JOHNBULL ARHABONE v. THE STATE
(2014)LCN/7211(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/B/288C/2008
RATIO
CRIMINAL LAW: WHETHER ARMED ROBBERY IS A STATE OFFENCE
It is not in doubt that the question as to whether or not the offence of armed robbery is a state offence and whether or not the offence is prosecutable at the instance of the Attorney-General of a State has before now been pronounced upon by the Supreme Court of Nigeria in a host of cases. The first of such cases that I am aware of is that of EMELOGU V. THE STATE (supra). This case was given ample consideration and applied by this Court in the case of AMOSHIMA V. THE STATE (2009) All FWLR (Pt. 488) 328, in the resolution of the Issue as to “Whether the trial, conviction and sentencing of the appellant under the Robbery and Firearms (Special Provisions) Act were not nullities, the criminal proceeding having not been instituted in accordance with the Constitution of the Federal Republic of Nigeria, 1999. (Ground 3)”. Re-produced hereunder is what I said in the said case at pages 365 – 369: – per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL LAW: PROVING BEYOND REASONABLE DOUBT
The position of the law in relation to criminal trials is that the prosecution is to prove its case against the accused person beyond reasonable doubt. The law does not require proof beyond all or every shadow of doubt by the prosecution. See OLATINWO V. THE STATE (supra); and AMALA V. THE STATE NSCQLR 18 (2004) 834. In the instant case the lower court has the primary duty of evaluating and ascribing probative value to the evidence adduced by the prosecution in the proof of the offence of armed robbery for which it ended up convicting the Appellant as well as the evidence adduced by the Appellant in order to create a reasonable doubt to the case of the prosecution. Having painstakingly perused the records (particularly the evidence adduced by the prosecution through the five witnesses it fielded as well as the evidence of the Appellant in his own behalf and the judgment of the lower court), I am in no doubt at all that the lower court undertook its duty of evaluating the evidence before it in the instant case admirably and that it could not have arrived at any other conclusion but that the prosecution proved the offence of armed robbery against the Appellant. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU 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
JOHNBULL ARHABONE Appellant(s)
AND
THE STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 20/12/2006 by the High Court of Justice Delta State holden in the Orerokpe Judicial Division (hereafter simply referred to as “the lower court”) presided over by Omamogho, J.; (hereafter simply referred to as “the learned trial Judge”). An Information containing two counts for the offences of conspiracy to commit the offence of armed robbery and substantive offence of armed robbery both punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398, LFN, 1990, was preferred against the Appellant. In its judgment, the lower court discharged and acquitted the Appellant on the count relating to conspiracy to commit the offence of armed robbery but convicted him on the count relating to the substantive offence of armed robbery and consequently sentenced him to death pursuant to Section 1(2)(a) supra.
Being aggrieved with his conviction and sentence on the count for the substantive offence of armed robbery, the Appellant lodged the instant appeal against the judgment of the lower court by a Notice of Appeal filed on 8/1/2007. The Notice of Appeal contains four grounds of appeal. On 12/5/2009 the Appellant later filed an Amended Notice of Appeal dated 27/11/2008.
In accordance with the current Rules of this Court, both Appellant and Respondent filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 2/4/2012 and filed on 4/6/2012 was deemed to have been properly filed and served on 16/4/2013. It was settled by Olatunde Busari. Respondent’s Brief of Argument dated 17/6/2013 and filed on the same date was deemed to have been properly filed and served on 18/10/2013. It was settled by Martins A. Omakor – (Asst. Director of Public Prosecutions, Ministry of Justice, Delta State) (hereafter simply referred to as “learned ADPP”). The appeal was entertained on 15/1/2014. At the hearing of the appeal, T.O. Busari learned counsel for the Appellant and learned ADPP for the Respondent respectively, adopted and relied on the Briefs of Argument as hereinbefore identified in respect of their positions in the appeal.
Two Issues were formulated in the Appellant’s Brief of Argument for the determination of the appeal. The Issues are: –
“i. Whether the Lower Court was right to have convicted the Appellant of Armed Robbery and sentenced him to death by hanging when the Prosecution failed to prove the guilt of the Appellant beyond reasonable doubt?
ii. Whether the Lower Court was right to have proceeded to hear the Charge against the Appellant when the Appellant was charged under the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 and/or without the Prosecution seeking and obtaining the fiat of the Attorney General of the Federation?”
Likewise, two Issues were formulated for the determination of the appeal in the Brief of Argument of the Respondent. The Issues read thus: –
“(i) Whether the lower court was right in convicting the appellant from the evidence (direct, partly confessional and circumstantial before it).
(ii) Whether the lower court was right to have proceeded to hear the charge against the appellant when the Appellant was charged under the robbery and firearms (special provisions) (sic) Act Cap 398 laws of the federation (sic) of Nigeria 1990 and/or without the prosecution seeking and obtaining the fiat of the Attorney General of the Federation?”
Issue 2 in the Briefs of Argument of the Appellant and Respondent are ipsissima verba while Issue 1 formulated by the parties though differently couched, clearly are the same in purport. Against the backdrop of the observations made hereinbefore, the appeal will be determined on the Issues as formulated by the Appellant. I will however deal with the second of the Appellant’s two Issues first. This is because the said Issue loudly questions the vires and consequently the jurisdiction of the lower court to have entertained the Information preferred against the Appellant.
APPELLANT’S ISSUE 2:
Learned counsel for the Appellant in the main submitted that the lower court erred in law to have assumed jurisdiction to entertain the Information preferred against the Appellant and to have convicted the Appellant as the offence with which the Appellant was charged and convicted for, to wit: armed robbery is an offence created by a Federal legislation and in respect of which the Attorney-General of the Federation should be the prosecuting officer unless he chose to instruct another person to undertake the prosecution. Learned counsel buttressed his submissions with the provisions of Sections 174(1) and 211(1) of the 1999 Constitution of the Federal Republic of Nigeria as well as Items 2 and 68 of Part 1 of the Second Schedule thereto. Learned counsel urged this Court to hold that the offence for which the Appellant was tried was supposed to have been prosecuted by the Attorney-General of the Federation and that where the said officer could not personally undertake the prosecution, he ought to have instructed vide a Fiat, other officers to act for him. That the lower court lacked the jurisdiction to hear and determine the instant case as the prosecuting officer was not given the Fiat to undertake the prosecution. The cases of James v. Okereke (2008) 13 NWLR (Pt. 1105) 544 at 568; James v. Nigerian Airforce (2000) 13 NWLR (Pt. 684) 406 at 420; Anobotu v. State (1976) 5 SC 49; Madukolu v. Nkemdilim (1962) 1 All NLR (Part 4) 557; and Amadi v. FRN (2008) 18 NWLR (Pt. 1119) 259 at 273 – 274, were cited in aid.
