JOHN OLOMO v. THE STATE (2014)

JOHN OLOMO v. THE STATE

(2014)LCN/6965(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/I/276/2011

RATIO

WORDS AND PHRASES: CONSPIRACY

Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act (supra) provides for the punishment for armed robbery. It is obvious that the offence of conspiracy is not defined in the Robbery and Firearms Act (supra). Generally however, conspiracy involves an agreement express or otherwise, by two or more persons to effect any unlawful or an illegal act or a lawful act by unlawful means. In revolves in the meeting of the minds of the conspirators to do the unlawful act or a lawful act by unlawful means. The offence of conspiracy is usually resolved as a matter of inference to be deduced from evidence of the acts or omission of the conspirators. In other words, the proof of conspiracy is generally a matter of plausible inference deducible from certain proved acts of the accused persons done in pursuance of the common criminal purpose of the conspirators. See Gbadamosi v. State (1991) 6 NWLR (pt.196) p.182 and Oduneye v. The State (2001) 2 NWLR (pt.697) p.311. per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER WHERE CONSPIRACY IS ALLEGED, THERE MUST BE PROOF OF ACTUAL AGREEMENT

The courts have from practical experience discovered that in most cases where conspiracy is alleged, proof of the actual agreement, which is the fulcrum or essential ingredients of the offence is virtually impracticable to establish. The courts therefore resort to drawing logical inferences from proved facts or acts of the conspirators done in pursuance of the criminal purpose, so as to establish the fact of the agreement. See Usufu v. The State (2007) 3 NWLR (pt.1020) p.94; Oyakhire v. The State (2006) 15 NWLR (Pt.1001) p.157; Tanko v. State (2008) 16 NWLR (Pt.111) p.591; Omotola v. State (2009) 7 NWLR (Pt.1139) p.148; Njovens & Ors v. The State (1973) All N.L.R. p.371 and Daboh v. State (1977) All N.L.R. p.146. per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER THERE MUST BE CORROORATION OF THE EVIDENCE OF A VICTIM OF ARMED ROBBERY

The evidence of one credible witness, which is accepted and believed by the court, may be sufficient to justify a conviction, save where the surrounding circumstances of the case require corroboration. Generally, there is no statutory law that requires corroboration of the evidence of a victim of armed robbery or attempt to commit same, See Sule v. State (2009) 4 N.S.C.C. p.456; Olayinka v. State (2007) 2 N.C.C. p.505 and Oludamilola v. State (2010) 2 N.C.C. p.505 5 N.C.C. p.192.

However, there may be a circumstance where the trial court should be wary of accepting and acting on the testimony of a single witness, be he a victim of the crime, without looking for corroborative evidence of such ipse dixit of a single witness. The need to have such corroborative evidence is to lessen, if not eliminate the risk of convicting an innocent person based on the testimony of only one witness. See Ali v. State (2003) 3 A.C.L.R. p.581; Danjuma v. State (2003) 3 A.C.L.R. p.524 and Orepekan v. State (2005) 4 A.C.C.R. p.193. per HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

JOHN OLOMO Appellant(s)

AND

THE STATE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Oyo State High Court of Justice, Ibadan Division, presided over by M. O. Ishola, J delivered on the 20th day of September, 2011.
The Appellant was charged before the trial court on a four counts charge of conspiracy to commit armed robbery, attempted armed robbery and two counts of armed robbery, which are offences said to have been committed under Sections 1(2)(a) and 2(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11 of Vol.14, Laws of the Federation of Nigeria, 2004. He was said to have conspired with others at large to rob certain persons and one James Emeh of their mobile phones and money, while armed with offensive weapons which included broken bottles. That in the process, the said James Emeh who testified as the PW1 was injured on the head with the broken bottle by the Appellant. At the trial, the prosecution called two witnesses who testified as the PW1 and PW2. However, the PW2 could not conclude his testimony at the trial. The Appellant testified as the DW1 but called no other witness, after his no case submission was overruled by the trial court. The Appellant was consequently discharged on the two counts of armed robbery but sentenced to fourteen (14) years imprisonment on each of the counts of conspiracy and attempted armed robbery. It is against that conviction that the Appellant has appealed to this court.

The Notice of Appeal which was dated the 18/05/2011 and filed the 19/05/2011 consists of six grounds of appeal. As required by the Rules of this court, the parties filed and an exchanged briefs of arguments. The Appellant’s Brief of Arguments is dated the 7th day of January, 2013 and filed the 9th day of January, 2013. It was deemed filed the 8th day of April, 2013. Therein, the Appellant nominated only one issue for determination as follows:-
“whether the evidence of the prosecution’s sole witness established beyond a reasonable doubt, the guilt of the Appellant for the offence of conspiracy to commit armed robbery and armed robbery, particular regard being had to the failure and/or refusal of PW2 (I.P.O) to conclude his evidence and the use made by the court of Exhibit “A” tendered through the said witness?.”

