EVARISTUS MOZIE V. THE STATE (2012)

EVARISTUS MOZIE V. THE STATE

(2012)LCN/5411(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of May, 2012

CA/J/217/2011

RATIO

CRIMINAL PROCEDURE: REQUIREMENTS OF A PROPER ARRAIGNMENT

Sections 187 and 188 of the Criminal Procedure Code, (hereinafter referred to as the CPC), provide for the arraignment of an accused person before a High Court in the Northern States of Nigeria. They state thus:

“187.(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.

(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused.

If the accused pleads not guilty or makes no plea or refuses to plead or if the judge enters a plea of not guilt1r on behalf of the accused, the court shall proceed to try the case”.

From these provisions and the provision of Section 36 of the 1999 Constitution, the following requirements of a proper arraignment have been recognized:

(1) The accused person shall be present in court unfettered unless the court shall see cause to otherwise order that he be fettered. The requirement that an accused person shall be present in court marks a difference between our criminal jurisprudence and that of jurisdictions where trial in absentia is allowed. (2) The charge or information shall be read over and explained to him in the language he understands to the satisfaction of the court.

(3) The accused person shall then be called upon to plead instantly thereto unless there are valid reasons to do otherwise as provided in the Law itself.

See Afolalu v State (2009) 3 NWLR) (Pt. 1127) 160 @ 176; Gozie Okeke V State (2003) 2 SCNJ 199 @ 224; Kajubo v State (1988) 3 SCNJ 79; (1988) 1 NWLR (Pt.73) 721; Eyorokoromo v State (1979) 6 SC 3. PER JUMMAI HANNATU SANKEY, J.C.A.

CRIMINAL PROCEDURE: IMPORTANCE OF ARRAIGNMENT

Thus, an arraignment is a very important initial step in the trial of a person on a criminal charge. All the authorities recognize that where there is no arraignment, there is no trial. Where an accused person is not present in court, it cannot be said that he was arraigned, even if his name is contained in the charge before the court. For a valid arraignment, the charge has to be read to an accused person and he must be invited to plead to it. PER JUMMAI HANNATU SANKEY, J.C.A.

CRIMINAL LAW: ELEMENTS OF PROVING THE OFFENCE OF ARMED ROBBERY

As rightly stated in the Judgment of the lower Court, in order to succeed in this case, the prosecution was required to prove the following three elements of this offence:

(a) That there was a robbery or series of robberies;

(b) That each robbery was an armed robbery; and

See Osuagwu v State (2009) All FWLR (Pt. 460) 700 @ 717 Paras D-E PER JUMMAI HANNATU SANKEY, J.C.A.

EVIDENCE: WHAT IS THE BEST EVIDENCE WORTHY OF BELIEF IN ANY CRIMINAL PROCEEDINGS

It is the law that the evidence of an eyewitness in any criminal proceedings is considered the best evidence worthy of belief and deserving of probative value in favour of the Respondent’s case. The best identification of an accused is by the victim of the crime or a witness to the crime. An eyewitness testimony is usually the finest evidence in a criminal trial. See Idiok V State (2008) 13 NWLR (Pt. 1104) 225, 240; Oyakhire V State (2006) All FWLR (Pt. 305) 703 @ 720; and Okosi V State (supra) PER JUMMAI HANNATU SANKEY, J.C.A.

EVIDENCE: WHETHER THE ACCUSED HAS THE ONUS TO DISCLOSE FACTS OF AN ALIBI WITHIN HIS KNOWLEDGE

An accused person has the onus to disclose the facts of an alibi as they are peculiarly within his knowledge, and such witnesses that may be available. Such facts must be disclosed with necessary details and particulars at the earliest opportunity so as to transfer the burden to the police to check them out and deaf with them with some finality. If he does not do so, the police cannot be expected to go on a wild goose chase. In the instant case, the Appellant did not raise the defence of alibi at the earliest opportunity. Failure of the Appellant to furnish the particulars of alibi before the trial weakened his defence. See Idiok V State (supra @ 242-243); Sowemimo V State (2004) 11 NWLR (Pt. 885) 515; Eyisi V State (2000) 15 NWLR (Pt, 691) 555, PER JUMMAI HANNATU SANKEY, J.C.A.

EVIDENCE: WHAT SHOULD CONSTITUTE PROOF BEYOND REASONABLE DOUBT

It is the law that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt Where, on a review of the entire evidence, the trial court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even on the credible evidence of one single witness. The law does not admit of fanciful possibilities to deflect the course of justice. Where the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “Of course it is possible but not in the least probable!”, then the case is proved beyond reasonable doubt. If on the other hand, on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed, entitling the accused person to be discharged and acquitted, See the time-tested cases and pronouncements of the learned Jurists of the apex Court in of Bolanle V State (2009) 16 NWLR (Pt. 1127) 1 @ 10 – 11; Ani V State (2009) 16 NWLR (Pt. 1168) 442 @ 458; State V Njoku (2010) 1 NWLR) (Pt. 1175) 243 @ 281; Bakare V State (1987) 1 NWLR (Pt. 52) 579; Oteki V AG Bendel State (1986) 2 NWLR (Pt. 24) 648 @ 668. PER JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

EVARISTUS MOZIE Appellant(s)

AND

THE STATE Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A., (Delivering the Leading Judgment): The Appellant herein was charged with two (2) others, one Atume Emmanuel and Bala, before the High Court of Plateau State sitting in Jos for the offences of conspiracy and armed robbery under Sections 5(b) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation, 1990. The charge before the trial Court read as follows:
“COUNT 1. THAT YOU EVARISTUS MOZIE, ATUME EMMANUEL AND BALA, on or about the 22nd day of March, 2008 at Zinariya Layout, Bauchi road, Jos in Jos North Local Government Area of Plateau State within the Plateau Judicial Division agreed to do an illegal act to wit: rob one Emeka Okonkwo and his wife, Chukwudubuzor Okonkwo and that the same act was done in pursuance of the agreement and that you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation, 1990

COUNT 2: THAT YOU EVARISTUS MOZIE, ATUME EMMANUEL AND BALA, on or about the 22nd day of March, 2008 at Zinariya Layout, Bauchi road, Jos in Jos North Local Government Area of Plateau State within the Plateau Judicial Division committed armed robbery by doing an act to wit: rob one Emeka Okonkwo of his three handsets, a wallet containing his identity card and N15,000.00 cash while armed with a gun and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation, 1990.

COUNT 3: THAT YOU EVARISTUS MOZIE, ATUME EMMANUEL AND BALA, on or about the 22nd day of March, 2008 at Zinariya Layout, Bauchi road, Jos in Jos North Local Government Area of Plateau State within the Plateau Judicial Division committed armed robbery by doing an act to wit: rob one Mrs Chukwudubuzor Okonkwo of her handset, while armed with a gun and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation, 1990.”

The 3rd accused person was never arraigned before the Court, as he was charged in absentia. The other two (2) accused persons arraigned pleaded not guilty to the three (3) count charge, and the trial proceeded. To prove the charge, the prosecution called two (2) witnesses. At the close of evidence, the accused persons made a no-case submission. The learned trial Judge sustained the objection in respect of the 2nd accused person and so, discharged him, while the submission in respect of the Appellant was overruled. No mention was made of the 3rd accused person. Thus the Appellant, in his defence of the charge, testified and called one other witness on his behalf. At the close of the case for the defence, both learned Counsel addressed the Court on the issues of fact and law arising. Thereafter, in a considered Judgment on the 30th June, 2011, the Appellant was convicted and sentenced to death by hanging.
Aggrieved by the decision of the Court, the Appellant lodged an Appeal against the said Judgment and filed a Notice of Appeal on the 2nd August, 2011 at pages 134 – 141 of the Record of Appeal wherein he complained on eight (8) grounds. The Grounds of Appeal without their particulars are as follows:
Ground 1
The verdict is unreasonable and cannot be supported having regard to the evidence before the learned trial court.
Particulars of Error – supplied
Ground 2
The proceedings and judgment of the learned trial court are a nullity.
Particulars of Error – supplied
Ground 3
The learned trial court erred in law and thus occasioned a miscarriage of justice when it tried and convicted the Appellant under a law that had been repealed at the date (sic) alleged offence of armed robbery.
Particulars of Error – supplied
Ground 4
The learned trial court erred in law and thus occasioned a miscarriage of justice when it held thus:
“In my humble view, the evidence of the two prosecution witnesses as highlighted by the prosecutions (sic) counsel have proved the two elements of the offence of armed robbery because the two witnesses are eyewitnesses”.
Particulars of Error – supplied
Ground 5
The learned trial court erred in law and occasioned a miscarriage of justice when it found and held that the Appellant participated in the alleged armed robbery, and thus convicted him of the offence.
Particulars of Error – supplied
Ground 6
The learned trial court erred in law and occasioned a miscarriage of justice when it held thus:
“I have averted my mind to the inconsistencies and contradictions in the evidence of the prosecution witnesses highlighted by defence counsel, but I believe the evidence of the prosecution witnesses in spite of the contradictions and inconsistencies because they are not such that would affect the substance of the prosecution’s case and my finding because the fact that Pw2 was unable to recognize any alleged robbers does not mean that Pw1 did not recognized (sic) the first accused when he came closed (sic) to her and she saw his face before he masked it. It was possible for her to see the face as she was standing while Pw2 had lied down when the first robber told him to do so before the two other robbers came to meet them.
I believe her evidence because she said she saw the face when he came close to her before he covered it and that there was light at the passage”.
Particulars of Error – supplied
Ground 7
The learned trial judge misdirected itself on the facts when it held thus:
“Having found that the contradiction or inconsistencies or discrepancies refer (sic) to by learned counsel for the accused have not in my view affected the substance of the prosecution’s case I hold that the prosecution has led strong and credible evidence which fixed the accused at the scene of the crime and established the participation of the accused in the commission of the armed robbery and which this court accept. The plea of alibi raised by the accused has collapsed. The weak and belated alibi of the accused is overweighed by the strong eyewitness of the Pw1 and Pw2. The evidence of the accused and Pw1 are rejected as was done in the case of Ikechukwu Sunday v The State (2010) 8 NWLR (Pt. 224) 225 @ 248 paragraphs A-B”.
After having held earlier that:
“Though the accused tried to challenge or controvert the witnesses’ evidence on the two elements of the offence of armed robbery, he failed in that attempt as he has asserted that he was not at the scene of the offence when it was committed”.
Particulars of Error – supplied
Ground 8
The learned trial court erred in law and thus occasioned a miscarriage of justice when it convicted the Appellant of the offence of armed robbery punishable with death after finding thus:
“In my humble view, the evidence of the two prosecution witnesses as highlighted by the prosecution counsel have proved the two elements of the offence of armed robbery…
Though the accused tried to challenge or controvert the witnesses evidence on the two elements of the offence of armed robbery, he failed in that attempt as he has asserted that he was not at the scene of the offence when it was committed his witness who gave evidence as Pw1 was also not at the scene as revealed by their evidence before this honourable court”
Particulars of Error – supplied