The stance of learned ADPP on this Issue is that same is highly misconceived in law, lacks merit and not worthy of consideration by this Court. This is because the case of Emelogu v. The State (1981) NSCC 869 has settled it to the effect that the offence of robbery created by the Robbery and Firearms (Special Provisions) Act is a State Offence and can be prosecuted by the Attorney-General of a State who does not require any authorization or approval of the Attorney-General of the Federation in this regard.
It is not in doubt that the question as to whether or not the offence of armed robbery is a state offence and whether or not the offence is prosecutable at the instance of the Attorney-General of a State has before now been pronounced upon by the Supreme Court of Nigeria in a host of cases. The first of such cases that I am aware of is that of EMELOGU V. THE STATE (supra). This case was given ample consideration and applied by this Court in the case of AMOSHIMA V. THE STATE (2009) All FWLR (Pt. 488) 328, in the resolution of the Issue as to “Whether the trial, conviction and sentencing of the appellant under the Robbery and Firearms (Special Provisions) Act were not nullities, the criminal proceeding having not been instituted in accordance with the Constitution of the Federal Republic of Nigeria, 1999. (Ground 3)”. Re-produced hereunder is what I said in the said case at pages 365 – 369: –
“ISSUE 3
Under this Issue, the Appellant raised the question as to whether or not his trial, conviction and sentence under the Robbery and Firearms (Special Provisions) Act were not nullities as the criminal proceeding against him was not initiated in accordance with the Constitution of the Federal Republic of Nigeria. In arguing the Issue, Appellant’s counsel in the main submitted that the offence of robbery as created and punishable under Decree No. 5 of 1984/Cap. 398 is a Federal offence. In this regard he referred to Section 286(3) of the Constitution and the cases of A.G. Benue State vs. Ogwu (1983) 1 NCR 113 at 120; and Adewunmi vs. A.G. Fed. (2002) 9 NWLR (Pt. 772) 222 at 271. Relying on Section 174(d) of the Constitution, Appellant’s counsel submitted to the effect that it is the Attorney-General of the Federation by himself or through any officer in his department that has the power to institute and undertake criminal proceedings against anybody under Decree No. 5 of 1984/Cap. 398. Appellant’s counsel submitted to the effect that the Attorney-General of Niger State or any of his officers cannot institute or undertake criminal proceedings against anybody in any court in respect of the offence of robbery under Decree No. 5 of 1984/Cap. 398; but that he can do so in respect of the offence of robbery under the Penal Code which is a State Law. The provision of Section 211 of the Constitution was relied upon in this regard; and it was further submitted that the institution of the criminal case now on appeal against the Appellant by the Attorney-General of Niger State or his officer was a clear usurpation of the powers of the Attorney-General of the Federation whose consent or authority was not obtained. …………………………………………………..
I have read the cases (including those contained in the list of additional authorities filed by the appellant) relied on by both counsel in aid of their respective submissions in relation to the issue under consideration and I am in no doubt that the case of Emelogu v. State cited by respondent’s counsel is most apposite to the situation at hand in the instant appeal. …………………………. In the case of Emelogu v. State the Supreme Court sat as a constitutional court and the three issues for determination set out in the brief of the learned Attorney-General of the Federation and which issues Eso, JSC; who delivered the lead judgment adopted are as follows: –
“1. Whether at the time (that is 29 April 1982) when the appellant herein allegedly committed the offence of armed robbery, for which he (together with one other person) was charged, tried and convicted by the High Court of Imo State of Nigeria, the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970, as amended by various other enactments, including the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act, No. 105 of 1979 was a Federal law or whether it should be regarded as a State enactment.
2. Whether the Attorney-General of Imo State was competent to institute the criminal proceedings which he instituted against the appellant (as accused) in charge No. HIN/14c/82 filed in the High Court of Imo State 14 July, 1982.
3. Whether the use of the Criminal Procedure (Miscellaneous Provisions) Law (otherwise known as Edict No. 19 of 1974 of East Central State of Nigeria) made (sic: use of) by the Imo State High Court in the trial of the Appellant (as Accused) in the charge mentioned in (2) above was in order and valid or whether it was otherwise, and, therefore, rendered the trial a nullity.”
It is worthy to note that in dwelling on the issues re-produced above, the status of Decree No. 47 of 1970 upon the coming into force of the 1979 Constitution was extensively considered. The Supreme Court unanimously held as follows in the case under reference: –
(i) That by virtue of Section 274(4)(b) of the 1979 Constitution, the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970, became an existing Law of the State and “Robbery” per se a residual matter, while the Act as amended was deemed to have been made by the State House of Assembly and that in view of this, offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 are not Federal but State offences.
(ii) That by virtue of Section 191 of the 1979 Constitution, the power to institute prosecution of criminal cases is vested in the State Attorney-General and because the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 operated as a State Law in so far as Armed Robbery is concerned, the Attorney-General for Imo State had the locus standi as at the 14 July 1982 and the question of delegation of authority does not arise.
(iii) That even though the provisions of Section 6 of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 has been repealed by the Federal Republic of Nigeria (Certain Consequential Repeals etc) Decree No. 105 of 1979, by virtue of Section 239 of the 1979 Constitution, the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 of the East Central State became an existing law of Imo State on the 1st of October, 1979, therefore the provisions of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 is the applicable law to the trial of offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970.
Now, in the Emelogu case, it was observed by Eso, JSC; that: –
“…At the end of the year 1983, there was another military putsch. The Constitution (Suspension and Modification) Decree No. 1 of 1984 was passed. The Robbery and Firearms (Special Provisions) Decree No. 5 of 1984 was enacted. It was later amended by Decree No. 21 of 1984. What happened? There was a return to Tribunals. The 1984 Decrees were in essence in pari materia with the 1970 Act No. 47 as subsequently amended. The old order which was changed by the 1979 Act No. 105 and the 1979 Constitution has again been reverted to…”
Decree No. 5 of 1984/Cap. 398, as already stated are the same legislation. The change in nomenclature from “Decree” to “Act” came to be as a result of the compilation of the 1990 Edition of the Laws of the Federation. The Robbery and Firearms (Special Provisions) legislation as can be seen, has again run the exact course that Decree No. 47 of 1970 ran prior to the coming into force of the 1979 Constitution. On the basis of the 1979 Constitution, the Supreme Court sitting as a constitutional court held that the said Decree No. 47 of 1970 was a State Law given its tenor and reliance was also specifically placed on the provisions of Section 274(1)(b); and (4)(b) of the said Constitution. The 1999 Constitution has corresponding provisions to those of Section 274(1)(b) and (4)(b) of the 1979 Constitution. The provisions in this regard are contained in Section 315(1)(b) and 4(b) of the said 1999 Constitution.