The sole issue is said to be distilled out of grounds 1, 2, 3, 4 and 6 of the Notice of Appeal. It means therefore that no issue was formulated out of Ground 5. The law is settled that a ground of appeal from which no issue is distilled is deemed abandoned. Accordingly Ground 5 of the Notice of Appeal is hereby struck out, it having been abandoned.
The Respondent also filed a brief of arguments. It is dated the 21/5/2013 and filed the 05/6/2013. It was deemed properly filed and served on the 07/10/2013. Therein, the Respondent distilled only one issue for determination as follows:-
“whether the prosecution has proved its case against the Appellant beyond reasonable doubt.”
Now, arguing the sole issue, learned counsel for the appellant submitted that, it is settled law that the prosecution in a criminal charge has the burden to establish beyond reasonable doubt, the guilt of the accused person in respect of the offence for which he is charged and tried. He cited the case of Ani v. state (2009) All FWLR (pt.482) p.1044 to contend that the burden could be discharged by oral and documentary evidence lead by the prosecution.
Learned Counsel then stated that, in the matter at hand, though the prosecution listed several witnesses in its proofs of evidence, it called only one witness at the hearing. That the PW2 did not complete his evidence in chief, so was not cross-examined. The testimony of the complainant who testified as the PW1 and that of the Appellant who testified as the DW1 were referred to, to further contend that it was on the basis of those testimonies that counsel in their addresses before the trial court, called upon the trial judge to do justice in the matter.
Learned Counsel quoted extensively from the judgment of the trial court to submit that, the finding of the trial court and resultant conviction of the Appellant was wrongful. That the failure of the prosecution to ‘conclude the testimony of the PW2 negatively impacted on the evidence led by the prosecution, as the result is that the prosecution failed to lead evidence that the complaint of the PW1 was never investigated by the police. Learned Counsel also submitted that, the prosecution therefore failed to lead evidence which showed that (a) the police ever received any complaint from, the PW1, (b) that the police investigated any complaint made by the PW1, and (c) that the investigation indicted the appellant in any material respects. He cited Section 4 of the Police Act, Cap. p.19 Laws of the Federation of Nigeria, 2004 and the case of Onah v. Okenwa (2011) All FWLR (pt.565) p.357 to submit that the report of the police investigation of a criminal complaint is a very important component of any criminal prosecution and therefore, the absence of evidence of police investigation reduced the case to that of a civil nature where it is always the words of one party against those of the other. That through the presence of Police Investigation is not automatically binding, yet, in a criminal trial, it is of great value to the court in the evaluation of the prosecution’s case before it arrives at a decision on the guilt or innocence of the accused person, and also that without such evidence of Police Investigation, it would be doubtful if such charge could be filed against the Appellant.

It is also the submission of learned counsel for the Appellant that, the trial court was wrong to have relied on the case of Ani v. State (2003) 11 NWLR (pt.830) p.142, which case is distinguishable from the facts of this case. That in Ani v. State (supra), the prosecution called the Investigating Police Officer (I.P.O) who investigated the complaint of the victim, which is not so in this case. Again that, in the Ani v. State case, the issue was whether the prosecution should have called two police officers both of who investigated the case. That the trial court had held that it was not necessary to call those police witnesses, and on appeal, this court affirmed the decision of the trial court. That in any case the Supreme Court had upturned the decision of the Court of Appeal in Ani v. State (2009) All FWLR (Pt.482) p.1044, where the supreme Court frowned at the failure of the prosecution to called a certain Inspector Eze who first received the complaint in that case from the alleged victim on the identity of his assailant.

Learned Counsel for the Appellant also submitted that, even if the prosecution could do without the Police Investigation Officer, questions should have been asked about the availability or non-availability of other victims and eye witnesses, who could have corroborated the claims of the complainant (PW1). That this is so, as the PW1 had testified that other people who had witnessed the attack told him where to find the Appellant. It was submitted therefore; that though the prosecution is not expected to call a host of witnesses and that the testimony of a single witness may secure a conviction, the facts of this case required that other witnesses who could have given independent and unbiased evidence, should have been called. Leaned Counsel then quoted copiously from the case of State v. Azeez (2008) 14 NWLR (Pt.1108) p.439 at 470 paragraphs B – E, 475 paragraphs A – F and Utuk v. State (201)) 34 W.R.N. p.171 at 179 – 180 paragraphs 45 – 55, to submit that, where the evidence of a particular witness will settle a point, the prosecution has a duty to call that witness. That in the absence of the evidence of the eye witnesses and that of the police, the court was left with the bare ipse dixit of the PW1 (complainant), which was in the circumstances of this case, insufficient to secure the conviction of the Appellant.

