IGBINOVIA v. STATE (2021)

IGBINOVIA v. STATE

(2021)LCN/15136(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 19, 2021

CA/B/329C/2015

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

OSASERE IGBINOVIA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ESSENCE OF DISTILLING OR FORMULATING ISSUES FROM THE GROUNDS OF APPEAL FILED

The Law is equally trite that appeals are determined not on grounds of appeal directly but upon issues which are formulated for resolution from grounds of appeal. Hence, when an issue is formulated, the ground or grounds of appea l upon which the issue is based becomes/become extinguished, that is, the ground or grounds of appeal is/are so to speak replaced by the issue. This is the reason it is mandatory that a ground of appeal must have an issue to cover it and by extension, arguments must be proffered to cover the issue. Thus, any ground of appeal not having arguments proffered on an issue framed from it is deemed abandoned and liable to be struck out. See the cases of: (1) Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) P.275; (2) Saliba v. Yassin (2002) 2 SCNJ p.14; (3) Unity Bank Plc v. Bouari (2008) LPELR-3411 (SC); (4) Chukwuma v. Ifeloye (2008) 8 NWLR (Pt.1118) p.204; (5) Husseni & Anor. V. Mohammed & Ors. (2014) LPELR-24216 (SC) and (6) Patrick v. The State (2018) LPELR-43862 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

ESSENCE OF INVESTIGATING THOROUGHLY ANY DEFENCE PUT UP BY AN ACCUSED PERSON

The Law is trite that any defence put up by an accused person no matter how stupid or spurious must be investigated thoroughly in order to render it false or unlikely and it is when this happens that the trial Court will be able to accept or reject it. See the case of Aigbadion v. State (2000) 4SC (Pt. 1) p. 1011. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

POSITION OF THE LAW REGARDING THE IMPORTANCE OF PROVING THE THE USE OF AN OFFENSIVE WEAPON TO INSTILL THE FEAR OF LOSS OF LIFE OR BODILY INJURY INTO THE VICTIM BEFORE THE ACTUAL ROBBERY IN ESTABLISHING THE OFFENCE OF ARMED ROBBERY

The Law is trite that, what makes the offence of armed robbery is the use of an offensive weapon, such as, a firearm. Furthermore, the proof of “corpus delicti” in an armed robbery case consists of proof that property was fraudulently taken by an assault or by instilling the fear of loss of life or bodily injury into the victim. For an act to therefore constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to his person before the actual robbery. That is, the fear of possible injury instilled on the victim must of necessity precede the taking. Intimidation or constructive force which includes an administration of force or menace by which the victim is put in fear is sufficient to sustain a conviction, especially if at the material time, the free exercise of his will power is impaired as to make it lawfully difficult or near impossible for him to offer any resistance to anyone taking his property. Hence, the assailant must have perpetrated or inflicted violence on the victim. The major factor is the threat of violence or the use of actual violence, if such a threat led to fear in the mind of the victim that noncompliance would impel the infliction of violence on him. See the case of Olayinka v. The State 30 NSCQR P.149 at pgs. 172-173. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

POSITION OF THE LAW REGARDING WAYS BY WHICH THE GUILT OF ACCUSED FOR THE OFFENCE OF ARMED ROBBERY MAY BE PROVED

The Law is equally well settled that the offence of armed robbery, just like other criminal offences, may be proved by direct evidence or circumstantial evidence or indeed the voluntary confession of the accused person. Direct evidence proves or disproves a fact directly. Circumstantial evidence requires an inference to be made to establish a fact. It is fairly settled in Law that, by far, the free and voluntary confession of an accused person is considered to be the best form of proof. In Law therefore, where there is direct evidence linking an accused person with the commission of the offence charged, he can safely be convicted for the commission of the said offence. The Court would thence naturally prefer to have and act upon direct/precise evidence where obtainable. See the cases of (1) Bassil & Anor. v. Fajebe & Anor (2001) 11 NWLR (Pt.725) p.592; (2) Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (2009) LPERL-482 (SC) and (3) Yunusa v. State (2017) LPELR- 43014 (CA). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

POSITION OF THE LAW REGARDING THE ESSENTIAL INGREDIENTS THAT MUST EXIST IN ESTABLISHING THE OFFENCE OF ARMED ROBBERY

On the ingredients that must coexist to prove the offence of armed robbery, the Law is ironclad that, in order to prove the offence of armed robbery, the prosecution in the shoes of the Respondent herein, must prove the following beyond reasonable doubt that: a) there was a robbery or series of robberies; b) each robbery was an armed robbery and c) the accused person was the armed robber. See the cases of (1) Bozin v. The State (1985) 2 NWLR (Pt. 8) p.465; (2) Agboola v. The State (2013) 11 NWLR (Pt.1366) p. 619; (3) State v. Ajayi (2016) LPELR-40663 (SC) and (4) Ekpo v. State (2018) LPELR – 43843 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

POSITION OF THE LAW REGARDING THE NATURE OF PLEA OF ALIBI; IMPORTANCE OF RAISING THE PLEA OF ALIBI AT THE EARLIEST OPPORTUNITY WITHOUT ANY AMBIGUITY

… the Law is trite that, the defence of alibi must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him at the time of the commission of the offence. See the cases of (1) Iliyasu v. State (2015) LPELR-24403 (SC); (2) Eke v. The State (2011) LPELR-1133 (SC); (3) Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt.762) p.512 and (4) Onyegbu v. The State (1995) 4 SCNJ p.275. It is only where an accused person raised the defence at the earliest opportunity without any ambiguity that an onus is cast on the prosecution to investigate and disprove it and failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal. See the cases of (1) Eyisi v. State (2000) 4 NSCQR p.60; (2) Ebre & Ors. v. State (2001) LPELR-995 (SC); (3) Adegbite v. State (2017) LPELR-42585 (SC); (4) Eke v. The State (Supra) and 5 Odu & Anor. v. The State (2001) 5 SCNJ p.115 at p.120. In effect, where a defence of alibi consists of vague accounts which are bereft of material facts worthy of investigation, the Police in the circumstance would least be expected to go on a wild goose chase. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Edo State sitting at Benin Criminal Division, per S.A. Omonua, J., (hereinafter referred to as “the trial Court”) delivered on the 14thday of July, 2015 in Suit No. B/35C/2012.

The background facts of the matter from the perspective of the Respondent who was the prosecution at the trial Court are that, at about 2.00am in the morning of the 2nd day of June, 2011, the Appellant while in possession of a single-barreled gun invaded the house of Sunday Ekoma at No.10 Aiwereoghene Street, off Amadasun Street, Benin City. At gun point and wearing a mask, the Appellant demanded money from Sunday Ekoma and the other three members of his family. The Appellant hit Sunday Ekoma with the butt of his gun, tore the cloths of Sabbath Ekoma, Sunday Ekoma’s daughter and also attempted to rape her. The Appellant equally shot, injured and robbed John Ekoma of the sum eight hundred and fifty Naira. Sunday Ekoma and the said members of his family shouted and attracted the attention of some neighbours to the scene. Sunday Ekoma and

