JOEL IGHALO V. THE STATE (2013)

JOEL IGHALO V. THE STATE

(2013)LCN/6108(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/B/216C/2009

RATIO

CRIMINAL LAW: ELEMENTS OF THE OFFENCE OF ARMED ROBBERY

Law Reports are replete with the decisions of the Supreme Court and this Court setting out the elements of the offence of armed robbery which the prosecution must prove beyond reasonable doubt by credible evidence in order to sustain a conviction for that offence. The elements are (i) that there was a robbery or series of robberies; (ii) that each robbery was an armed robbery; (iii) that the accused was one of those who robbed. See NWATURUOCHA V. THE STATE (2011) 45 NSCQR (PT. 1) 278 at 296 whereat Fabiyi, JSC; stated thus:
“It is now firmly established that the essential ingredients of the offence of robbery (sic) as stated in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows: –
(a) That there was a robbery or series of robbery;
(b) That each robbery was an armed robbery;
(c) That the accused was one of those who robbed.”
See also EKE V. THE STATE (2011) 45 NSCQR (PT. II) 652 at 667 – 668. Per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

EVIDENCE: WAYS OF PROVING THE COMMISSION OF A CRIME

EVIDENCE: THE POSITION OF THE LAW ON PROVING THE COMMISSION OF A CRIME BEYOND REASONABLE DOUBT

In the case of BAKARE V. THE STATE (supra) Oputa, JSC; equally dealt extensively with the questions of “proof beyond reasonable doubt” and the party that has to introduce “reasonable doubt” in a criminal prosecution. In this regard, his lordship stated thus: – “…From the particulars of error/misdirection (supporting this ground of appeal) which were further elaborated in the Brief, it is obvious that there is here a thorough misconception of the requirement that the prosecution should prove its case beyond reasonable doubt. Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence-‘ of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.” …Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case. Another Sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by section 137(1) Evidence Act Cap 62 of 1958:-
“137 (1) If the commission of a crime by a party to any proceeding is directly in issue … it must be proved beyond reasonable doubt”.
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. What does this subsection mean in relation to the case now on appeal? It means this. At the close of the prosecution case the court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair minded jury can return any verdict except that of guilty. In other words the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onu, of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt – R v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at P.104 Per Goddard L.C.J.
…Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt. The Court of Appeal was right in holding that the case was proved beyond reasonable doubt. Ground 2 of the grounds of appeal therefore fails.” It is in my view indisputable and this is against the backdrop of the pronouncement of the Supreme Court in the case of BAKARE v. STATE (supra) dealing with -proof beyond reasonable doubt” and “reasonable doubt” re-produced above, that though the position of the law is that it is not the duty of an accused person to prove his innocence as he enjoys a presumption of innocence (see NWATURUOCHA V. STATE (supra) at pages 303 – 304), it is still for an accused person to introduce reasonable doubt into the case of the prosecution particularly when the prosecution has adduced evidence in the proof of all the ingredients or elements of the offence preferred against the accused person, and which evidence if accepted and believed by the trial court will result in the conviction of the accused person. See also section 138(3) of the Evidence Act LFN 2004. Per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

EVIDENCE: THE POSITION OF THE LAW REGARDING FAILURE TO CHALLENGE THE EVIDENCE OF A WITNESS UNDER CROSS-EXAMINATION AND FAILURE TO CONTROVERT THE CASE OF AN OPPONENT OR ADVERSARY

In the case of OFORLETE V. THE STATE (2000) 12 NWLR (PT. 681) 415 the Supreme Court per Ayoola, JSC; made clear the position of the law regarding failure to challenge the evidence of a witness under cross-examination and failure to controvert the case of an opponent or adversary. What his lordship said in this regard is hereunder re-produced: – “The questions that arise are, first what amounts to challenge of evidence and, second: what is the effect of failure to challenge evidence. It is implied in the submission by counsel for the respondent that failure to cross-examine a witness on an issue amounted to failure to challenge the evidence of the witness on that issue. In Blackstone’s Criminal Practice, 1991, the effect of failure to cross-examine a witness upon a particular matter is stated to be a tacit acceptance of the truth of the witness’s evidence. The law was put thus, citing Hart (1932) 23 Cr APP P.202 as authority: “A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credit by calling other witnesses tacitly accepts the truth of the witness’s evidence in chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve him in that regard. The proper course is to challenge the witness while he is in the witness-box or, at any rate, to make it plain to him at that stage that his evidence is not accepted”. A similar attitude to the effect of failure to cross-examine a witness is contained in the opinion of Iguh, J.S.C, in Broadline Enterprises Ltd v. Monterey Maritime Corporation & Anor (1995) 9 NWLR (Pt. 417) 1, 27 when he said: “I think the first point must be made for a better appreciation of their resolution that where evidence given by parties to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established.”Isaac Omoregbe v. Daniel Lawani (1980) 3-4 SC 108 177; Odulaja v. Haddad (1973) 11 SC 357; Nigerian Maritime Services Ltd v. Alhaji Bello Afolabi (1978) 2 SC 79, 81 and Adel Boshali v. Allied Commercial Exporters Ltd (1961) 2 SC NLR 322; (1961) ALL NLR 917 were cited as authority. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

EVIDENCE: DISTINCTION BETWEEN UNCHALLENGED EVIDENCE AND UNCONTROVERTED EVIDENCE

It is significant that he went on impliedly to distinguish “unchallenged” evidence from evidence not controverted by contrary evidence when he said: “So, too, where the defendant offered no evidence, the plaintiff’s evidence before the court under such circumstance clearly goes one way with the other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus of proof in such a case is discharged on minimal of proof.”
However, it does appear to me that a distinction has not always been drawn in the manner in which evidence is challenged or controverted. “Unchallenged” “uncontroverted” have mostly been used as meaning the same thing. See, for instance, Egwunike v. ACB Ltd. (1995) 2 NWLR (Pt. 375) 34 SC.
In a strict sense “unchallenged” and “uncontroverted” may not mean the same thing. To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny, oppose or contest. (For both definitions see Black’s Law Dictionary 6th Edition). Challenging a witness is more appropriate in cross-examination while controverting his evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction in most cases the consequence would be the same whether evidence is unchallenged or whether it is uncontroverted. Where evidence is challenged and rendered doubtful or without weight by cross-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that that evidence is not true. In every case, in my judgment, it is for the trial judge to decide what the effect of failure to cross-examine a witness on a particular matter has on his evidence in regard to such matter having regard to the circumstances of the case. I venture to think that a trial judge will not readily reject the evidence of a witness on a matter in respect of which he has not been cross-examined. If he accepts the evidence on the ground that the witness had not been cross-examined upon it and prefers it to a controverting evidence which he adverted to, an appellate court will not hold that he has failed to evaluate the evidence before him… Per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