The Appeal was entered in this Court on the …., and in accordance with the Rules of Court, Briefs were exchanged within the time provided and issues joined between the parties.
When the Appeal was called up for hearing on the 27th February, 2012, learned Counsel for the Appellant, Mr. O. Akobundu, adopted the Appellant’s Brief of argument filed on 22nd November, 2011, and relied on same as the Appellant’s argument in this Appeal. He also filed a Reply Brief in reaction to the Respondent’s Brief of argument on the 3rd February, 2012 which he adopted and relied upon. In addition to the submissions in the two Briefs, Counsel urged the Court to discountenance the Respondent’s Brief of argument on the ground that the issues raised therein are not borne out by the Record of appeal. Instead, it amounts to fresh evidence introduced by the Respondent’s Counsel. Counsel thus urged the Court to allow the Appeal and to set aside the judgment of the trial Court and acquit the Appellant.
In like manner, Mr. E.G. Pwajok, learned Attorney-General of Plateau State, who appeared for the Respondent, adopted the Respondent’s Brief of argument filed on 21st December, 2011, and relied on same as the Respondent’s argument in this Appeal. He similarly buttressed his arguments in the Brief with additional oral submissions. He submitted that, contrary to the submissions of learned Counsel for the Appellant, the Laws of the Federation, 1990 are still valid. The learned A-G defines the word “repeal” as the abrogation of an existing law by a legislative Act, and refers to Black’s Law Dictionary 8th Edition edited by Brian A. Garner at page 1325 for this definition. He submits that the Appellant did not show in his Brief that there has been such repeal by a legislative Act. Learned Counsel thus submits that there has not been repeal by a legislative Act and therefore the law is still a valid and subsisting Act and the lower Court was right in applying the said law. In respect of the Appellant’s 2nd issue, the learned A-G relied on Section 36(4)(5)(6) & (7) of the 1999 Constitution to submit that the Appellant did not show that the trial Court did not comply with the requirements of that section. In respect of issues 2 and 3, learned Counsel submits that it is not every contradiction that will vitiate a trial. Instead the contradictions must be substantial and material. He relies on Shorumi V State (2010) 16 NWLR (Pt, 1218) 65 @ 131. Finally, learned Attorney General urged the Court to dismiss the Appeal and affirm the judgment of the trial Court.
In his Brief of argument, the Appellant formulated three issues for determination in this Appeal as follows:
1. Are the proceedings and judgment of the learned trial court not a nullity in the circumstances of this case? (Distilled from Grounds 2 and 3).
2, Was the learned trial Court right in holding that the prosecution proved the two elements of armed robbery in this case? (Distilled Ground 4).
3. Was the learned trial Court right in the circumstances of this case when it held that the Appellant participated in the alleged armed robbery and thus, convicted him of the offence? (Distilled from Grounds 1, 5, 6, 7 and 8).
The Respondent, on its own part, formulated the following three (3) issues for the determination of this Court:
1. Whether the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990, under which the Appellant was tried and convicted was still the relevant law in view of the provision of Section 3 of the Revised Laws of the Federation of Nigeria, 2007.
2. Whether the absence of the 3rd accused person jointly charged with the Appellant throughout the trial in this case makes the trial and the conviction of the Appellant for the offence of armed robbery a nullity.
3. Whether the trial Court was right in its findings that the Respondent has established all the ingredients of armed robbery against the Appellant to warrant his conviction as charged.
After scrutinizing the two sets of issues formulated by both learned Counsel, regard being had to the eight Grounds of Appeal, I am of the view that the determination of the Appeal would be predicated on the three issues formulated by the Appellant’s Counsel as they are appropriate and comprehensive.

Issue One:
Are the proceedings and judgment of the learned trial court not a nullity in the circumstances of this case? (Distilled from Grounds 2 and 3).
In arguing issue one, learned Counsel for the Appellant submits that the proceedings and judgment of the trial Court are a nullity for two reasons. The first is that, whereas by the three count charge filed before the Court, three (3) persons were charged, namely: Evaristus Mozie, Atume Emmanuel and Bala, only two (2) persons, namely: Evaristus Mozie and Atume Emmanuel were actually arraigned and tried by the Court. There was no explanation on record why the Court proceeded with the trial of the accused persons without the 3rd person; neither did the Court formally stay the joint trial of the three (3) accused persons, nor did the Court amend the charge to reflect that it was proceeding with the trial without the 3rd accused. This, learned Counsel submits, offends Section 259(1) of the Criminal Procedure Code. The provision presupposes that, where there are three (3) accused persons jointly charged in three (3) counts of the same charge, as in this case, the learned trial Court could only validly proceed with the trial of two out of the three accused persons without an amendment to the charge to that effect if:
i) It makes an order in writing:
ii) It states the reason for making the order; or
iii) It stays the proceedings of the joint trial of the accused persons.
He contends that in this case, the trial Court made no order staying the joint trial of the three accused persons charged before him, and also advanced no reason(s) for proceeding in the matter without the third accused person with whom the Appellant was alleged to have conspired and robbed the PW1 and PW2, with arms. Learned Counsel thus submits that in failing to do this, (to wit comply with Section 259), the Court impliedly amended the 3 count charge by removing Bala from the charge without complying with the provisions of Section 208 of the CPC which sets out the procedure to be followed in amending the charge before an accused person. For this he relied on Adejobi V State (2011) 12 NWLR (Pt. 1261) 380 at 376 and C.Y. Tebu V Police (1968) NNLR 38 AT 43. He invited the Court to thus declare the judgment a nullity as was done in the case of Kajubo V State (1988) 1 NSCC 475 at 479.
Learned Attorney-General, in response, submits that the argument by the learned Counsel for the Appellant that the trial Court violated the mandatory procedure laid down under Section 259(1) of the CPC in that the Court did not make an order staying the joint proceedings against the 3rd accused person in order to proceed against the Appellant and the 2nd accused person is misconceived and unsustainable in law. He submits that by the use of the word “may” in that provision, it is a discretionary and not a mandatory provision. The provision is discretionary depending on the facts and circumstances of each case where the Court considers it expedient in the interest of justice to do so. Counsel further submits that severance of the proceedings in this case was necessary only if the three accused persons were jointly charged with the offence of conspiracy without more counts for other offences. However, in this case, the Appellant, 2nd and 3rd accused persons were also jointly charged for the offence of armed robbery, which culpability does not require joint responsibility. Thus, any one or more of them, found guilty, can properly be punished separately, Further, on the contention of the Appellant’s Counsel in their Brief that since it was the evidence of the PWs1 and 2 that they were robbed by the Appellant, 2nd and 3rd accused persons whilst armed with one gun, the presence of the 3rd accused person during the trial was necessary, and his absence during the trial rendered the proceedings a nullity, learned Attorney-General submits that this submission is contrary to the evidence before the Court. He contends that from the evidence of PW1 and PW2 at pages 73, 74 and 78 of the Record, the Appellant and the other accused persons used more than one gun in the robbery. However, assuming without conceding that one gun was used, by the provision of Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398, Counsel submits that the culpability of the accused person, who was in the company of another accused person who used a gun, is the same. Therefore, the absence of the 3rd accused person throughout the trial in this case does not affect the defence or the culpability of the Appellant at all. He relies on Atiku V State (2010) 9 NWLR (Pt. 119) 241 @ 274 Paras C-E. Learned Counsel further submits that the essence of Section 259(1) of the CPC is also to safeguard the accused persons jointly charged for committing a criminal offence from double jeopardy, where any of them may be tried twice for the same offence in the event that such an accused person could not stand his trial with others in a joint trial like in this case. He submits that the essence of Tebu V Police (supra) is to safeguard subsequent proceedings against an accused person not available to stand his trial with the available accused persons. That the fundamental objective of Section 259(1) however is to ensure that every accused person accused of committing a crime is not tried in absentia, since doing so would amount to a violation of his right to a fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria , 1999 (as amended).
Learned Counsel further disputes the submission that the lower Court impliedly amended the charge by removing the 3rd accused, Bala, when it proceeded with the trial of the Appellant and the 2nd accused, without dropping his name. He contends that this submission is both misconceived and baseless as nowhere in the Record of Appeal is it shown that the name of the 3rd accused was struck out. The Appellant was not tried on a new charge to warrant the trial Court complying with the provisions of Section 208 of the CPC, Furthermore, that since no reason was placed before the Court on record for the absence of the 3rd accused, it could not have proceeded to act under Section 259(1) to sever the trial, since, by the authority of Tebu V Police (Supra), he is required to record a reason or reasons for such a stay of proceedings in compliance with the provision. Learned Counsel thus submits that the trial Court properly exercised its discretion under Section 259 of the CPC by proceeding with the trial without reference to the 3rd accused, and no injustice was occasioned thereby. No adverse pronouncement was made by the Court concerning the 3rd accused person to warrant the interference of this Court with the decision of the trial Court for not striking out the name of the 3rd accused, who did not participate in the trial. Counsel therefore urged the Court to hold that the procedure adopted by the trial Court in this case was legal, proper and valid.

