 stated in their evidence that the attempted robbery incident lasted was not long enough for PW1 and PW2 to have fully observed the features of the Appellant to properly identify him as the person who attempted to rob them. Counsel again submitted that a PW1 that was pretending to search for a nylon bag and who bent down in the process could not have looked at the Appellant in the face to positively identify him as the man who attempted to rob him. Counsel went on to further submit that it was while struggling for the control of the gun by PW1 and the Appellant that PW2 ran out of their shop and therefore neither PW1 nor PW2 would have had ample time to have a good look at alleged robber’s face. It was, the Appellant’s Counsel’s further submission that the observation of both prosecution witnesses was impeded by virtue of the presence of the crowd that had gathered round the Appellant following the alarm raised by PW2 of the presence of a thief around coupled with the prevailing darkness at the time of the incident.
Appellant’s Counsel went on to say that the OPC member who allegedly arrested the attempted robbery suspect and had had his lips bitten off in the process should have been called to give evidence which would have been unimpeachable but was not and where the quality of identification is poor the trial Judge should have returned a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. While conceding that it is not in every criminal case that an identification parade is necessary to identify an accused person and that every case will depend on the facts and circumstances of each case, Appellant’s Counsel submitted that the conduct of an identification parade will become necessary, even essential in the following situations which apply to the present situation –
(a) Where the accused was not arrested at the scene of the crime and he denies taking part in the crime;
(b) The victim did not know the accused before;
(c) The victim was confronted by the accused for a very short time; and
(d) The victim due to time and circumstances might not have had full opportunity of observing the features of the accused.
Counsel went on to say that in the instant case all the above stated essential requirements for the conduct of an identification parade are present in the sense that –
1. The Appellant was not arrested at the scene of the crime as it was alleged that he abandoned the gun and fled but was caught outside the shop by a crowd led by one Jamiu an OPC member.
2. The Appellant denied committing the crime saying that he was waiting by the roadside for his girlfriend whom he had come to see when he was accosted by a group of people.
3. The victims did not know the Appellant before and had never seen him prior to the incident.
4. The encounter lasted for a brief period.
5. During the split second the encounter lasted, the victim could not have properly identified.
6. PW2 could not have been able to properly identify the Appellant as she ran outside the shop for help.
Reliance was placed on ALABI V. STATE (1993) 7 NWLR (PART 307) 511 at 525.
The Respondent for its part on the issue of identification follows –
“Identification parade means a group of persons assembled by the police from whom a witness tries to identify a suspect unaided and untutored.”
Respondent’s Counsel submitted that it was clearly stated in ADISA V. STATE (supra) that an identification parade is not necessary in two main instances –
(a) When the suspect, the subject of identification is caught in the process of committing the offence; and
(b) When the suspect admits committing the offence.
Counsel submitted that in this appeal where the Appellant was caught while trying to escape during the commission of the offence and the victim of the crime was present and positively identified the accused person there will be no need for the formality of holding an identification parade. Counsel also submitted that there is no law which requires a witness to describe the features of an accused person before the accused could be said to have been properly identified by the witness.
It is sufficient if the witness properly identified the accused. Reliance was placed on OTTI V. STATE (1991) 8 NWLR PART 207 page 103 at 116; 117.
Let me say at the outset that it is settled on the authorities that it is not in every instance when an accused person is suspected of having committed an offence that he is paraded for identification. See UKPABI V. THE STATE (2004) 34 WRN 12; (2004) 11 NWLR (PART 884) 439. What is important is that whatever evidence is given on identification must establish the guilt of the accused beyond reasonable doubt. Such evidence should not be shaky or speculative or doubtful. It is necessary at this stage to examine the evidence of PW1 and PW2 who allegedly had a direct contact with the Appellant.
PW1 is Osabuohien Jeremiah. His evidence at pages 6 and 7 of the Record of Appeal is that on the 15th December 1999, he was in his shop at Temidire Johnson Market around 8-9 p.m. arranging the little money he had made that day before closing when suddenly he and his wife saw the Appellant enter their shop with a gun which he pointed at his head telling him to handover all the money to him failing which he (Appellant) would fire the gun at Appellant’s head. He and his wife pleaded “PLEASE, PLEASE, PLEASE”. Appellant said he should look for a nylon bag and pack the money and give to him or he would kill him. He (PW1) pretended to be looking for a nylon bag and in a lightning move grabbed the gun and a struggle for possession of the gun ensued between him and the Appellant during which struggle, his wife ran outside shouting “THIEF, THIEF, OLE”. He (PW1) succeeded in wresting the gun from the Appellant who then ran out of the shop and was caught by the crowd outside who had been attracted by the alarm raised by his wife. An OPC boy by name Jamiu grabbed the Appellant who bit off the lip of the OPC boy. The rest of the crowd then beat up the Appellant before they took him to the police station. He accompanied the crowd to the police station where he made a statement to the police and handed over the gun, a short double barrel. On cross-examination he said his struggle with the Appellant lasted for about five minutes and that in all the whole incident took about an hour before the Appellant was taken to the police station.
PW2 Mrs. Joy Osabuohien’s evidence is not different from the evidence of PW1 to the minutest details. She said the incident took place between 8 p.m. – 9 p.m. at night but while being re-examined by prosecuting counsel for the State E.
Fadina, PW2 stated that although there was no electricity at the time, a lantern was put on which was used to count the money. The evidence of PW1 and PW2 were clear, consistent and in harmony with each other and stood the test of rigorous cross-examination. In ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129; (1991) 4 NWLR (PART 186) 399 the Supreme Court had this to say-
“The law is sufficiently settled that where an accused is arrested or caught when trying to escape during the commission of an offence and the victim of the crime was present and positively identified the accused person there is no need for an identification parade.”
In IKEMSON V. STATE (1989) 3 NWLR (PART 110) @ (1989) 6 SCNJ 54, the Supreme Court also stated that “an identification parade is not a sine qua non.” The notion that the Appellant could not have been positively identified because the incident took place at night between 8-9 p.m. must be dispelled given the fact that there was a lantern in the shop with which PW1 and PW2 counted their money. If the lit lantern produced enough light with which money could be counted, it could not have been too dim to identify the Appellant.