John Ekoma with the help of the said neighbours eventually overpowered and unmasked the Appellant and identified the Appellant as the son of one Osasere Kasavubu, another neighbour of Sunday Ekoma. The Evbuotubu Divisional Police Station was alerted and some Police Officers were deployed to the scene of crime whereat the Appellant was consequently arrested. John Ekoma was taken from the scene to the hospital where he was admitted and received treatment for the gun shot injuries sustained by him. The case being an armed robbery allegation was immediately that day, that is on the 2nd of June, 2011 transferred to the Edo State Special Anti-Robbery Squad (a.k.a. SARS) for detailed investigation. At the conclusion of investigation, the Appellant was charged with the offences of conspiracy to commit armed robbery (with others at large) and armed robbery contrary to and punishable under Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, 2004. During the investigation, the Appellant made a statement to the Police in which he confessed to robbing John Ekoma while in possession of a gun and that prior to the incident he had also participated

in another armed robbery at a different location in company with another man. The Appellant was thereafter arraigned before the trial Court on the 20th of September, 2012 on a charge of three counts as follows:
“COUNT I:
That you Osasere Igbinovia and others now at large on or about the 1st day of June, 2011 at Benin City in the Benin Judicial Division, conspired with one another to commit a felony to wit: armed robbery and thereby committed an offence, contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, R. II, Laws of the Federation, 2004.
COUNT II:
That you Osasere Igbinovia and others now at large on or about the 1st day of June, 2011 at Benin City in the Benin Judicial Division, did rob one John Ekpoma of the sum of N850 (Eight hundred and fifty Naira), at the time of the robbery you were armed with an offensive weapon to wit: gun and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, R. II, Laws of the Federation, 2004.
COUNT III:
That you Osasere Igbinovia and others now at large on

or about the 1st day of June, 2011 at Benin City in the Benin Judicial Division, did rob one Ahunwan Uyi of the sum of N5,500 (Five thousand five hundred and fifty Naira), one lap top, one LG camera phone, two Nokia handsets, at the time of the robbery you were armed with an offensive weapon to wit: gun and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, R. II, Laws of the Federation, 2004.”

The case went to full trial and in the bid to prove the charge preferred against the Appellant, the Respondent fielded four witnesses and tendered some exhibits in evidence.

It should be emphasised that at the point of tendering in evidence the alleged confessional statement of the Appellant through the 4th witness of the Respondent, the Appellant’s Counsel objected to the request on the ground that the Appellant did not make the statement voluntarily. The trial Court therefore conducted a trial within-trial in order to determine whether the statement was voluntarily made or whether the alleged confessions therein were beaten out of the Appellant. At the conclusion of the

trial-within-trial, the trial Court found in favour of the Respondent and held that the statement was voluntarily made by the Appellant. Consequently, the trial Court admitted the said statement in evidence. I consider it quite apposite to state at this juncture that in its ruling on the trial-within-trial contained in pages 41 to 45, particularly at page 45 of the Record of Appeal, the trial Court recorded that the statement was marked Exhibit C. However, in the main judgment of the trial Court, the Appellant’s Notice of Appeal and both parties’ briefs of argument, the said Appellant’s confessional statement was referred to interchangeably as Exhibit B and Exhibit C. The trial Court having marked the said Appellant’s confessional statement Exhibit C, same will be referred to by me in this judgment as Exhibit C.

At the continuation of the trial in the main and after the closure of the Respondent’s case, the Appellant testified and fielded an additional witness in his own defence. The respective parties’ Counsel’s final written addresses were ordered by the trial Court and duly filed and adopted in Court by both

Counsel in validation of their opposing positions in the case. Subsequently, the trial Court in its considered judgment delivered on the 14th of July, 2015 held that the Respondent proved beyond reasonable doubt Count 2 of the charge against the Appellant. However, the Respondent was held to have failed to adduce any evidence in proving Counts 1 and 3 of the charge against the Appellant. The trial Court thus found the Appellant guilty of and convicted him on Count 2 but acquitted him on Counts 1 and 3. The Appellant was consequentially sentenced to death.

Peeved about the judgment of the trial Court which convicted him of armed robbery and sentenced him to death, the Appellant filed this appeal to this Court against the judgment. With the leave of this Court duly sought and granted, the original Notice of Appeal of the Appellant filed within time was amended. For good understanding and easy referencing, the three grounds of appeal with their particulars contained in the Amended Notice of Appeal dated and filed on the 23rd of November, 2017 are hereunder reproduced verbatim as follows:
“GROUND ONE
1. That the learned trial judge erred in

Law in convicting the Appellant of Armed Robbery when the prosecution failed to prove the ingredient of the offence of armed Robbery.
Particulars of Error:
a. The ingredients of the offence of armed robbery were not proved. There were material contradictions in the evidence of the prosecution.
b. The prosecution failed to prove the charge as ensconced in Count 2.
GROUND TWO:
The learned trial judge erred in Law when he failed to properly evaluate the evidence before him in reaching his decision.
Particulars of Error
a. The statement of the Appellant where he denied involvement in robbery at the Police Station where he was first arrested was surreptitiously excluded from the proof of evidence.
b. The prosecution withheld evidence that would have been beneficial to the Appellant.
c. The Investigating Police Officer at Evbuotubu Police Station was not called and no reason was given for failure to call him.
GROUND THREE:
The learned trial judge erred in Law when he relied heavily on Exhibit B in convicting the Accused.
Particulars of Error
a. The learned trial judge erroneously rejected

the defence of the Appellant but accepted the case of the prosecution even in the face of material contradictions.”

In tune with the relevant provisions of the Rules of this Court, the parties’ Counsel settled the briefs of argument of their respective clients.

The Appellant’s Counsel, Emmanuel C. Okonkwo Esq., of the Law firm of H.O.W. Idahagbon & Co., filed the Amended Appellant’s Brief of Argument. In the Amended Brief of Argument dated the 11th of December, 2017 and filed on the 14th of December, 2017, the two issues formulated for the resolution of the appeal are hereunder set out verbatim as follows:
“Whether from the evidence adduced, the ingredient of Armed Robbery were proved beyond reasonable doubt to justify the conviction of the Appellant for Armed Robbery?
Whether on the whole, it could be said that the learned trial judge considered the evidence and defence raised by the Appellant?”

In opposing the appeal, the Respondent’s Counsel, Mr. Lotanna Chuka Okoli of Jurislaw Law firm, filed the Respondent’s Amended Brief of Argument dated 12th of March, 2018, filed on the

20th of March, 2018 and deemed properly filed on the 26th of April, 2018. The sole issue identified for determination in the brief are hereunder reproduced verbatim as follows:
“Whether from the surrounding circumstances and the evidence adduced, the Prosecution proved its case beyond reasonable doubt as to justify the conviction of the Appellant?”

The appeal was heard by this Court on the 22nd of February, 2021. At the said hearing of the appeal, the Appellant’s Counsel Mr. E. C. Okonkwo adopted the Amended Appellant’s Brief of Argument and urged this Court to allow the appeal and set aside the judgment of the trial Court.

The Respondent as well as its Counsel were however absent at the said hearing of the appeal but this Court was satisfied that hearing notice was duly issued and served on the Respondent’s Counsel. Hence, the already filed Amended Respondent’s Brief of Argument was deemed duly adopted pursuant to the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

It is apposite to reiterate at this point the trite legal position that a notice of appeal, the container that holds

grounds of appeal, is the foundation and substratum on which an appeal is predicated. The notice of appeal is therefore the compass that directs the parties, more importantly the Appellant, in the presentation of their respective cases before an appellate Court.

The Law is equally trite that appeals are determined not on grounds of appeal directly but upon issues which are formulated for resolution from grounds of appeal. Hence, when an issue is formulated, the ground or grounds of appeal upon which the issue is based becomes/become extinguished, that is, the ground or grounds of appeal is/are so to speak replaced by the issue. This is the reason it is mandatory that a ground of appeal must have an issue to cover it and by extension, arguments must be proffered to cover the issue. Thus, any ground of appeal not having arguments proffered on an issue framed from it is deemed abandoned and liable to be struck out. See the cases of: (1) Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) P.275; (2) Saliba v. Yassin (2002) 2 SCNJ p.14; (3) Unity Bank Plc v. Bouari (2008) LPELR-3411 (SC); (4) Chukwuma v. Ifeloye (2008) 8 NWLR (Pt.1118) p.204; (5)

Husseni & Anor. V. Mohammed & Ors. (2014) LPELR-24216 (SC) and (6) Patrick v. The State (2018) LPELR-43862 (SC).