The issue in contention here is whether, having included one Bala, as a co-accused in the three-count charge, failure to have tried him alongside the Appellant and the 2nd accused person, (who was discharged on a no-case submission) , or to have applied Section 259(1) of the CPC to sever him from the charge, rendered the proceedings a nullity. Learned Counsel for the Appellant submits that there was no explanation on record why the Court proceeded with the trial of the accused persons without the 3rd accused person; neither did the Court formally stay the joint trial of the three (3) accused persons, nor did the Court amend the charge to reflect that it was proceeding with the trial without the 3rd accused. This, Counsel submits, offends Section 259(1) of the Criminal Procedure Code. He contends that where there are three (3) accused persons jointly charged in three (3) counts of the same charge, as in this case, the learned trial Court could only validly proceed with the trial of two out of the three accused persons without an amendment to the charge to that effect if it complies with Section 259 thereof. From the Record of appeal before the Court, it is not in issue that three persons, namely, Evaristus Mozie, (the Appellant), Atume Emmanuel and Bala were indeed charged with conspiracy and armed robbery. From the arraignment, the 3rd accused person was not in Court, and there was nothing on the face of the Record explaining his absence. The trial proceeded with the two accused persons until after the close of the prosecution’s case when a no-case submission was made on behalf of the two accused persons before the Court. In its ruling, the learned trial Judge upheld the no-case submission in respect of the 2nd accused person only, and so discharged him. That left the 1st accused person, Evaristus Mozie, and the trial progressed against him, with him entering his defence to the charge. It is noteworthy that throughout the trial the Appellant had adequate legal representation. Yet the issue of the absence of the 3rd accused was never raised.
Sections 187 and 188 of the Criminal Procedure Code, (hereinafter referred to as the CPC), provide for the arraignment of an accused person before a High Court in the Northern States of Nigeria. They state thus:
“187.(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused.
188. If the accused pleads not guilty or makes no plea or refuses to plead or if the judge enters a plea of not guilt1r on behalf of the accused, the court shall proceed to try the case”.
From these provisions and the provision of Section 36 of the 1999 Constitution, the following requirements of a proper arraignment have been recognized:
(1) The accused person shall be present in court unfettered unless the court shall see cause to otherwise order that he be fettered. The requirement that an accused person shall be present in court marks a difference between our criminal jurisprudence and that of jurisdictions where trial in absentia is allowed. (2) The charge or information shall be read over and explained to him in the language he understands to the satisfaction of the court.
(3) The accused person shall then be called upon to plead instantly thereto unless there are valid reasons to do otherwise as provided in the Law itself.
See Afolalu v State (2009) 3 NWLR) (Pt. 1127) 160 @ 176; Gozie Okeke V State (2003) 2 SCNJ 199 @ 224; Kajubo v State (1988) 3 SCNJ 79; (1988) 1 NWLR (Pt.73) 721; Eyorokoromo v State (1979) 6 SC 3.
Thus, an arraignment is a very important initial step in the trial of a person on a criminal charge. All the authorities recognize that where there is no arraignment, there is no trial. Where an accused person is not present in court, it cannot be said that he was arraigned, even if his name is contained in the charge before the court. For a valid arraignment, the charge has to be read to an accused person and he must be invited to plead to it.

In view of these requirements of an arraignment as set down, both in the substantive law, (the CPC), and in laid down authorities, can it be said that the 3rd accused person was arraigned alongside the Appellant and 2nd accused person? As to the first requirement, there can be no difficulty in answering the question. Where the accused person is not in court, it cannot be said that that there has been any valid arraignment. As regards the second requirement, there can similarly be no difficulty – since he was not in court, no charge was read out and explained to him. In like vein, in respect of the third requirement, there was no way of calling upon an accused person who was evidently not in court to enter a plea to the charge read out and explained to his other co-accused persons who were in court. From all I have said, the third accused person was never arraigned before the lower Court, even though he was named in the three count charge.
In addition to this, it is fair to say that the Appellant was represented by counsel who put up an able defence for him as the circumstances permitted. Yet counsel did not raise any objection to the trial of the Appellant on the charge which contained the name of the absentee accused person. Since the defence counsel at the trial did not raise an objection to the charge, by virtue of Section 382 of the CPC applicable to the Northern States, it cannot be raised both after the trial at the lower court or in this Court. I do so hold. For the avoidance of doubt, let me reproduce Section 382 of the CPC. It provides as follows:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal Procedure Code unless the appeal court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.
EXPLANATION. In determining whether any error, omission or irregularity in any proceeding under this Criminal Procedure Code has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings”.
In the case of John Agbo v State (2006) 1 SCNJ 332 @ 335 – 337, the learned Jurists of the apex court addressed a similar situation and had cause to interpret Sections 166 & 167 of the Criminal Procedure Law Cap 31 Vol. II, Laws of Eastern Nigeria, 1963 applicable in Imo/Abia States, which are in pari materia with Section 382 of the CPC, Therein, it was held that since the counsel for the accused at the trial did not raise any objection to the defective charge, same cannot be raised either at the Court of Appeal or in the Supreme Court. There is a distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of a trial of a case. It is settled law that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot be heard to complain of the procedure on appeal. See Uwaekweghinya V State (2005) 3 SCNJ 32 @ 42; Egbedi V State (1981) 11-12 SC 98.

In like vein, the Appellant and his learned counsel have not stated at any stage, from the trial before the lower Court, to this Court that the Appellant was ever misled by the information charging the Appellant together with the 3rd accused, Bala, Equally, there is nowhere in the Record where learned Counsel appearing for the Appellant ever took any objection as to the charge or information or for any formal defect, if any, on its face, That being the case, I accordingly also ignore and discountenance the complaint under this issue. The law is trite that where, in the opinion of counsel to the Appellant, there is a defect in the trial of an accused person, it is the duty of the defence to take objection to any perceived irregularity concerning evidence and procedure.

Having settled the issue of arraignment, the crux of the complaint in this issue is that the proceedings are a nullity since the learned trial Judge failed to apply Section 259(1) of the CPC to sever his name from the charge. In my view, adding the name of the 3rd accused person to the charge the Appellant faced, simply served to put him on notice of all the information against him. The question of severing the 3rd accused from the trial never arose since he was never arraigned in the first place. Since trial in absentia is not part of our jurisprudence, I agree with the learned Attorney-General that the learned trial Judge did not pretend to try the 3rd accused, together with the 1st and 2nd accused person, in absentia. The defence Counsel raised no objection to the perceived irregularity at the lower court and has not shown how the accused was in any way misled by the mention of his name in the charge. There is therefore no miscarriage of justice occasioned as a result of the name of the 3rd accused on the charge or any violation of any principle of law or procedure.