Appellant has also made heavy weather of the fact that the struggle between the Appellant and PW1 lasted for just five minutes which period was considered too short for the Appellant to have been positively identified. This is ridiculous as it does not take an average and normal human being more than a few seconds to recognise another human being or object. There is no suggestion that the alleged attempted armed robber was hooded. Evidence adduced is that the Appellant was taken to the police station within one hour of the incident. The Appellant was properly identified by PW1 and PW2 rendering a formal identification parade unnecessary.
Issue 1 therefore is resolved in favour of the Respondent against the Appellant.
Issue 2 is as to whether the learned trial Judge would be said to be right in placing heavy reliance on the evidence of PW1 and PW2 in convicting and sentencing the Appellant when more vital witnesses could have been called by the prosecution?
Appellant has submitted in his brief of Argument that where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, it will be presumed that had that witness been called evidence would have been unfavourable to the party who called him. Reliance was placed on ONAH V. The STATE (1985) 3 NWLR (PART 13) 236 at 237. The Appellant has also placed reliance on the case of ALAKE V. STATE (1992) 9 NWLR (PART 265) 260 at 273 where the Supreme Court per Wali JSC said as follows –
“While it is a correct statement that it is at the discretion of the prosecution to call the witnesses they consider relevant to prove their case, it is equally clear that where such vital and material witnesses are not called such failure could be fatal to their case.”
Without any doubt these positions of the Apex Court represent the correct position of the law. The Appellant is here referring to the fact that the OPC boy one Jamiu who allegedly grabbed the Appellant and had his lips bitten off by the Appellant in the process was not called to give evidence at the trial. Without any doubt if Jamiu played such a prominent part in the arrest of the Appellant, he is indeed a vital witness. That fact does not need to be over-flogged as it is factual. The question must however be asked at this stage. Is PW.2 who was an eye witness to the attempted armed robbery of PW1, not also a vital witness? The Appellant on entering the shop pointed his gun at PW1. It was PW1 that the Appellant allegedly ordered to look for a nylon bag and put in all the money and hand same over to him. It was PW1 who allegedly had a struggle with the Appellant for the possession of the gun. PW2 was at best only an observer and an eye witness to the whole scene.
PW 2 in her evidence at page 9 of the Record said as follows-
“He pointed the gun on my husband’s head that he should bring all his money i.e. our daily sales for that day. He ordered my husband to pack it into a nylon bag for him so my husband was pleading with him. He said if my husband made any noise he would shoot him. My husband pretended that he wanted to look for a nylon bag and he grabbed the gun. As they were struggling for the gun I ran outside shouting “THIEF”, “THIEF”……..”
It is not the law and it has never been the law that the evidence of a wife cannot be corroborative of the evidence of her husband despite the legal bond of matrimony existing between them. The OPC boy’s evidence which the Appellant described as “unimpeachable testimony” in paragraph 4.12 at page 8 of the Appellant’s Brief of Argument were it given could not have been more unimpeachable than that of PW 1 who was at the scene of the attempted armed robbery and saw it all. Let me say for the umpteenth time that the notion veiled or expressed that the evidence of a wife cannot corroborate that of her husband does not represent the true position of the law and where there are more than one vital witness in proof of a prosecution’s case, must the prosecution field them all in proof of its case? That is certainly not the true position of the law at the highest level of our court system. In IJIOFOR v. THE STATE (2006) 6 NSCQR (PART 1) 209 at 237, the Supreme Court per Achike JSC held as follows-
“The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will certainly depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or number of persons that they field as witnesses.”
(Underlining mine for emphasis.)
The evidence of PW2 is direct, positive, unequivocal and corroborative of the evidence of PW1. The prosecution makes use of evidence it can gather and garner for its use. The apathy attendant to this is best summed up in the evidence of PW 3 Inspector Edward Atiemuwen under cross-examination at page 12 of the Record of Appeal thus –
“Apart from the complainant, there was an independent who said he helped the complainant to recover the gun and in arresting the accused person and was given a human bite. I cannot remember his name now. There were other people at the scene but they declined giving statement. Only the person who helped in arresting spoke. I saw the mark on that lip. I saw the mark on the lip that was cut off. It was still under treatment when I saw it. He said he was bitten in the cause of arresting the accused.”
PW3 could only have been referring to Jamiu the OPC boy whom he met face to face and questioned and some of the crowd at the scene on the day of the incident. His evidence is that of a truthful witness being consistent throughout. I therefore also resolve issue 2 in favour of the Respondent against the Appellant.
Issue 3 is as follows-
“Having regards to the facts of this case, did the prosecution prove its case beyond reasonable doubt as required by law?”
The Appellant is charged with the offence of Attempted Armed Robbery contrary to section 2(2)(b) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999.
Before dealing with the offence of Attempted Armed Robbery, I shall first of all touch on the subject matter of Attempted Robbery.Attempted Robbery under the Robbery and Firearms (Special Provisions) Act is defined thus –
“Any person who with intent to steal anything assaults any other person and at or immediately after the time of assault uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty one Years.”
Section 2 sub-section 2(b) of the Act simply provides that if such an offender as has just been described above is armed with any firearms or any offensive weapon such an offender shall upon conviction be sentenced to imprisonment for life. We are therefore concerned with the conviction and sentence of the Appellant for Attempted Armed Robbery under section 2(2)(b) of the Act. The offence of Attempted Armed Robbery is a criminal offence and must be proved beyond reasonable doubt by the prosecution. To this end section 138 of the Evidence Act Laws of the Federation of Nigeria 2004 provides as follows –
“(1) If the commission of a crime by a party to any proceedings is directly in issue in any Proceedings civil or criminal, it must be Proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to section 141 of this act on the Person who asserts it whether the commission of such is or is not in issue in the action.”
The burden on the shoulders of the prosecution to prove the commission of crime never shifts. Thus failure of the offence amounts to failure to prove the guilt of the accused beyond reasonable doubt. Any doubt arising in the circumstances must be resolved in favour of the accused person. The following cases are relevant as illustrating this legal principle NWEKE V. STATE (2001) 15 WRN 96; (2001) 4 NWLR (PART 704) 588; ARUMA V, STATE (1990) 66 NWLR (PART 153) 125; AIGBEDION V. STATE (2000) 7 NWLR (PART 666) 686 at 704; (2000) 4 SCNJ 1; TANKO V. STATE (2008) 31 WRN 117; (2008) 16 NWLR (PART 114) 597 at 636.
The purport of all this is that it is the duty of the prosecution to prove the case of Attempted Armed Robbery against the Appellant in this case who is presumed guilty unless and until the contrary is proved. This is illustrated in the case of KIM V. STATE (1992) 4 NWLR (PART 233) 17 where Nnaemeka Agu JSC stated thus,
“The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused.”
Other cases on the same point are IGABELE V. STATE (2006) 6 NWLR (PART 975) 100 and WOOLMINGTON V. DPP (1935), AL 462.