THE POSITION OF THE LAW REGARDING THE DEFENCE OF ALIBI

CRIMINAL LAW: PROOF OF MOTIVE FOR AN ACT OR OMISSION

In this regard, the Supreme Court in NWAEBONYI v. THE STATE (1994) 5 NWLR (pt. 343) 138 per Ogwuegbu, JSC; stated thus: –
“In this case evidence of motive was also available. However, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as criminal responsibility is concerned. Proof of motive on the part of an accused on a charge of murder is not a sine qua non for his conviction for an offence but if evidence of motive is available as in this case – the evidence of the enmity of the appellant towards P.W.1 resulting from the oath taking it is not only a relevant fact but is also admissible under Section 9(1) of the Evidence Act: Jimoh Ishola v. The State (1978) 9 – 10 S.C. 181 at 104-105 and R. v. Ball (1911) A.C. 47 (H.L.) at 68.” Per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

JOEL IGHALO Appellant(s)

AND

THE STATE Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 19/1/2007 by the High Court of Justice, Edo State, holden at Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice R.I. Amaize (hereafter simply referred to as “the learned trial Judge”). In the judgment, the lower court convicted the Appellant for the offence of armed robbery and sentenced him to death by hanging.
The facts of the case briefly stated are that on 1/4/2003 at about 2am a group of armed robbers (about 7) invaded the residence of one Musah I.O. Ighalo. The robbers were armed with guns, machetes, battle axes and iron rod. They beat up and deprived Musah Ighalo of various sums of money and inflicted serious injuries on members of his family. Indeed a son of Musah Ighalo died shortly after the robbery from the injury he sustained at the hands of the armed invaders. The Appellant who is also a son of Musah Ighalo (but born by another woman to whom Musah Ighalo is not married) was at his father’s office at the state Hospital Management Board, Benin City sometime in March 2003 and thereat he threatened to use members of his gang to deal with his father for not treating him well as a son. Musah Ighalo pw3 in his statement to the police mentioned that he recognised the Appellant amongst the robbers that invaded his house. The Appellant was later arrested by the police and he denied any involvement in the robbery attack on his father and family. He set up a defence of alibi which the Police in the course of investigation into the incident could not verify as being true. The Appellant was charged to court after the completion of investigation by the Police.
The Respondent fielded four witnesses in the proof of its case against the Appellant. Musah Ighalo testified as PW3 and gave evidence concerning the robbery. In his evidence, pw3 fixed the Appellant at the scene of the robbery by identification evidence by way of recognition. The Investigating police officer (IPO) testified as PW4 and gave evidence of the investigation he carried out in relation to the robbery incident. The remaining two witnesses gave evidence regarding the threat made by the Appellant prior to the robbery incident. The Appellant gave evidence in his own behalf and also called one witness. In his evidence, the Appellant denied any involvement in the offences for which he was charged, as well as evidence in support of his defence of alibi. The other witness called by the Appellant gave evidence in support of the defence of alibi set up by the Appellant. The lower court after having had the benefit of addresses from the parties evaluated the evidence adduced before it, and found the Appellant guilty of the offence of armed robbery in which PW3 was the victim.
The Appellant being dissatisfied with his conviction and sentence lodged an appeal against the judgment of the lower court by a Notice of Appeal dated 7/2/2007 and filed on the same date. The Notice of Appeal contains one ground of appeal. The ground reads: “The judgment of the learned trial judge is unreasonable, unwarranted and against the weight of evidence”. In other words, the Appellant’s sole ground of appeal is the omnibus ground of appeal in criminal appeal.
In accordance with the Rules of this court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 23/9/2009 and filed on 14/4/2010 but deemed to have been properly filed and served on 7/5/2012 was settled by Emmanuel Achukwu. Respondent’s Brief of Argument dated 31/5/2012 and filed on 4/6/2012 was settled by V. U. Adeleye (Mrs.) learned Assistant Director of Public Prosecutions, Ministry of Justice, Edo State (i.e. ADPP). The appeal was entertained on 6/3/2013 and both Emmanuel Achukwu learned lead counsel for the Appellant and learned (ADPP) for the Respondent adopted and relied on the Briefs of Argument filed on behalf of their respective clients as hereinbefore identified, in aid of their positions in the appeal.
In his Brief of Argument, the Appellant formulated one Issue for the determination of the appeal. The Issue reads thus: –
Did the prosecution discharge the burden of proof of the appellant’s guilt beyond reasonable doubt in the circumstance of this case, especially relating to the defence of alibi set up by the appellant and the proper identification of the appellant?
In its Brief of Argument the Respondent formulated two Issues for the determination of the appeal. The Issues read thus: –
“(i) whether the learned trial judge rightly rejected the defence of alibi put up by the Appeal at the trial as being hollow and completely destroyed by the evidence of Mr. Musa Ighalo (PW3).
(ii) whether having regard to the totality of the evidence led at the that and the circumstances of this case, the prosecution proved the charge of conspiracy and armed robbery against the appellant beyond reasonable doubt to warrant his conviction.”
Though the omnibus ground of appeal in a criminal appeal has to be peculiarly worded or couched (i.e., that the decision of the trial court is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced), the position of the law concerning the omnibus ground of appeal whether in civil appeal or criminal appeal is settled. It is that such a ground of appeal admits or assumes that the evidence evaluated or weighed by the court had been properly admitted. The complaint raised by an omnibus ground of appeal deals essentially with evaluation of evidence and only questions the correctness of the inferences, findings or conclusions reached or arrived at by the court in the light of the totality of evidence adduced before it. See, IGIDI V. IGBA (1999) 70 LRCN 1852; and ISIEKWE v. STATE (1999) 9 NWLR (Pt. 612) 43. Indeed the Supreme Court per Oputa, JSC; dwelled on the omnibus ground of appeal in the case of BAKARE V. THE STATE (1987) NSCC 267. Re-produced hereunder is what his lordship said: –
“The first ground of appeal complained that:
1. “The decision of the Court of Appeal is unreasonable having regard to the evidence before the trial court”.