Still under issue one, learned Counsel contends that the proceedings and judgment of the trial Court are a nullity in that the conviction and sentence of the Appellant was purportedly done under the provisions of a repealed law, to wit: The Robbery and Firearms (Special Provisions) Act, CAP 398 Laws of the Federation, 1990. The alleged armed robbery incident was committed on the 22nd March, 2008, whereas the three (3) count charge of conspiracy and armed robbery was brought pursuant to the provisions of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation, 1990, (hereinafter referred to as the Robbery and Firearms (Special Provisions) Act, Cap 398). Learned Counsel argues that the Laws of the Federation, 1990, (which includes the Robbery and Firearms (Special Provisions) Act Cap 398), came into force pursuant to the provisions of Section 6 of the Revised Edition (Laws of the Federation of Nigeria) Act, 1990 which came into force on 19th July, 1990. He contends that the Revised Edition (Laws of the Federation of Nigeria) Act 2007, which came into effect on 25th May, 2007, by its Section 3 repealed the Revised Edition (Laws of the Federation) Act 1990, and by its Section 1, approved as the applicable laws in force in the Federation, the Laws of the Federation of Nigeria compiled and published in 2004 under the authority of the Attorney General and Minister of Justice. He thus concludes that, with effect from 25th May, 2007, the applicable law in Nigeria with respect to the offence of armed robbery became the Robbery and Firearms (Special Provisions) Act Cap R. 11, Laws of the Federation of Nigeria, 2004, and not the repealed 1990 Laws. Based on this, learned counsel relied on Olafisoye v F.R.N (2004) 4 NWLR (Pt.864) 580 at 636 and Sele V. The State (1993) NSC C 47 at 55 to submit that the Laws of the Federation, 1990, being a repealed set of laws, could not have been the basis for the trial, conviction and sentence of the Appellant. On the authority of Eyorokorama V State (1979) 6-9 SC 3 at 9 and Umaru V State (2009) 8 NWLR (Pt. 1142) 134 at 142, Counsel urged the Court to hold that the charge, trial, conviction and sentence of the Appellant are themselves a nullity.
In response, the learned Attorney General submits that the Appellant was tried under a valid and subsisting law, to wit: 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. In tracing the antecedents of this law, counsel submits that previously, the offence of armed robbery was provided for under Section 298 of the Penal Code, Laws of Northern Nigeria applicable in all States in Northern Nigeria, Thereafter, Decree No. 5 of 1984 was promulgated and it serves as the forerunner of the law, as it sought to provide for a uniform law relating to the offence of armed robbery in the entire Federation, This Decree, being a military law, was revised (and not repealed), by Section 6 of the Revised Edition of the Laws of the Federation of Nigeria, 1990 to make it civil in Section 1 of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria, 1990, where reference is categorically made to the Robbery and Firearms Decree No. 5 of 1984. The latter was merely revised and reproduced under the Laws of the Federation 1990 at page 14140 as an Act of the National Assembly of Nigeria in a democratic dispensation.
Furthermore, Counsel submits that the Robbery and Firearms (Special Provisions) Decree, 1984 was again reproduced in the Revised Laws of the Federation of Nigeria, 2004 as Cap. R.11, yet again without repealing the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation, 1990, which had earlier on incorporated Decree No. 5 as an Act of the National Assembly. Learned Attorney General submits that, an analysis of the Robbery and Firearms (Special Provisions) Decree No 5 of 1984, Cap 398 of the Laws of the Federation, 1990, and Cap R11 of the Laws of the Federation, 2004 shows clearly that Section 3 of the Revised Edition of the Laws of the Federation, 2007 does not in effect repeal the Robbery and Firearms (Special Provisions) Act, Cap 398 of 1990. Learned Attorney General amassed 10 reasons why he asserts that the Robbery and Firearms (Special Provisions) Act, Cap 398 is still a valid and good law thus:
1. Revising and updating the Laws of Nigeria has been undertaken by various administrations every decade.
2. The Law Revision Committee was established to revise the Laws of the Federation and not to amend or repeal the existing laws.
3. In 2004, another review and update of the Laws of the Federation was carried out.
4. Thereafter, the Revised Edition of the Laws of the Federation of Nigeria Act, 2007 was passed into law to give effect to the 2004 law revision exercise.
5. The 2004 Revised Laws came into effect when the 2007 Act was passed,
6. The Robbery and Firearms Act has not been amended by the National Assembly since 1984. The same version of the Decree was in the Revised Laws of 1990 and in the Revised Laws of 2004 and thus passed as an Act of the National Assembly to bring it in conformity with the democratic process of law making.
7. The Act can only be repealed by an Act of the National Assembly amending the existing law or enacting a new legislation, thus repealing the old Act. This has not been done by the National Assembly in respect of the Robbery and Firearms (Special Provisions) Act, Cap 398.
8. The lower Court’s reliance on the Robbery and Firearms (Special Provisions) Act, Cap 398, 1990, could only amount to a wrong citation which should be treated an irregularity.
9. The commencement date of the initial Robbery and Firearms (Special Provisions) Decree, as well as the revised Robbery and Firearms (Special Provisions) Acts of 1990 and 2004 are all 29th March, 1984.
10. Since the Robbery and Firearms (Special Provisions) Act, Cap 398, 1990 has not been repealed, the trial and conviction cannot be a nullity as the law is still extant.
Assuming, without conceding, that the wrong law was cited by the learned trial Judge, to wit: the Robbery and Firearms (Special Provisions) Act Cap 398 of 1990, instead of Cap R.11 of 2004, learned Counsel submits that this, in itself, does not alone vitiate the entire proceedings of the Court. He relies on Sule V State (2009) 6 SCNJ 65 @ 89. Learned Counsel further submits that the Appellant was never misled by the citation of the law since he pleaded to the substance of the law and not to its citation. He contends that no miscarriage of justice has been occasioned as a result of the Appellant being tried under Cap 398 instead of Cap R.11. It is one and the same law with different citations arising in sequence of the law revision exercises. Counsel sought to distinguish the case of Olafisoye V FRN (Supra) in that whereas the case cited was a civil case brought under a repealed law, (which the Supreme Court held to be lifeless), the instant case is a criminal case brought under an extant but revised law.
In arguing the second part of this issue, which is the effect of the absence of the 3rd accused person throughout the duration of the trial, the learned Attorney-General submits that the absence of the 3rd accused person from the beginning to the conclusion of the case does not affect the competence of the case or the validity of the Appellant’s conviction. He submits that the proceedings leading to the conviction and sentence of the Appellant for the offence of armed robbery under the robbery and Firearms (Special Provisions) Act Cap 398 of 1990 is not a nullity because it was initiated by due process of law.
The conditions precedent for the Court to proceed in any criminal case include: initiating the criminal proceeding in the Court by due process of law, the competence of the initiating authority, the competence of the entertaining Court, and the bundle of rights of the accused persons as provided by law. Counsel submits that all these conditions precedent were met in the proceedings before the lower Court. He further submits that all the rights of the Appellant were accorded to him by the trial Court. The Appellant cannot thus be heard to complain that the proceedings leading to his conviction are a nullity simply because the case was tried in the absence of the 3rd accused person, who did not appear in court throughout the entire proceedings. Learned Counsel submits that the presence of the 3rd accused person in the proceedings could not have done any good to the case of the Appellant. Instead, the proceedings under review would have been a nullity if the trial Court had taken evidence against the 3rd accused person and thereafter proceeded to make some findings relating to him with an attendant pronouncement relating to his fate in the case, either against him or in his favour, or relied on the evidence relating to the 3rd accused person to convict the Appellant. The proceedings would then have been a nullity, to that extent, as he would have been tried in absentia. He relied on Chief of Air Staff V Iyen (2005) All FWLR (Pt. 252) 404 @ 425 paras B-D.
In a brief reply, learned Counsel for the Appellant submits that the argument of the Respondent’s Counsel in regard to the law upon which the Appellant was convicted is of no moment. He refers to Section 3 of the Revised Edition (Laws of the Federation of Nigeria) Act No. 65 of 2007 which conclusively provides thus:
“The Revised Edition (Laws of the Federation of Nigeria) Act, 1990 is repealed”.
He submits that it is the repealed Revised Edition (Laws of the Federation) Act, 1990 that gave life to Laws of the Federation, including, (but not limited to), the Robbery and Firearms (Special Provisions) Act Cap 398, LFN 1990. Counsel thus submits that there is no life left in the 1990 body of laws when the statute that breathed life into them has been repealed. He submits that, at the time of the commission of the offence, the applicable body of laws in Nigeria is/was the 2004 Laws of the Federation, including the Robbery and Firearms (Special Provisions) Act, Cap R.11 LFN 2004, and not the 1990 Laws. He submits that Cap 398 of the laws of the Federation, 1990, is not extant, In respect of the failure to make and record a stay of proceedings against the 3rd accused person named in the charge sheet before proceeding with the trial of the Appellant and 2nd accused person, Counsel again submits that there was a manifest breach of the procedure as laid down in Section 259(1) of the Criminal Procedure Code, which vitiated the trial.
Without further ado, from a careful review of the various editions of the Robbery and Firearms (Special Provisions) Laws as referred to by both learned Counsel, it is quite apparent that it is the Robbery and Firearms (Special Provisions) Act, Cap R.11 of 2004 that is extant and relevant for the purposes of the trial of the accused person given the year the offence was committed. For the avoidance of doubt, Section 3 of the Robbery and Firearms (Special Provisions) Act of 2007 clearly repeals the 1990 Act, whereas Section 1 thereof states that the 2004 Act takes its place. For ease of reference, the relevant provisions the Revised Edition (Laws of the Federation of Nigeria) Act No. 65 of 2007 state as follows:
“REVISED EDITION (LAWS OF THE FEDERATION OF NIGERIA) ACT
An Act to enable effect to be given to the Revised Edition of the Laws of the Federation of Nigeria.
(2007 No. 65)
(25th May, 2007)
ENACTED by the National Assembly of the Federal Republic of Nigeria.
1. Approval of the Revised Edition of the L.F.N. 2004
The Laws of the Federation of Nigeria compiled and published in 2004 under the authority of the Attorney-General of the Federation and Minister of Justice are hereby approved by the National Assembly.
2. ……………….
3. Repeal, etc.
The Revised Edition (Laws of the Federation of Nigeria) Act, 1990 is repealed”.
The word “repeal” is defined in Black’s Law Dictionary as “Rescind; abrogation of an existing law by a legislative act”. By the Chambers 21st Century Dictionary Revised Edition, the word is equally defined thus: “To make (a law, etc) no longer valid; to annul (a law, etc)”. Consequently, it brooks of no argument that the Revised Edition (Laws of the Federation) Act, 1990 which includes and gave life to the Robbery and Firearms (Special Provisions) Act, Cap 398 of 1990 is not extant, having been repealed by the very express provisions of Sections 1 and 3 of the Revised Edition (Laws of the Federation of Nigeria) Act No. 65 of 2007, I do so hold.