The Courts have therefore consistently held that it is a requirement for a good brief of argument that parties’ Counsel should specifically connect the issues formulated by them in briefs of argument to the particular ground of appeal they are distilled from. In the instant matter, neither the Appellant’s Counsel nor the Respondent’s Counsel related the issues donated by them for determination to the grounds of appeal they were distilled from. However, in the interest of justice, this Court will not sanction the parties’ Counsel, especially the Appellant’s Counsel, for their failure to follow the proper procedure. What is more, having taken a close look at the three grounds of appeal, I am of the opinion that the two sets of issues in both parties’ briefs of argument can validly be distilled from the said grounds of appeal. See also the cases of: (1) Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) p. 134 and (2) Ajagbe & Ors. v. Oyekola & Anor. (2013) LPELR-19840 (CA).

This appeal will therefore be resolved on the two

issues formulated by the Appellant because he is the aggrieved party herein. The two issues will however be considered and resolved together because both are intertwined and have been adequately responded to under the sole issue formulated by the Respondent.

ISSUES FOR DETERMINATION:
“Whether from the evidence adduced, the ingredient of Armed Robbery were proved beyond reasonable doubt to justify the conviction of the Appellant for Armed Robbery?
Whether on the whole, it could be said that the learned trial judge considered the evidence and defence raised by the Appellant?”

THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
It is settled principle of Law that before a person can be convicted for armed robbery, the ingredients of the offence that must be established are that, there was a robbery, the robbery was armed robbery and the accused person was the robber.

The Law is equally trite that whenever the conviction of a crime by a person is directly in issue, it must be proved beyond reasonable doubt. The prosecution has a duty to prove all and not merely some of the ingredients of the offence

charged beyond reasonable doubt. See the cases of: (1) Bello v. State (2012) 8 NWLR (Pt.1302) p.207 at p.231, paras. D-G; (2) The State v. Azeez (2008) 14 NWLR (Pt.1108) p.439 at P. 478 and (3) Orji v. State (2008) 10 NWLR (Pt .1049) p.31 at P.35.

The prosecution presented a galore of evidence that there was a robbery incident which took place in the house of PW1 to PW3. However it is curious that the victim of the robbery was only a family in the neighbourhood. Even when it was alleged that neighbours were called upon to assist in holding down that armed robber who tried to escape, none of these neighbours was called upon to testify. It is also noteworthy that at the point of arrest of the Appellant, no statements were obtained from any of the said neighbours.

It is submitted that this is a proper case where evidence of witnesses outside that of PW1 to PW3 needed to have been produced. The evidence of the neighbours would have shown that there was indeed no robbery in the house of PW1 to PW3 on the day in question. See the cases of: (1) Chukwuka Ogudo v. State (2011) LPELR-860 (SC) and (2) Tegwonor v. State (2008) 1 NWLR (Pt.1069) P. 630.

The prosecution failed to call at least one of the neighbours who purportedly helped to apprehend the Appellant and no reason was given by the prosecution for this failure. Failure to call at least one of these neighbours who are vital witnesses is fatal to the case of the prosecution. Granted that it is not incumbent on the prosecution to call a host of witnesses in order to prove its case, the prosecution has a duty to call a material witness, whose evidence will in one way or the other establish the guilt or innocence of an accused person. It is further submitted that failure to call at least one of these neighbours as an independent witness raises the presumption under Section 167 of the Evidence Act that had they been called, their evidence would have been unfavourable to the prosecution.

The Appellant made a statement at the first point of arrest which was Evbuotubu Divisional Police Station. In the said statement, the Appellant denied any involvement in the commission of the offence and the prosecution failed to produce the statement.

The Investigating Police Officer who recorded the statement was also not called as a witness. The only logical

conclusion from the conduct of the prosecution through its witness PW4 would be that the piece of evidence was withheld because its production would have been unfavourable to the case of the prosecution. Failure of the prosecution to also tender the statement of the Appellant made at the Evbuotubu Divisional Police Station occasioned a miscarriage of justice to the Appellant and the Appellant could not be said to have had a fair trial as guaranteed by the Constitution. Thereby the prosecution failed to prove its case beyond reasonable doubt. Further to this, the conduct of the prosecution has raised some amount of doubt which should be resolved in favour of the Appellant.

The offence the Appellant was charged with is armed robbery, an offence which attracts a death penalty under the Law. Consequently, the evidence adduced by the prosecution must be cogent, reliable and adequate before a trial Judge can act on it. In this case, the trial Judge was not cautious but quick to believe the evidence adduced by prosecution and completely rejected the defence of the Appellant.

The Appellant in his defence stated that he was accosted and

arrested by the Police at Asoro bus stop. This piece of evidence was corroborated by the DW2, the Appellant’s younger brother. Assuming without conceding that the Appellant was telling lies, that does not amount to proof of the commission of an alleged offence. Mere telling of lies by an accused person is not evidence of the commission of an offence. The prosecution must still prove its case beyond reasonable doubt.

The Appellant stated in his defence that he was arrested at Asoro bus stop on the break out of a riot. The Investigating Police Officers of the State Anti-Robbery Squad did not investigate this piece of evidence when they took over the case from Evbuotubu Divisional Police Station in order to ascertain whether there was indeed a riot or not. The Law is trite that any defence put up by an accused person no matter how stupid or spurious must be investigated thoroughly in order to render it false or unlikely and it is when this happens that the trial Court will be able to accept or reject it. See the case of Aigbadion v. State (2000) 4SC (Pt. 1) p. 1011.

Furthermore, the trial Judge in this case relied on Exhibit C in convicting the

Appellant even though the Appellant insisted that he was tortured and beaten and the statement was forcefully obtained by the Police. Exhibit C was obtained in flagrant violation of the Appellant’s right under Section 35 (2) of the 1999 Constitution of the Federal Republic of Nigeria. Considering the enormity and consequence of the offence of armed robbery, there is nowhere in evidence that the Appellant was cautioned on the need to remain silent or given the option of having a legal representation before his alleged Confessional Statement was obtained.

It is further submitted that the trial Court failed to properly evaluate the evidence before it reached its judgment thereby occasioning a miscarriage of justice on the Appellant. The Law is settled that where a trial Court failed to properly evaluate the evidence before it or made the wrong inference from admitted facts, the appellate Court must interfere by making the proper findings justified by the adduced evidence.

In the face of these serious lapses, this Court is urged to hold that the Respondent had failed to prove the case of armed robbery against the Appellant in the instant matter.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL:
It is submitted that the Appellant was rightly convicted by the trial Court on count 2 after a proper evaluation of the evidence placed before the trial Court by the parties.

Proof beyond reasonable doubt is not proof beyond every iota of doubt. See the case of Ugwanyi v. FRN (2012) 34 W.R.N. P.1 at pgs.12-13. Proof beyond reasonable doubt simply means, the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. The trial Court in this case evaluated the oral and documentary evidence and confirmed that the prosecution discharged this duty.

The Appellant as prosecution in proof of its case called three witnesses. PW1 Mr. Sunday Ekoma is the father in the family that was robbed. PW2 is Ekoma John son of PW1. PW3 is Sabbath Ekoma daughter of PW1. PW4 is the Investigating Police Officer in the SARS. The evidence of PW1 to PW3, being persons who witnessed the armed robbery, was consistent. They gave accounts of how the Appellant entered their house, demanded money from PW1 who said he did not have money. Demanded money from

PW1’s wife who also said she did not have money. PW2 then told him he had N850.00 which he collected and the Appellant also attempted to rape PW3. In the process, PW2 lashed at the Appellant, they fought, the Appellant shot PW2 and the Appellant was eventually overpowered and arrested. PW4 on his part gave evidence of his investigation. He gave evidence before the trial Court that he went with the Appellant and the complainant PW1 to the scene of the crime and the Appellant showed him the window from where he gained access into the PW1’s house. PW4 tendered in evidence items recovered which are one single barreled gun, mask, expended cartridge, red torchlight and white shirt. He also tendered in evidence as Exhibit C, the Confessional Statement made by the Appellant. Under cross-examination, PW4 stated that his effort to get independent witnesses proved abortive.