This ground deals with, the facts of the case, the evidence led on both sides, the evaluation of that evidence, the ascription of probative value to such evidence, the credibility of witnesses who testified, the consideration of all credible evidence and the logical conclusion both of fact and of law to be drawn from the totality of the evidence led. All these are matters squarely within the exclusive competence of the trial judge who saw, heard and believed. Understandably, therefore, an appellate Court is naturally very reluctant to reverse on ground 1 above the findings of a trial judge who had the peculiar advantage of seeing the witnesses, of watching their demeanour and of hearing them give evidence. Therefore, again, when the questions involved are purely those of fact an appellate court will not interfere unless the decision of the trial judge is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts. There is such a myriad of authorities to support the above propositions that it is unnecessary to repeat them here. What is necessary is to look critically at the evidence before the trial Court to see whether the learned trial judge erred in his handling of the facts and whether it is true that his decision “is unreasonable having regard to the evidence before him.”
Given the position of the law regarding the sole ground of appeal of the Appellant, I cannot but say that I find it difficult to appreciate how the Respondent ended up formulating two Issues for the determination of the appeal in its Brief of Argument. The Respondent would appear to have never heard of the p1ndple against proliferation of Issues for determination in an appeal and/or is oblivious of the fact that the principle in question is applicable to both civil and criminal appeals. Against the backdrop of what I have stated above, I will determine the instant appeal upon the Issue formulated by the Appellant and which Issue is in my considered view, the same in purport with Issue 2 formulated by the Respondent. Issue 1 formulated by the Respondent will therefore be discountenanced. Before going into the arguments of the parties in relation to the Issue upon which the appeal is to be determined, I cannot but again note that the Respondent has clearly shown in its Brief of Argument that it never gave a painstaking consideration to the record of proceedings and judgment in the instant appeal; otherwise how can the Respondent explain the inclusion in its narration of the facts of this case a statement that goes thus: “His lordship discharged the appellant of count 2 of the charge but found him guilty of count 1 (Conspiracy to commit armed robbery) and count 3 (armed robbery) and therefore sentenced him to death by hanging”. And to have further gone on at page 10 of its Brief of Argument to argue how it proved beyond reasonable doubt the offence of conspiracy charged in count 1 when it is most clear from the concluding part of the judgment that the lower court convicted the Appellant only in respect of count 3 of the charge preferred against him. Surely, the Respondent ought to know that a high standard is expected of it in the preparation of its Brief of Argument.
ISSUE FOR DETERMINATION – “DID THE PROSECUTION DISCHARGE THE BURDEN OF PROOF OF THE APPELLANT’S GUILT BEYOND REASONABLE DOUBT IN THE CIRCUMSTANCES OF THE CASE, ESPECIALLY RELATING TO THE DEFENCE OF ALIBI SET UP BY THE APPELLANT AND THE PROPER IDENTIFICATION OF THE APPELLANT”
Dwelling on the Issue the Appellant stated that he set up a defence of alibi in his statement to the Police admitted and marked as Exhibit P1, right from the onset. The alibi is to the effect that he (Appellant) and his boss named Elvis on 31/3/2003 left for Warri refinery at about 5am to load fuel and that they could not load the fuel until 5/4/2003. The Appellant stated the position of the law to be that an accused person relying on the defence of alibi must put same forward at the investigation stage of the matter. That when such a defence is set up by an accused person, the mere explanation that he was not at the scene of the offence is not enough, as the accused person must give some explanation of where he was and of who knew of his presence at that other place at the material time of the commission of the offence in question. Yanor v. The State (1965) 1 All NLR 75, was cited in aid. The Appellant submitted to the effect that haven clearly disclosed that he was in Warri with his master/boss named Elvis, at the material time of the robbery incident; it was for the Police to investigate the truth of the alibi and cited in aid the case of Salami v. The State (1988) 3 NWLR (Pt. 85) 670 at 677. Stating that the essence of putting forward the defence at the earliest opportunity is to enable the police to take all needful steps to confirm or debunk the alibi, the Appellant submitted that there was no serious effort on the part of the prosecution to investigate the defence of alibi he raised in Exhibit P1. The Appellant further submitted that as he had discharged the burden of giving the correct and full particulars concerning his whereabouts on the day and time of the incident, the Police were obliged to investigate his defence of alibi and the prosecution had the onus of disproving the same. Adio v. The State (1986) 3 NWLR (pt. 31) 714; and Okoduwa v. The State (1988) 2 NWLR (pt.76) 333; amongst others were cited in aid. It is the stance of the Appellant that the evidence of PW4 showed that his alibi was not properly investigated or was not investigated with any seriousness as the investigation into the alibi was not extended to Warri refinery. The Appellant submitted that the deliberate refusal to investigate the alibi he put forward, casts serious doubt on the probability of the case against him being true and cited in aid, Fatoyinbo v. A-G. Western Nigeria [1966] WNLR 4.
The Appellant submitted that the reason given by the lower court in rejecting the defence of alibi he put forward to wit:
“The defence of alibi he put forward is hollow. This is not so much for reason of failure to make full disclosure as alleged by the prosecution but principally because his story turned out to be brazen falsehood” is not borne out by the record as PW4 who claimed to have investigated the alibi stated that he did not see the need to visit Warri where he (Appellant) claimed he was at the time material to the robbery incident and which found confirmation in the evidence of DW1 that he (Appellant) was with him at the material time. The Appellant stressed that his alibi was one of being in Warri, a place PW4 did not visit.
The Appellant submitted that the position of the law is that the burden of establishing the guilt of an accused rests throughout on the prosecution and does not shift to the accused and cited Adeyeye v. The State [1968] NMLR 48 in aid. It is the stance of the Appellant that the failure of the prosecution to rebut his alibi ought to have resulted in his discharge and acquittal as it derogated from the standard of proof beyond reasonable doubt on the Respondent. This is because evidence of alibi by an accused person cannot be easily brushed aside except it is neutralized by greater and more convincing contrary evidence from the prosecution and cited in aid, Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538; and Olaiya v. The State (2009) 7 NWLR (pt. 1141) 540. The Appellant submitted that the standard of proof to establish a defence of alibi which is merely the favourable balance of probabilities is on his side and cited in aid, Bozin v. The State (1985) 2 NWLR (pt. 8) 465 at 473. The Appellant urged this court to discharge and acquit him on the basis of the submissions regarding alibi.