Be that as it may, what is the effect on the trial of the Appellant now that it has been established that he was charged under the wrong provision of the law and convicted under same? Is it fatal such as to render the proceedings a nullity, as has been canvassed by learned Counsel to the Appellant? I think not, I am not unaware of the Supreme Court decision in Olafisoye v FRN (2004) 4 NWLR (Pt. 964) 580 @ 536. Therein, my noble lord, Niki Tobi, JSC, in answering the questions referred to the Supreme Court from the Court of Appeal of whether the 1999 Constitution confers powers on the National Assembly to make laws for the peace, order and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power, inter alia, held thus at page 636 of the report:
“Let me pause here to deal briefly with learned Senior Advocate’s reference to the repealed Corrupt Practices Decree 1975. It is wrong in law to refer to a repealed law in the way learned Senior Advocate did. A repealed law has no more legal life, as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with existing law. It cannot be quoted side by side with existing law as learned Senior Advocate did’:
This was the con in which the statement was made, and it is indeed a very sound postulation of the law, by which I am bound. However, going on from there, in the instant Appeal, the question that must be answered is: having tried, convicted and sentenced the Appellant under the wrong law, does this fact without more render the proceedings a nullity, as we have been invited to so declare by learned Counsel for the Appellant? A close examination of the Robbery and Firearms (Special Provisions) Act Cap 398 of 1990 and the Robbery and Firearms (Special Provisions) Act Cap R.11 2004 shows that the provisions therein are largely identical in material particulars. The provisions of the 1990 Act, cap 398 and the 2004 Act, Cap R.11 are reproduced hereunder for ease of reference:
“CHAPTER 398
ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT
An Act to make comprehensive provisions for matters relating to armed robbery.
[29th March, 1984]
1.(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years.
2. If –
(a)…………………..
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
5. Any person who –
(a) ………………………………….
(b) conspires with any person to commit such an offence, 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 liable to be proceeded against and punished accordingly under this Act”.
“CHAPTER R11 ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT
An Act to make comprehensive provisions for matters related to armed robbery.
[1984 No. 5. 1986 No. 28.]
[29th March, 1984]
[Commencement.]
1. Punishment for robbery
(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If –
(a) ………………………….
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
6. Punishment for parties to offences under section 1, 2, 3 or 4
Any person who –
(a) …………………………………….
(b) Conspires with any person to commit such an offence; or
(c) …………………………………….
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 liable to be proceeded against and punished accordingly under this Act”.
What has changed is the citation. Thus, can the wrong citation of a law be held to vitiate the entire proceedings of the trial Court? I am of the view that a wrong citation, without more, cannot in itself vitiate the proceedings of the trial Court in this regard unless the Appellant has been misled thereby. The Appellant’s plea of ‘not guilty’ was to the substance of the law and not to the citation. And since, as I have pointed out, the repealed law of 1990 and that of 2004 are virtually identical in , the fact of the wrong citation alone should not be a reason to declare the trial null and void.
This is more so as the charge before the trial Court was explicit and contained all the ingredients of the offences charged. The Appellant knew and understood what he was pleading to. Thus, there was no miscarriage of justice. What is important is that the person charged should have sufficient notice of the acts alleged to have been committed by him which added up to the offences of conspiracy and armed robbery. What is more, the law is clear that even a conviction on a charge which states a known offence with incomplete particulars can be upheld where the defence was not misled and no substantial miscarriage of justice has taken place. See Sule V State (2009) 6 SCNJ 65 @ 89.

Clearly the error here in citing the wrong law has been as the result of the gross carelessness of the prosecuting counsel in framing the charge, However, the defence counsel, who ought to have raised an objection at the trial, also did not. As I have earlier on stated, by Section 382 of the CPC, no finding or sentence passed by a court of competent jurisdiction shall be reversed or altered on appeal on account of any error, omission or irregularity in the charge or judgment during the trial unless the appeal court thinks that a failure of justice has in fact been occasioned thereby. This is more so when objection could and should have been raised at an earlier stage of the proceedings, As I noted hereinbefore, there is nowhere in the Record where the learned Counsel appearing for the Appellant ever took any objection as to the charge or for any formal defect on its face. He did not complain about any deficiency in the particulars supplied or in the law cited. I cannot see how any miscarriage of justice has been occasioned to the Appellant who has not shown that he was misled by the charge. That being the case, I accordingly ignore and discountenance the complaint under this issue. See Agbo V State (supra); Medical & Dental Practitioners Disciplinary Tribunal V Emewulu (2001) 3 SCNJ 186; Okaroh v State (1990) 1 SCNJ 124. It is the duty of counsel to promptly take objection to every perceived irregularity relating to evidence or procedure, In Sule V State (2009) 6 SCNJ 65 @ 89, the Supreme Court held:
“The trial court was in error in acquitting and discharging some of the accused persons. But the law is settled that the error or mistake by a trial judge or court will not lead to the nullification of the entire proceedings or necessarily determine an appeal in favour of an appellant or automatically result in the appeal being allowed. It is only where the error s so substantial that it has occasioned a miscarriage of justice that an appellate court will interfere”.
Consequently, in respect of issue one, it is resolved in favour of the Respondent.