After a careful and painstaking appraisal of the evidence of the prosecution and the defence, the trial Court accepted the case presented by the prosecution and rejected that of the defence. It is the duty of the trial Court to assess and determine the credibility of a witness.

See the case of Ndidi v. State (2005) 44 WRN p.153 at p.173 paras. 20-25. In the instant case, the trial Court after seeing, watching and observing the witnesses, believed the prosecution witnesses and rejected the evidence of the Appellant as an afterthought. The Appellant has not challenged and or established that the findings of the trial Court are perverse.

The Appellant contended albeit wrongly, that because the witnesses are members of the same family and that because the prosecution did not call one of the neighbours to give evidence, the prosecution had failed to prove its case. He contended further that the neighbours were material witnesses and the failure to call at least one of them was fatal to the prosecution’s case. However the Law as restated in a plethora of cases is that the prosecution is not bound to call all witnesses or a sea of witnesses. See the case of Olayinka v. State (2008) ACLR p.194 at p.209.

Thus where with one credible witness, the prosecution is able to prove the ingredients of the offence charged, then the trial Court will be on a proper footing if it convicts based on the evidence of that single witness which the Court believed to be true.

The Appellant’s Counsel equally submitted that the prosecution did not tender the statement made by the Appellant at Evbuotubu Divisional Police Station on the day the Appellant was arrested and that the Police Officer who obtained the said statement was not called to give evidence. He contended that this amount to withholding evidence. However, it is submitted that the Police Officer at the Evbuotubu Divisional Police Station was not the Investigating Police Officer in the case. The Investigating Police Officer was PW4. The Police Officer at the Evbuotubu Divisional Police Station only took the statement of the Appellant and obviously realizing that it was a case of armed robbery, transferred it to the Special Anti-Robbery Squad to which the PW4 belonged, for investigation. What is more, the statement in question was made available to the Appellant and was actually placed before the trial Court. The statement was therefore available for the use of the defence and not withheld or suppressed. The defence had the option to make use of this statement if indeed it was useful to their case. A reading of the statement

explains that the reason the defence did not make use of it is because it contradicted the oral evidence of the Appellant, rather it confirmed that the Appellant was in the house of the PW1 whilst armed with a gun as alleged.

It is submitted that the attack on the judgment of the trial Court by the Appellant on the ground that his defence was not considered and that the trial Court picked the evidence favourable to the prosecution is misconceived in Law and an attempt to safe a drowning man in the place of the Appellant, who is looking for every straw to hold on to in order to survive. In this case, there is none available to the Appellant.

The Appellant contended that there was no evidence showing that the Appellant was cautioned on the need to remain silent or given the option of having a legal representation before he made Exhibit C. However, on its face, Exhibit C contained a cautionary statement. Secondly, the trial Court did not rely solely on Exhibit C to convict the Appellant, rather the trial Court relied on the evidence of PW1 to PW4 and clearly found that Exhibit C corroborated the evidence of the prosecution witnesses.

This Court is therefore urged to hold that the prosecution proved its case beyond reasonable doubt as required by Law, that the trial Court having painstakingly reviewed the evidence in accordance with the Law, came to the irresistible conclusion that the Appellant herein was guilty of the offence of armed robbery with which he was charged and properly convicted the Appellant.

RESOLUTION
It is important to state at the onset that, this appeal relates to the conviction and sentencing of the Appellant on only Count 2, as he was acquitted on Counts 1 and 3 of the Charge preferred against him. Hence, the appeal is centred on the offence of armed robbery with which the Appellant was charged and convicted of, what is more, there being no cross-appeal by the Respondent against the decision of the trial Court acquitting the Appellant on the said remaining two counts of the Charge.

the fear of loss of life or bodily injury into the victim. For an act to therefore constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to his person before the actual robbery. That is, the fear of possible injury instilled on the victim must of necessity precede the taking. Intimidation or constructive force which includes an administration of force or menace by which the victim is put in fear is sufficient to sustain a conviction, especially if at the material time, the free exercise of his will power is impaired as to make it lawfully difficult or near impossible for him to offer any resistance to anyone taking his property. Hence, the assailant must have perpetrated or inflicted violence on the victim. The major factor is the threat of violence or the use of actual violence, if such a threat led to fear in the mind of the victim that noncompliance would impel the infliction of violence on him. See the case of Olayinka v. The State 30 NSCQR P.149 at pgs. 172-173.

The Law is equally well settled that the offence of armed robbery, just like other criminal

offences, may be proved by direct evidence or circumstantial evidence or indeed the voluntary confession of the accused person. Direct evidence proves or disproves a fact directly. Circumstantial evidence requires an inference to be made to establish a fact. It is fairly settled in Law that, by far, the free and voluntary confession of an accused person is considered to be the best form of proof. In Law therefore, where there is direct evidence linking an accused person with the commission of the offence charged, he can safely be convicted for the commission of the said offence. The Court would thence naturally prefer to have and act upon direct/precise evidence where obtainable. See the cases of (1) Bassil & Anor. v. Fajebe & Anor (2001) 11 NWLR (Pt.725) p.592; (2) Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (2009) LPERL-482 (SC) and (3) Yunusa v. State (2017) LPELR- 43014 (CA).

a) there was a robbery or series of robberies;
b) each robbery was an armed robbery and
c) the accused person was the armed robber. See the cases of (1) Bozin v. The State (1985) 2 NWLR (Pt. 8) p.465; (2) Agboola v. The State (2013) 11 NWLR (Pt.1366) p. 619; (3) State v. Ajayi (2016) LPELR-40663 (SC) and (4) Ekpo v. State (2018) LPELR – 43843 (SC).

In the instant case, it is quite obvious from the printed record that the Respondent, in its bid to prove the offence of armed robbery against the Appellant as charged, employed direct evidence of eye witnesses to the commission of the offence as well as the confession of the Appellant himself. PW2 John Ekoma was not just the star witness of the Respondent, he was a victim of the crime under discuss. The full text of his testimony is contained in pages 29 to 30 of the Record of Appeal. For easy referencing and good grasp, I hereunder reproduce the testimony of PW2 under examination-in-chief verbatim as follows:
“My name is Ekoma John. I live at No. 10, Awierioghene Street, Off Amadasun Street, Benin City, Ugbiokhuo. I am a stylist. I know the accused.

I remember 1st June, 2011. On that day, I was with my parents in the sitting room at about 2.00am, I was lying on a sofa chair while my parents were on a mattress on the ground. There was blackout. I woke up when I heard someone talking to my mom. The person was sitting on the window holding a gun and torchlight. He was asking my mom for money, my mom said she did not have any money. He asked her if she was not a teacher and she answered that she had not been paid for the last month. The person came into the sitting room and went to the door leading to the veranda and opened the door, went to my dad, used the gun to hit him on the head and collected his money. He ordered me to join my parents on the ground and went to my younger sister and asked her to pull off her clothes. I told him that I had some money and brought out my wallet and took out the N850 in it. He collected it and put it in his pocket, saying it was little change. He told my younger sister Sabath Ekoma to undress and threatened to shoot her. My mom asked her to comply. He said if he counted up to 20 and she had not pulled off her clothes, he would kill her. He started to count. I told him that he

demanded for money and I gave him all I had. We started to fight. He pushed me and ran out of the house. I ran after him. As soon as we were out of the sitting room, he shot me on my left hand. We continue fighting. He slipped on wet ground and I held him down and called on my parents who came and started to beat him. They alerted the neighbours who came and beat the intruder. NEPA soon after restored light and we found that he was wearing a mask. We removed the mask from his face and found that it was Osasere the accused in the dock. As I was shot, my dad called the police who came and arrested the accused. I followed them and made statement.”