Applying the authority of Emelogu v. State to the case on appeal, (particularly as “Robbery” per se remains a residuary matter under the 1999 Constitution) I accordingly and comfortably too, hold that Decree No.5 of 1984/Cap. 398 became a State Law upon the coming into operation of the 1999 Constitution on 29 May 1999. This being the case, the question that the Attorney-General of Niger State or officers of his department had no locus standi to have instituted the case on appeal against the Appellant as the offences with which he was charged are Federal offences has no basis. The 1999 Constitution in Section 211 eminently invests the Attorney-General of Niger State with power to institute and undertake criminal proceedings against any person before any court of law in Nigeria (other than a court-martial) in respect of any offence created by or under any law of the House of Assembly such as Decree No. 5 of 1984/Cap. 398, now is. …………………………………………….
May I further say that even if Decree No. 5 of 1984/Cap. 398, survived as or remained a Federal Law upon the coming into operation of the 1999 Constitution on 29 May 1999 as argued by Appellant’s counsel (despite the fact that “robbery” is a residuary matter), it is still my firm view that the Attorney-General of Niger State had and still has the power to institute proceedings under the legislation in question without seeking for and/or obtaining the consent of the Attorney-General of the Federation. In this regard, it must first be appreciated that prior to the coming into force of Decree No. 62 of 1999 on 28 May 1999, offences under Decree No. 5 of 1984/Cap 398, were being prosecuted exclusively before Tribunals and the power to prosecute offences before the Tribunals was unconditionally vested in the Attorney-General of a State or the Solicitor-General or any officer in the Ministry of Justice of the State as may be so authorised. See Section 9(2) of the aforementioned legislation. It is only in respect of the prosecution of offences under the legislation as they relate to the Federal Capital Territory, Abuja that the Attorney-General of the Federation is specifically conferred with power of prosecution. See Section 13. Therefore, the argument of Appellant’s counsel, to the effect that the Attorney-General of the Federation has unfettered powers to initiate prosecution for offences committed under Decree No. 5 of 1984/Cap. 398, throughout the length and breadth of the Federation is a total misconception of the provisions of the legislation in question. It is therefore indisputable that at all material times prior to 28 May 1999, Decree No. 62 of 1999 came into force, the Attorney-General of Niger State pursuant to the provision of Section 9(2) of Decree No. 5 of 1984/Cap. 398 had the unfettered power to prosecute offenders under the legislation in question.
Now, did the amendments which were introduced into the legislation in question by Decree No. 62 of 1999 in any manner take away or modify the unfettered power of the Attorney-General of Niger State in this regard? As already stated, Decree No. 62 of 1999 came into force on 28 May 1999. The said Decree vested the High Court of the State and the Federal High Court with jurisdiction in respect of diverse offences which were before then, being tried or triable before different Tribunals. Section 8 of Decree No. 5 of 1984/Cap. 398, was amended to read:
“Offences under this Decree shall be triable in the High Court of the State concerned.”
Also Sections 9, 10, 11, 12 and 14 of Decree No. 5 of 1984/Cap. 398 were deleted. Section 15 was likewise amended by deleting the definition of “tribunal”. As have earlier been stated in this judgment, Decree No. 62 of 1999 equally made the provisions of High Court Laws of the respective States and the rules of procedure made thereunder applicable to the trial of offences in respect of which the Decree had invested the High Court with jurisdiction. In other words, the amendment introduced by Decree No. 62 of 1999 having incorporated into Decree No. 5 of 1984/Cap. 398, the criminal procedure rules of a State which made the Attorney-General of the State the alpha and omega of criminal prosecutions in his State, it would have been a tautology to retain any specific or particular provision conferring the same Law Officer or any of his subordinates with the power of prosecution as was done when the criminal procedure rules of States were not countenanced by the said Decree No. 5 of 1984/Cap. 398. It therefore cannot be said that Decree No. 62 of 1999 stripped the Attorney-General of Niger State of the unfettered power he hitherto had to prosecute offenders under Decree No. 5 of 1984/Cap. 398 talk less of having now conferred the Attorney-General of the Federation only, with power in that regard. The Attorney-General of the Federation had no position of pre-eminence under Decree No. 5 of 1984/Cap. 398 and the amendment introduced into the said legislation by Decree No. 62 of 1999 also never gave that Law Officer (i.e. A-G, of the Federation) any pre-eminence over the Attorney-General of a State. From all that has been said, I therefore find the Attorney-General of Niger State not only to possess the locus standi but also to have competently initiated the proceedings against the Appellant in respect of offences under Decree No. 5 of 1984/Cap. 398 before the lower court; in as much as the “CPC” made applicable to trial of offences under Decree No. 5 of 1984/Cap. 398, by Decree No. 62 of 1999, undoubtedly conferred the said Attorney-General with power in that regard in his own right.
Issue 3 is accordingly resolved against the appellant given all that I have said before now and particularly having concluded (i) that Decree No. 5 of 1984/Cap. 398, became a State Law upon the coming into force of the 1999 Constitution and that the Attorney-General of Niger State pursuant to the provision of Section 211 of the same Constitution is invested with power to undertake the prosecution of offences created by a State Law; and (ii) that the said Attorney-General of Niger State by the amendment introduced into the aforementioned Decree No. 5 of 1984/Cap. 398, by Decree No. 62 of 1999 also has unfettered power to have initiated criminal proceedings against the Appellant pursuant to his powers under the “CPC” made applicable to proceedings under Decree No. 5 of 1984/Cap. 398.”
Judgment in this case was delivered by this Court on 20/6/2008. The case went on appeal to the Supreme Court and the Supreme Court affirmed the judgment of this Court in the case. The decision of the Supreme Court is reported as AMOSHIMA V. THE STATE (2011) All FWLR (Pt. 597) 601. The Appellant formulated three Issues for the determination of the Supreme Court in the case and the respondent therein adopted the said three Issues. Two of the three Issues formulated for the determination of the appeal by the Supreme Court read thus: –
“2. Was the court below right in its decision that the Robbery and Firearms (Special Provisions) Act, Cap. 398 is a State Law? (Ground 4).