In ALHAJI YAKUBU SANNI V. THE STATE (1993) 4 NWLR (PART 285) 99 at 199, the Court of Appeal had this to say –
“It is the law that in every crime there is first an intention to commit it; secondly the preparation to commit it; and thirdly the attempt to commit it. If the third state- the attempt- is successful, then the crime is complete. The test for determining whether the act constitutes an attempt or preparation is whether the overt act already done is such that if the offender changes his mind and does not proceed further in its progress, the act already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would frutify into the commission of the offence. It would amount to an attempt to commit an offence.
How do all these fit into the crime of Attempted Armed Robbery with which the Appellant was arraigned, tried, convicted and sentenced behind bars for life? The whole picture of what transpired on the 15th December 1999 between the Appellant and PW1 is clear. PW1 was in his shop at Johnson market, Temidire, Sango Ota with his wife PW2 at about 8-9 p.m. at night counting the money they had realised as sales for the day when the Appellant suddenly came in and pointed a gun at the head of PW1 ordering him to handover all the money he had or he would kill him. Both of them pleaded with the Appellant but he ordered PW1 to put the money in a nylon bag and hand it to him. PW1 while pretending to be searching for a nylon bag in a lightning move grabbed the gun in the hand of the Appellant and a struggle between the two ensued. PW2 then ran outside shouting “thief”, “thief”, “ole” which attracted a crowd. Meanwhile PW1 had succeeded in wresting the gun from the hand of the Appellant who ran out of the shop and was apprehended by the crowd. An OPC member who was part of the crowd grabbed the Appellant who bit off his lip. The whole encounter lasted for about an hour before the Appellant was handed over to the police with the gun which PW1 had wrested from the hand of the Appellant.
The struggle between the Appellant and PW1 lasted about five minutes according to the evidence of PW1.
It was PW2’s testimony that although it was dark, the incident having happened between 8 p.m. and 9 p.m. they had a lit lantern with which they were able to count the proceeds for the day. Appellant’s defence was that on the 15th December 1999 he left Lagos for Sango Ota to visit his girlfriend one Iyabo. On his way to Temidire where she resided he saw a group of people coming in front of him. They stopped him and identified themselves as OPC members. They spoke Yoruba language to him which he did not understand.
They said “Omo Ibo” which he did not understand and replied them in English “What is the matter?” They started to beat him and took away his purse containing N1, 000.00 and a hand watch. They then took him to the police station where he was searched but nothing was found on him. He asked the police to take him to his girlfriend’s residence but they refused.
It is instructive at this stage that PW3 the investigating officer had in his evidence said that he had asked the Appellant to take him to his (Appellant’s) girlfriend’s house but the Appellant refused. The main argument that was canvassed by the Appellant was that the Appellant could not have been properly identified by PW1 and PW2 given the fact that the incident was said to have taken place between 8 p.m. and 9 p.m. at night but pw2’s evidence was that the shop was illuminated by a lantern. The Appellant said the time of the encounter between PW1 and the Appellant being short (about five minutes) according to the evidence of PW1 and PW2, there was not sufficient time for the Appellant to have been fully identified and there could have been the need for an identification parade to have been conducted. It was also the submission of the Appellant that Jamiu the OPC boy who allegedly grabbed him as he left the shop was a vital witness whose evidence could have settled the identity issue. I have gone through the entire evidence available and I think the learned trial Judge was right in his evaluation of same and have no reasons to disturb same.
I therefore dismiss the appeal and uphold the judgment of the High Court below as I find issue No. 3 also in favour of the State against the Appellant. The learned trial Judge had said he had no discretion in sentencing the Appellant to life imprisonment. The, learned trial Judge is right as section 2(2)(b) of the Robbery & Firearms Act 1990 as amended provides that the punishment for Attempted Armed Robbery shall be imprisonment for life. I therefore uphold not just the conviction but the sentence of imprisonment for life passed on the Appellant by the learned trial Judge.