Dwelling on the totality of the evidence adduced by the prosecution, the Appellant said that evidence of identification which the lower court acted upon was provided by his father. Also referring to the evidence of PWs 1 and 2, the Appellant submitted that the totality of the evidence of these two witnesses was to lay before the court a motive on his part. It is the submission of the Appellant that it is alien to natural justice to assume that mere words act on their own. That the question arising from the evidence of PWs 1 and 2 is: whether their evidence showed that he (Appellant) actually robbed his father and other victims on the day and time of the incident in question. The Appellant submitted to the effect that the evidence of these two witnesses raised no more than suspicion and that suspicion no matter how grave cannot take the place proof. That it was wrong of the lower court to have been convinced that the evidence of the two witnesses enhanced the case of the prosecution. That the obvious deduction from the conviction of the lower court was that the said court held the view that mere threat amounted to adm1ting committing the offence and by extension guilt. This, the Appellant further stated is an assumption and assumption the Appellant also submitted does not qualify as proof and cited in aid, Mohammed v. The State [1991] 5 NWLR 438 at 456; and Ajibade v. The State (1987) 1 NWLR (Pt. 48) 205.
Dwelling on his identification by PW3, the Appellant submitted that the same was fraught with serious flaws. That there is evidence on record that there is no love lost between pw3 and him (Appellant). That the evidence of PWs 1 and 2 equally showed that he and PW3 were not on friendly terms. Though conceding that the evidence of a single witness is sufficient to convict an accused person, the Appellant however submitted that the lower court ought to have discharged and acquitted him in the light of the failure of the prosecution to debunk his alibi; failure of the prosecution in the peculiar circumstances of this case (as both victim and suspect knew each other well) to call any other witness or victim identifying him as one of those who robbed them; and bringing witnesses who were neither victims nor at the scene to testify to the probability of him haven committed the offences he was charged with. The Appellant submitted that in criminal cases, particularly capital offences, the court must arrive at its decision through a process of reasoning which is analytical and commands confidence and cited in aid, Nwosu v. The State (1986) 4 NWLR (Pt. 35) 348 at 359. Furthermore, the Appellant said that it is expected that the court will be reluctant to convict when the evidence led casts a doubt as to the complicity of the accused. It is the stance of the Appellant that as the prosecution did not rebut his evidence of alibi, the evidence of PW3 was not sufficient to ground his conviction. Nwosu v. The State (supra) was cited in aid.
Dwelling on whether or not it proved the charge of armed robbery for which the Appellant was convicted by the lower court beyond reasonable doubt, the Respondent submitted that it did so in the circumstances of the instant case. The Respondent further submitted to the effect that proof beyond “reasonable doubt” is not synonymous or the same as proof beyond every shadow of doubt. That proof beyond reasonable doubt carries a high degree of probability and cited in aid, Onafowokan v. The State (supra); and Jua v. The State (2010) 2 MJSC 152 at 170.
Having set out the elements of the offence of armed robbery, and citing in aid, Nwanchukwu v. State (1985) 11 NWLR (Pt.11) 218; and Adeyemi v. State (1991) 1 NWLR (pt. 170) 679, the Respondent submitted to the effect that it established each of the elements of the offence of armed robbery beyond reasonable doubt having regard particularly to the evidence of pw3 and pw4. It is the stance of the Respondent that the submission of the Appellant to the effect that the non-investigation of his alibi ought to have created a doubt in the mind of the lower court was untenable having regard to the evidence on record and which shows that the said alibi was investigated and found to be false.
Dwelling on the propriety of the lower court relying on the evidence of a sole eye-witness to convict the Appellant, the Respondent observed that the Appellant had not disagreed with the position of the law in this regard. The Respondent submitted that as it was clear from the record that the lower court gave consideration to this position of the law and as the said court duly believed the evidence of PW3, there was no basis to question the conviction of the Appellant based on the evidence of PW3. The Respondent stated the settled position of the law to be that an appellate court will not disturb the finding made by a trial court unless on the ground that the finding is either perverse in law or is against a rule of procedure and that it has thereby occasioned a miscarriage of justice. Jua v. State (supra) at 184; Sele v. State (1993) 1 NWLR (pt 269) 276, amongst others, were cited in aid.
The charges preferred against the Appellant as set out in the judgment of the lower court at pages 43 – 44 of the record read thus: –
“Count 1:
That you Joel Ighalo (m) on or about the 1st day of April, 2003 at Benin City in the Benin Judicial Division conspired with others now at large to commit felony to wit armed robbery and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990.
Count II
That you Joel Ighalo (m) and orders now at large, on or about the 1st day of April, 2003, at Benin City in the Benin Judicial Division robbed one John Igbinosun (m) of the following items (a) one touch (sic) light valued two hundred and fifty naira (N250.00) (b) one axe valued one thousand naira (N1000.00) (c) two cutlasses valued one thousand five hundred naira (N1,500.00) (d) one wrist watch valued three thousand naira (N3,000.00) and (e) the sum of twenty thousand naira (N20,000.00) and at the time of the robbery, you were armed with offensive weapons, to wit: Guns, and cutlasses and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990.
Count III:
That you Joel Ighalo (m) and others now at large, the 1st day of April, 2003, at Benin City in the Benin Judicial Division robbed one M.I.O. Ighalo of the sum of thirty five thousand naira (N35,000.00) and at the time of the robbery, you were armed with offensive weapon to wit: guns and cutlasses and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act LFN 1990.”
Law Reports are replete with the decisions of the Supreme Court and this Court setting out the elements of the offence of armed robbery which the prosecution must prove beyond reasonable doubt by credible evidence in order to sustain a conviction for that offence. The elements are (i) that there was a robbery or series of robberies; (ii) that each robbery was an armed robbery; (iii) that the accused was one of those who robbed. See NWATURUOCHA V. THE STATE (2011) 45 NSCQR (PT. 1) 278 at 296 whereat Fabiyi, JSC; stated thus:
“It is now firmly established that the essential ingredients of the offence of robbery (sic) as stated in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows: –
(a) That there was a robbery or series of robbery;
(b) That each robbery was an armed robbery;
(c) That the accused was one of those who robbed.”
See also EKE V. THE STATE (2011) 45 NSCQR (PT. II) 652 at 667 – 668.