3. Whether the Hon. Court of Appeal was right to hold that the Attorney General of Niger State had the Constitutional power and competence to initiate the proceedings under the Robbery and Firearms (Special Provisions) (Amendment) Act No. 62 of 1999 has withdrawn his powers to prosecute under the said statute (sic) (Ground 3).”
Dwelling specifically on the two Issues reproduced above, the Supreme Court per Onnoghen, JSC; stated at pages 618 – 621 thus: –
” On issue 2, it is the submission of learned counsel for the appellant that the Robbery and Firearms (Special Provisions) Act and the Robbery and Firearms (Special Provisions) (Amendment) Act No. 2 of 1999 being promulgations of the Federal Government are Federal Laws which created federal offences and that by the provisions of item 2 in part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999, arms, ammunition and explosives are on the exclusive legislative list and only the National Assembly has the vires to legislate thereon and urged the court to resolve the issue in favour of the appellant.
The issue under consideration was raised by learned counsel for the appellant and decided by this Court in appeal No. S.C/53/2008, Tanka (sic) v. The State delivered on 6 February 2009 in which this court resolved the issue against the appellant and consequently dismissed the appeal. The judgment is reported in (2009) 1 – 2 SC (Pt. 1) 198 at 214 – 217.
The above decision also dealt with issue No. 3 as formulated by the appellant. It is the submission of learned counsel for the appellant that the lower court was in error in holding that the Attorney-General of Niger State had the power to initiate the proceedings under the Robbery and Firearms (Special Provisions) Act without the consent of the Attorney-General of the Federation. It should be noted that it is the same Attorney-General of Niger State that is involved in instituting the prosecution in both cases.
At pages 214 – 217 of the report, Aderemi JSC held as follows:
The appellant has, rightly in my view, submitted that by virtue of Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, the Federal and State Government can legislate in respect of robbery. This submission is further reinforced by the provisions of Section 318 of the Constitution. Section 14(2)(b) of the said Constitution provides:
“The security and welfare of the people shall be the primary purpose of Government”
And “Government” is defined in Section 318 of the Constitution which provides: “Government includes the Government of the Federation or of any State, or a Local Government Council or any person who exercises power and authority on its behalf.”
It follows from the provisions that both the Federal and the State Government can legislate on robbery. It was however contended very strongly that once a charge is brought under any of the Federal Act or State Law, the proper authority must institute or prosecute the charge. The charge against the appellant was brought under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree, 1984, later amended by Decree No. 68 of 1999, which came into being on 28 May 1999. The appellant’s plea was taken on 18 November 1999. The rules of procedure and power to institute proceedings under this amended Decree are set out in Section 9 of the Robbery and Firearms (Special Provisions) Act, Cap. 398, which are as follows:
“9(1) The rules as to procedure to be adopted in the prosecution for offences under this Act before a tribunal shall be as set out in the schedule to this Act.
9(2) prosecutions for offences under this Act shall be instituted by the Attorney-General of the State or, where there is no Attorney-General, the Solicitor General of the State in respect of which the tribunal was constituted or by such officer in the ministry of justice of that State as the Attorney-General or Solicitor-General, as the case may be, may authorize so to do. Provided that the question whether any authority has been given in pursuance of this subsection shall not be enquired into by any person other than the Attorney-General, or Solicitor-General, as the case may be.
9(3) prosecution in respect of any person caught committing an offence under Section 1(2) of this Act shall be instituted within seven days after the receipt by the Attorney-General of the State concerned or where there is no Attorney-General, by the Solicitor-General of the State, as the case may be, of the file containing completed police investigation in respect of the offence”
By the provision of Section (2)(1) and (2) of the Tribunals (Certain Consequential Amendment), etc. Decree, No. 68 of 1999, the Federal High Court or the High Court of a State is conferred with the Jurisdiction to try the offences of Armed Robbery. This much is conceded by both parties in this appeal. The grouse of the appellant in this appeal, as I have pointed out, is that the officials of the Ministry of Justice of a State cannot prosecute a case of armed robbery in a State High Court. Let me quickly say that I have had a close study of the contents of the Second Schedule Parts I and II, and I agree with the submission of the respondent that the offence of Armed Robbery is neither in the exclusive list or concurrent list. It therefore can be at no other place other than the realm of residuary matters which is within the competence of a State House of Assembly to legislate on. Niger State has in Sections 296 of (sic) 307 of is Penal Code, Cap. 94, legislated on robbery. Before I come to the logical conclusion which ought to be reached from the combination of all the provisions of the Constitution and Act which I have reproduced supra, I wish to make reference to Section 211(1) of the Constitution of the Federal Republic of Nigeria, 1999, dealing with public prosecution, it reads:
“211(1) the Attorney-General of a State shall have power:
(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of any offence created by or under any law of the House of Assembly”
From the provisions quoted supra, the only conclusion which must be reached and which I now reach is that not only does a State High Court have the jurisdiction to try cases relating to armed robbery, the officials of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High Court of a State. Let me also add that it will even be incongruous to the concept of federalism, which we practice, to contend otherwise.”
In my concurrent judgment at page 234, I had the following to say:
“I hold the firm view that by conferring Jurisdiction on the State High Courts to hear and determine charges relating to the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act, it follows that the initiation of prosecution for the said offence in the State High Courts can be done by the Honourable Attorney-General of the State concerned particularly as there is no specific provision of the relevant Act, stating that a State Attorney-General cannot do so or that only the Honourable Attorney-General of the Federation can do so”
The above remains the law applicable to the facts relevant to this case and as decided by this court. The appellant and indeed everybody including institutions in this country are, according to constitutional provisions bound by the same. This court has since the earlier decision not found cause to change its position neither has learned counsel for the appellant urged the court to do so in this appeal.
It is rather unfortunate that learned counsel for the appellant formulated issues in this appeal knowing them to have been formulated by him in an earlier appeal decided before the filing of the instant appeal and that this court had already given a decision on the same. I don’t know the purpose which the action of learned counsel is to serve. Is it intended to mislead the court or tempt it to give a contrary/contradictory decision on the issue so formulated? Counsel should remain the gentlemen that they are considered to be upon being called to the Bar ………………………………………”
The portions of the judgment of Aderemi, JSC; in the case of TANKO V. THE STATE quoted in the judgment of Onnoghen, JSC; re-produced above, can also be found in (2009) 4 NWLR (Pt. 1131) at pages 453 – 455. Indeed at pages 455 – 456 of the report (supra), Aderemi, JSC; robustly or stoutly declined to vary, overrule or set aside the decision of the Supreme Court in the case of Emelogu v. The State (supra).