It was further contended by learned counsel for the Appellant that, in convicting the Appellant, the learned trial Judge relied heavily on the presumed ability of the complainant (PW1) to identify the Appellant as one of those that robbed him. He quoted from a portion of the judgment of the trial court at page 70 of the records; to submit that, a careful examination of the testimony of PW1 will reveal that it left much doubt as to the evidence of identification of the Appellant as given by the PW1. It was submitted that, it is so because:-
(a) The testimony of PW1 on the identity of the Appellant was contradictory; in that, he stated in his cross-examination and re-examination that he had known the Appellant prior to the attack on him and even went as far as mentioning the exact location or neighbourhood where he had always sighted the Appellant.

(b) In his evidence in chief, he stated that, it was when he returned to the scene of the alleged crime, that upon enquiry he was told by certain persons where to find the Appellant at Aleshinloye market. Learned counsel then pondered why it was necessary for the PW1 to make enquiries on the Appellant being someone he knew prior to the incident.

It was therefore submitted by learned counsel for the Appellant that, those contradictions should have alerted the learned trial judge on the effectiveness of the identification evidence as adduced by the prosecution. The case of Ani v. State (supra) at pp.1059-1061 paragraphs G – A was cited in support. That in its quest to find corroboration on the evidence of identity as led by the prosecution, the trial court erroneously relied on Exhibit “A” which was tendered through PW2, who failed to conclude his testimony, and that this error led to a miscarriage of justice as the trial court could not make use of any evidence adduced through PW2. We were accordingly urged to allow the appeal and set aside the conviction and sentence passed on the Appellant.

Learned Counsel for the Respondent submitted that the Appellant was convicted on two counts of conspiracy and attempted robbery. Learned Counsel then referred to the definition of conspiracy, as an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. He referred to the case of Obiakor v. The state (2002) 10 NWLR (pt.776) p.617 at 625 to also submit that, the actual agreement alone constitutes the offence and that it is not necessary to prove that the actual offence has been committed. That once the court arrives at a conclusion that the prosecution has established some community effort on the part of the accused person, and others aimed at committing a crime, it will be safe to convict them for the conspiracy.

Learned Counsel for the Respondent therefore submitted that, it has been established by the testimony of the PW1 who is also a victim of the conspiracy that the Appellant was among the six man gang that attacked him and others, with a view to forcefully collect his mobile phone and money on the 16/7/2006. That it is also established that because PW1 resisted the demand of the Appellant and his gang to part with his phone and money/ that the Appellant hit him on the head with a bottle which caused him injury. That this fact is supported by the testimony of the Appellant who admitted that he was at the Cultural Centre on the day in question, though he denied that he was part of the six men gang that attacked PW1 and others. Though learned counsel for the Respondent conceded that, in the circumstances of this case the only available evidence is that of the PW1, his testimony of how he was attacked was never shaken under cross-examination.

It is also the submission of learned counsel for the Respondent that, the PW1 was unequivocal as to the identity of the person who inflicted the injury on him. That the evidence of the attack on the PW1 by the Appellant was direct and un-contradicted. He referred to the testimony of the PW1 at page 67 of the records.

In respect of the charge of attempt, it was contended that the constituent elements of the offence are the physical act by the offender sufficiently proximate to the commission of the offence and the intention on the part of the offender to commit the complete offence. He cited the cases of Aminu v. The State (2005) All FWLR (Pt.244) p.833 at 946-947 paragraphs H – D and Jegede v. The State (2001) 12 NWLR (Pt.733) p.264 at 275 – 276 paragraphs A – G, to submit that the offence of attempt is completed when there is a clear and unequivocal nexus between the overt act and the substantive offence. We were accordingly urged to believe the testimony of the PW1 as there is no contradiction in his testimony, even under cross-examination. That even if there is such contradiction, they are mere discrepancies which do not go to the root of the prosecution’s case. The cases of Asaiyu v. State (1987) 4 NWLR (Pt.67) p.709 and Adetola v. The State (1992) 4 NWLR (pt.233) p.267, were cited to urge us to hold that there are no such discrepancies in the testimony of the PW1 as are fatal to the prosecution’s case.
Learned Counsel for the Respondent then urged us to dismiss the appeal and to affirm the judgment of the court below delivered on the 3rd day of June, 2010.

Now, by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person who is charged for the commission of the criminal offence shall be presumed to be innocent until he is proved guilty. This provision is a constitutional entrenchment of the principle of legality which presumes every person accused of having committed a criminal offence to be innocent until he is proved guilty.

Accordingly, the burden is on the person or body making the accusation to rebut the presumption of innocence settled in favour of an accused person. In criminal cases, that burden is discharged upon proof beyond reasonable doubt. See Sections 131(1) and (2) and 135 of the Evidence Act, 2011.

To succeed in discharging the burden of proof beyond reasonable doubt, the prosecution upon whom that burden rests, have the duty of adducing credible, cogent and satisfactory evidence which establishes every ingredient of the offence charged. The prosecution cannot be relieved of this burden on the ground that, the accused person in his statement to the police admitted committing the crime.