The law is also settled that in the discharge of the burden of proof imposed on it by law, the prosecution no doubt can utilize any or a combination of the following ways of proving the commission of a crime, namely; (i) by confessional statement(s); (ii) by circumstantial evidence; and (iii) by evidence of eyewitness otherwise referred to as direct evidence. See EMEKA V. THE STATE (2001) 7 NSCQR 582 at 593 – 594; MOSES V. THE STATE (2003) FWLR (PT. 141) 1969 at 1987 and JOSHUA V. STATE (2009) All FWLR (pt. 475) 1626.
In its judgment, the lower court found only Count III of the Charge preferred against the Appellant to have been proved beyond reasonable doubt and accordingly convicted the Appellant of the offence of armed robbery and sentenced him to death as prescribed by law for the offence.
The victim of the robbery (i.e. M.I.O. Ighalo) the Appellant (and other now at large) are alleged to have committed in Count III of the Charge before the lower court testified as PW3. This witness gave an eyewitness account of the robbery incident. The whole of his testimony (evidence-in-chief and evidence under cross-examination) is at pages 28 – 30 of the record. Under examination-in-chief the witness testified very clearly as to the time (2am) robbers invaded his house. His evidence was clear as to how the robbers gained entry into the house, the fact that they wore face caps, how the robbers were shouting “where is the father”, how the robbers pounced on him using machetes, battle axes and iron rods when he surrendered or showed himself as “the father” they were demanding for. The witness was also clear on the fact that after he brought out a sum of N25,000.00 in response to the demands of the robbers that he should “bring our money”, they not only dealt a machete cut to his right hand but they also collected an additional sum of N10,000.00 from a pigeon hole of his bed. The witness who disclosed most clearly in his evidence in chief that the Appellant is his son, was very definite as to how he came to recognise the Appellant among the robbers that invaded his house. In this regard, the witness testified at line 30 of page 28 to line 3 of page 29 of the record thus: –
“I moved towards them and said “hear (sic) I am”. There and then the second person in the group flashed light on my face when he did that I saw the first person and saw that it was the accused.”
Aside from giving evidence regarding what the robbers did to him personally, the witness further testified as to the violence which the robbers unleashed on his wife and children and to the fact that some of the robbers stationed at the front and rare of his house were shooting guns while the robbery operation was in progress and that this act scared away people. Under cross-examination the witness disclosed that he is not married to the Appellant’s mother and that it was after the Appellant had attained 20 years of age that the Appellant’s mother released the Appellant to him. That prior to this the Appellant’s mother had always claimed that the Appellant was not his son. Under cross-examination the witness also testified the Appellant had been living with him since 1993 when he was released to him by the mother. The witness was unshaken regarding his evidence that he recognised the Appellant among the robbers that invaded his house and that it was when torch light was flashed on him that he saw the Appellant.
Dwelling on the evidence of PW3 at page 63 of the record the lower court stated thus: –
“Now, bearing in mind the fact that evidence of PW3, Musah Ighalo appears to be the hub around which the prosecution’s case revolves and the attempt made by the defence to make nonsense of such evidence, I consider it imperative for this court to bring under close scrutiny, by way of appraisal, the evidence of the witness as earlier reviewed. A holistic approach to the evidence of PW3 under cross-examination quite clearly reveals that the totality of his evidence is to the effect that he saw the accused as one of the robbers, which invaded his abode on 1st April, 2003 whilst armed with dangerous weapons. The only feeble attempt made to discredit the evidence of the witness was when he was asked to tell the Court the type of flash light that was beamed on him and he said he could not say. Learned defence counsel had urged on the Court on that score to hold that some doubt was created on the mind of the Court. I do not accept that contention for the reason that failure by PW3 to describe the flashlight allegedly beamed on him is a point I consider tenuous. As a matter of fact, he was not bound to know the nature of flashlight that was beamed on him. I therefore believe and accept the evidence of PW3 that on the fateful night on which a group of persons armed with various offensive weapons invaded his abode and robbed him and members of the household as well as injuring them; the accused was one of the invaders. I find that as a fact.”
It was after the lower court had already accepted and believed the evidence of PW3 to the effect that the Appellant was one of the invaders in the group of persons armed with offensive weapons that invaded the household of PW3 on the fateful night and had made a specific finding that the Appellant was one of the invaders, that the lower court went further to state and highlight some other pieces of evidence/facts that strengthened its belief that the Appellant was one of the invaders. (See pages 64 – 69 of the record). It was after the lower court had ventilated or expressed some pieces of evidence and/or facts that strengthened its finding linking the Appellant with the incident that occurred to PW3 on 1/4/2003 that the said court further stated at pages 66 – 69 of the record thus: –
“what both the natural and unnatural events and unexplained material contradictions in the evidence of defence point to, as earlier noted, is that the story or defence of alibi put forward is bogus and rather than assist the defence as the accused had thought, it has in fact strengthened the case of the prosecution to the effect that the accused was one of robbers who invaded his father’s abode on 1/4/03 and did so while armed with dangerous or offensive weapons as laid in the charge.
Assuming without conceding that I am wrong in my conclusion that the alibi raised is bogus, it is still no ground for it to avail the defence. Like the prosecution had contended, the evidence of Pw3, Musah Ighalo, that the accused person was at the scene of the crime and he so identified him there on the occasion charged, completely knocks the bottom out off that defence…
In the instant case, I hold that the evidence of PW3 fixing the accused person at the scene of crime on the occasion charged is sufficient and acceptable and I accept it. He was quite emphatic on the point that once one of the robbers had beamed a flash-light on his face, he recognised the accused and like the learned Chief Legal Officer had contended and by which I am persuaded, the point that PW3 and accused are father and son, underscores the fact that the accused’s identity was not in doubt. I will move a step further to say that it made the identification of the accused by PW3 easier. I accept the totality of the evidence of PW3.
Having accepted the evidence of PW3, the next related point is whether I can act upon the witness’s evidence alone to convict? Similar question was answered in the affirmative in the case of Igbo V. State (1998) 1 ACLR 627…
I wish at this stage, to recall the charge by the defence that this case was not properly investigated. That contention, with respect to learned counsel, is without any basis. Contrary to the contention, I hold that nothing needed to be done by way of investigation that was not done. In the circumstance, I further hold as erroneous reliance on the case of Aigbadion V. State (2000) 7 NWLR (Pt. 666) 686 in support of the position canvassed by Counsel which this Court has held to be erroneous. From the above finding, I find no difficulty in coming to the and I so conclude that the prosecution has proved its case against the accused in count 3 beyond reasonable doubt…