It is my considered view that it has been sufficiently demonstrated from the cases cited hereinbefore, that the settled position of the law is that the Attorney-General of a State eminently has the power and competence to initiate and prosecute a charge of armed robbery under Cap. 398, in the High Court of his State once the offence is alleged to have been committed within that State and that the provisions of the 1999 Constitution relied on by learned counsel for the Appellant in his stance to the contrary have in no way derogated from this position.
I cannot but say that it must be that learned counsel for the Appellant was unaware that the position of the law as it relates to the authority that is empowered to prosecute the offence of armed robbery under Cap. 398 in a State High Court had been settled by the Supreme Court for quite some time, before he settled the Appellant’s Brief of Argument which was filed on 4/6/2012 and deemed as properly filed on 16/4/2013. Otherwise the Issue ought not to have been raised in the said Brief of Argument. What is however worrisome is that learned counsel for the Appellant having had the benefit of the decision in the case of Emelogu v. The State (supra) cited in the Respondent’s Brief of Argument, still pursued the Issue regarding the propriety of the prosecution of the instant case by an authority other than the Attorney-General of the Federation at the hearing of the appeal. One would have thought that learned counsel would have seen the better sense in withdrawing the Issue in question. This would appear to be what prowess of the law dictates and not for learned counsel to be seen as swimming against settled judicial current as it were.
Flowing from all that has been said is that Appellant’s Issue 2 must be and is hereby resolved against him. This is because the prosecution of the Appellant for the offence of armed robbery for which he was convicted and sentenced having been alleged to have occurred in the Orerokpe Judicial Division of Delta State High Court was properly or competently initiated upon Information preferred by B.A. Odiaka Esq. for the honourable Attorney-General and Commissioner for Justice of Delta State and also as the lower court had the jurisdiction to determine the case/charge.
APPELLANT’S ISSUE 1:
The stance of learned counsel for the Appellant under this Issue is that the lower court was wrong or erred in its finding that the prosecution proved the charge of armed robbery against the Appellant beyond reasonable doubt. This is because the ingredients of the offence as itemised in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 at 588 – 589 by this Court per Okoro, JCA; (as he then was) were not all proved. One of the ingredients of the offence of armed robbery which the prosecution did not prove as contended by learned counsel is that the robbery that occurred in the house of PW1 was an armed robbery as there was no evidence that the Appellant was armed with a gun or any dangerous or deadly weapon at the time of the commission of the offence. It is the stance of learned counsel for the Appellant that no gun was recovered from the Appellant talk less of being tendered despite the evidence of PW1 that the Appellant pointed a gun at her and that of PW2 that the Appellant flashed torch light and pointed a gun at her. That in the face of the dearth or lack of evidence establishing the fact that the Appellant was armed with a gun, it was wrong of the lower court to have held that the non cross-examination of PW2 in relation to her evidence that she saw the Appellant shining torch light and pointing a gun at her and also that the Appellant broke the ceiling of the parlour and room of PW1, went to establish the offence of armed robbery. Learned counsel stressed that the position of the law is that it is for the prosecution to prove its case beyond reasonable doubt and that the conclusion of the lower court that the prosecution proved its case against the Appellant as the oral testimonies of PWs 1 and 2 were not challenged during cross-examination, is unfounded in law. Reference was made to Section 138 of the Evidence Act Cap. E22 regarding the burden on the prosecution and the cases of Igabele v. The State (2006) 6 NWLR (Pt. 975) 100 at 127; Aje v. The State (2006) 8 NWLR (Pt. 982) 345 at 361, amongst others in which the courts have shown what proof beyond reasonable doubt connotes, were cited.
Still on his stance that the prosecution did not prove its case beyond reasonable doubt, learned counsel for the Appellant submitted that PWs 1, 2 and 3 gave contradictory evidence concerning many aspects of the robbery incident. The case of Udosen v. State (2007) 4 NWLR (Pt. 1023) 125 at 161 was cited in aid of the stance of learned counsel for the Appellant that the contradictions in the evidence of the prosecution witnesses should have cast a doubt in the mind of the lower court and which should have enured in favour of the Appellant. Learned counsel accused the lower court of being hell bent on convicting the Appellant in spite of the contradictory evidence of the prosecution witnesses coupled with the fact that a vital ingredient of the offence of armed robbery was not proved. In this regard, learned counsel said that the lower court admitted as it were, that the offence of armed robbery was not proved but that the Appellant could be guilty of the offence of robbery and yet convicted him of the offence of armed robbery instead of robbery simpliciter. He said that the position taken by the lower court is against the spirit of justice and fair play as enunciated in the case of Ndidi v. The State (2007) 13 NWLR (Pt. 1052) 633 at 659. Against the backdrop of all the submissions contained in the Appellant’s Brief of Argument, learned counsel concluded in paragraphs 4.29 and 4.30 on page 14 thereof in these words: –
“4.29. We therefore urge the Honourable Court to substitute the conviction and sentence of the Appellant for another offence other than the one he was charged with. We rely on the Supreme Court case of Odeh v Federal Republic of Nigeria (2008) 13 NWLR (Part 1103) 1 at 24 para E-C and the case of Nigeria Air Force v Kamaldeen (2007) 7 NWLR (Part 1032) 164 at 190 para D-G in this regard.
4.30. Based on the foregoing, we submit that the Lower Court erred by convicting the Appellant of armed robbery when the Prosecution did not prove the case of armed robbery against the Appellant beyond reasonable doubt.”
Learned ADPP in responding to Appellant’s Issue 1 set out elements or ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the offence of armed robbery and the cases of Ikemson v. The State (1998) Vol. 1 ACLR 80 at 103 and Bozin V. The State (1998) Vol. 1 ACLR 1 at 11, were cited in aid. Having also set out the means by which the prosecution can discharge the onus of proof on it and citing the cases of Moses v. The State (2003) FWLR (Pt. 141) 1969 at 1986; and Gira v. The State (1996) 4 SCNJ 95 at 106 amongst others in aid, learned ADPP in the main submitted that the offence of armed robbery was proved against the Appellant beyond reasonable doubt by the prosecution given the evidence of the witnesses it fielded; the confessional statement of the Appellant and circumstantial evidence before the lower court. In apparent response to the submission of learned counsel for the Appellant that it was wrong of the lower court to have found the offence of armed robbery proved due to the failure to cross-examine some of the prosecution witnesses on the matter of gun, learned ADPP cited the cases of Okosi v. The State (1998) Vol. 1 ACLR 281 at 295; and Oforlette v. The State (2000) Vol. 80 LRCN 2670 at 2694, on the consequence of failure to cross-examine a witness in respect of material evidence adduced at trial. It is also his stance that the failure to recover and tender the gun with which the Appellant was alleged to have committed the offence of armed robbery was not fatal to the case of the prosecution and the cases of Alor v. The State (1998) 1 ACLR 658 at 673; and Garba v. The State (2000) 4 SCNJ 315 at 323 were cited in aid.
