IKEOGU v. STATE (2020)

IKEOGU v. STATE

(2020)LCN/14658(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/OW/207C/2018

RATIO

CRIMINAL LAW: INGREDIENTS OF PROVING ROBBERY

The law is firmly settled that in robbery charges, the ingredients to be proved beyond reasonable doubt by the prosecution are:-
1. That there was a robbery or series of robberies.

2.That each robbery was an armed robbery.
3. That the Appellant was one of those who took part in the robberies.
See Alabi VS. STATE (1993) LPELR–397 (SC) page 9 paras A–D. PER ANDENYANGTSO, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CRIMINAL CASES

It is trite that the burden of proof in criminal cases rests on the prosecution to prove the guilt of the accused person beyond reasonable doubt. As far back as 1959, Ademola, C.J.F in ALONGE VS. I.G.P (1959) SCNLR 516 stated the law as follows:-
“Now the commission of crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it, and this is the law laid down in Section 137 of the Evidence Ordinance Cap 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus which the law lays upon it and the prisoner is entitled to acquittal.”
The standard of proof required by law is that beyond reasonable doubt. In BAKARE VS. THE STATE (1987) 3 SC 1 at page 33, the Supreme Court, per Oputa J.S.C said: –
“Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden (on the prosecution) is to prove its case beyond reasonable doubt with emphasis on reasonable doubt. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt and speculative doubt – a doubt borne out by the circumstances of the case.” See also the case of (1) Okagbue vs. C.O.P (1965) NMLR 232 at 236, (2) Umeh vs. the State (1973) 2 S.C. 9 at 12–13; (3) OBUE VS. THE STATE (1976) 2 S.C 141 at 148–149; (4) Lori vs. The State (1980) 8–11 S.C 81 at 99; (5) Ayub Khan vs. The State (1991) 2 NWLR (Pt. 172) 127 at 144; (6) Asanya vs. The State (1991) 3 NWLR (Pt. 80) 422 at 466.” PER ANDENYANGTSO, J.C.A.
EVIDENCE: WHERE WILL THERE BE CONTRADICTION IN EVIDENCE

A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. See GABRIEL VS. STATE (1989) 12 SCNJ 33 OR (1989) 5 NWLR (PT. 122) 454; BRILA ENERGY LTD VS. F.R.N (2018) LPELR–43926 (CA) Page 118–123 paras B–E. PER ANDENYANGTSO, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

MADUABUCHI IKEOGU APPELANT(S)

And

THE STATE RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court, Mbaise Judicial Division, presided over by Hon. Justice U. D Ogwurike, J. in Charge No. HAM/15C/2002: THE ATTORNEY GENERAL OF IMO STATE VS. MADUABUCHI IKEOGU, which judgment was delivered on 21st December, 2017.

The Appellant was arraigned on a one count charge of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms Act Cap. 398 Vol. xxii, Laws of the Federation of Nigeria, 1990 (as amended). The Appellant pleaded not guilty to the charge whereupon the prosecution called five (5) witnesses in support of the charge and tendered five (5) Exhibits (Exhibits “D”, “E”, “F”, “G” and “H”). The Appellant defended himself and called no other witness and tendered three (3) Exhibits (“A”, “B”, and “C”).

At the end of hearing evidence and considering the addresses of Learned Counsel on both sides, the Learned Trial Judge in a considered judgment convicted and sentenced the Appellant to death for the offence of

armed robbery as charged (see pages 81–91 of the Record of Appeal, simply to be referred to as “the Record” for short).

After about 9 years the Appellant with the leave of the Court, filed a notice and grounds of appeal on 27/2/2017 (see pages 97–100 of the Record). With the leave of this Court granted on 4/12/2018 the Record of Appeal was deemed compiled and transmitted same date. Again with the leave of this Court the Notice of Appeal was amended on 28/4/2020, though filed on 23/5/2019. The Appellant’s Brief of Argument settled by Emeka O. Nwagwu Esq. filed on 23/5/2019 was also deemed properly filed and served on 28/4/2020. The Respondent filed its Respondent’s Brief of Argument settled by V. E. Ekemgba (Mrs.) Chief State Counsel Ministry of Justice Imo State, Owerri, on 22/5/2020 out of time which, with the leave of the Court, was deemed properly filed and served on 23/7/2020. The Appellant’s Reply Brief filed on 10/6/2020 was deemed properly filed and served on the said 23/7/2020.

The Appeal was heard on 8/9/2020 on which date Emeka O. Nwagwu Esq. with C. C. Uchechukwu (Mrs.) appeared for the Appellant,

adopted the Appellant’s Brief and Reply Brief and urged us to allow the appeal, set aside the decision of the Trial Court, quash the conviction and sentence imposed upon the Appellant and order for his immediate release from custody. Adumbrating, Nwagwu Esq. submitted that the identification of the Appellant was porus which ought not to be relied upon by the Trial Court, commending to us the case of EBENEZER VS. THE STATE (2020) 8 NWLR (Pt. 1727) 573 at 588–589.

C. N. Akowundu Esq, DCL with V. E. Ekemgba (Mrs.) CSC and J. U. Iwuagwu PSC all of the Ministry of Justice Owerri, Imo State, appeared for the Respondent, adopted the Respondent’s Brief and urged us to dismiss the appeal as lacking in merit and affirm the decision of the trial Court.