Thus, to displace the presumption of innocence in favour of an accused person, the prosecution must lead credible evidence which establishes the guilt of the accused person beyond reasonable doubt.

Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt, because the law does not admit of fanciful possibilities to becloud the course of justice. The law however admits of a high degree of cogency and probability, Thus Denning, J (as he then was) in the case of Miller v. Minister of Pensions (1947) 2 All E.R. p.373 observed that:
“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.
Apart from the statutory requirements as stipulated in Sections 131 and 135 of our Evidence Act, 2011, the Supreme Court has expounded and applied this principle in a plethora of cases in this country. See Igabete v. State (2006) 6 NWLR (pt.975) p.100; Agbo v. State (2006) 6 NWLR (Pt.977) p.545; Mohammed v. The State (1991) 5 NWLR (pt.192) p.438; Jua v. State (2010) 4 NWLR (pt.1184) p.217; State v. Ani (2009) 16 NWLR (pt.1168) p.443 and Igbi v. State (2000) 3 NWLR (Pt.648) p.169.

In the instant case, the Appellant was arraigned on a four counts charge of conspiracy to commit armed robbery, attempted armed robbery and armed robbery, Upon a no case submission, he was discharged on the two counts of armed robbery. He was however convicted on the counts of conspiracy and attempt. As stated earlier, the Appellant is aggrieved with his conviction and thus this appeal. In their effort to prove their case against the Appellant, the prosecution called James Imeh, a victim of the offence, who testified as the PW1, A second witness, one Sergeant Thaddeaus Bello was called but could not conclude his testimony. It is the law that, the prosecution may discharge the burden of proving the guilt of the accused by any of the following ways:-
(a) Through the confessional statement of the accused; or
(b) By circumstantial evidence which leads to the irresistible conclusion that the accused person is guilty of the offence; or
(c) Evidence of an eye witness to the commission of the offence.

As I stated earlier the Appellant was convicted for conspiracy to commit armed robbery. The offence is said to have been committed contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (supra). Those provisions stipulate that:-
“6. Any person who –
(a) ……………………;
or
(b) Conspire with any person to commit an offence, or
(c) …………………….
Whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”

As stated earlier, in an effort to prove their case, the prosecution called two witnesses. The PW2 could not return to conclude his testimony and so was never cross-examined. Upon the inability of the PW2 to return to conclude his evidence, the prosecuting counsel, Mr. Ladapo of the Oyo State Ministry of Justice, informed the court that they were unable to produce the said witness because he had been posted to Port-Harcourt and that several letters written to secure his attendance were returned unanswered. At that juncture, the prosecution closed its case. The PW1 who is the victim of the alleged act of conspiracy of the Appellant had stated that:

“…I know the accused person. On 16th July, 2006. I went to a concert at Cultural Centre, Ibadan. After the concert ended, as I was coming out from the venue of the concert at the Cultural Centre, Ibadan, two men were in front of the accused, I noticed that there was a fight and I later discovered that some men were forcefully taking phones from people coming out of the venue of the concert. Those people also tried to attack me, but I resisted. The accused person was one of those robbing people of their phones. The accused person had a bottle with him. He hit me on my head with the bottle. The bottle broke on my head and I had bruises on my head. I had cuts on my head, I had cuts on the right side of my head.”

He showed the court scars on the right side of the head which he said are the scars, of the injury he sustained. He proceeded to state at page 7 lines 1 – 10 of the records as follows:

“The accused person hit me in the head when I resisted his attempt to rob me of my phone. The accused person was with other people that I suspected to be members of the same gang. The accused person held a bottle and hit me in the head with the bottle. I ran to the Mokola Police Station and reported the incident. The police at Mokola Station declined to follow me to the scene of the incident. The reason the police gave was that I should go to the hospital and treat myself because I was drenched in my own blood from the cuts I had on my head. I went to the hospital to treat myself. After treating myself, I went back to the police Station,’ the police officer to whom I reported the incident was not at the station.”

The PW1 then stated that he went to the scene of crime where he met certain people around who told him where he could get the Appellant. That he then called the Special Anti-Robbery Squad on phone, but that it was already late at night when he called, so he was advised to go and return in the morning. That in the morning, he went to the office of the Anti-Robbery Squad who followed him and arrested the Appellant. The Appellant was then taken to the Anti-Robbery Squad (SARS) office at Dugbe.