SIDI DAUDA BAGE, J.C.A.: I have had the opportunity to read in draft the lead judgment delivered by learned brother, S.S. ALAGOA, J.C.A.
I agree with his reasonings and conclusions reached and I entirely agree that the appeal lacks merit and it ought to be dismissed. I also dismiss same and I abide by the consequential order contained in the lead judgment.

JOSEPH SHAGBAOR IKYEGH J.C.A.: I had the advantage of perusing in draft the closely reasoned judgment prepared by my learned brother, ALAGOA, J.C.A., in which I concur. The appellant was caught in hot pursuit soon after he tried to rob the P.W.1 of money while armed with a gun as stated in the trustworthy evidence of the P.W.1 and the P.W. 2. If the P.W.1 had not over powered the appellant and received the gun from him the full offence of armed robbery would have been consummated. The intervening act that forestalled the completion of the offence of armed robbery was therefore the over powering of the appellant by the P.W. 1.
Accordingly, the elements of the offence of attempted armed robbery were established by the respondent against the appellant, by showing his intent to commit the full offence of armed robbery – see the apt definition of attempt by the learned authors of Jowitt’s Dictionary of English Law (Second Edition) volume 1 at page 155 thus:
“An endeavour to commit a crime or unlawful act; the doing of some overt act for the purpose of committing some offence; an act done committing some offence; an act done with intent to commit a crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The mere intent to commit a criminal offence is not a crime, nor is an act merely preparatory to the commission of an offence. It is not invariably necessary that it should be possible for the accused to commit the offence in question. Thus a man may be convicted of attempt to steal when, with intent to steal, he puts his hand into an empty pocket (R. v. Ring (1892) 61 L.J.M.C. 116” (My emphasis).
See also Iden v. the State (1994) 8 NWLR (pt. 365) 719 at 727-728.
For the above reasons and the comprehensive reasons given by my learned brother, ALAGOA J.C.A., in the said judgment, I too dismiss the appeal and abide by the consequential orders contained in the said judgment.

Appearances

Ahmed Akanbi Esq.For Appellant

AND

Mrs. P.F. Oduniyi D.P.P.For Respondent