The facts of the case are that on 27/6/2000 at about 2:00am armed robbers invaded the compound and house of one Maurice Osuarierieri (PW3) at Umuelegwa Onicha Ezinihitte Mbaise when the said Maurice Osuarierieri had traveled to Lagos on business trip, leaving his wife Mrs. Angela Ikonne (PW1) and his brother Christopher Osuarierieri (PW2) in the house. Both were eye witnesses to the commission of

the offence as well as victims. The armed robbers were said to have numbered about 8. They broke open the doors, shooting sporadically, robbed the victims of money and other valuable items, and in the process PW2 who grabbed the gun in possession of the Appellant, trying to wrestle it from him, recognised the Appellant and called him by his name as he was the first person to enter his room. The other armed robbers entered the room and as they were to shoot the PW2, he released the gun and was carried along to search other rooms. In the course of doing that the PW2 escaped, calling the Appellant by his name MaduabuchiIkeogu, and avoiding being shot. The robbers then entered the room of Mrs. Angela Ikonne and removed the sum of N50, 000. 00 cash and other valuable items, stabbed her with a knife on her left shoulder and hit her with a bottle on the head. When it was day break the case was reported to the Police by PW2, mentioning the name of the Appellant as one of the armed robbers. The Police embarked on searching for the Appellant but in vain, until the C.I.D officers from Owerri waded into the case and eventually arrested the Appellant at the house of his

maternal Uncle where he was hiding in the wardrobe. He was then charged to Court, which proceedings generated this appeal.

In the Amended Notice of Appeal, five grounds have been formulated which devoid of their particulars are as follows:
“GROUND ONE
ERROR IN LAW
The Learned Trial Judge erred in law when he failed to hold that the failure of the prosecution to call material witnesses in proof of their case was fatal to the case of the prosecution.
GROUND TWO
ERROR IN LAW
The Learned Trial Court (sic) erred in law when it convicted the Appellant in spite of numerous contradictions in the prosecution(sic)case.
GROUND THREE
ERROR IN LAW
The judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.
GROUND FOUR
ERROR IN LAW
The lower Court erred in law when it held as follows in its judgment at page 89 of the record of appeal:
“From the evidence of PW1 and PW2 there is no doubt that they were robbed on the date in question and that the robbers were armed with guns and other weapons in that regard and hold that the prosecution has proved beyond

reasonable doubt that there was robbery…….”
GROUND FIVE
ERROR IN LAW
The lower Court erred in law in that portion of the judgment at page 89 of the records of appeal as follows:
“PW2 in his evidence in Court stated that the accused person was one of the robbers that robbed him on the day in question; that he struggled with him for the gun; that he recognized and identified the accused Maduabuchi Ikeogu and gave his name to the Police when he reported the matter to the Police.”
“I believe the PW2 and hold therefore that the prosecution has proved beyond reasonable doubt the charge of armed robbery against the accused Maduabuchi Ikeogu.”
RELIEFS SOUGHT FROM THE COURT OF APPEAL: –
(a) To allow the appeal
(b) An order setting aside the judgment of the High Court of Imo State sitting at Aboh Mbaise in charge No. HAM/15c/2002 dated 27th day of December, 2007.
(c) An order setting aside the conviction and sentence made against the Accused/Appellant and substitute an order of acquittal and discharge.”

From the five grounds set out above, two issues have been distilled

for determination thus:
“(a) Whether the prosecution proved the offence of ARMED ROBBERY CONTRARY TO SECTION 1 (2) (a) OF THE ROBBERY AND FIREARMS ACT CAP 398 VOL XXII, LAWS OF FEDERATION OF NIGERIA 1990 (AS AMENDED) beyond reasonable doubt against the Accused/Appellant.
This is tied to grounds 1, 2, 3 and 4 of the Amended Notice and Grounds of Appeal.”
(b) “Whether there was sufficient evidence of identification of the Appellant to support his conviction for the offence.
This is tied to ground 5 of the Amended Notice and Grounds of Appeal.”

The Respondent in its Respondent’s Brief of Argument formulated a lone issue for determination, which covers all the grounds of appeal thus:
“WHETHER THE PROSECUTION PROVES THE OFFENCE OF ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT NECESSITATING THIS CONVICTION AND SENTENCING BY THE TRIAL COURT.”

The Appellant’s Counsel argued the issues thus: –
ISSUE ONE
It is submitted that the onus of proof in criminal cases always lies on the prosecution to prove beyond reasonable doubt the guilt of the accused, and failure to

do so will automatically lead to the discharge and acquittal of the accused person, relying on ONUBOGU VS. STATE (1974) 9 SC 1; STEPHEN VS. STATE (1986) 5 NWLR (PT. 46) 978; IKEMSON VS. STATE (1989) 3 NWLR (PT. 110) 455 at 466 para A and Section 135 (1) Evidence Act, 2011 (as amended); that beyond reasonable doubt does not necessarily mean proof beyond a shadow of doubt but it must be certainly sufficient to unmask the monster behind the iron cast; that the evidence of PW1 and PW2 relied upon by the Learned Trial Judge to convict the accused/appellant did not meet the requirement of legal proof beyond reasonable doubt and the value of the evidence fell below the required standard in a criminal trial for armed robbery and cannot sustain the charge laid before the Trial Court, relying on MUSA IKARIA VS. STATE (2014) 1 NWLR (PT. 1389) 639 AT 651, 669 paras C–A.