Issues 2 and 3:
2. Was the learned trial Court right in holding that the prosecution proved the two elements of armed robbery in this case? (Ground 4),
3. Was the learned trial Court right in the circumstances of this case when it held that the Appellant participated in the alleged armed robbery and thus, convicted him of the offence? (Grounds 1, 5, 6, 7 and 8).
Learned Counsel for the Appellant argued issues two and three together. Counsel submits that the learned trial Court was in error when it held that the prosecution proved the two elements of the offence of armed robbery, just as it was wrong in going on to find that the Appellant participated in the alleged armed robbery, and thus convicted him of the offence, Counsel submits that in arriving at its finding that the elements of the offence were proved, the trial Court relied mainly on the testimonies of the PW1 and PW2, Counsel however contends that the evidence of PWs 1 and 2 could not establish beyond reasonable doubt that they were robbed on the 22-03-2008 because their testimonies were not only contradictory, but in the entire circumstances of the case, manifestly unbelievable. He points to the testimonies of both the PWs 1 and 2 indicating that the house which they lived in and at which the robbery incident took place had a security guard manning its gate, had other tenants in the building and also, at the time of the robbery, the PW1’s sister was cooking in the kitchen of their house. Since that was so, it is, in Counsel’s opinion, incredible that none of these persons were aware that a robbery incident was underway and that it went un-noticed by them. He contends that this casts serious doubts on the story of the alleged armed robbery as recounted by the PWs1 and 2. Counsel thus submits that the “yawning gaps” in the case of the prosecution ought to be resolved in favour of the Appellant. He relies on State v Azeez (2009) 14 NWLR (Pt. 1108) 439 at 501 D-F.
In respect of the contradictions, learned Counsel firstly referred to the testimonies of the PWs 1 and 2 at pages 73, 78, 77 and 86 in regard to where exactly the PW1 was when the alleged robbers came to the house. Was she with her husband, PW2, at the front of the house or in the Kitchen? Secondly, that whereas PW1 testified at page 74 of the Record that when the alleged robbers tied them and locked them in a room, she gave PW2 the keys with which to open the door, PW2 testified at page 80 of the Record that he used the spare keys he had on him to open the locked door. Counsel submits that these contradictions are very material in that they give an inconsistent account of the alleged robbery incident. That these, in conjunction with the questions begging for answers from the prosecution, cast a doubt as to whether or not there was indeed an incident of armed robbery as alleged by the prosecution. Counsel submits that these contradictions or inconsistencies as well as unresolved doubts in the evidence of the PWs1 and 2 are fatal to the case of the prosecution. He thus urged the Court to hold that in the face of these doubts and inconsistencies, the prosecution failed to prove the first ingredient of the offence beyond reasonable doubt, to wit: that there was a robbery committed against the PW1 and PW2 on the 22-03-2008, and thus to resolve the doubt in favour of the Appellant. For these submissions, learned Counsel also relied on Shorumi v State (2010) 16 NWLR (Pt. 1218) 65 at 131 Paras B-C; Afolatu v State (2009) 3 NWLR (Pt. 1127) 160 at 183 paras A-D; Atiku v State (2010) 9 NWLR (Pt. 1199) 241 at 274-275 paras H-A; & Isah v State (2010) 16 NWLR (Pt. 1218) 132 at 163 para G, and 164 Paras A-C.
With regard to the third ingredient of the offence of armed robbery, learned Counsel submits that the prosecution failed to prove beyond reasonable doubt that the Appellant was one of the three persons who took part in the alleged robbery, if any. He refers to pages 127-128 of the Record to submit that the trial Judge relied solely on the evidence of the PW1 in fixing the Appellant to the scene of crime. PW2 in his evidence, particularly at pages 80, 82 and 85 of the Record, stated that he could not identify any of the robbers who robbed them and that it was the PW1 who told him that it was the Appellant who pointed a gun at her. Learned Counsel submits that although the trial Court could righty convict an accused person on the strength of the testimony of a single eyewitness, the testimony of that eyewitness must be credible. For this he relies on Idiok v State (2008) 13 NWLR (Pt. 1104) 225 at 240. Counsel however submits that the uncorroborated evidence of the PW1 is not credible enough to prove beyond reasonable doubt that the Appellant was at the scene of crime, as there are many material doubts surrounding the evidence of the PW1. Counsel refers to the evidence of the PW1 at pages 75-76 of the Record wherein she states that the Appellant was her husband’s friend and classmate, and he used to come to their house where she served him food. At pages 79-80, PW2 corroborated the fact that the Appellant was his friend. Counsel submits that, that being the case, it was remarkable that PW2 could not identify any of the robbers himself even though he heard their voices, including presumably, the voice of his friend and classmate. He thus submits that it could not have been his friend who spoke on the date of the robbery.
A second reason why Counsel calls upon this Court not to believe the evidence of the PW1 is in respect of the lighting on the premises on the date of the alleged robbery. The incident is alleged to have taken place at about 9.50pm at night. Under cross-examination by Counsel to the Appellant, PW1 testified that the security light in the passage was switched on. However, under cross examination by Counsel to the 2nd Accused, she stated that there was no light outside. (Page 77 of the Record refers). Counsel submits that there was no evidence to the effect that the light in the passage lightened the darkness in front of or outside the house such as to enable the PW1 to see the face of the alleged robber. He juxtaposes this with her earlier testimony that she was in the kitchen when the robbers arrived, Counsel thus submits that these doubts should not only have been resolved in favour of the Appellant, but the trial court should have warned itself that it was unsafe to rely on the uncorroborated evidence of the PW1 to convict the Appellant, more so in the face of evidence that all was not well between the PW2 and the Appellant. He again relies on Azeez V State (supra) at page 483.
Learned Counsel further faulted the finding of the trial Court when, after stating at pages 127-128 that there were “inconsistencies and contradictions in the evidence of the prosecution”, it went ahead to convict the Appellant without warning itself about the danger of acting on the uncorroborated evidence of the PW1 that she saw the Appellant. He also faulted the trial Court’s finding that the Appellant was at the scene of the crime and indeed participated in same when it had earlier on found that the Appellant and his witness could not rebut the evidence of robbery because they were not at the scene of crime. He refers to pages 112-113 of the Record. Counsel thus urged the Court to hold that the prosecution and its witnesses did not prove the case against the Appellant beyond all reasonable doubt. Further that the evidence of the PW1 which it relied on to hold that the Appellant participated in the crime was so poor and improbable, that in the absence of any corroborative evidence thereto, there is doubt as to the guilt of the Appellant, and he is entitled to the benefit thereof. The cases of Kingsley V State (2010) 6 NWLR (Pt. 1191) 593 at 607-608 Paras H-C; Amodu V State (2010) 2 NWLR (Pt. 1177) 47 at 78 Paras F-C; Gabriel V State (2010) 6 NWLR (Pt. 1190) 280 at 320 are relied upon.
In conclusion, learned Counsel urged the Court to allow the Appeal in that the proceedings and judgment of the trial Court are a nullity, and that the prosecution had failed to prove its allegations against the Appellant beyond reasonable doubt.
Under issues two and three, the learned Attorney-General submits in summary that the trial Court was right in its findings that the Respondent had established all the ingredients of the offence against the Appellant to warrant his conviction. He submits that by the testimonies of the PW1 at pages 73-74, and PW2 at pages 78-79, and PW2’s cross examination at page 83 of the Record, the Respondent established the first element of the offence that a robbery actually took place at the residence of the PW1 and PW2 on the 22-03-2008 which led to the institution of the case at the High Court of Plateau State,
He further submits that the PW1 and PW2 were both victims and eyewitnesses to the robbery incident and, as their evidence was not challenged under cross-examination, they are taken as proved. He relies on Oforlette V State (2000) All FWLR (Pt. L2) 2081 @ 2099 Paras H-A. The second ingredient of the offence to be proved is that the robbery was with arms. Learned Counsel also submits that this was also proved by the evidence of the PW1 at pages 73 and 74 of the record and PW2 at page 78 of the record. Having proved the two ingredients of the offence, it is learned Counsel’s submission that the Respondent had discharged the burden placed on it by law and the burden to prove reasonable doubt has shifted to the Appellant. He relies on Adebayo V State (2007) All FWLR (Pt. 365) 498 @ 542 Paras E-G; and State V Oladotun (2011) 5 SCNJ L49 Paras 30-35.
In an attempt to discharge this burden, Counsel submits that the Appellant raised the defence of alibi. By raising this defence for the first time in Court during his defence and after the Respondent had closed its case, Counsel submits that it was an afterthought as it was not raised either during his arrest or when he made a statement to the police to enable them investigate the alibi. Be that as it may, the trial Court still considered this defence and rejected it at paragraph 3 of page 123 of the Record. From the evidence of the DW1, the police were never informed of the alibi or given particulars and details of the alibi which would have enabled them to investigate same as required by law. Akan & Others V State (2002) 5 SCNJ 301 is relied upon. Learned Counsel submits therefore that the finding of the trial Court at pages 112 and 113 thereof that the Respondent had established the first two elements of the offence was right.
Additionally, learned Attorney General submits that the discretion as to which witness to believe is entirely that of the trial Court. This discretion may be inquired into by an appellate Court only where the finding of the trial Court is perverse. Counsel relies on Adelumola v State (1988) 3 SCNJ 63 @ 70; Ndidi v State (2007) All FWLR (Pt. 381) 1616 @ 1649. He submits that the finding of the trial Court is not perverse to warrant interference by this Court, as it is settled law that an appellate Court will only interfere with the finding of a trial Court if the finding is perverse or illegal.
In respect of the third element of the offence to be proved, which is that the Appellant participated in the robbery on the 22-03-08, learned Attorney-General submits that the Respondent adduced credible evidence through the PW1 and PW2, to wit: the Appellant was seen at the scene of crime by the PW1; the GSM SIM Card of the PW2 which was taken from the PW2 along with his money and other valuables, was found in the possession of the Appellant during investigation by the police. At pages 75-77 of the Record, PW1 gave the particulars of the Appellant, the circumstances under which she knew him before the robbery incident, how he was a frequent visitor to their home, how she used to serve him food, and how she identified him on the day of the robbery. Counsel therefore submits that the evidence of an eyewitness in any criminal proceeding has been considered the best evidence worthy of belief and deserving of probative value in favour of the Respondent’s case like in this case. Reliance was placed on Oyakhire V State (2006) All FWLR (Pt. 305) 703 @ 720; Oko v State (1989) 2 NWLR (Pt. 100) 642 @ 656; Baruwa V State (1996) 7 NWLR (Pt. 460) 302 @ 311. Counsel submits that the lower Court was right in its finding at pages 128 – 129 of the Record that it believed the evidence adduced by the Respondent which fixed the Appellant at the scene of crime at the time of the robbery. He contends that this finding is supported by reliable and relevant evidence. Thus, Counsel submits that the finding is not perverse or illegal and urged the Court not to interfere with it. He relies on Ogunbayo V State (2007) All FWLR (Pt. 365) 408 @ 432-433 Paras G-A).
On the issue raised by the Appellant that doubt is raised in the case of the Respondent on the basis of the fact that it is incredible that in a compound with a security guard and housing several other tenants, no other person was aware of the robbery except for the PWs 1 and 2, learned Counsel adduced several possibilities/scenarios why this was so, namely: evidence showed that the security guard was not at the gate both at the entry and departure of the robbers – page 76 para 2 line 1, and page 80 para 2 lines 3-4 of the Record; the Security guard was not in the apartment of the PWs1 and 2, which is about 80 metres from the gate page 76 para 3 lines 1-2; after tying and locking up the PWs 1 and 2, the robbers left with the keys and these keys were found by the security guard at the gate after the robbery; the incident happened in the self-contained flat of the PWs1 and 2 at about 9.55pm at night and there was no evidence that there was any gunshot or that the victims shouted for help. Since no other evidence was elicited by the Appellant during cross-examination, he cannot make an issue out of same, and their evidence remains un-rebutted and worthy of consideration by this Court. Counsel therefore submits that no doubt whatsoever was created as a result of the security guard and co-tenants not being aware of the robbery incident.
In like vein, Counsel submits that the failure to call the younger sister of the PW1 who was in the house at the time of the robbery should not create the issue of unfavourableness of her evidence. He contends that the testimony of the PW1 was direct, cogent and sure of the identity of the Appellant and so, it made the calling of the sister to testify needless. He relied on Olayinka V State (2007) 4 SCNJ 53 @ 73.
Learned Attorney-General however conceded that there were some minor inconsistencies and contradictions in the pieces of evidence adduced by the Respondent in proof of the charge. Nonetheless, he submits that these were not serious or substantial enough to qualify or amount to creating a reasonable doubt which would be fatal to the Respondent’s case. He referred to the finding of the trial Court at page 131 of the Record where it found that the contradictions do not go to the root of the case of the Respondent. Counsel therefore submits that only material contradictions in the evidence of the Respondent could be said to be fatal to the case of the Respondent.
In conclusion, the learned Attorney-General submits that the Respondent has proved its case beyond reasonable doubt, which proof does not mean beyond every shadow of doubt, For proof beyond reasonable doubt, he refers to State V Njoku (2010) 1 NWLR (Pt. 1175) 243 @ 281; Bakare v State (1987) 1 NWLR (Pt. 52) 579 per Oputa, JSC; Ani v State (2009) 16 NWLR (Pt. 1168) 442 @ 458 per Niki Tobi, JSC; Bolanle v State (2009) 18 NWLR (Pt. 1172) 1 @ 10-11 per Mohammed, JSC; Oteki v A-G Bendel State (1986) 2 NWLR (Pt. 24) 648 @ 668 per Oputa, JSC. Learned Counsel submits that the trial Judge believed the evidence of the witnesses of the Respondent and accordingly convicted the Appellant on the truth of the evidence believed. He therefore urged the Court to dismiss the Appeal for lacking in merit, and to affirm the conviction and sentence of the lower Court.
In his Reply Brief, learned Counsel for the Appellant in the main submits that the Respondent, in paragraph 4.46 of its Brief at page 35 thereof, supplied fresh evidence in reference to the GSM SIM Card of the PW2, which is not borne out by the Record. Counsel urged the Court to thus disregard that submission since the addresses of counsel cannot take the place of evidence. He relied on Chabasaya V Anwasi (2010) 10 NWLR (Pt. 1201) 163 @ 189 paras F-G, (SC). Counsel again urged the Court to allow the Appeal and set aside the Judgment of the trial Court.
Under issue two, learned Counsel submits that the lower Court acted wrongly when it found that the prosecution had proved the two elements of armed robbery in the case. In addition, Counsel takes up issues with the finding of the lower Court that the Appellant participated in the alleged armed robbery. Counsel again urges the Court to allow the Appeal.
The Appellant herein was charged under Sections 5(b) and 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 of 1990. Sections 1(2)(b) of the 1990 Act are in pari materia with Section 1(2)(b) of the Robbery and Firearms (Special Provisions) (Act, Cap R.11 of 2004, while Section 5(b) of the 1990 Act are in pari materia with Section 6 of the 2004 Act. The said provisions have been set out earlier in this Judgment.
As rightly stated in the Judgment of the lower Court, in order to succeed in this case, the prosecution was required to prove the following three elements of this offence:
(a) That there was a robbery or series of robberies;
(b) That each robbery was an armed robbery; and
(c) That the Appellant was one of those who took part in the armed robbery.
See Osuagwu v State (2009) All FWLR (Pt. 460) 700 @ 717 Paras D-E