As I stated earlier, the PW2 did not complete his examination. He was also not cross-examined. In other words, the Pw2 abandoned his testimony. The law is that, the evidence of a witness who abandons his testimony has no evidential value. Such evidence is irrelevant and of no evidential value, and should be discountenanced by the court in the assessment and evaluation of evidence. In the circumstances therefore, the testimony of the PW2, the alleged police investigator having been abandoned, has no evidential value. See Yusuf v. Obasanjo (2005) 18 NWLR (pt.956) p.96 at 132 paragraphs H and 216-217 paragraphs H – A. In the circumstances, the entire testimony of the PW2 including the material exhibits tendered by him have no evidential value and therefore go to no issue. The only evidence remaining for the determination of this case is therefore the testimony of the PW1. I had earlier reproduced the portion of the testimony of the PW1 relevant to the resolution of this issue.
In the determination of whether the prosecution proved the charge of conspiracy alleged against the Appellant beyond reasonable doubt. The learned trial judge held at page 66 lines 27 – 67 line 12 as follows:

“I have carefully taken the circumstances of this case into consideration. It is true that the only evidence available before this court is that of PW1. His evidence that he was attacked by a six men gang was not shaken under cross-examination. He also showed the court the scar which he claimed he suffered from the injuries inflicted on him during the attack. This piece of evidence was also not shaken under cross-examination. He was also unequivocal as to the identity of the person who inflicted the injury on him and that it was the accused person. Thus, there is direct evidence of the participation of the accused person in the attack on PW1. I find the account of the incident of the 16th July, 2006 as rendered by PW1 to be credible, believable and reliable. He impressed me as a witness of truth. There is no doubt that, from the facts disclosed in this case, the only reasonable inference that can be made is that the accused person and others now at large did conspire to commit the offence of conspiracy and I so hold that the prosecution has proved Count 1 of the complaint against the accused person beyond reasonable doubt. Consequently, I find the accused person guilty of Count 1 (one) as charged and he is accordingly convicted.”

It is obvious from the pertinent or relevant portions of the judgment quoted above that, the trial court believed the entire testimony of the PW1 on his mere ipse dixit on the ground that the Appellant attacked and inflicted injury on the PW1. He also believed the PW1 on his account that he identified the Appellant as his attacker and a participant in the alleged phone snatching incident at Cultural Centre on the 16/7/2006. It should be noted that, in a criminal trial, a trial judge is bound to appraise the evidence and make specific findings of facts and proceed to given reasons for such findings. Accordingly, to merely recap the testimony of a witness, and conclude that such witness is a witness of truth, without more will not suffice. See Uwegba v. A. G. Bendel State (1986) 1 NWLR (pt.16) p.303 and Joseph v. Abubakar (2001) 1 W.R.N. p.97.

In the instant case/ the only evidence of any value to the determination of this case is the ipse dixit of the PW1, who is a victim of the crime alleged against the Appellant. The evidence of one credible witness, which is accepted and believed by the court, may be sufficient to justify a conviction, save where the surrounding circumstances of the case require corroboration. Generally, there is no statutory law that requires corroboration of the evidence of a victim of armed robbery or attempt to commit same, See Sule v. State (2009) 4 N.S.C.C. p.456; Olayinka v. State (2007) 2 N.C.C. p.505 and Oludamilola v. State (2010) 2 N.C.C. p.505 5 N.C.C. p.192.

In the instant case, the testimony of the PW1 on the attack on him and his alleged identification of the Appellant as one of his assailants is not credible. There is no evidence, at least credible evidence to show that the PW1 was attacked. Though he stated that he reported the incident to the police immediately he was attacked, his narration of what transpired, is in my view, incredible, I find it difficult to accept that the police will or send away the victim of a crime, drenched in his own blood or bleeding from several cuts on the head, and who had come to report a criminal attack on him. The PW1 stated that he went to the hospital where he was treated of such injury, but he could not tender any evidence that he was injured and treated of such injuries inflicted on him by the Appellant. The scar shown to the court was not proven to a scar resulting from such injury. I am therefore not surprised that no policeman from Mokola Police Station, where the PW1 alleged he first reported the attack on him testified that the PW1 indeed made such a report.

The PW1 stated that the attack on him took place at a cultural center where he and many others had gone for a concert. That at the end of the concert, when coming out, he saw that some people, about six of them, among whom was the Appellant were snatching phones from people coming out of the venue. He did not say that those others with the Appellant were armed. The only person he said was armed is the Appellant. I also find it incredible to believe that a gang of six people, armed with only a bottle could threaten hundreds of people who had come for the concert and successfully disown them of their phones without being challenged. If the PW1 could resist them, I find it hard to believe that the other hundreds of people could not have the heart to resist. I am therefore of the view that, the events rendered by the Appellant, either did not happen or if indeed there was any crisis after the concert, it certainly had nothing to do with either robbery or armed robbery. Indeed, the PW1 said so when he stated that, “as I was coming out from the venue of the concert at the Cultural Centre, Ibadan… I noticed that there was a fight…”
The evidence of identity of the appellant given by the PW1, as a participant in the alleged attack on him is also not credible. In his evidence in chief at page 6 lines 8 – 9 he stated that the Appellant was one of those robbing people of their phones. Further, at page 7 lines 10 – 15 he stated that:-
“I went back to the scene of the incident. I went back to the scene and asked people around about the whereabouts of the people that attacked me. I was given the description of where the accused person stays. It was at the scene of the incident that some people that where still there asked me whether I was one of those that were attacked at the Cultural Centre. I said yes, and those people gave me the description of the location of the accused person.”