On the submissions of learned counsel for the Appellant concerning inconsistencies in the evidence of prosecuting witnesses, it is the stance of learned ADPP that there are no material contradictions in the evidence of PWs 1 and 2 as to the armed robbery escapade of the Appellant on 3/12/2003. He cited the cases of Ikemson v. The State (supra); and Ochemaje v. The State (2009) Vol. 168 LRCN page 97 at 124 to reinforce his position that witnesses are not expected to give an account of an incident in the same words. That evidence of PWs 1 and 2 fixed the Appellant to the scene of the crime. It is also the stance of learned ADPP that the fact that the sum of money recovered from the Appellant is not in the same sum PW1 stated to have been stolen from her, did not derogate from the offence of armed robbery as the law does not require the prosecution to prove with exactitude the amount stolen and the case of Atano v. A-G, Bendel State (1988) 2 NWLR (Pt. 75) 201 was cited in aid. In concluding learned ADPP submitted that the prosecution proved the offence of armed robbery for which the Appellant was convicted beyond reasonable doubt.
As has been said hereinbefore, a two count Information for the offences of conspiracy to commit the offence of armed robbery and the substantive offence of armed robbery respectively; was preferred against the Appellant. (See page 84 of the records). In its judgment the lower court did not find the prosecution to have proved beyond reasonable doubt the offence of conspiracy to commit the offence of armed robbery preferred against the Appellant. Having stated at page 16 of the records to the effect that the armed robbery with which the Appellant was charged was carried out by a one man robbery gang even though the Appellant tried to create the impression that he had colleagues with him who were outside; and having also shown at page 124 of the records that the prosecution conceded that count 1 in the Information was not proved, the lower court found the Appellant not guilty on the said count 1, and accordingly discharged and acquitted him on the count, i.e. offence of conspiracy to commit armed robbery.
Law reports are replete with cases of armed robbery decided by the Supreme Court and this Court. In all such cases, the ingredients or elements of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the offence of armed robbery have consistently being stated to the effect as: (i) there was a robbery; (ii) the robbery was an armed robbery; and (iii) the accused was one of the armed robbers. See amongst others – OLAYINKA V. THE STATE NSCQLR 30 (2007) 149; IKARIA V. THE STATE NSCQLR 52 (2012) 547 or NCC 8 (2013) 248; and OLATINWO V. THE STATE (2013) LPELR – 19979 (SC) or NSCQR 53.2 (2013) 528.
I have hereinbefore extensively highlighted the submissions made by learned counsel for the Appellant concerning the offence of armed robbery for which the Appellant was convicted and re-produced ipsissima verba the submissions in paragraphs 4.29 and 4.30 of the Appellant’s Brief of Argument. Given the submissions of learned counsel for the Appellant as highlighted hereinbefore and particularly the re-produced submissions at paragraphs 4.29 and 4.30 (supra), it is my considered view that learned counsel for the Appellant is actually not disputing it that the prosecution proved beyond reasonable doubt the commission of the offence of robbery against the Appellant as he stole or robbed from PW1 as it were. What learned counsel is questioning is the correctness of the conviction and sentence passed on the Appellant for the offence of armed robbery on the basis that it was not proved by the prosecution that the incident of robbery involving the Appellant, was an armed robbery. It is against this backdrop that learned counsel has submitted that the non-tendering of the gun the Appellant robbed PW1 with; inconsistencies in the evidence of prosecution witnesses and failure to have recovered from the Appellant the sum of money which PW1 claimed he robbed her of, all went to derogate from the proof beyond reasonable doubt of the offence of armed robbery. Hence the appeal or entreaty made to the Court to convict the Appellant of a lesser offence.
In Section 15, of the Robbery and Firearms (Special Provisions) Act, Cap. 398 LFN, 1990 (hereafter simply referred to as “Cap. 398”) “Robbery” is stated to mean “stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained”. In the same Section, the meaning of stealing is set out and one of the six meanings is “an intent permanently to deprive the owner of the thing of it”. The offence of robbery given the provisions of Section 1(2)(a) of Cap. 398 and the cases cited hereinbefore, metamorphoses into armed robbery when (i) the person who commits the offence of robbery is armed with any firearms or offensive weapon or is in company with any person so armed; or (b) at or immediately before or immediately after the time of the robbery the person who commits the offence of robbery wounds or uses any personal violence to any person. Suffice it to say that in its judgment the lower court found the prosecution to have proved beyond reasonable doubt that the Appellant committed armed robbery against PW1 while he was armed with a gun given the evidence of PWs 1 and 2 and which evidence was not challenged during the cross-examination of the witnesses in question and also as the lower court disbelieved the impression created in the confessional statement of the Appellant i.e. Exhibit “K” that he went to rob with a torch, only.
The Information upon which the Appellant was prosecuted contained both “Statement of Offence” and “Particulars of Offence”. In the “Particulars of Offence” of count 2 indicting the Appellant for the offence of armed robbery it was specifically alleged therein that he was armed with a gun as at the time of the commission of the offence. The main purpose of a charge is to give the accused person good or adequate notice of the case against him. And when a trial is conducted on the basis of Information, it becomes undeniable in my considered view, that the accused person is even given more opportunity of knowing the nature of the evidence the prosecution has against him as well as the witnesses the prosecution intends to call in the proof of the elements or ingredients of the offence(s) preferred against him. This is in the light of synopses or abstracts of the evidence of the named intended prosecution witnesses contained in the Information. In other words, the Appellant in the instant appeal having regard to the procedure of trial adopted by the prosecution (i.e. trial on Information) undoubtedly had notice of the fact that the prosecution for the purpose of establishing the case of armed robbery against him, was going to place before the lower court the fact that he committed the offence of armed robbery with a gun. This in my considered view made the issue of gun to be very material in the case. Having regard to the records, the prosecution duly called two witnesses who testified that the Appellant was with a gun at the time of the robbery in question. The witnesses are PWs 1 and 2. In fulfillment of the principles of fair trial, each of PWs 1 and 2 was submitted for cross-examination. It transpired that the Appellant through his counsel never challenged the evidence PWs 1 and 2 gave concerning the fact that they respectively saw the Appellant with a gun at the time of the robbery incident during the cross-examination of either of these two witnesses. The evidence of these witnesses in relation to the fact that the Appellant was armed with a gun as at the time of the robbery was not only found credible by the lower court but glaringly constituted part of the evidence the lower court relied upon in finding the prosecution to have established a case of armed robbery against the Appellant.