The evidence in proof of the three count charge against the Appellant was adduced by the prosecution through the PW1 and PW2. These witnesses were the victims of the armed robbery, and their testimonies on oath are contained at pages 73 to 86 of the Record. The PW1, Chukwu Chibuzo Okonko, was the star witness. She gave a graphic account of what transpired on the night of 22-03-08 at about 9.50pm. She stated how she was at home with her husband, PW2, trying to preparing the Easter meal with the help of her younger sister. As she came out of the kitchen, one man whom she didn’t know approached them and pointed a gun at her husband, threatening to shoot him if he moved. He ordered the PW2 to lie down and he obeyed. Thereafter, while the PW2 was on the ground, two more men approached them. One of them, whose face was not masked, and whom she immediately recognised as Evaristus Mozie, her husband’s friend and now the Appellant, pointed a gun at her and ordered her to lie down. She complied. She was able to see and recognise the Appellant because the corridor was lighted, even though there was no light outside the apartment. The men took PW1 and PW2 into the house, took their money and her Nokia 1112 handset, tied them up, locked them in a room and went away with the key. PW1 knew the Appellant, whom she categorically identified immediately she saw him, as Evaristus Mozie, her husband’s friend who used to visit their home and whom she served food. She told both her husband and the police that she recognized the man who pointed a gun at her as the Appellant. Since PW1 is the key witness, pieces of her evidence which are relevant are hereunder reproduced. At pages 73-74, this is what she said:
“On 22/3/2008 at about 9.50pm, we were cooking for Easter in our house in Jos. I came out of the kitchen to ask my husband some questions then we saw someone coming. I was standing, he approached, he pulled his gun from his waist and pointed at my husband. He told him that if the (sic) move he would shoot him. My husband stood. He told my husband to lie down and he lied down while I was still standing. Two more people came to us. One of them too, pointed at me and told me to lie down. I lied down. I recognise the face of the one that pointed at me with gun… I asked my husband if he had problem with Evaristus Mozie the 1st accused because I recognize him as the one who pointed at me… I know the 1st accused who is called Evaristus Mozie who was a friend to my husband they used to come to our house and I served them with food. They are in the same department and class with my husband”.
Even under cross examination by learned Counsel for the Appellant at pages 76-77 of the Record, she maintained her evidence and was un-shaken when she reaffirmed as follows:
“I made statement to police because I saw 1st accused… 1st accused came closer to me and I saw his face before he covered it with his mask …….. Security light on the passage was on… I could not see everything clearly, but I saw 1st accused… My attention was on my husband but when 1st accused was coming I had to look at him”.
The testimony of the PW1 is direct and straightforward. It is a positive identification of the Appellant as one of the armed robbers who robbed and assaulted them on the night in question. She identified him immediately at the scene of crime, and gave road marks why she could not have been mistaken in her identification. He was a friend of her husband who used to visit and she served them meals in their home, In addition, he was a classmate of her husband in the same department. This identification cannot by any means be termed ‘a case of mistaken identity’. The witness, who knew the Appellant prior to the incident, saw him clearly on the night in question without a mask and by the light in the corridor. As the learned trial Judge found, she was both a victim and an eyewitness, and the substance of her evidence was not shaken under rigorous cross-examination. As was rightly held by the trial Court, the best identification of an accused is by the victim of the crime or a witness to the crime. See Okosi V State (1997) 2 NWLR (Pt. 642 @ 656.

Chukwu Emmanuel, the PW1’s husband, was PW2. His account of what transpired on the fateful night is no less intriguing and it corroborated his wife’s account of the incident in material particulars. On the fateful day, He was washing his clothes outside the apartment when his wife joined him from the kitchen and they were attacked by the robbers who were armed. Being the first to be ordered to lie down at gun-point by the first intruder, he never saw the Appellant’s face, when he later came in, sufficient to identify him. However, his wife did, and informed him that the second person who had confronted her and similarly ordered her to lie down at gunpoint was the Appellant, his friend and classmate. PW2 confirmed that the Appellant and two other men of unknown identity robbed him of his two phones, money and MTN cards, the latter two which they removed from his wallet. The three intruders then tied them up, locked them in a room in the house and left with the keys, which he, PW2 had handed over to them on demand. After they left, he untied himself and PW1, and secured his release and that of and his wife from the room. He then went and inquired from the security guard manning the gate to their premises whether he had seen the robbers go in and out. But the guard told him that at the stated time, he had gone to take his bath and so he had not seen any one. Thereafter, PW2 lodged a report of the incident to the police. Under cross examination, he confirmed that the Appellant was a frequent visitor to the house, and his wife even served the accused food a number of times. PW2 admitted having a problem with the Appellant over academic materials, i.e. lecture notes and handouts, and this had soured their relationship somewhat.
From the above pieces of evidence before the lower Court, I am of the view that the learned trial Judge acted rightly when he found that the ingredients of the offence had been proved to the standard required by law, i.e. beyond reasonable doubt. Firstly, there was ample evidence that a robbery was committed on the 22-03-08 at the PW1 and PW2’s house. Secondly, in committing the robbery, the three robbers, which included the Appellant, threatened both the PW1 and PW2 with guns, forced them to lie down, tied them up and locked them in a room in the house. Thirdly, the Appellant was positively identified by the PW1 as the man who threatened her with a gun, and he was one of the three robbers who came to the house on the night in question. The robbers robbed her of her Nokia 1112 handset. The PW2 was also robbed of two handsets, MTN recharge cards and an unspecified sum of money. In the face of all these, it is no wonder that the learned trial Judge held thus at pages 111 – 112 of the Record:
“In my humble view, the evidence of the two prosecution witnesses as highlighted by the prosecutions (sic) counsel have proved the two elements of the offence of armed robbery because the two witnesses are eyewitnesses. ”
I cannot see my way clear to interfere with this factual finding of the lower Court. The finding is neither perverse, (because it is borne out by a proper evaluation of the evidence before the trial Court), nor is it illegal. The law is trite that appellate courts should be wary of interfering with findings of facts of trial courts unless they are found to be perverse or illegal. The Judge who saw the witnesses, heard their oral testimonies and watched their demeanour are in a better position to assess the evidence than an appellate court which deals only with the evidence as produced in a Record of proceedings. See Adelumola V State (1988) 3 SCNJ (Pt. 1) 63 @ 70; Ndidi V State (2007) All FWLR (Pt. 381) 1616 @ 1645. He is also in the best position to pronounce on the credibility or otherwise of the witnesses before him. Findings of fact, where it relates to the demeanour of witnesses and ascribing weight to evidence before the court, is within the exclusive preserve of a trial court and therefore an appellate court will not interfere, See Ogunbayo V State (2007) All FWLR (Pt. 365) 408 @ 433 Paras G-A.

The learned Counsel for the Appellant has sought to impugn the integrity of the evidence of the PW1 and PW2 mainly on the basis that it was allegedly fraught with contradictions and inconsistencies. Firstly, Counsel questioned the veracity and credibility of the evidence of the PW2 that he could not identify the robbers on the basis that, since the Appellant was said to be his friend and classmate, PW2 should have been able to recognise the Appellant’s voice during the attack. Counsel submits that since he did not, then it couldn’t have been his friend who spoke on the night in question. This again, I believe, is grasping at straws. The PW2 did not pretend to have seen or heard the Appellant on the night in question. From the evidence before the Court, the Appellant confronted the PW1, while his co-traveller in crime accosted the PW2. PW2 was threatened to be killed and a gun was staring him in the face, Is it therefore surprising that a person, placed in such a situation who says he heard voices but yet could not identify them, be faulted? I think not. The victim who was actually confronted by the Appellant was the PW1, and she made a positive identification of him. I believe the PW2 should be commended rather than being denigrated for his honesty in sincerely admitting that he, on his part, did not actually see the Appellant, but was only informed by his wife that it was the Appellant who threatened her with a gun. This is in spite of the insinuations on the part of the Appellant’s Counsel during cross examination that the PW1 and PW2 implicated the Applicant simply because he had differences with his friend, the PW2. If that was indeed the case, then the PW2 would have been quick to name the Appellant as one of the robbers. But he didn’t.
Instead, it was PW2’s wife, who actually saw and identified the Appellant on the night of the robbery that did. There is no evidence before the lower Court that she had any bones to pick with the Appellant. She was merely a victim and an eyewitness to the crime and the lower Court believed her evidence. It is the law that the evidence of an eyewitness in any criminal proceedings is considered the best evidence worthy of belief and deserving of probative value in favour of the Respondent’s case. The best identification of an accused is by the victim of the crime or a witness to the crime. An eyewitness testimony is usually the finest evidence in a criminal trial. See Idiok V State (2008) 13 NWLR (Pt. 1104) 225, 240; Oyakhire V State (2006) All FWLR (Pt. 305) 703 @ 720; and Okosi V State (supra)

Learned Counsel for the Appellant also questions the veracity and credibility of the evidence of the prosecution witnesses on the ground that it was not possible for a crime of armed robbery to take place in the PW1 and PW2’s house and the security guard and other tenants would be unaware. The evidence before the lower Court through the PW2 is that the security guard was not manning the gate at the material time when the operation took place because he was having a bath. There was no other evidence before the lower Court to controvert this and same was not challenged under cross examination. As for the tenants, no evidence was adduced before the lower Court as to their proximity or otherwise to the scene of incident at the apartment of the victims. Indeed, the lower Court rightly rejected and dismissed this submission in these words at pages 128 – 129 of the Record:
“The fact that she did not know the number of apartments in the compound occupied by her and her husband for about a year does not take away her recognition of the 1st accused at the scene of the offence. Ignorance of the security man and other tenants about the robbery does not affect the evidence of the prosecution witnesses. The fact that only she and her husband knew the robbery is not ridiculous and most improbable as argued by Counsel to the accused”.
On the failure to call the PW1’s sister, who by the evidence, was in the house during the incident, the law is trite that the prosecution has discretion to call those witnesses that are sufficient for him to prove the charge against an accused person. He is not obliged to call a barrage of witnesses. It also does not lie in the mouth of an accused person to dictate to the prosecution the number of witnesses it should call in proof of its case. As long as the witnesses it calls or the evidence it adduces are, in its opinion, sufficient to establish its case to the standard required by law, it is immaterial to the court that a particular witness was not called. If the witness is superfluous and may give the same evidence as given by witnesses before her, so be it. That is the decision of the prosecution. This does not, without more, and especially on the facts of this case, detract from the evidence already given by the PW1 and PW2 in proof of the charge against the Appellant. See Idiok V State (2008) 13 NWLR (Pt. 1104) 225 @ 250 – 251; Olayinka V State (2007) 4 SCNJ 53 @ 73; State V Ajie (2000) 3 NSQCR 53 @ 66.