Learned Counsel submitted that the ingredients of the offence of armed robbery as provided under Section 1 (2) (a) of the Robbery and Firearms Act, 1990 have not been proved as there was no weapon tendered as Exhibit at the trial; that the evidence as led at the trial was contradictory and

inconsistent which ought not to have been believed and relied upon by the Learned Trial Judge, more so as the statement of the Appellant did not contain any confession or admission; that the evidence of PW1 at pages 44–48 of the Record was contradictory to his extra-judicial statement made to the Police 6 years earlier, rendering to naught the claim of wounding of PW1 through gun shots, etc; counsel referred to the evidence of PW1 and PW2 given on 28/3/2006 at pages 44 and 49 of the Record respectively and submitted that same contradicted each other in respect of the date of the commission of the offence said to be 27/6/2000 and 28/6/2000. Learned Counsel contended that the reports of the incidence lodged at Obizi and Itu Police Station which information was contained in Exhibit “G” at pages 17-29 of the Record were not tendered in evidence, which conduct by the prosecution amounted to withholding of evidence. He then submitted that there were contradictions in the evidence hence the prosecution hid the said pieces of evidence; that the evidence of PW1 and PW2 being full of contradictions should not be relied upon by the Court, relying on

ONUBOGU VS. STATE (SUPRA); ONONUJU VS. STATE (2014) 8 NWLR (PT. 1409 345; AJE VS. THE STATE (2006) 8 NWLR (PT. 982) 345 and OBIDIKE VS. STATE (2001) 17 NWLR (PT. 743) 601 and Section 167 (d) Evidence Act, 2011 (as amended); Learned Counsel urged us to hold that by withholding evidence the prosecution has failed woefully to prove the guilt of the Appellant. He cited NATIONAL SALT COMPANY OF NIGERIA LTD VS. MRS. M.J INNIS-PALMER (1992) 1 NWLR (PT. 218) 422 at 435 paras C–D; DERE VS. STATE (2011) 1 NWLR (PT. 1229) 508 at 541; that PW4 withheld the evidence of the doctor who first treated PW1 of wounds. Counsel urged us to resolve issue one in favour of the Appellant.

ISSUE TWO
Learned Counsel for the Appellant in respect of identification evidence submitted that such evidence is the type tending to show that the person charged with an offence is the same person that committed the offence with which the trial Court should satisfy itself before relying upon. He relied onIKEMSON VS. STATE (1989) 3 NWLR (PT. 110) 478 paras E–F, 479 para A; OTTI VS. STATE (1993) 4 NWLR (PT. 290) 675 at 681 para A, 682 para E. Learned Counsel also submitted that the

correct identification of the perpetrator of a crime is crucial, particularly where the accused person was not arrested at the scene of crime and the victim did not know him prior to the incident, relying on LAWALI VS. STATE (2019) 4 NWLR (PT. 1663) 457 at 458 paras A–B; OCHIBA VS. STATE (2012) ALL FWLR (PT. 608) 849 at 871 (also reported in (2011) 17 NWLR (PT. 1277) 663); THOMAS VS. STATE (2017) 9 NWLR (PT. 1570) 230.

Learned Counsel referred to the portions of the judgment of the lower Court on pages 89–90 of the Record and submitted that there is no evidence on the Record showing that the PW2 gave the name of the accused (Appellant) to the Police at Itu Divisional Police Station or Obizi Police Post; that in Exhibit “G” the PW4 concealed the evidence relating to the identification of the Appellant which should have gone against the prosecution. He urged us to invoke the provisions of Section 167 (d) of the Evidence Act, 2011 (as amended) against the Respondent as the trial Court did not observe the principles enunciated in LAWALI VS. STATE (supra). He further submitted that there was no iota of credible evidence upon which the

Appellant was identified; that where identification evidence is poor, the trial Court shall return a verdict of not guilty, unless there is another evidence which shows the correctness of such identification; that in this case the only evidence of identification was that of PW2, which juxtaposed with Exhibit “G” is so poor as it was not corroborated by any other evidence; that the prior knowledge or the fact that PW2 stated that he knew the Appellant did not remove the burden of describing him very well since the Appellant did not make any confessional statement, relying on OSUAGWU VS. STATE (2016) 16 NWLR (PT. 1537) 31 at 59 paras E–F, 61–62 paras H–C; OTTI VS. STATE (SUPRA); ADAMU VS. STATE (1991) 4 NWLR (PT. 187) 530; CHUKWU VS. STATE (1996) 7 NWLR (PT. 463) 686; OZAKI VS. STATE (1990) 1 NWLR (PT.124) (incomplete citation); EYISI VS. STATE (2000) 15 NWLR (PT. 746) 993; OLALEKAN VS. STATE (2001) 18 NWLR (PT.746) 993; ABUDU VS. STATE (1985) 1 NWLR (PT. 1) 55. Counsel submitted further that had the trial Court viewed the evidence before it impartially it would have induced some doubt in it, relying on BASHAYA VS. STATE (1998) 5

NWLR (PT. 550) 351 and then urged us to resolve issue two in favour of the Appellant and against the Respondent.
Counsel concluded finally that we should allow the appeal and grant all the reliefs sought by the Appellant.