In the result, in each of Counts 1 and 2, I hold that the prosecution has failed to prove its case against the accused as required by law. Each of those counts is accordingly dismissed and the accused person is discharged and acquitted in each. However, in Count 3, I hold that the prosecution has proved its case against the accused beyond reasonable doubt and in that Count 1 return against the accused a verdict of guilty as charged.”
In the case of BAKARE V. THE STATE (supra) Oputa, JSC; equally dealt extensively with the questions of “proof beyond reasonable doubt” and the party that has to introduce “reasonable doubt” in a criminal prosecution. In this regard, his lordship stated thus: –
“…From the particulars of error/misdirection (supporting this ground of appeal) which were further elaborated in the Brief, it is obvious that there is here a thorough misconception of the requirement that the prosecution should prove its case beyond reasonable doubt.
Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence-‘ of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.”
…Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case.
Another Sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by section 137(1) Evidence Act Cap 62 of 1958:-
“137 (1) If the commission of a crime by a party to any proceeding is directly in issue … it must be proved beyond reasonable doubt”.
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. What does this subsection mean in relation to the case now on appeal?
It means this. At the close of the prosecution case the court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair minded jury can return any verdict except that of guilty. In other words the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onu, of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt – R v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at P.104 Per Goddard L.C.J.
…Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt. The Court of Appeal was right in holding that the case was proved beyond reasonable doubt. Ground 2 of the grounds of appeal therefore fails.”
It is in my view indisputable and this is against the backdrop of the pronouncement of the Supreme Court in the case of BAKARE v. STATE (supra) dealing with -proof beyond reasonable doubt” and “reasonable doubt” re-produced above, that though the position of the law is that it is not the duty of an accused person to prove his innocence as he enjoys a presumption of innocence (see NWATURUOCHA V. STATE (supra) at pages 303 – 304), it is still for an accused person to introduce reasonable doubt into the case of the prosecution particularly when the prosecution has adduced evidence in the proof of all the ingredients or elements of the offence preferred against the accused person, and which evidence if accepted and believed by the trial court will result in the conviction of the accused person. See also section 138(3) of the Evidence Act LFN 2004.
In the instant appeal, the complaint of the Appellant I must emphasis is that the Respondent did not prove his guilt beyond reasonable doubt given its circumstances (which I believe means no more than “given its peculiar facts”) especially in the light of or against the backdrop of his defence of alibi and his (Appellant’s) improper identification.
I have hereinbefore in this judgment re-produced what the lower court said regarding the identification of the Appellant. It is obvious that the lower court clearly found that the correctness of the evidence of identification by recognition of the Appellant adduced by the Respondent was not challenged at all talk less of its haven been successfully challenged.
In the case of OFORLETE V. THE STATE (2000) 12 NWLR (PT. 681) 415 the Supreme Court per Ayoola, JSC; made clear the position of the law regarding failure to challenge the evidence of a witness under cross-examination and failure to controvert the case of an opponent or adversary. What his lordship said in this regard is hereunder re-produced: –
“The questions that arise are, first what amounts to challenge of evidence and, second: what is the effect of failure to challenge evidence. It is implied in the submission by counsel for the respondent that failure to cross-examine a witness on an issue amounted to failure to challenge the evidence of the witness on that issue.
In Blackstone’s Criminal Practice, 1991, the effect of failure to cross-examine a witness upon a particular matter is stated to be a tacit acceptance of the truth of the witness’s evidence. The law was put thus, citing Hart (1932) 23 Cr APP P.202 as authority:
“A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credit by calling other witnesses tacitly accepts the truth of the witness’s evidence in chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve him in that regard. The proper course is to challenge the witness while he is in the witness-box or, at any rate, to make it plain to him at that stage that his evidence is not accepted”.
A similar attitude to the effect of failure to cross-examine a witness is contained in the opinion of Iguh, J.S.C, in Broadline Enterprises Ltd v. Monterey Maritime Corporation & Anor (1995) 9 NWLR (Pt. 417) 1, 27 when he said:
“I think the first point must be made for a better appreciation of their resolution that where evidence given by parties to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established.”
Isaac Omoregbe v. Daniel Lawani (1980) 3-4 SC 108 177; Odulaja v. Haddad (1973) 11 SC 357; Nigerian Maritime Services Ltd v. Alhaji Bello Afolabi (1978) 2 SC 79, 81 and Adel Boshali v. Allied Commercial Exporters Ltd (1961) 2 SC NLR 322; (1961) ALL NLR 917 were cited as authority. It is significant that he went on impliedly to distinguish “unchallenged” evidence from evidence not controverted by contrary evidence when he said:
“So, too, where the defendant offered no evidence, the plaintiff’s evidence before the court under such circumstance clearly goes one way with the other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus of proof in such a case is discharged on minimal of proof.”
However, it does appear to me that a distinction has not always been drawn in the manner in which evidence is challenged or controverted. “Unchallenged” “uncontroverted” have mostly been used as meaning the same thing. See, for instance, Egwunike v. ACB Ltd. (1995) 2 NWLR (Pt. 375) 34 SC.
In a strict sense “unchallenged” and “uncontroverted” may not mean the same thing. To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny, oppose or contest. (For both definitions see Black’s Law Dictionary 6th Edition). Challenging a witness is more appropriate in cross-examination while controverting his evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction in most cases the consequence would be the same whether evidence is unchallenged or whether it is uncontroverted. Where evidence is challenged and rendered doubtful or without weight by cross-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that that evidence is not true.
In every case, in my judgment, it is for the trial judge to decide what the effect of failure to cross-examine a witness on a particular matter has on his evidence in regard to such matter having regard to the circumstances of the case. I venture to think that a trial judge will not readily reject the evidence of a witness on a matter in respect of which he has not been cross-examined. If he accepts the evidence on the ground that the witness had not been cross-examined upon it and prefers it to a controverting evidence which he adverted to, an appellate court will not hold that he has failed to evaluate the evidence before him…