However under cross-examination he stated that:-
“I did not know the accused person very well, but I do see him around. I have been seeing him around for a year or more.”

From what I have reproduced of the testimony of the PW1 in his evidence in chief and under cross-examination, it is obvious that there is conflict on the evidence of identity as given by the PW1, and such testimony go to the root of evidence of identity of the Appellant as one of the six persons that allegedly conspired to rob him on the 16/7/2006. If the PW1 saw the Appellant as one of the persons that allegedly attacked him, nowhere in his testimony did he say that he reported that fact to the police when he initially reported at the Mokola Police Station as alleged by him, I also agree with learned counsel for the Appellant that, if indeed the PW1 saw the Appellant whom he said he knew before the incident, why was it necessary for him to find out from strangers whom he said he met at the scene, after he had gone to report at the Mokola Police Station, where he could find the persons that attacked him. Furthermore, he did not say that he was looking for the Appellant as the person that attacked him. Nowhere did he say that he mentioned the Appellant as the person he was looking for. I am therefore of the view that the testimony of the PW1 did not indicate that he, unequivocally identified the Appellant as one of the persons that attacked him.

I also find that from the evidence as led by the prosecution, there is no positive fact to show that the persons that allegedly attacked the Appellant were acting in concert with the Appellant. All the PW1 said is that when he came out of the Cultural Centre, Ibadan, he saw two men in front of the Appellant who were forcefully taking phones from people coming out of the concert venue, and that the Appellant was one of them. It is clear from the judgment of the trial court, and particularly at page 70 of the record, that the learned trial judge based his conclusion on the fact that both the Appellant and the PW1 live in the same area and have been seeing each other before the incident. He did not however subject the testimony of the PW1 to judicial scrutiny so as to determine whether in fact the Appellant conspired with others with a view to rob people including the PW1 at the Cultural Centre, Ibadan. His conclusion lacked depth and therefore based on perfunctory reasoning. In the result therefore, I hold that the prosecution had failed to prove the charge of conspiracy to either rob or commit any other offence against the Appellant.

On the charge of attempt to rob the PW1 (James Emeh), the charge alleged that the Appellant while armed with bottles and other offensive weapons, attempted to rob the said James Emeh of his mobile phone and money. An attempt to commit an offence is one which falls short of the commission of the actual offence, but is nonetheless a crime, once it is established that the accused person had the guilty mind. Such guilty status of the accused’s mind must be manifest in an overt act committed by the accused towards the commission of the offence. Accordingly, to constitute an attempt to commit an offence, the act of the accused must be immediately connected with the commission of the particular offence.
It must be an act indicative of the fact that a particular offence is about to be committed. It must however, be something more than a mere preparation for the commission of the offence. The essential elements of the inchoate offence of attempt are:
(a) A physical act by the accused which is sufficiently proximate to the consummation of the actual offence; and
(b) An intention on the part of the accused person to complete the offence attempted to be committed.
See Ahmed v. The Nigerian Army (2010) LPELR – 8969 (CA) per Peter-Odili, JCA (as he then was); Ibrahim v. The State (1995) 3 NWLR (pt.381) p.35 at 45 – 46 per Pats-Acholonu, JCA (as he then was), Alhaji Yakubu Sanni v. The State (1993) 4 NWLR (pt.285) p.99.
From the above stated definition of attempt to commit an offence, it is clear that, an attempt to commit armed robbery must therefore be an act so proximate to the offence of armed robbery, such that, where the act of the offender is not interrupted, would result in the commission of the offence of armed robbery. See Ibrahim v. State (supra). Thus, to succeed on a charge of attempt to commit armed robbery, the prosecution must lead evidence to show the steps taken by the Appellant to commit armed robbery. It is the last act by the Appellant immediately before the act trial act, that would have completed the commission of armed robbery, that would amount to an attempt to commit armed robbery, provided such steps taken by the Appellant are proved beyond reasonable doubt. See Ozigbo v. C.O.P. (1976) All N.L.R. p.109; Jegede v. State (2001) 14 NWLR (Pt.733) p.264; Nwankwo v. F.R.N. (2003) 4 NWLR (pt.809) p.1; Sharumo v. State (2010) 19 NWLR (pt.1226) p. 73 and Lukman Osetola & Anor v. The State (2012) LPELR – 934 (S.C).