Learned counsel for the Appellant has submitted to the effect that it was wrong of the lower court to have relied on the non cross-examination of these witnesses on the issue of gun as establishing the offence of armed robbery.
In my considered view, learned ADPP has more than adequately and correctly too, responded to the stance of learned counsel for the Appellant on the issue. PWs 1 and 2 gave eyewitness account concerning the invasion of their home by the Appellant and also gave evidence concerning the fact that the Appellant was armed with a gun at the time he committed robbery therein. The law has for long been settled and remains settled concerning failure on the part of an accused to cross-examine prosecution witnesses on material fact/evidence in respect of an offence. It is to the effect that when a witness testifies on a material fact in controversy, the opponent who denies the same should cross-examine the witness to show the contrary. That where this is not done the court may take the silence as an acceptance that he does not dispute the fact. Or put differently, where an accused person’s counsel failed to cross-examine a prosecution witness, he is deemed to have accepted the version of the prosecution witness as correct. See EGWUMI V. THE STATE (2013) 13 NWLR (Pt. 1372) 525; and ALIYU V. THE STATE (2013) 12 NWLR (Pt. 1368) 403. Given the submissions of learned counsel for the Appellant it is apparent that he does not dispute it that the proof by the prosecution that the Appellant was armed with a gun at the time of the robbery is a material fact in the instant case. Learned counsel has neither argued that the witnesses fielded by the prosecution and who gave evidence as to the fact that the Appellant was armed with a gun (namely PWs 1 and 2) were cross-examined on the material fact; nor has he referred to any part of the records where this was done. In the circumstances, the lower court in accordance with the position of the law, was eminently entitled to have found the fact that the Appellant was armed with a gun as at the time he committed the robbery in question, was established by the prosecution upon the unshaken evidence it adduced in that regard. This is because the evidence of the prosecution as to the Appellant being armed as at the time of the robbery remained credible in as much as the same was not challenged by cross-examination in any manner.
Aside from the evidence of PWs 1 and 2 which the lower court relied upon, is the statement of the Appellant himself, i.e. Exhibit “K” which the lower court equally relied upon in disbelieving the fact that the Appellant was not armed with a gun as at the time of the commission of the robbery. In this regard, the lower court stated at pages 121 – 122 of the records thus: –
“In Exhibit ‘K’ which was admitted after a trial within a trial which was conducted having denied ever making it, the Accused admitted the offence of robbery but denied using a gun. The content of Exhibit ‘K’ corroborated the evidence of P.W. 1 and P.W. 2 in all material respect except the denial that he did not use gun for the robbery operation. I reject that aspect of statement that he only went to rob with torchlight without a gun is an attempt to avoid the consequence of the offence of armed robbery. In any event I believe the testimony of PW 1, PW 2 & PW 3 as witnesses of truth, and reject the testimony of the Accused in court as lacking in credibility and as an afterthought. I reject the contents of Exhibits ‘G’ AND ‘H’ and accept the contents of Exhibit ‘K’ except the aspect of denying that gun was not used. Exhibit ‘K’ contained facts within the absolute knowledge of the Accused which was not the subject of instigation, especially the aspect of him being a fraudster; and how he got into the business of defrauding people; and his earlier life stories.”
I cannot but observe that there is no appeal against the admissibility of any of the statements made by the Appellant and particularly Exhibit ‘K’ and the use to which the lower court put the same. Indeed, it is clear from the submissions of learned counsel for the Appellant that he would have been more comfortable with the conviction of the Appellant for the offence of robbery simpliciter on the basis of Exhibit “K” when he stated at paragraph 4.27 on page 13 of the Appellant’s Brief of Argument thus: –
“…As a matter of fact, the Lower Court alluded at page 114 (lines 4 to 7) of the records to the fact that armed robbery was not actually proved but that the Appellant could be guilty of robbery. Yet, the Lower Court convicted the Appellant for armed robbery instead of convicting him for robbery simpliciter.”
I must however observe that what was attributed to the lower court on the page and lines of the records in the re-produced portion of the Appellant’s Brief of Argument above was wrongly credited to the lower court. It was made by the prosecution in its address to the lower court. Undoubtedly, the Appellant made many statements to the Police in the course of investigation in the case. There is definitely nothing wrong in law for the lower court not to have accorded the other statements made by the Appellant any credibility. This is because the position of the law as enunciated in the case of SULE V. THE STATE (2009) All FWLR (Pt. 481) 809, or NCC VOL. 4 456, amongst others, is that where a sane accused person makes two statements, a trial court will be right to take the one which is less favourable to him, all things being equal and particularly when the less favourable statement is the first in time. Exhibit ‘K’ was not the first statement in time made by the Appellant but it was tendered and admitted as a confessional statement. Having been admitted as a confessional statement, Exhibit ‘K’ therefore became part of the evidence adduced by the prosecution in the proof of its case and upon which the prosecution can found a conviction even if the Appellant resiled from it. See SULE V. THE STATE (supra). I have myself read Exhibit ‘K’ and the Appellant stated therein amongst others thus: –
“On 3/12/2003 at about 0100hrs or 0200hrs I went to one building at Okuokoko village, because I believed the landlady will have plenty of money at home because she just finished her feast festival as a traditional doctor. When I got to the house, I discovered that the protector was not locked. The upper part of the protector was padlocked, while the down side was not pad locked. I then passed through the down side of the protector. When I gained entrance to the frontage of the door, I climbed through the window to break the ceiling and went straight to the lady’s room and used hand to beak the ceiling in the woman’s room and jumped into the room. When I jumped into the woman’s room, the room was dark and the light was not on. I was the one that removed the fuse of the metre to off the light in the house before I broke into the house. I pointed the torch light in the woman’s face as she lie down on her bed that she should bale up as I demonstrated it like a gun. I shouted on her and demonstrated myself like an armed robber that she should surrender all the money she has at home…………. It was the people that caught me that removed the money in the bag as they were beating me. The money was in N500 denominations folded one thousand naira each, with the way women use to fold their money……………………………………
This is my first robbery operation. I did not go with any other person. I did not go with a gun neither did I throw away the gun as they were pursuing me. It was as a result of no people to obtain under false pretences that made me to go for the robbery as I was financially broke.”