The Appellant certainly did not challenge the correctness of his identification by recognition by his own father as one of the robbers that committed the robbery in question. What engaged the attention of learned counsel for the Appellant was the type of flashlight that was beamed on Pw3. True it is that a torch (valued N250.00 is one of the items allegedly robbed as set out in count 2 of the charge preferred against the Appellant), learned counsel for the Appellant certainly clearly missed the point that Pw3 could not have intelligently said anything about the “flash light” as no such item was set out in count 3 relating to PW3. Had learned counsel wanted to challenge the correctness of the identification of the Appellant by recognition by PW3, one would have thought that the witness would have been questioned to show that he could not have seen the Appellant in the circumstance that he narrated. This was not done. Against the backdrop of all that I have said, I certainly do not see how the evidence of identification of the Appellant by recognition by pw3 adduced by the Respondent and the unequivocal finding of the lower court that the Appellant was one of the robbers that invaded the house of PW3 at about 2am on 1/4/2003 can be faulted.
Though conceding that a criminal charge can be proved against an accused by the evidence of a sole witness, the Appellant has argued that his identification by recognition by PW3 was fraught with serious flaws. In this regard, the Appellant has raised a doubt against his conviction given his defence of alibi which according to him ought to have resulted in his discharge and acquittal. This is because the standard of proof required “is merely the favourable balance of probabilities, which is more on the side of the Defendant”.
It is in my considered view obvious from some of the portions of the judgment appealed against hereinbefore re-produced, that it was the evidence of pw3 alone that the lower court accepted and believed as establishing beyond reasonable doubt the offence of armed robbery for which the Appellant was convicted. I need to first observe that I do not see how the defence of alibi raised by the Appellant can be said to have in any way whatsoever derogated from the standard of proof beyond reasonable doubt by the Respondent through the evidence of PW3 of at least two of the elements or ingredients of the offence of armed robbery that the Appellant was convicted of. The two elements or ingredients of the offence of armed robbery in question are (i) that there was a robbery in which Pw3 was a victim; and (ii) that the robbery was an armed robbery. The Appellant by his defence of alibi in my considered view cannot be said to have “controverted” or raised any doubt as to the occurrence of the armed robbery and that PW3 (his father) was a victim of the armed robbery. The law is settled that the implication or purport of the defence of alibi when raised by an accused person charged with the commission of an offence is that he was elsewhere as at the time of the commission of the said offence and for that reason he cannot be linked with the same. In other words, it is my considered view that an accused person who raises the defence of alibi in respect of a charge preferred against him cannot be said to have raised any doubt whatsoever concerning the occurrence of the offence. Such an accused person is only raising a doubt concerning his involvement in the commission of the offence.
It is clear from the record that the Appellant was arrested by the Police in connection with the armed robbery in which PW3 was a victim as a result of the disclosure to the Police in his statement that the Appellant was one of the armed robbers that robbed him on 1/4/2003. (See the evidence of PW4). It is also clear from the evidence of PW4 that upon arresting and charging the Appellant, he volunteered statements which were recorded. The statements were tendered as Exhibits P1 and P2 respectively. Dwelling on the defence of alibi set up by the Appellant in Exhibit P1, the witness in examination-in-chief, stated at page 31 of the record thus: –
“…. The accused person alleged that on the fateful day he was in Warri. However he failed to take us to the master he said he accompanied to Warri and he also failed to take me to where he said he went to in Warri. The accused person took me to Texaco Oil Coy. Ltd. Uselu which he mentioned in exhibit P1 but there was no one there called Elvis in the place.”
Under cross-examination the witness on the same page of the record stated thus concerning the alibi of the Appellant –
“….I did not see the need to go to Warri since the accused told me his master lives in Benin and I accompanied him to the Benin address he gave and the said master could not be traced at that address…..”
Undoubtedly, the Appellant set up some form of defence of alibi in his statement tendered by the prosecution as Exhibit P1. Therein he stated thus:
“…On the 31st day of March, 2003 at about 0500 hrs I left home to meet my master called Elvis (m) and we travelled to Warri Refinery to load fuel. We could not load fuel until on Saturday the 5th day of April 2003 when we were able to load the fuel and we returned back to Benin that same day…”
The Appellant has argued that his alibi was not investigated with any seriousness and that the deliberate decision not to visit Warri where he was at the time of the incident ought to have cast a serious doubt on the probability of the case against him. The Appellant stressed that his alibi was that he was in Warri, a place where PW4 did not visit.
I must say that it is apparent from the evidence of Pw4 re-produced hereinbefore that the alibi set up by the Appellant was investigated but could not be verified to be true as PW4 could not trace Elvis. Elvis is the Appellant’s master/boss with whom he said he travelled to Warri refinery to load fuel on 31/3/2003. It is clear from the alibi of the Appellant as set up in Exhibit P1 that the Appellant never claimed to have gone to Warri refinery on his own as it were, and for any purpose of his own. What he portrayed is that he left Benin for Warri refinery in the course of his employment and with his employer. This being the position, it was no doubt commonsensical and absolutely unnecessary for PW4 to have proceeded to Warri refinery when he could not trace Elvis in the first place to confirm from him the claim of the Appellant that he followed the said Elvis to Warri. The Appellant never stated that his presence at Warri refinery could be verified from any identifiable person in Warri. So much for the hue and cry or outrage of the Appellant that his alibi that he was in Warri at the time of the commission of the armed robbery during which PW3 identified him by recognition was not investigated with any seriousness.
The Appellant having regard to the record in any case still adduced evidence regarding his alibi by himself and through DW1 – Elvis Eghaghe (the Appellant’s master/boss). DW1 in his evidence stated that the Appellant was with him in Warri on 1/4/2003 and that they left Benin for Warri of 30/3/2003 to load fuel. That they returned to Benin on 5/4/2003.
It is patent or obvious from the judgment appealed against that the lower court clearly considered the defence of alibi set up by the Appellant and found it to be bogus. In this respect the lower court stated at page 64 of the record thus: –
“(3) The defence of alibi he puts forward is hollow. This is not so much for reason for reason of failure to make full disclosure as alleged by the prosecution but principally because his story turned out to be brazen falsehood. For instance, PW4 told the court and I believe him that he went to Texaco Filling station, Uselu where the accused told him his so-called master, Elvis, worked but there was no trace of him there. The evidence of the accused was that the IPO did not ask him to take him (IPO) to his master’s house.
That is a laughable piece of evidence in the sense that he (the accused) did not need to wait to be told before leading the way to his so-called mater’s place. What is more, the accused did not tell the court that he disclosed the master’s house address to the IPO or that he requested the IPO to come with him to his master’s house and that the IPO declined. In other words, the accused had a duty to disclose the house address to the police, leaving it for the police to proceed there or to take the police to the address. There is no evidence that he did any of the two. I accordingly describe as bogus the defence of alibi raised and hold that it does not avail the accused.”