V. E. Ekemgba (Mrs.) Chief State Counsel Ministry of Justice, Imo State, in the Respondent’s Brief summed up the facts of the case, formulated a lone issue already reproduced above and submitted that the offence of armed robbery was proved against the Appellant beyond reasonable doubt and therefore his conviction and sentence by the trial Court was proper; that in proving the offence of armed robbery the prosecution is expected to prove beyond reasonable doubt the essential ingredients or elements of the offence which are: –
“(a) That there was robbery or series of robberies.
(b) That the robbery was executed with the use of offensive weapon, that is to say the robbery was armed robbery.
(c) That the accused person participated in the robbery.”
She relied on OGUDO VS. STATE (2011) 18 NWLR (PT. 1278) 32; BOZIN VS. STATE (1985) 2 NWLR (PT. 2) 378; OGOGOVIE VS. STATE (2016) LPELR–40501

(SC). Learned Chief State Counsel referred to the evidence of PW1 and PW2 regarding the robbery incident and submitted that the two ingredients of the offence had been directly proved while the third ingredient was proved by the surrounding circumstances as well as the evidence of PW2.

It is further submitted that in proof of an offence beyond reasonable doubt, the prosecution can follow or adopt the following methods of proof:-
(i) By eye witnesses.
(ii) By confessional statement of the accused.
(iii) By circumstantial evidence.
(iv) By admission by conduct of the accused.

Reliance was placed on OGOGOVIE VS. STATE (SUPRA); EMEKA VS. STATE (2001) FWLR (PT. 66) 682 paras A–J and MOSES VS. STATE (2003) FWLR (PT. 141) 1969 at 1986. She submitted that in this instant case the Respondent/Prosecution adopted the first method in proving its case against the Appellant; that from the totality of the evidence before the trial Court the prosecution proved its case by direct eye witness account of what transpired on 27/6/2000 which evidence was not challenged or controverted in any way by the defence, hence the trial Court accepted and

acted on same, relying on KAYILI VS. YILBUK (2015) LPELR–24323 (SC), MARTCHEM INDUSTRIES (NIG) LTD VS. M–F KENT WEST AFRICA LTD (2005) LPELR– 1842 (SC) (also reported in (2005) 10 NWLR (PT. 934) 645); EBEINWE VS. STATE (2011) 7 NWLR (PT.1246) 402; OKIKE VS. L.P.D.C (2005) 15 NWLR (PT. 949) 471.

Learned Chief State Counsel further submitted that the trial Court was right to have convicted the Appellant based on the evidence of the prosecution witnesses, which evidence was cogent, complete, unequivocal, compelling and direct, leading to the conclusion that the Appellant was the culprit.

In respect to proof beyond reasonable doubt, it is submitted that it does not mean proof beyond shadow of doubt, relying on OSUAGWU VS. THE STATE (2013) 5 NWLR (PT. 1347) 360; ABOKOKUYANRO VS. STATE (no citation provided); BASIL AKALEZI VS. STATE (1993) 2 NWLR(PT. 273) 1; MOSES JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217 AT 243; ONAFOWOKAN VS. STATE (1987) 3 NWLR (PT. 61) 538; IKEM VS. STATE (1985) 1 NWLR (PT. 2) 378.

Regarding the contention and submissions of learned Appellant’s Counsel that the evidence of the prosecution witnesses was full

of contradictions, Learned Chief State Counsel submitted that there were neither contradictions nor inconsistencies in the evidence of the prosecution witnesses, which created doubt in the mind of the Court; that even if there were any such contradictions or inconsistencies (which was not conceded) such were not material or fundamental as to affect the quality of the evidence given at the trial, and so not fatal to the case of the prosecution, relying on NAMSOH VS. STATE (1993) 5 NWLR (PT. 292) 129 AT 132 PARA 2; CHUKWU VS STATE (1995) 5 SCNJ 223.

In respect of the date of the commission of the offence as contained in the charge and given by PW1 and PW2 as 27/6/2000 and 28/6/2000, Learned Chief State Counsel submitted that the word “about” used immediately before the date 28/6/2000 means that the incident took place a little before or a little after the stated date 28/6/2000 and has not misled the Appellant in any way as to the substance of the charge, relying on KOR VS. STATE (2001) FWLR (PT. 76) 637 AT 645 para 14; AWOPEJO VS. STATE (2000) FWLR (PT. 4) 656 at 658 para 2. Learned Chief State Counsel then urged us to discountenance the

submissions of the Learned Appellant’s Counsel on this point.

Learned Chief State Counsel referred to the testimony of PW1 and PW2 at pages 12 and 44 of the Record regarding the length of the extra judicial statement to the Police and the evidence before the Court and the submissions of the Learned Appellant’s Counsel that there were contradictions and inconsistencies therein, and submitted that PW1 stated that she was asked at the Police Station to summarise her statement while in the Court, she was allowed to state everything that transpired on the date of the incident hence her evidence in Court was more elaborate. Learned Chief State Counsel then urged us to hold that there were no contradictions or inconsistencies in the evidence of the prosecution witnesses.