In the instant case, the evidence of the acts of attempt is from the testimony of the PW1, who as noted earlier, is the sole witness called by the prosecution. The portion of his testimony relevant to the charge of attempt is at page 6 lines 3 – 7 line 4 of the record of appeal. At the risk of repetition, I reproduce same below:-

“On 16th July, 2006, I went to a concert at Cultural Centre, Ibadan. After the concert ended, as I was coming out from the venue of the concert at the Cultural Centre, Ibadan, two men were in front of the accused, I noticed that there was a fight and I later discovered that some men were forcefully taking phones from people coming out of the venue of the concert. Those people also tried to attack me, but I resisted. The accused person was one of those robbing people of their phones. The accused person had a bottle with him, He hit me on my head with the bottle. The bottle broke on my head and I had bruises on my head, I had cuts on the right side of my head… The accused person hit me in the head when I resisted his attempt to rob me of my phone, The accused person was with other people that I suspected to be members of the same gang. The accused person held the bottle and hit me in the head with the bottle.”

The summary of the testimony of the PW1 is that the Appellant was amongst a gang of six people who were robbing people after a concert at the Cultural Centre, Ibadan. That the Appellant tried to rob him of his mobile phone but he resisted, and the Appellant therefore hit him with a bottle on the head, whereof he sustained an injury on the head. It is his testimony that he resisted the efforts of the Appellant to rob him of his mobile phone.

The Appellant testified in his defence denying involvement in the offence alleged against him. His statement to the police, though admitted in evidence through PW2, such statement went to no issue as the testimony of the PW2 was inconclusive and therefore deemed abandoned. The statement of the Appellant made to the police is therefore of no evidential value in the determination of the case against him. The only available evidence in defence of the Appellant is his testimony in court. He stated that:

“On the 16/7/2006 I was at the Cultural Centre, Mokola, Ibadan. I went for Gbenga Adenuga’s programme – a gospel programme. Yes, the police arrested me. When I was arrested, police alleged that I collected the phone of James Imeh at Cultural Centre. I did not collect James Imeh’s phone. On 16/7/06, I went for Gbenga Adenuga’s programme at Cultural Centre at 3.40p.m, I went inside the auditorium, at about some minutes to six p.m, the programme came to an end. I came out of the auditorium. There were many people coming out of the auditorium. I moved out of the Cultural Centre and as I was walking away, I went to place where they sell a local concoction which in local parlance is ‘ known as “Agbo jedi”. I bought a short of the local concoction from the seller and I drank it.
Thereafter, as I was leaving, I saw many people. I beckoned on a motor bike to my house at Oremeji… When I got to my house, I changed my dress and I slept. On 17/7/06, I went to my Church to attend Monday Morning Glory at Living Spring Church at Sango. When I left the Church, I boarded a vehicle to my shop at Aleshinloye.” The rest of his testimony was a narration of what transpired after he was arrested in his shop. It is worth noting that, not a single question was put to the Appellant by the prosecution under cross-examination. His testimony of what transpired was never contradicted at all. He was not even challenged on his testimony. It is the law that, where a witness, including an accused person who testifies in his defence, is not cross-examined by the adversary on a piece of evidence, such evidence is deemed admitted by the adversary. Such unchallenged evidence should be accepted and relied upon by the trial court. See Omman v. Ekpe (2000) 1 NWLR (pt.641) p.365; Agbo v. State (2006) 6 NWLR (pt.975) p.545; Nasir v. Civil Service Commission, Kano State (2010) 6 NWLR (pt.1190) p.253; Oladapo v. Bank of the North Ltd (2001) 1 NWLR (pt.694) p.255 and Arogundare v. The State (2009) 6 NWLR (pt.1136) p.165. In that respect, where the testimony of the accused is consistent with his innocence and therefore such testimony could be or is probably true, and which testimony is not proved to be untrue, he will be entitled to an acquittal. In such a circumstance, a doubt could be said to have been created about his guilt. Despite the above situation, the learned trial judge held at page 70 of the record of appeal that:
“Accordingly, I disbelieve and reject the defence of the accused person which is predicated on complete denial of the offence. In Kanu & 3 Ors. v. State (1993) 9 NWLR (pt.317) 304 at 321 paragraphs A – C. the Court of Appeal held per Edozie JCA that “It is trite law that evidence that is not believed by the court cannot ground a defence. It is only when evidence is credible and accepted as such by the trial court that such evidence can be considered as raising a defence. Therefore when the evidence is rejected no defence can be founded upon it.” Applying the above dictum to the instant case, it therefore means that having held that the account of the incident of 16th July, 2006 as rendered by PW1, the victim of the crime is not only believable, but also credible, it means that there is no credible platform evidence upon which the denial of the accused person could hang.”