The position of the law regarding the defence of alibi is that such a defence is not to be raised loosely. It is clear from the authorities that for a defence of alibi (which is established on a balance of probability) to avail an accused, it must be relevant to the charge under consideration in every material particular. This is to say that the accused person raising the defence of alibi, must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the Police undertake meaningful investigation. See, EBRE V. STATE (2001) 12 NWLR (PT. 728) 607 at 636; and NWATURUOCHA V. STATE (supra) at pages 306 and 310 respectively. This is against the backdrop that a defence of alibi simply put is that one was elsewhere at the time of the commission of the crime he is alleged to have committed. The defence of alibi which the Appellant raised and adduced evidence in respect of is that he was at Warri between 31/3/2003 – 5/4/2003. The Appellant by the manner in which he raised his defence of alibi never specifically addressed the matter of his whereabouts on 1/4/2003 and particularly at the material time of the armed robbery involving PW3.
In any event it is apparent from the portion of the judgment of the lower court relating to the alibi of the Appellant as raised above, that the said court appreciated the fact that the duty was on the Appellant to provide explicit facts/information regarding the people whom he claimed to have been with to enable the police investigate the same and apparently found that the Appellant did not do this. I do not think it is a requirement or intendment of the law that an accused should accompany the Police when investigating his alibi. If this were so, then there would be no need for the accused to disclose details of his whereabouts in his statement to the Police. I also do not think it is the law that the police should prompt or assist an accused in giving the details of his whereabouts. The whereabouts of an accused that sets up a defence of alibi is a matter that is peculiarly within his knowledge, hence an accused that sets up a defence of alibi in my considered view must swim or sink with the information he gave the Police regarding his whereabouts in his statement. Against the backdrop of the views expressed above, Pw4 could not reasonably have been expected to extend the search for Elvis to his residential address when the Appellant never provided the same in his statement (i.e. Exhibit P1). The submission of the Appellant that the rejection of the alibi set up by him by the lower court is not borne out by the records is clearly faulty given all that I have said before now. To the extent that “bogus” means fake, deceitful, sham, spurious, amongst others, I find the lower court to be eminently right in holding that the defence of alibi set up by the Appellant was bogus. The lower court having rightly found the defence of Alibi set up by the Appellant to be bogus, there was therefore no reasonable doubt introduced into the evidence of identification of the Appellant by recognition by PW3 as adduced by the Respondent. In the same vein it is unclear to me how the Appellant expected the Respondent to have called other witnesses to testify regarding his identification at the scene of the robbery when there was absolutely no iota of evidence that any of the other people in the house of PW3 at the time of the armed robbery claimed at the investigation stage that they could recognise any of the robbers not to talk of the Appellant.
The Appellant would also appear to be now raising the fact that there was no love lost between him and PW3 as creating a doubt regarding his conviction in that he would appear to be suggesting that his identification by recognition by pw3 at the scene of the crime is as a result of this. And that the fact of the “no love lost” relationship is borne out by the evidence of PWs 1 and 2, which clearly showed, that he and his father were not on friendly terms. In my considered view the Appellant in submitting that there was no love lost between him and PW3 (his father) would appear to have lost sight of the fact that under cross-examination he painted a clear picture that all was cordial or convivial as it were, between him and his father. In this regard the Appellant is recorded at page 35 of the record as having stated thus: –
“My father and I are very close. My father does not hate me. I do not also have any quarrel with PW1. The same is true of PW2……”
The prosecution adduced evidence through Pw3. The Appellant cross-examined the witness and nothing was put to the witness concerning the “sour” relationship between him and the Appellant. The existence of a “sour” relationship between the Appellant and PW3 pertains to the two of them and evidence in that regard can only flow from them. The Appellant never made an issue of the “sour” relationship between him and Pw3 before the lower court. On the contrary and as earlier indicated, his evidence was to the effect that the relationship between him and his father (PW3) is convivial. The Appellant in my considered view cannot now be seen to raise the fact of the “sour” relationship between him and his father (Pw3) as raising any doubt concerning his identification by recognition by Pw3 as he never placed this fact before the lower court in any manner. In its judgment the lower court having noted that the identification of the Appellant was not challenged under cross-examination not only noted that the fact that Pw3 and the Appellant are father and son underscores the fact that the Appellant’s identification was not in doubt but also moved a step further to say that it made the identification of the Appellant by PW3 much easier. Flowing from all that has been said is that I do not find any reasonable doubt introduced into the case of the Respondent by the Appellant through the unestablished “sour” relationship between him and PW3 which in any case was never before the lower court.
The Appellant has equally relied on the calling of persons who were not victims or present at the scene as witnesses to testify as to the probability of his committing the offence he was charged with, as an occurrence that should have resulted in his discharge. The witnesses the Appellant is referring to in this regard are no doubt PWs 1 and 2. I however cannot but say that the stance of the Appellant in this regard is definitely not borne out by the evidence relied upon by the lower court. I have hereinbefore reproduced portions of the judgment of the lower court which unequivocally show that the said court appreciated that the only witness the Respondent called to establish its case against the Appellant was PW3. The lower court having duly and indeed painstakingly evaluated the evidence of the said PW3 accepted and believed the same as establishing the offence of armed robbery against the Appellant beyond reasonable doubt. Indeed the fact that the lower court did not take the evidence of PWs 1 and 2 into consideration in arriving at the conclusion regarding the involvement of the Appellant in the armed robbery in which pw3 was a victim is clear from what the court said at page 64 of the record. It goes thus: –
“I am further strengthened in my belief that the accused person was one of the invaders by the following:-
(1) Contrary to the contention by the defence that evidence of PW1, Mr. Erokhon and PW2, Mr. Oide constituted mere suspicion, they in fact enhanced the prosecution’s case, more so that in Exh. P2, the additional statement of the accused to the police, he admitted going to his father’s office where he threatened to deal with his father. In the statement, he also admitted meeting PW1 and PW2. In this connection, I recall the evidence of the IPO who testified as PW4, Sgt. Sunday Ogodo, to the effect that it was after he had taken statements from PW1 and PW2 that the need arose to obtain additional statement in the nature of Exh. P2 from the accused where he made the admissions aforesaid.”
It is my considered view that the lower court throughout the length and breadth of its judgment was well alive to the position of the law regarding motive (which is no more than what the evidence of PWs 1 and 2 amounts to).
In this regard, the Supreme Court in NWAEBONYI v. THE STATE (1994) 5 NWLR (pt. 343) 138 per Ogwuegbu, JSC; stated thus: –
“In this case evidence of motive was also available. However, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as criminal responsibility is concerned. Proof of motive on the part of an accused on a charge of murder is not a sine qua non for his conviction for an offence but if evidence of motive is available as in this case – the evidence of the enmity of the appellant towards P.W.1 resulting from the oath taking it is not only a relevant fact but is also admissible under Section 9(1) of the Evidence Act: Jimoh Ishola v. The State (1978) 9 – 10 S.C. 181 at 104-105 and R. v. Ball (1911) A.C. 47 (H.L.) at 68.”
As I have stated hereinbefore, the lower court clearly did not rely on the evidence of PWs 1 and 2 in finding the Appellant to be one of the armed robbers who invaded the house of Pw3 on 1/4/2003 and thereat robbed him. The lower court relied solely on the evidence of Pw3 one of the victims of the robbery and who was expressly named as such victim in count 3.
The Appellant has conceded that in law, a conviction can be sustained on the evidence of one witness alone. This is indeed the position of the law so long as the said sole witness is not an accomplice and his evidence establishes the ingredients of the offence charged beyond reasonable doubt. See EKE v. STATE (supra) at 665. In the judgment appealed against, the lower court was patently guided by the position of the law as stated above, and haven not found any reasonable doubt as introduced into the case by the Appellant capable of being believed, it convicted the Appellant on Count 3 of the Charge preferred against him.
Haven extensively considered all the facts of the instant case, the totality of the evidence led, I have been unable to see any reasonable doubt the Appellant established that in any way derogated from the evidence adduced by the Respondent in the proof of the charge preferred against the Appellant in count 3. Accordingly, I am unable to hold that the Respondent did not prove beyond reasonable doubt the charge in count 3. I cannot therefore disturb the findings of the lower court made against the Appellant and his conviction and sentence for the offence of armed robbery. The Issue formulated for the determination of the appeal by the Appellant is therefore resolved against him.
In the final analysis, I find this appeal to lack merit and it fails. The judgment of the lower court delivered on 19/1/2007 convicting the Appellant of the offence of armed robbery and sentencing him to death by hanging by the neck until he be dead is affirmed.

SIDI DAUDA BAGE, J.C.A: I had the honour of reading in draft, the lead Judgment of my learned brother Lokulo-Sodipe (JCA) which I am in complete agreement with. The Judgment is quite exhaustive, and I do not have anything useful to add.
The appeal lacks merit and it fails. The Judgment of the lower court delivered on 19/1/2007 convicting the Appellant of the offence of armed robbery and sentencing him to death by hanging by the neck until he is dead is also affirmed by me.

TOM SHAIBU YAKUBU, J.C.A: The draft of the judgment of this Court, just delivered by my Lord, AYOBODE O. LOKULO-SODIPE, JCA was made available to me before now. I perused it and I am satisfied with the elaborate consideration and resolution of the issues in the appeal. I have nothing more useful to add to it.
I, therefore dismiss the appeal as lacking in merits.

Appearances

Emmanuel Achukwu with Jide OkongwuFor Appellant

AND

V.U. Adeleye (Mrs.) (ADPP, MOJ, Edo State) with M.P. Wilson (SSC)For Respondent