Regarding withholding of evidence by the PW4, Learned Chief State Counsel submitted that non calling of Dr. Nnadozie to give evidence did not amount to withholding evidence as the prosecution was not bound to call all or every witnesses listed in the proof of evidence, but it was only bound to call only material witnesses, relying on ADEBAYO OKOROFUA VS. STATE (1981) 6–7

In relation to allegation that Dr. Ibe was a relation of PW1 Learned Chief State Counsel submitted that that submission did not reflect the true position or the true state of the evidence on Record. She reproduced the proceedings during cross examination of PW5 at pages 72 – 73 of the Record and submitted that the record supported the case of the prosecution that the evidence of Dr. Ibe was very vital to the case of the prosecution as enough material witnesses were called to prove the charge against the Appellant and that the prosecution has a discretion in the matter. She referred to JOSHUA VS. STATE (2019) LPELR–47358 (CA); BABUGA VS. STATE (1996) 7 NWLR (PT. 461) 279 (SC); JAMMAL VS. STATE (1999) 12 NWLR (PT. 632) 582. It is further submitted that a party who intended to rely on Section 167 (d) of the Evidence Act must have exhausted the provisions of Sections 244 and 255 of the Act, by calling for the document/evidence to be produced, which was not done in this case, referring to JOSHUA VS. STATE (2019) LPELR–47358 (CA) (SUPRA).Regarding identification parade, it was submitted that it was unnecessary since PW2 had identified the

Appellant and called him by his name in the course of the robbery, which prompted the Appellant to fire at him with a view to killing him but could not succeed, which identification was coupled with the fact of the Appellant hiding in a wardrobe in the house of one of his maternal uncles while being arrested by the Police from C.I.D. Owerri; that the evidence of PW2 was sufficient identification of the Appellant, relying on OKIEMUTE VS. STATE (2016) 15 NWLR (PT. 1535) 297 AT 301–304; AFOLALU VS. STATE (2010) 16 NWLR (PT. 1220) 584 (SC).

In conclusion we were urged to resolve this issue against the Appellant, uphold the decision of the Trial Court, dismiss the appeal as lacking merit for the following reasons: –
“(a) The trial Court was right to have convicted and sentenced the Appellant for the offence of Armed Robbery.
(b) A case of armed robbery was proved by the prosecution against the Appellant beyond reasonable doubt.
(c) There were no contradictions in the evidence of the prosecution witnesses especially PW1, PW2, PW3, PW4 and PW5.
(d) The lower Court was right to have relied on the evidence of PW1, PW2, PW3, PW4

and PW5 in reaching a conclusion convicting the Appellant.
(e) There was no need to conduct an identification parade as the Appellant was identified by PW2 at the scene of the crime and repeated same in the morning of the robbery at the Police station mentioning the name of the Appellant as the one that robbed them.
(f) That non recovery of the pellets by the Police at the scene of crime is not fatal to the case of the prosecution.”

The Appellant’s Learned Counsel in his Reply Brief on points of law submitted as follows: –
That the Respondent missed the point entirely in their Brief of Argument at paragraphs 4.01–4.23 and totally misconceived the law on the points, though conceding to the postulation of the Respondent at paragraph 4.02 (b) in that it was executed with the use of offensive weapons; that there were divergent evidence in respect of the substance of the offence of armed robbery which is known as contradictions resulting in doubt which should be resolved in the benefit of the Appellant, relying on IBEH VS. STATE (1997) LPELR–1389 (SC). He submitted that the non tendering of the weapon used and the

pellets is fatal to the case of the prosecution as it created doubt in the mind of the Court.

Learned Counsel berated the reliance by the trial Court on NAMSOH VS. STATE (1993) 5 NWLR (PT. 292) 129–132. He referred to the facts of the case and submitted that where the witnesses are not in agreement in their evidence in respect of the offensive weapon used, it shows that the offence was never proved.

Counsel further submitted that the Respondent missed the point in their paragraphs 4.25–4.26 in respect of identification evidence as the PW2 did not highlight the features distinguishing the Appellant from any other person, that the prosecution refused or failed to tender the statement made by the Appellant as confirmed by PW1, PW2 and PW4 about identification and the non calling of Dr. Nnadozie as shielding evidence and urged us to allow the appeal as contained in the Appellant’s Brief of Argument.

RESOLUTION
In resolving the issues I will adopt the lone issue formulated by the Respondent’s Counsel which to me, with a slight modification, is all encompassing having encapsulated the two issues formulated by the

Appellant’s Counsel. It runs thus:-
“WHETHER THE PROSECUTION PROVED THE OFFENCE OF ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT NECESSITATING HIS CONVICTION AND SENTENCING BY THE TRIAL COURT?” (Grounds 1 -5)

The Appellant, as an accused person, was arraigned before the Trial Court for the offence of Armed Robbery under Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act Cap 398 Vol. xxii Laws of the Federation of Nigeria, 1990, which provides as follows:-
“1.(1) …
(2) If –
(a) Any offender mentioned in subsection (1) of this section is armed with any firearm or any offensive weapon or is in company with any person so armed; or
(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.”
The law is firmly settled that in robbery charges, the ingredients to be proved beyond reasonable doubt by the prosecution are:-
1. That there was a robbery or series of robberies.