PW1 Sunday Ekoma and PW3 Sabbath Ekoma, the father and sister respectively of PW2, were remarkably also eye witnesses to and victims of the commission of the crime, for both PW1 and PW3 were equally threatened and assaulted by the Appellant during the incident. Their evidence contained in pages 26 to 28 and 30 to 31 respectively, is almost on all fours with the evidence of PW2 and therefore a corroboration of the evidence of PW2 in all substantial and material details. The Appellant’s Counsel at the

trial Court tried to impeach the evidence of PW1 on the ground that although PW1 in his oral evidence stated that he was of the opinion that the Appellant was armed with just a toy gun, whereas in his extra judicial statement Exhibit A, there was no mention that the gun that the Appellant was in possession of at the time of the incident was a toy gun.

The combined effect of the evidence of PW2, PW1 and PW3 is in my very firm view quite unequivocal. They all stated that, although the Appellant, whom they knew very well before the incident, being a neighbour of theirs, was wearing a mask to hide his identity at the time of the attack, the mask was removed when the Appellant was eventually subdued by them with the assistance of other neighbours and they positively identified the Appellant to the Police. Also, they gave positive evidence that even though the incident took place during the hours of darkness when there was no electricity supply, by the time the Appellant was apprehended, electricity supply had been restored and they were able to see the face of the Appellant. What is more, the Appellant had a torchlight with him at the time of the robbery.

It is crystal clear on the face of the printed record that the Appellant’s Counsel did not succeed at impeaching the evidence of PW2, PW1 and PW3 during their respective cross-examinations. I also fail to see the relevance of the issue of a toy gun which the PW1 was said to have introduced in his oral evidence and that same was not contained in his original statement to the Police, Exhibit A. In the first instance, the purport of the oral evidence of PW1 is that initially, he thought the Appellant was carrying a toy gun. In any event, the question, whether or not it was a toy gun the Appellant had in his possession, was completely interred by the combined evidence of PW2 and PW4. PW2 was an actual victim, he was shot in the hand by the Appellant with a real gun when he tried to protect his sister PW3 from being raped by the Appellant. That evidence was corroborated by PW3 and even PW1 who had originally thought the Appellant was carrying a toy gun. PW4, the Investigating Police Officer also gave evidence that he visited PW2 in the hospital where he was on admission to receive treatment for the injuries sustained by him from the gun shot. It is also the

further evidence of PW4 that albeit the case was initially reported to the Evbuotubu Divisional Police wherein the preliminary investigation was conducted, the case was later appropriately transferred to the State Special Armed Robbery Squad (a.k.a SARS) and duly assigned to him and his team of other Police Officers for further and detailed investigation. According to PW4, along with the case file transferred to SARS and handed over to him, were one single barreled gun, one expended cartridge, one mask, one red torchlight and one white shirt, all recovered at the scene of crime and from the Appellant. I therefore find no unresolved contradiction of any sort in the extra judicial statement of PW1 to the Police, Exhibit A and his sworn evidence before the trial Court. The learned trial Judge at page 13 of his judgment in the case, contained in page 77 of the Record of Appeal, found in that regard as follows:
“Mr. Igiebor complained that the evidence of the 1st PW Sunday Ekoma that he told his wife that the accused was only holding a toy gun was not contained in Exhibit A.
I confess that I do not see how his evidence thereby becomes doubtful, for

the issue complained of is of no relevance as to whether the accused robbed the alleged victims or not or whether the accused was apprehended at the scene or not.”

I completely agree with the above reproduced holding of the learned trial Judge. The house of PW1 was the scene of the robbery. PW1, PW2 and PW3 gave identical evidence that the Appellant demanded money from them at gunpoint; it is immaterial if PW1 thought the gun in the Appellant’s possession was a toy gun or a real gun. Under the imminent danger not only to his life but the lives of his father, mother and sister and on demand by the Appellant, PW2 gave the sum of eight hundred and fifty Naira to the Appellant and a scuffle later ensued between the Appellant and PW2 when the Appellant attempted to rape PW3. The Appellant did not stop at just depriving PW2 of his money under threats, the Appellant went ahead to shoot PW2, especially as PW2 prevented him from raping the latter’s sister, PW3.

As stated hereinbefore, the Appellant upon his arrest had confessed to the armed robbery, I will come back later to consider this. At trial, the Appellant recanted his said earlier

confessional statement about the commission of the crime. However, in his sworn evidence, he avoided making any reference to the night the offence was committed, he essentially denied being at the scene of crime. He merely stated that he was arrested at a bus-stop on his way to his work place the morning after the armed robbery incident. That after his arrest by the Police, he was first taken to Evbuotubu Divisional Police Station and later to the State CID. That at the time of his arrest, he was not engaged in a fight with any group of people. That his alleged confessional statement Exhibit C was not written by him but by the Police and he was only made to sign it under duress and actual threat to his life, as a cutlass was used to inflict injuries on his hands and shoulder. That a gun and mask were planted in his hands and he was forced to take a photograph with them. That in the morning after the robbery incident, he gave his younger brother DW1, the sum of two hundred naira before he left home for work. Although DW1 confirmed this gift, it is my opinion that, if this was meant to be an alibi, the Appellant utterly fell into grave error in this regard, as

that did not explain his whereabouts at the actual time of the alleged armed robbery. The evidence generated by the Appellant and his witness DW1 was most unhelpful to his case. Rather, the entire evidence is an inane one, a sham, quite ludicrous and clearly an afterthought on the part of the Appellant. The said sworn evidence is nothing but a pure attempt made by the Appellant to avoid facing the consequences of his actions and one aimed at mudding the waters of the case of the prosecution. What is more, the Law is trite that, the defence of alibi must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him at the time of the commission of the offence. See the cases of (1) Iliyasu v. State (2015) LPELR-24403 (SC); (2) Eke v. The State (2011) LPELR-1133 (SC); (3) Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt.762) p.512 and (4) Onyegbu v. The State (1995) 4 SCNJ p.275.

It is only where an accused person raised the defence at the earliest opportunity without any ambiguity that an onus is cast on the prosecution to investigate and disprove it and failure to investigate the defence of alibi raised in such

circumstance will lead to an acquittal. See the cases of (1) Eyisi v. State (2000) 4 NSCQR p.60; (2) Ebre & Ors. v. State (2001) LPELR-995 (SC); (3) Adegbite v. State (2017) LPELR-42585 (SC); (4) Eke v. The State (Supra) and 5 Odu & Anor. v. The State (2001) 5 SCNJ p.115 at p.120.

In effect, where a defence of alibi consists of vague accounts which are bereft of material facts worthy of investigation, the Police in the circumstance would least be expected to go on a wild goose chase.

In the present case, the Appellant did not specifically raise the defence of alibi, he merely and glibly stated that he was arrested by the Police at a bus stop the day after the incident. His evidence denying the commission of the offence was only a design to obscure the well-orchestrated case of the Respondent against him. He did not tell the Police his whereabouts and the particulars of the persons with him on the fateful night. The defence of alibi could definitely not avail the Appellant. Moreover, the Appellant was positively fixed at the scene of crime. Hence, any plea of alibi became absolutely valueless. The evidence of PW1, PW2 and PW3 are very cogent in

this regard and indeed, the Appellant was arrested by the Police at the scene of the crime. See the cases of (1) Iliyasu v. State (supra) and (2) Obakpolor v. The State (1991) 1 SCNJ P. 91.