Learned Counsel for the Appellant again questions how the PW1 could make a positive identification of the Appellant when, as she testified, there was no light outside but only the security light on the corridor/passage of the house. Learned Counsel contends that this should have raised doubt on the testimony of the witness. I still believe that this amounts to nothing but nit-picking. It is a fact of general knowledge that a “security light” refers to a light which is placed in a vantage position to lighten or give illumination to the outside surroundings or, at the very least, to the front part of a house. Since that is so, and the incident occurred outside the house where the PW1 was washing his clothes, PW1 cannot be faulted if she says she was able to recognise the Appellant under those lighting conditions. More so as there is no evidence from the Appellant to suggest that the contrary was the case. There was also evidence that the PW1 knew the Appellant before the incident. Immediately the robbers left, PW1 told her husband the PW2 the identity of the person who pointed a gun at her as the Appellant, Thereafter, she also informed the police when the matter was reported. Thus the PW1 made a positive and unequivocal identification of the Appellant, which rendered an identification parade unnecessary and superfluous. Afolalu V State (supra @ 190); Aliyu V State (2007) All FWLR (Pt. 388) 1123.
With regard to the reference by learned Counsel for the Respondent at page 35 of the Respondent’s Brief that the GSM SIM card of the PW2 was found in the possession of the Appellant during police investigation , I agree with the Appellant’s Counsel that this was not part of the evidence before the trial Court as contained in the Record of Appeal. It is therefore disregarded and discountenanced.
Where the prosecution has adduced evidence sufficient to prove the charge, even though the burden never shifts in criminal trials, it behoves on the accused to adduce evidence which would cast doubt on the prima facie evidence adduced by it. Where such doubt is raised, it will be resolved in favour of the accused. See Section 138(3) of the Evidence Act; and Adebayo v State (2007) All FWLR (Pt. 365) 498 @ 542 Paras E-G, wherein the Court held:
“By the provision of Section 138(3) of the Evidence Act, 2004, if the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted to the accused”.

I am of the view that from the evidence before the trial Court, no such doubt was raised in respect of the evidence of the PW1 identifying the Appellant. Once again, the finding of the learned trial Judge in respect of this identification is in consonance with the evidence before the Court. At page 128 of the Record, the trial Court held that:
“It was possible for her to see the face as she was standing while PW2 lied had down when the first robber told him to do so before the two other robbers came to meet them, I believe her evidence because she said she saw the face when he come (sic) close to her before he covered it and that there was light at the passage”.
Still, learned Counsel also takes up issues with the finding of the lower Court at pages 127-128 of the Record as follows:
“Having found that the contradiction or inconsistencies or discrepancies refer (sic) to by learned Counsel for the accused have not in my view affected the substance of the prosecution’s case I hold that the prosecution has led strong and positive evidence which fixed the accused person at the scene of crime and established the participation of the accused in the commission of the armed robbery and which this court accept (sic)”.
Nevertheless, this finding is in consonance with settled law that it is not every contradiction that will lead to the setting aside of the decision of a lower Court. The contradictions and inconsistencies must be substantial and must be of such a nature that they render the evidence incredible, absurd and unbelievable, Contradictions are fatal to the prosecution’s case only when they are material, substantial and fundamental to the main issue or issues in controversy thus creating doubt that the accused is entitled to benefit from. Contradictions which do not affect the substance of the issue to be decided are irrelevant. It is only those contradictions which raise doubt about the guilt of the accused person that will be considered adequate to affect convictions in criminal cases. It is therefore not every contradiction that will result in upsetting a judgment. See Afolalu V State (supra @ 183); Ejeka V State (2003) 7 NWLR (Pt. 819) 408; Isibor V State (2002) 4 NWLR (Pt. 758) 741; Iko V State (2001) 14 NWLR ((Pt, 732) 221. In Sele V State (1993) 1 NSCC Vol. 1 Pg. 47, Belgore, JSC, delivering the lead Judgment said thus at page 53 of the report:
“Contradictions, to be fatal to the prosecution’s case, must go to the substance of the case and not be of a minor nature. If every contradiction, however trivial to the overwhelming evidence before the court will vitiate a trial, human faculty to miss some minor details due to lapse of time and error in narration in order of sequence will make nearly all prosecution fail”.

In this case, whatever contradictions and inconsistencies there were, merely amounted to discrepancies which did not go to the substance of the evidence of the prosecution witnesses. Indeed, if the testimonies of the two witnesses had been identical in every way, it would raise the suspicion that they had been schooled to give such evidence, and thus the evidence must have been ‘cooked’ or manufactured. It is only human that when more than one person witnesses an event, each person will give his version of the event from his own vantage point with emphasis at different points, etc. The important thing is that the substance of the story remains constant and without variation. In the instant case, the PW1 and PW2 were robbed at gunpoint on the night and date in question by the Appellant and two others yet to be brought to justice. This has been established by credible evidence which was not successfully challenged or controverted. Therefore, the learned trial Judge was entitled to believe same and act on it.
Finally, in his defence, the Appellant raised the issue of alibi for the first time before the lower Court, that is, that he was elsewhere on the date and at the time of the commission of the offence, This defence was peremptorily and rightly disregarded by the learned trial Judge. An accused person has the onus to disclose the facts of an alibi as they are peculiarly within his knowledge, and such witnesses that may be available. Such facts must be disclosed with necessary details and particulars at the earliest opportunity so as to transfer the burden to the police to check them out and deaf with them with some finality. If he does not do so, the police cannot be expected to go on a wild goose chase. In the instant case, the Appellant did not raise the defence of alibi at the earliest opportunity. Failure of the Appellant to furnish the particulars of alibi before the trial weakened his defence. See Idiok V State (supra @ 242-243); Sowemimo V State (2004) 11 NWLR (Pt. 885) 515; Eyisi V State (2000) 15 NWLR (Pt, 691) 555,

I however note that even though the issue of the defence of alibi raised before the lower Court was obliquely raised in the particulars of Ground B of the Grounds of Appeal, and the Respondent’s Counsel addressed same at pages 32-33 of the its Brief, learned Counsel for the Appellant very wisely did not pursue it, nor did he distil any issue from it, nor argue it in the Appellant’s Brief. I will therefore say no more on it.
It is the law that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt Where, on a review of the entire evidence, the trial court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even on the credible evidence of one single witness. The law does not admit of fanciful possibilities to deflect the course of justice. Where the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “Of course it is possible but not in the least probable!”, then the case is proved beyond reasonable doubt. If on the other hand, on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed, entitling the accused person to be discharged and acquitted, See the time-tested cases and pronouncements of the learned Jurists of the apex Court in of Bolanle V State (2009) 16 NWLR (Pt. 1127) 1 @ 10 – 11; Ani V State (2009) 16 NWLR (Pt. 1168) 442 @ 458; State V Njoku (2010) 1 NWLR) (Pt. 1175) 243 @ 281; Bakare V State (1987) 1 NWLR (Pt. 52) 579; Oteki V AG Bendel State (1986) 2 NWLR (Pt. 24) 648 @ 668.

In the light of all my above findings, I also resolve issues two and three, (argued and considered together), in favour of the Respondent.
In the result, having resolved all three issues in favour of the Respondent, I find the Appeal devoid of all merit and it is dismissed. I uphold the Judgment of the Plateau State High Court delivered on the 30th June, 2011 and affirm the conviction and sentence.

CLARA BATA OGUNBIYI, J.C.A.: The lead judgment just delivered by my brother Jummai Hannatu
Sankey (JCA) had adequately dealt with all the issues raised for determination therein the appeal and I have no further useful point to add. In the result and in the some vein as the lead judgment therefore I also dismiss the appeal as lacking in merit. The conviction and sentence of the Appellant is hereby affirmed.

PHILOMENA MBUA EKPE, J.C.A.: I have been opportuned to read in draft the lead judgment just delivered by my learned brother Jummai Hannatu Sankey, JCA.
I am in total agreement with all the findings and reasoning therein. I also find that this appeal is devoid of merit and same is dismissed accordingly. I too affirm the conviction and sentence of the Appellant.

Appearances

Okey Akobundu Esq.,
Aminu Waklek Esq.,For Appellant

AND

Edward G. Pwajok Esq., Attorney-General of Plateau State,
G.D. Fwomyon Esq., Deputy Director Public Prosecution, Plateau State Ministry of Justice, JosFor Respondent

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