That each robbery was an armed robbery.
3. That the Appellant was one of those who took part in the robberies.
See Alabi VS. STATE (1993) LPELR–397 (SC) page 9 paras A–D.
It is trite that the burden of proof in criminal cases rests on the prosecution to prove the guilt of the accused person beyond reasonable doubt. As far back as 1959, Ademola, C.J.F in ALONGE VS. I.G.P (1959) SCNLR 516 stated the law as follows:-
“Now the commission of crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it, and this is the law laid down in Section 137 of the Evidence Ordinance Cap 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus which the law lays upon it and the prisoner is entitled to acquittal.”
The standard of proof required by law is that beyond reasonable doubt. In BAKARE VS. THE STATE (1987) 3 SC 1 at page 33, the Supreme Court, per Oputa J.S.C said: –
“Also it has to be noted

that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden (on the prosecution) is to prove its case beyond reasonable doubt with emphasis on reasonable doubt. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt and speculative doubt – a doubt borne out by the circumstances of the case.” See also the case of (1) Okagbue vs. C.O.P (1965) NMLR 232 at 236, (2) Umeh vs. the State (1973) 2 S.C. 9 at 12–13; (3) OBUE VS. THE STATE (1976) 2 S.C 141 at 148–149; (4) Lori vs. The State (1980) 8–11 S.C 81 at 99; (5) Ayub Khan vs. The State (1991) 2 NWLR (Pt. 172) 127 at 144; (6) Asanya vs. The State (1991) 3 NWLR (Pt. 80) 422 at 466.”
Now, when can it be said that the prosecution has proved its case beyond reasonable doubt? Before it can rightly be said that the prosecution has proved its case beyond reasonable doubt, every ingredient of the offence charged, which in the instant case is armed robbery must be established. This means that if one ingredient is missing or left out or not proved, then there is no proof beyond reasonable doubt. In

the case of BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465, which is on all fours with the instant case where the Appellant was charged with Armed Robbery, but was not arrested at the scene of the crime and he denied being involved in the incident, Oputa, JSC, delivering the lead judgment of the Supreme Court held at page 469 of the Report thus:-
“For the prosecution to succeed in this case, there ought to be proof beyond reasonable doubt: (i) That there was a robbery or a series of robbery, (ii) That each of the robberies was an Armed Robbery (iii) That the Appellant was one of those who took part in the robberies.”
See also ALABI VS. THE STATE (1993) 7 NWLR (PT. 307) 511 at 523 or (1993) LPELR–397 (SC) page 9 paras A–D.

Having enunciated the principles of law, I shall now consider the case of the prosecution to see if it proved its case beyond reasonable doubt as required by law. In doing so I shall take the first two of the ingredients of the offence of armed robbery together and then the third ingredient separately: –
1. That there was a robbery or series of robberies.
2. That the robbery was armed robbery.

The Learned Appellant’s Counsel had submitted that the evidence of PW1 and PW2 relied upon and believed by the Trial Court in convicting and sentencing the Appellant fell short of legal proof and urged us to so hold and reverse the conviction and sentencing of the Appellant. His argument was based on the fact that no weapon was recovered and tendered at the trial and there was no credible evidence of wounding or personal violence on anybody during the commission of the offence.

The Respondent, on the other hand submitted that the first element of the offence had been proved, referring us to the evidence of PW1 and PW2.

Now, it is on record vide the evidence of PW1 and PW2 that on the night of 27/6/2000 armed robbers broke into their compound and robbed them of money and other valuable items. A report of this incidence was made the following morning to the police. See pages 11, 12, 17-20, 23–27 of the Record. See also the evidence of PW1 on pages 44–48 of the Record. Pw1 stated on page 44 of the Record inter alia thus:-
“…I know the accused as Maduabuchi Ikeogu. I know the accused person. On 27th June 2000 a

gang of armed robbers broke my bedroom. The armed robbers were many, they were about eight they were armed with guns and other harmful weapons…”

PW2 stated in his evidence in chief at page 49 inter alia as follows: –
“…I know the accused person in the dock in Court. I am here in Court to give account of the robbery incident that took place in our house on 27th June 2000 at around 2:00am in the morning, on that day I was in the room sleeping our dog started barking seriously, the dog barked for a time then I opened the door to my room and heard a noise at the gate of our house the gate of our house faces the door to my room as one looks out. I flashed my torch light and saw one person outside the gate. I asked “who is that person.” At the time I did not know that the other armed robbers had come into our compound … When I asked who is there wanting to know the person at the gate I heard a gunshot. As I tried to run back into my room I heard several other gun shots. I managed to lock my door but the robbers broke the door…”

The evidence of PW4 at pages 60–63 also lends credence to the fact of armed robbery that took

place on the night of 27th June, 2000 at the house of PW1, PW2 and PW3. I must say that throughout the gamut of the evidence by the prosecution witnesses the defence did not puncture their testimonies on the fact of the commission of the offence of armed robbery on the night of 27th June, 2000. The Learned Trial Judge at page 89 of the Record on this point held as follows: –
“…. From the evidence of PW1 and PW2 there is no doubt, that they were robbed on the date in question and that the robbers were armed with guns and other offensive weapons. I believe the evidence of PW1 and PW2 in that regard and hold that the prosecution has proved beyond reasonable doubt that there was robbery, that PW2 Christopher Osuarierieri was robbed, and that the robbers were armed.”

The findings of the Learned Trial Judge above, based on the evidence before him, cannot be faulted. I therefore agree with the Learned Trial Judge that the first two ingredients of the offence of armed robbery have been proved. The submission of the Appellant’s Learned Counsel on non tendering of the weapon used is a non issue.