On the question of the identity of the Appellant raised by his Counsel, the learned trial Judge held in this wise as follows:
“In the present case, it is not even a case of seeing a suspect soon after the alleged robbery. It is a case of the victim holding the suspect in the course of the alleged robbery operation. The evidence to that effect was very overwhelmingly corroborated, having flowed from three prosecution witnesses who also claimed that they apprehended the accused at the scene and that he shot the 2nd PW, Ekoma John in the course of being apprehended.
What is more, the evidence that the accused was apprehended by his victims was further corroborated by the 4th PW Insp. John Akodogo, IPO when he told the Court that at the visit to the scene of crime, the accused showed him the window in the complainant’s house where he (accused) had entered the house from and also, where he dragged Sabath Ekoma (3rd PW) to try to rape her before her

brother intervened.
4th PW also supported the evidence of the 2nd PW that he was shot at the hand.
Again, what is more, the entire evidence was even supported by the accused person himself in EXH.B, his earlier extra-judicial statement to the police.”
(See pages 15 to 16 of the judgment of the trial Court contained in pages 79 to 80 of the Record of Appeal).

The findings and opinion of the trial Court reproduced above are unimpeachable. The evidence of the eye witnesses, that is, PW1, PW2 and PW3, to the commission of the offence, put paid to the issue of the identity of the Appellant. The Law is trite that the best identification is the prompt one by the victim or other persons who witnessed the commission of the offence. In this case, the trial Court was well satisfied that the evidence of the three victims and eye witnesses proved beyond reasonable doubt that the Appellant committed the offence of armed robbery. I am in complete agreement with the trial Court and dare to add that the Respondent had proved beyond reasonable doubt that the Appellant, to the exclusion of any other person, actually committed the offence of armed

robbery with which he was charged. The evidence of the Respondent through PW4 that the Appellant was arrested at the scene of crime further cemented the case against the Appellant. I do not find any loophole or modicum of weakness in the case of the Respondent that could lead to giving the Appellant the benefit of the doubt. Most damnifying to the defence of the Appellant is the fact that, PW1, PW2 and PW3 knew the Appellant very well before the commission of the offence, as they were neighbours. The attempt to create a doubt in the evidence of these eye witnesses/victims under cross-examination by the Appellant’s Counsel to the effect that there was malice between the said witnesses’ family and the Appellant did not hold the trial Court sway. Immaterial in Law also is the submission of the Appellant’s Counsel that the evidence of PW1, PW2 and PW3 is unreliable just because they are relatives. The trial Court found the evidence of PW1, PW2 and PW3 quite believable and that same corroborated the evidence of PW4, the learned trial Judge found the entirety of the evidence of the four witnesses simply overwhelming, as same remained unchallenged

by the Appellant. I find that the trial Court properly relied on the Respondent’s four witnesses in arriving at its conclusion in the case. In an earlier case similar to the instant case, that is, Ndukwe v. The State NNCC P. 4, the Apex Court per Muntaka-Coomassie, JSC (of blessed memory) had the following to say:
“In the case at hand, the evidence of PW1 and 2(sic) who knew the accused person closely identified the accused at the scene of this dastardly act. Their evidence is reliable. The defence failed to produce evidence to demolish that of the prosecution even though he got opportunity to do so, by calling witness or witnesses to support him”
See further the cases of (1) Idiok v. State (2008) LPELR-1423 (SC); (2) Ebenehi v. The State (2009) 6 NWLR (Pt.1138) p.431 at P. 448; (3) Victor v. State (2013) 12 NWLR (Pt.1369) p.465; (4) State v. Ekanem (2016) LPELR-41304 (SC); and (5) Akeem v. State (2017) LPELR-42465 (SC).

The foregoing leads me to the complaint of the Appellant’s Counsel about the reliance of the trial Court on Exhibit C, the alleged confessional statement of the Appellant. It is to be noted that a ground

of appeal in this regard was raised both in the original Notice of Appeal and subsequently the Amended Notice of Appeal – see respectively ground 4 of the original Notice of Appeal at page 90 of the Record of Appeal and ground three of the Amended Notice of Appeal already reproduced by me earlier on in this judgment. The Law is very well settled that, although a party can include an appeal against a ruling in an interlocutory application, like the ruling of the trial Court in this matter on the trial-within-trial, when appealing against the final decision. The procedure to be followed in order to file such two appeals simultaneously, is that the party has to obtain leave to appeal against the interlocutory ruling out of time when the appeal against the final decision is being lodged. More importantly, by the provision of Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in civil and criminal matters, an appeal against an interlocutory decision on questions of mixed Law and facts, as in the ruling on the trial-within-trial in this matter, shall be with the leave of the lower Court or this Court. Furthermore, by the

provision of Section 24 of the Court of Appeal Act, 2014, the period prescribed for appealing against an interlocutory decision in both criminal and civil cases is fourteen days, while the time prescribed for appealing against a final decision is ninety days or three months. Hence, although the Courts encourage the merger of appeals against both an interlocutory decision and a final decision in order to avoid unnecessary delay by filing separate appeals in respect thereof, when the period for lodging an appeal against the interlocutory decision has lapsed, it becomes necessary for an appellant in such a matter to file an application for extension of time to seek leave to appeal, leave to appeal and extension of time to file the notice and grounds of appeal, also known as the trinity/tripod/tripartite prayers. It must be further emphasised that, leave of Court, where it is required, is a condition precedent to the exercise of the right of appeal. Hence, failure to obtain leave where it is required will render an appeal filed incompetent thereby robbing the appellate Court of its adjudicatory power over the appeal.

See the cases of: (1) Onwe & Ors. v. Nwaogbuinya & Ors. (2001) LPELR-2709 (SC); (2) Nigerian Lab. Corp. & Anor. v. Pacific Merchant Bank Ltd. (2012) LPELR-7859 (SC); (3) Kakih v. PDP & Ors (2014) 15 NWLR (Pt.1430) p.374; (4) Asimi v. State (2016) LPELR-40436 (SC) and (5) Okoh v. State (2016) LPELR-40656 (SC). In the instant matter, the ruling of the trial Court in the trial-within-trial was delivered on the 14th of May, 2013, while the final decision of the trial Court in the case was delivered on the 14th day of July, 2015. The original Notice of Appeal was filed on the 26th of August, 2015. Clearly, the appeal of the Appellant against the final decision was filed within time. However, at the time of filing the said original Notice of Appeal, the Appellant was already out of time by about two years and three months in appealing against the Ruling on the trial-within trial vide ground four of the said original Notice of Appeal which translated to ground three of the Amended Notice of Appeal. The purported appeal against the ruling underground three of the Amended Notice of Appeal, which contains the point about the admissibility of and reliance on Exhibit C, the alleged confessional

statement of the Appellant by the trial Court, having been filed not only out of time but also without the leave of either the trial Court or this Court, is incompetent and liable to be struck out. To put it in another way, once the trial Court had determined, through the trial-within-trial, that the confessional statement of the Appellant was made voluntarily and admitted same in evidence, the voluntariness “vel non” of the statement cannot be raised in this appeal since the Appellant had not properly appealed against the order of the trial Court which admitted the statement. The Appellant is deemed to have accepted the order which admitted the confessional statement in evidence as Exhibit C. See the cases of: (1) Okoh v. State (supra) and (2) Oseni v. State (2017) LPELR-42546 (CA). In the circumstance, ground three of the Amended Notice of Appeal with its particulars are hereby struck out for incompetence. Furthermore, since both parties’ Counsel did not specifically formulate any issue from the said ground three, all the submissions on ground three in both the Appellant’s and Respondent’s briefs of argument are hereby discountenanced in the resolution of this appeal.