A careful perusal of the record would show that the learned trial judge did not give any reason for disbelieving the Appellant. As stated earlier, the testimony of the Appellant was never challenged and therefore not controverted in cross-examination. Such testimony cannot be said to be incredible. It is probable and capable of believe. Contrary to the position taken by the leaned trial judge however, the testimony of the PW is not credible. As pointed out elsewhere in the course of this judgment, the PW1 was not able to link the Appellant with the alleged incident at the Cultural Centre, Ibadan on the 16/7/2006. There is also no positive evidence corroborating the fact that the PW1 was attacked and injured by the Appellant or anyone else on the 16/7/2006. There is no evidence linking the scar the PW1 showed to the court with the alleged attack on him by the Appellant, as there is no medical evidence to support his assertion. It is the duty of every citizen to report the commission of a crime either witnessed or experienced by him, but there is no evidence of the report of the alleged assault on him to the police. The Police Investigation Report and the testimony of the Police of their investigation are vital materials or tools in the prosecution of every criminal allegation. Such is not before the court in the instant case.

As the facts of this case show, the determination of this case is dependent upon the words of the PW1 against that of the Appellant. In such a situation, the burden was on the PW1 to prove the allegation or the facts he has alleged against the Appellant beyond reasonable doubt. This is because, in a criminal trial, the burden of prove of the guilt of an accused person is static and rests throughout on the prosecution which they must discharge beyond reasonable doubt. In the instant case, the prosecution woefully failed to prove the charge of attempted armed robbery against the Appellant. The leaned trial judge was therefore in grave error when he convicted the Appellant for committing the offence of attempted armed robbery.
It would be seen therefore that the prosecution failed to prove the two counts charge of conspiracy to commit armed robbery and attempted armed robbery against the Appellant beyond reasonable doubt. The learned trial judge therefore committed a serious injustice against the Appellant when he convicted the Appellant based on the facts adduced before him and as shown by the records. In that respect, I hereby find and do hold that this appeal has merit and is accordingly allowed.

Having held that the appeal in has merit, I hereby resolve the sole issue this appeal in favour of the Appellant. I accordingly set aside the judgment of the Oyo State High court delivered on the 3rd day of June, 2010. The conviction and sentences passed on the Appellant are also set aside, and the Appellant is accordingly discharge and acquitted.

CHIDI NWAOMA UWA, J.C.A.: I read the draft of the judgment delivered by my learned brother, Haruna Simon Tsammani, J.C.A. in allowing the appeal as having merit. I also set aside the judgment of the lower court convicting and sentencing the accused person. The accused is accordingly discharged and acquitted by me.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Haruna Simon Tsammani J.C.A. I agree with my Lord’s reasoning and conclusion.
The learned trial judge after considering the evidence of the PW1 against the Appellant discharged the Appellant on the counts of armed robbery but convicted and sentenced him to a term of 14 years imprisonment for conspiracy and attempted armed robbery. The learned trial judge in arriving at his decision held that he found the account of the crime incident as rendered by the PW1 to be “credible, believable and reliable”. He further went on to say that PW1 impressed him “as a witness of truth” while it is true that the trial judge heard and saw the witness before arriving at his opinion and the law is that it is not the function of an appellate court to substitute its own views for those of the court of trial, it is also established that an appellate court will interfere where the evaluation of evidence and finding of fact of the trial court are perverse and show a misapprehension of the facts.

My lord has in the lead judgment extensively shown the perversity in the evaluation of the evidence of PW1. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. The vital piece of evidence relied upon by the learned trial judge in coming to his decision, it seems to me, is the scar on the head of Pw1. The learned trial judge believed that the injury that left the scar was caused by the bottle used by the Appellant to hit PW1 on the head. That belief it seems to me, is borne out of speculation, assumption and suspicion.

It has been held that suspicion, no matter how strong, does not take the place of proof beyond reasonable doubt. See Ajibade vs. state (1987) 1 NWLR part 48 p.205 at 210. The statement of Normand in the case of Tepper. vs. Queen (1952) AC 482 at 489 (PC) cited by the Supreme Court in the case of Lori & Anor. vs. The state (1980) FWLR p.475 at 478 is quite revealing and illustrative. Lord Normand drawing inspiration from a Biblical story said thus:

“Joseph command the steward of his house, “put my cup, the silver cup, in the sacks mouth of the youngest” and when the cup was found there, Benjamin’s brethren too harshly assumed that he must have stolen it”.
Did the learned trial judge like Benjamin’s brethren harshly assume and conclude that the scar on the PW1 was caused by the injury inflicted on him by the Appellant? I think so. I agree with my lord that the conviction and Sentence passed on the Appellant ought to be set aside. Same are hereby set aside and the Appellant discharged and acquitted.

Appearances

O. O. Ogungbade; Esq. with Akeem Olaniyan; Esq and T. A. Aremu (Miss)For Appellant

AND

Kofo Oguntoyinbo (Mrs) (D.D.P.P, M. O. J., Oyo State) with Aluko Olubukola; Esq (State Counsel)For Respondent