What remains to be determined now

is the third ingredient, that is to say, whether or not the Appellant was one of the armed robbers who robbed the victims as charged. In other words, whether the Appellant participated in the armed robbery. On page 49 PW2 stated in his evidence in chief inter alia as follows: –
“…I managed to lock my door but the robbers broke the door. The robbers met me inside my room. The first person among the robbers that came into my room is the accused person here in Court Maduabuchi. I tried to hold him and we started struggling for the gun the accused person was holding. As we were struggling for the gun the accused person (Maduabuchi’s) colleagues came into the room and they all had guns… While I was with the robbers in my room I recognized Maduabuchi (the accused person)… while I was escaping I called Maduabuchi (the accused) and said that I have identified him. The accused then shot me and I escaped the gun shot. I then ran away and started shouting…” I told the police that I identified one of the robbers…”

Under cross examination PW2 stated that he recognized the accused because the accused was the first to enter his room and that

he held him and battled him in order to wrestle the gun from the accused. He had battled him long enough to recognize and identify the Appellant and even his village. When asked whether he merely suspected the Appellant, PW2 answered thus: –
“I did not merely suspect the accused person the accused person is one of the robbers.”

PW1 in her evidence on pages 44–45 stated thus: –
“I know the accused as Maduabuchi Ikeogu. I know the accused person….. I was able to identify one of the armed robbers and that is the accused person in the deck here in Court his name is Maduabuchi.
… The accused person in this Court on that day when they came to rob us was holding a gun. I cannot identify the other robbers I was only able to identify Maduabuchi the accused person in the dock as one of the robbers.”

Learned Defence Counsel then cross examined the PW1 why she did not give the name of the Appellant to the Police in her statement she said at that time her head and body system was disorganized due to the beating and blow given to her on her head with a bottle by the armed robbers. She also stated at page

46 that the Appellant was not from Umuleagwa Onicha, but from Umuoma Onicha in Ezinihitte Mbaise. She, at page 49 of the Record, stated that she knew the accused before the incident of 27th June, 2000 as a person from Umuoma Onicha.

I have taken the pains to extensively reproduce the evidence of the prosecution’s witnesses in order to demonstrate that the Appellant was a known person to PW1 and PW2 before the robbery incident and the PW2 recognised the Appellant when he (PW2) flashed his torch light at the robbers as the Appellant was the first person to enter his room.

Now, even though the Appellant denied committing the offence, his conduct after the commission of the offence gave him away and badly betrayed him. For instance he ran away from his village to his maternal village. See pages 60 – 61 of the Record. PW4, the IPO of this case stated that the Police at Itu Divisional Headquarters could not arrest the Appellant because he had run to his maternal uncle’s village. The team from State C.I.D, Owerri called “crack squad” went to the Appellant’s maternal village and arrested the Appellant. For clearer

understanding of the case I shall quote from PW4’s evidence. He stated at page 61 of the Record thus: –
“… When we got this information we went to Umuaghara Onicha Ezinihitte Mbaise in search of the accused person and Clinton Agwatu. When we could not see the accused person we arrested Clinton Agwatu and asked about the accused person and Clinton Agwatu denied that the accused person was in his house. We told Clinton Agwatu that we were going to search his house. We started the search of his house, we searched his bedroom and the bedroom of his wife directly inside with the wardrobe. Inside the wardrobe of the bedroom of Clinton Agwatu’s wife was where we found the accused person. We now took the accused person to our office in Owerri where the accused person was cautioned and he volunteered his statement to the police which I recorded…”

The question that arises now is: why did the Appellant run from his village at Umuoma Onicha Ezinihitte to Umughara and hid himself inside the wardrobe of the wife of his uncle Clinton Agwatu? Even though he had stated that someone was killed in their village and when he returned from his

business he was asked to run, this explanation was not plausible and was rightly in my view, rejected by the Learned Trial Judge. Of course, the story sounded unconvincing. At pages 89–91 of the Record, the Learned Trial Judge had this to say on the involvement of the Appellant in the armed robbery incidence: –
“The next crucial question is, whether the accused person Maduabuchi Ikeogu was one of the armed robbers who robbed Christopher Osuarierierieri (PW2) of the money and items stated in the charge before the Court. PW2 in his evidence in Court stated that the accused person was one of the robbers that robed him on the day in question; that the accused was the first of the robbers that came into his room and was holding a gun; that he struggled with him for the gun; that he recognized and identified the accused Maduabuchi Ikeogu and gave his name to the police when he reported the matter to the police. The police based on this information went to the house of the accused in search of him but did not find him. On further information the police went to the house of the maternal uncle of the accused, there again they were told that the

accused was not there but upon a search conducted in the house, the police found the accused hiding in the wardrobe of the wife to the maternal uncle of the accused. There, the accused was arrested. It is observed that upon his arrest, the accused made a Statement to the police and in his statement told the police that he knows the complaint in this case and his family Mr. Maurice Osuaerieri; that he also knows the brother to the complainant, one Emmanuel Osuaerieri; that he (the accused) heard that there was armed robbery incident in the house of the complainant Maurice Osuaerieri; that because of the armed robbery incident police from Itu Police Division started looking for him (the accused) that based on that, he ran to the house of one Clinton Agwatu (his maternal uncle) and hid himself.
In his evidence in Court the accused admitted escaping from the village to that of his maternal uncle Clinton Agwatu but said that this was because he was told by people around to leave his house because the Police were arresting people from his kindred for the murder of somebody in his kindred. The accused did not state who told him that somebody was murdered

contrary to his statement to Police (Exhibit “D”). I do not believe the accused that he was fleeing and hiding because somebody was murdered in his kindred. I do not believe the evidence of the accused in this case. This notwithstanding, the burden remains on the prosecution to prove its case beyond reasonable doubt. From the totality of the evidence of PW2, who had body contact with accused during the struggle with him for the gun the accused was holding and identified the accused as one of the robbers and timeously gave the name of the armed robbers that robbed PW2 Christopher Osuaerieri on the day in question. I believe the PW2 and hold therefore that the prosecution has proved beyond reasonable doubt the charge of armed robbery against the accused Maduabuchi Ikeogu.
In the circumstance and in the foregoing, I hereby find the accused Maduabuchi Ikeogu guilty of armed robbery contrary of (sic) Section 1 (2) (a) of the Robbery and Firearms Act, Cap 398 Vol. XXII Laws of the Federation of Nigeria 990 as amended…”