As adverted to hereinbefore, the second mode of proof employed by the Respondent in establishing the offence of armed robbery with which the Appellant was charged is his confessional statement Exhibit C. The Law is trite that, in the situation as the instant case, especially where there is no appeal against the order of the trial Court admitting the confessional statement Exhibit C, the trial Court could safely convict on it. The time hallowed legal principle is that, a free and voluntary confession of guilt by an accused person, if it is direct, positive and satisfactorily proved should occupy the pride of place of authenticity when it comes to proof beyond reasonable doubt. It is therefore now the Law that an accused person in the shoes of the Appellant can be convicted purely on his confessional statement once the confessional statement is cogent, direct and positive. Where this is the case, being a clear admission of all the ingredients of the offence the accused person stands trial for, a conviction arising from the confessional statement will on appeal be sustained.

See the cases of: (1) Okoh v. State (Supra); (2) Oseni v. State (Supra); (3) Alli Dogo v. The State (2013) LPELR-20175 (SC). In the case at hand, I equally find Exhibit C, the Appellant’s confessional statement quite direct, cogent and unequivocal to the fact of robbing PW2 of a sum of money, that is, eight hundred and fifty Naira, while the Appellant had in his possession an offensive weapon, to wit, a single-barreled gun. In the eyes of the Law, the Respondent was therefore absolved from further proof of any and indeed all the ingredients of the offence of armed robbery the Appellant was tried for and convicted of. See also the cases of: (1) Suberu v. State (2010) 1 NWLR (Pt.1176) p.494; (2) Edhigere v. State (1996) 42 LRCN p.1082; (3) Dawa v. State (1980) 8-11 SC p.236; (4) Yesufu v. State (1976) SC p.176; and (5) Okoh v. State (Supra).

In pages 18, 19 and 21 of its judgment contained in pages 82, 83 and 85 of the Record of Appeal, the trial Court reiterated and relied on the guidelines of the apex Court and held as follows:
“…..On the weight to be attached to a confessional statement whether retracted or not retracted, the tests were as laid down in

R v. Sykes (1913) 3 CR DPP R.233.
These are the questions a judge must ask himself on the weight to be attached to a confessional statement:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner (accused) one who had the opportunity of committing the murder (offence charged)?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved? …
In the present case, EXH.B satisfies all the above tests; its contents are corroborated or rather, it corroborates the testimonies of four prosecution witnesses that the accused broke into the

complainant’s house for money, tried to rape “one girl that attracted me,” shot the brother of the girl and was apprehended at the scene.
In fact, that he was arrested at the scene before he was handed over to the police should put all doubts to rest.
Ordinarily, it qualifies, on its own steam, to be relied on by the pro but in the present case, it only supports evidence of pro(sic)witnesses….
Confession, in criminal procedure like admission in civil procedure is the strongest evidence of guilt on the part of an accused person, it is stronger than the evidence of any eye witness because the evidence, borrowing the daily axiom comes out of the mouth of the horse who is the accused person. What better evidence than that? He knows or knew what he did and he says or said it in Court. Is there need for further proof? I think not.”

The above reiterated legal principles and findings of the trial Court are quite trite and

inviolable, being in tune with the materials contained in the printed Record of Appeal with its accompanying exhibits, especially Exhibit C. The Appellant made a confessional statement to the Police which was properly, in my view, admitted in evidence as Exhibit C after the trial Court made a finding, sequel to a trial-within-trial, that the statement was voluntarily made. I have painstakingly perused Exhibit C and I am in no doubt that it is indeed confessional in nature, being so very direct, cogent, positive and unequivocal. In it, the Appellant clearly narrated how he unleashed his attack on the family of PW1 when he invaded PW1’s house, threatened PW1, PW1’s wife, PW2 PW3 while in possession of a single-barreled gun, attempted to rape PW3, actually shot PW2 with his said gun and robbed PW2 of the sum of eight hundred and fifty naira. The Appellant also stated in Exhibit C that he was arrested by the Police at the scene of crime. It is the Law that a properly admitted confessional statement is part of the evidence garnered and adduced by the prosecution in the proof of its case against an accused person. The very bad case of the Appellant did

not end with the findings of the trial Court in the ruling in the trial-within-trial. See pages 41 to 45, particularly at page 45 of the Record of Appeal, as rightly submitted by the Respondent’s Counsel and properly held by the trial Court in its final decision in the case, the evidence of PW1, PW2, PW3 and PW4 provided the corroboration that trial Courts are often advised to look out for before grounding a conviction on a confessional statement. In the instant case, the evidence adduced by the Respondent’s witnesses remained unshaken during cross-examination. Although PW4 took over the investigation of the case, he duly recorded the confessional statement of the Appellant Exhibit C, a few hours after the commission of the offence and when the matter was still very fresh. PW4 also visited the scene of crime, the house of PW1 and the Appellant showed PW4 how he the Appellant broke into the house, terrorised the entire members therein, attempted to rape PW3 and equally shot PW2 with his gun. There is no question that the case against the Appellant was properly investigated by the Police and the evidence of all the four witnesses of the

Respondent greatly and in very substantial material details corroborated the content of Exhibit C. The learned trial Judge very glaringly duly evaluated Exhibit C and tested it against the other evidence adduced by the Respondent not only in the ruling in the trial-within-trial but also in the main and final decision in the case, in order to determine the truthfulness of Exhibit C. At the conclusion of the exercise, the trial Court has the legally bounden duty, as it properly did, to ascribe probative value to Exhibit C. Further at page 21 of his judgment contained in page 85 of the Record of Appeal, the learned trial Judge held as follows:
“From my foregoing exercise, it is clear that I cannot agree with him. I have no difficulty in believing the 1st, 2nd and 3rd pro (sic) witnesses that the accused broke into their house at 2.00am on 1/6/11, demanding for money from 1st PW and his wife, robbed the 2nd PW, Ekoma John of N850, tried to rape the 3rd PW and was overpowered by his victims.
I also have no difficulty in believing the evidence of the 4th PW, IPO that the accused had showed him in the house of the prosecution witnesses how he (the accused) broke into the house.”

The above reproduced findings were clearly drawn from the evidence on the printed record and evolved consequent upon proper application of relevant principles of Law on the established facts. It is my firm view and I hold that the attacks of the Appellant’s Counsel are mere submissions which cannot constitute or be a substitute of evidence not produced by the Appellant at trial to controvert the cogent evidence of the Respondent.

The Appellant’s Counsel had made a stink when he submitted that the Respondent failed to field as prosecution witnesses, the neighbours of PW1 who were allegedly attracted to the scene of crime and assisted in apprehending the Appellant. That the Respondent ought also to have fielded the Police Investigating Police Officer from Evbuotubu Divisional Police Station who allegedly recorded the statement made by the Appellant thereat and before his case was transferred to SARS the same day for further and detailed investigation, especially to tender in evidence, the said statement. That the failure on the part of the Respondent to call the said vital witnesses was fatal to the

case of the Respondent and occasioned a great deal of miscarriage of justice to the Appellant. I strongly disagree with those submissions. The Law is that, the prosecution has the duty placed upon it by the provision of Section 135(1) of the Evidence Act, 2011 to call witnesses to establish their case beyond reasonable doubt. In the case of The State v. Azeez & Ors. (2008) 14 NWLR (Pt.1108) p.451, the apex Court per Muhammad, J.S.C. [as he then was, now CJN (Rtd.)] stated succinctly on this point as follows:
“The general Law pertaining to calling witnesses to testify in favour of a party in a criminal trial, especially the prosecution, is that, it is not the requirement of the Law that the prosecution must call all conceivable witnesses. The duty on the prosecution as placed by Section 138(1) of the Evidence Act, (Cap.112, LFN, 1990), is to call witnesses to establish their case beyond reasonable doubt. …
However, in the discharge of that burden, it is the duty of the prosecution to see that it

places before the trial Court all available relevant evidence. This may not mean that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called.”
Further in the case of Usufu v. The State (2007) 1 NWLR (Pt. 1020) p.94 at p.118, paras. C-E, the Supreme Court held that, the choice of whose evidence establishes or proves a vital point is a matter of strategy and the decision in respect thereof is entirely at the discretion of the prosecutor. The Court will therefore not usurp that function of the prosecutor. Rather the Court as the umpire must simply ensure that the evidence made available by the prosecution proves the vital point. The Law therefore does not impose any obligation on the part of the prosecution as to the number of witnesses to call to prove its case. For it is the quality rather than quantity of the evidence that will sustain its case. See the cases of: (1) Babuga v. The State (1996) 7 NWLR (Pt. 460) p.279; (2) Oduneye v. State (2001) LPELR-2245 (SC); (3)