The Appellant undoubtedly, portrayed or depicted that he wielded or brandished a gun but claimed that what he so brandished was actually not a gun but a torch. It is my considered view that this aspect of Exhibit ‘K’ indeed lent or gave credence to the evidence of PWs 1 and 2 that they saw the Appellant with a gun as at the time of the commission of the robbery. It is also my considered view that the non-recovery and/or non-tendering of the gun in the circumstances of the instant case could not be said to have remotely derogated from the evidence of PWs 1 and 2 which the lower court believed on the material fact in as much as the Appellant was not apprehended at the scene of the crime (i.e. inside the house wherein PWs 1 and 2 reside) or in the compound/grounds thereof. Having regard to the evidence adduced by the prosecution, the Appellant exited the house in which PWs 1 and 2 reside, after robbing PW1 and it was in the course of his escaping from the area that he was apprehended by PW3 and some other persons some distance from the house of PWs 1 and 2. The Appellant glaringly had ample opportunity to have got rid of the gun after he exited the house of PWs 1 and 2. The prosecution never adduced evidence that the gun which PWs 1 and 2 saw with the Appellant was recovered from him or ever found. It is therefore simply not in tandem or in line with common sense to expect the prosecution to tender a gun which was never recovered in the proof of the fact that the Appellant robbed with the same. Indeed the case of OLAYINKA V. THE STATE (supra) eloquently states the position of the law to be that there is no principle of law requiring the tendering of the weapon used in an alleged robbery in establishing the guilt of an accused and that whether or not such a weapon needed to be tendered depends on the character and circumstances of the case at hand. I believe that it has been sufficiently demonstrated that the circumstances of the instant case are such that the prosecution could not have been expected to tender in evidence a gun which was never recovered.
Learned counsel for the Appellant has also argued that there were inconsistencies in the evidence of PWs 1 and 2 to the extent that the inconsistencies should have created a doubt in the mind of the lower court and which doubt should have inured in favour of the Appellant. Learned ADPP in my considered view again dealt with this issue admirably in the Respondent’s Brief of Argument. It is the stance of learned ADPP that there was no contradiction in the evidence of the prosecution witnesses and that even if there were, such contradictions were not material to derogate from the proof of the offence of armed robbery against the Appellant beyond reasonable doubt. In the case of AGBO V. THE STATE NSCQLR 25 (2006) 136, the Supreme Court made it clear that it had in a long string of cases laid it down that for contradictions to be fatal to the case of the prosecution, such contradictions must go to the substance of the prosecution’s case. That if every contradiction no matter how trivial to the overwhelming evidence before the court will vitiate a trial, then nearly all prosecutions would fail. The case is also authority for the fact that due to length of time there might be lapses in the evidence of witnesses.
The elements or ingredients of the offence of armed robbery have earlier been set out in this judgment. It is not in doubt that evidence adduced by the prosecution in the proof of each element of the offence is material evidence and where the prosecution adduced contradictory evidence on any of the ingredients it certainly cannot be said to have proved its case beyond reasonable doubt. In the instant case the prosecution adduced evidence through PWs 1 and 2 concerning the fact that the Appellant invaded the house in which they reside and robbed PW 1 of money and beads while armed with a gun. The Appellant himself in Exhibit ‘K’ confessed to being in the residence of PWs 1 and 2 and that he robbed PW1 of her money and beads while brandishing a torch as a gun. PWs 1 and 2 were eyewitnesses to the incident and there is nothing contradictory in their evidence on the records and which evidence in my considered view prima facie established the three elements or ingredients of the offence of armed robbery. There is no evidence on the records from any of the other witnesses fielded by the prosecution that contradicted the evidence of PWs 1 and 2. On the other hand the prosecution adduced as part of its evidence the confessional statement of the Appellant in which he not only fixed himself to the scene of the crime, but gave a plausible reason for the non-recovery of all the money he robbed PW 1 of; and this is that the money was removed by those who arrested and beat him. It is my considered view that the Appellant has woefully failed to show that there was any material contradiction in the evidence adduced by the prosecution that created or ought to have created a doubt in the mind of the lower court.
The position of the law in relation to criminal trials is that the prosecution is to prove its case against the accused person beyond reasonable doubt. The law does not require proof beyond all or every shadow of doubt by the prosecution. See OLATINWO V. THE STATE (supra); and AMALA V. THE STATE NSCQLR 18 (2004) 834. In the instant case the lower court has the primary duty of evaluating and ascribing probative value to the evidence adduced by the prosecution in the proof of the offence of armed robbery for which it ended up convicting the Appellant as well as the evidence adduced by the Appellant in order to create a reasonable doubt to the case of the prosecution. Having painstakingly perused the records (particularly the evidence adduced by the prosecution through the five witnesses it fielded as well as the evidence of the Appellant in his own behalf and the judgment of the lower court), I am in no doubt at all that the lower court undertook its duty of evaluating the evidence before it in the instant case admirably and that it could not have arrived at any other conclusion but that the prosecution proved the offence of armed robbery against the Appellant.
Flowing from all that has been stated above is that Appellant’s issue 1 is hereby resolved against him.
In the final analysis, and having resolved the two issues formulated for the determination of the appeal by the Appellant against him, I find the instant appeal to be devoid of merit and hereby dismissed the same. Accordingly, I affirm the judgment of the lower court delivered on 20/12/2006 convicting the Appellant for the offence of armed robbery as well as the sentence of death passed on him.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, I am of the considered view that His Lordship thoroughly dealt with all the issues in controversy and I have nothing useful to add.
I hereby also dismiss the appeal is lacking in merit. The judgment of Omamogho, J. of the Delta State High Court delivered on 20/12/2006 is hereby affirmed.
TOM SHAIBU YAKUBU, J.C.A.: I perused the draft of the judgment just delivered by my Lord, A. O. LOKULO-SODIPE, JCA.
I am totally in agreement with the illuminating reasoning which culminated in the resolution of the two issues thrown up in this appeal, against the appellant. I do not feel that there is something more useful for me to add to it. His Lordship’s reasoning represents my thoughts on the appeal.
I, therefore dismiss the appeal and affirm the well-considered judgment of Omamogho, J., of the Delta State High Court, delivered on 20th December, 2006. Hence the conviction for armed robbery and sentence of death imposed on the appellant are each affirmed by me.
Appearances
T. O. BusariFor Appellant
AND
M. A. Omakor (Assist. Director, Ministry of Justice, Delta State)For Respondent