The above findings based on the evidence before the Trial Court cannot be faulted. The Appellant’s Counsel had

complained of contradictions and inconsistencies in the evidence of prosecution witnesses which ought to have enured to the benefit of the Appellant. These contradictions, he submitted, are in the dates of the commission of the offence as PW1 and PW2 said it was on 27/6/2000 while the charge contained 28/6/2000. He relied on ONUBOGU VS. STATE (1974) 9 S.C 1; ONONUJU VS. STATE (2014) 8 NWLR (PT. 1409) 345.

The Learned Respondent’s Counsel on the other hand submitted that there were no contradictions and inconsistencies in the evidence of PW1 and PW2 and that even if there are, they are of such inconsequential value that they are not fatal to the case of the prosecution, relying on NAMSOH VS. STATE (1993) 5 NWLR (PT. 292) 129 at 132 para 2.

I have carefully perused the evidence of the prosecution witnesses and the charge in this case. The PW1 and PW2 said on the night of 27/6/2000 at about 2:00am when they were asleep the robbers invaded their house.
It is trite that where one witness called by prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation such as

showing that the witness is hostile before they can ask the Court to reject the testimony of one witness and accept that of other witness. See ONUBOGU VS. STATE (1974) LPELR–2700 (SC) pages 17–18 paras F–C.
Now, when can there be contradictions in the evidence of the prosecution witnesses? A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. See GABRIEL VS. STATE (1989) 12 SCNJ 33 OR (1989) 5 NWLR (PT. 122) 454; BRILA ENERGY LTD VS. F.R.N (2018) LPELR–43926 (CA) Page 118–123 paras B–E.
In the instant case, I could not see any contradictions of material value, or any at all, in the evidence of the prosecution witnesses regarding the date of 28/6/2000 in the charge. It is clear that while the PW1 and PW2 went to bed in the night of 27/6/2000, the armed robbers invaded their compound around 2:00am – which of course was already 28/6/2000. In any event the word “about” used in the charge immediately

before the date of offence 28/6/2000 signifies that the incident took place a little before or a little after the stated date of 28/6/2000. See AWOPEJO VS. STATE (2000) FWLR (PT. 4) 456 at 658 para 2 especially page 60 paras G–H where the Court held as follow: –
“The word “about” means a little more or less than a little before or after. It is because of this that when the phrase “on or before” is used in a charge, it is not necessary to prove the precise date the alleged offence was committed.”
Consequently, I hold that the evidence of PW1 and PW2 did not contradict each other. See BRILA ENERGY LTD VS. FRN (2018) LPELR–43926 (CA) page 118–123.

On the identity of the Appellant, Learned Counsel for the Appellant submitted that it was poorly done, while the Respondent’s Counsel argued that it was properly done.
I hold the firm view that there was no necessity of identification parade in this case as the witnesses who identified the appellant had known him before the incident. PW1 even called him by name Maduabuchi Ikeogu in the course of the robbery which made the Appellant shoot at

the PW1 intending to kill him but PW1 escaped the shot. See ALABI VS. STATE (1993) LPELR–397 (SC) page 13, paras E–G.
PW1 gave the name of the Appellant to the police when he lodged the report of the incident which made the police to mount a hunt after the Appellant until he was arrested while hiding inside the wardrobe of the wife of his maternal uncle Clinton Agwatu.

In regard to withholding evidence by not calling all the witnesses, it is not the law as there is no rule of law which imposes an obligation on the prosecution to call a host of witnesses. All that the prosecution needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter. See OKONOFUA & ANOR VS. THE STATE (1981) 6–7 SC 1 AT 18; ADAJE VS. THE STATE (1979) 6–9 SC 18 AT 28; ALI & ANOR VS. THE STATE (1988) 1 NWLR (PT. 68) 1 at 20 and ALABI VS. THE STATE (1993) LPELR–397 (SC) pages 15–16 paras G–B.

On the whole, I hold that this appeal lacks merit and is hereby dismissed. The judgment of the Trial Court, including the conviction and sentence of the Appellant, is hereby

affirmed.

I must commend the Learned Counsel on both sides in this appeal for the great industry deployed into this appeal which has been helpful to this Court in determining this appeal.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment, just delivered by my learned brother, I. A. Andenyangtso, JCA, and I agree completely with his reasoning and conclusion that this Appeal lacks merit and should be dismissed. I too dismiss it.

Appearances:

EMEKA O. NWAGWU, Esq., with him, C. C. UCHECHUKWU, Esq. For Appellant(s)

N. AKOWUNDU, DCL, with him, V. E. EKEMGBA (MRS.), CSC – Ministry of Justice, Imo State. For Respondent(s)