Amadi v. A.G. Imo State (2017) LPELR-42013 (SC); (4) Adegbite v. State (2017) LPELR-42585 (SC); (5) Simon v. State (2017) LPELR-41988 (SC) and (6) Osareren v. F.R.N. (2018) LPELR-43839 (SC). In the instant matter, the sought-after evidence of PW1’s neighbours would probably not have been any different from the evidence of PW1, PW2 and PW3 who themselves were eye-witnesses to the commission of the offence. As it is, the said various evidence of PW1, PW2 and PW3 are so identical that any one of them could have even been sufficient to establish the vital points of the offence the Appellant was charged with. However and very importantly, PW2 being the major victim, the evidence of PW1 and PW3 strongly went to further corroborate the evidence of PW2. To put it in another way, the Respondent, in establishing the vital points as to the ingredients of Count two of the Charge against the Appellant, went beyond the evidence of PW2 which in my view settled the said points by further producing the evidence of PW1 and PW3.

Regarding the complaint by the Appellant’s Counsel against the failure of the prosecution to field as a witness the Police Officer from

Evbuotubu Divisional Police Station, it is crystal clear that, although the Appellant was initially apprehended by the Officers from the Station, immediately and on the same day the Appellant was arrested, his case was transferred to the SARS which was at the material time saddled with the responsibility of investigating armed robbery cases. It was on that day, the 2nd of June, 2011, when the matter was still fresh that the Appellant’s confessional statement Exhibit C was duly obtained by PW4 an Officer of SARS.

In any event, the grouse of the Appellant’s Counsel about the witnesses fielded by the Respondent as the prosecution at the trial Court borders on the credibility of the said witnesses. The Law is quite settled that the issue of credibility of witnesses is the exclusive prerogative of the trial Judge who saw, heard and believed the witnesses. Hence, generally an appellate Court is bound by the findings of the trial Court when the findings relate to the credibility of witnesses. As already reproduced above, the learned trial Judge in this matter clearly stated that he had no difficulty in believing all the four witnesses of the

Respondent – see page 85 of the Record of Appeal. On the contrary, in its ruling in the trial-within-trial, the trial Court stated that it was unable to believe the claim of the Appellant that the content of Exhibit C was beaten out of him and therefore held that Exhibit C was voluntarily made. Based on the reiterated evidence contained in the printed record, I am of the view and hold that the said findings of the trial Court are quite reasonable and not in any way perverse – see the cases of: (1) Udofia v. DPP, Digest of Supreme Court Cases, Vol.10 p. 566 and (2) Amadi v. A.G. Imo State (Supra).

To obviate the agitation of the Appellant’s Counsel that the Respondent ought to have called an army of witnesses is the great evidential value placed by Law on confessional statements of accused persons. On this point, way back about three decades ago, the Supreme Court had brought it to the fore that, confessions alone can even support convictions if proved to be made voluntarily and they are true, and the prosecution could therefore be allowed to dispense with the need to call a host of witnesses in such situations.

See the case of Saidu v. State (1982) LPELR-2977 (SC) where the Supreme Court per Obaseki, JSC (of blessed memory) had the following to say:
“It has therefore long been established as a positive rule of Nigerian criminal Law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement. The principle is as old as the Laws received from England and in England, the principle is as old as Hale…… The evidential value of a confession if true is very great indeed. It is very much sought after by police investigators and prosecutors. It lightens the burden of the prosecution by dispensing with the need to call a host of witnesses in cases where there are no or very few witnesses. A confession can support a conviction if proved to be made and true. See Jimoh Yesufu v. The State (1976) 6 SC 167 at 173. To be of any value, a confessional statement must be admissible and properly and legally admitted in evidence. It is of no value if it is not in evidence.” (The underlining is supplied by me for emphasis).

In the present case therefore, aside from the very compelling evidence of all the four witnesses of the Respondent, three of whom were eyewitnesses to the commission of the offence and victims of the crime, is the confessional statement of the Appellant which is admissible and was properly and legally admitted in evidence as Exhibit C. There is no doubt that Exhibit C is of a great value in grounding the conviction of the Appellant and indeed lightened the burden of the prosecution and it did not have to call a host of witnesses in addition to PW1, PW2 and PW3.

Notwithstanding the strenuous efforts expended by the Appellant’s Counsel on his argument that the confessional statement of the Appellant Exhibit C was not voluntarily made, the Appellant having failed to appeal against the admissibility of the statement, it is rather too late now for the Appellant’s Counsel to raise the issue in this appeal. Furthermore, the Appellant’s Counsel had equally failed to show in what way the findings of facts by the trial Court that the evidence of PW1, PW2, PW3 and PW4, which

the learned trial Judge believed and acted upon, had been denigrated by the defence of the Appellant.

I am in complete agreement with the trial Court that the defence presented by the Appellant was bare and at best shallow. There was absolutely no hole in the case of the Respondent that could in Law be resolved in favour of the Appellant. The Appellant was properly fixed at the scene of crime by the victims of and eyewitnesses to the commission of the offence with which he was charged. What is more, he was arrested by the Police at the scene of the crime.

In sum, I hold that the Respondent sufficiently discharged the legal onus on it by proving beyond reasonable doubt all the ingredients of the offence of armed robbery against the Appellant. There is no question that, there was a robbery on the night of 1st of June, 2011 or in the early hours of the 2nd of June, 2011, when PW2 was assaulted and robbed of some eight hundred and fifty naira, the robbery was an armed robbery involving the use of a single-barreled gun and the Appellant was the armed robber on that occasion. The case of the Respondent against the Appellant is airtight and was not in any

way punctured by the Appellant. I find no reason at all to interfere with the findings of the trial Court which are adequately and reasonably supported by strong evidence and therefore incorruptible as can be gleaned from the printed Record of Appeal.

Sequel to the foregoing elucidations, I find no merits or substance in this appeal and accordingly dismiss it in its entirety. Consequentially, the conviction and sentence of the Appellant contained in the judgment of the trial Court in Suit No. B/35C/2012 delivered on the 14th day of July, 2015 are hereby affirmed by me.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My Lord, Oyebisi Folayemi Omoleye PJCA had afforded me in advance a copy of the lead Judgment just delivered and I am completely in agreement with the reasoning and conclusions reached therein. I adopt it as mine. I have nothing more useful to add to the comprehensive lead judgment. I too hereby dismiss the appeal. I hereby also affirm the judgment sentencing the Appellant to death.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, OYEBISI F. OMOLELYE- PJ and I am in agreement with

the reasoning and conclusions reached in disallowing the appeal as lacking in merit. I abide by the consequential orders made thereto including the affirmation of the sentence of the Appellant to death.

Appearances:

Mr. E.C. Okonkwo For Appellant(s)

The Respondent was not represented by Counsel For Respondent(s)