KAREEM SUNDAY v. THE STATE (2014)

KAREEM SUNDAY v. THE STATE

(2014)LCN/7598(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/I/218C/2014

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

It is beyond argument therefore that Section 36(5) of the 1999 Constitution (supra), guarantees to any person charged with the commission of a crime, the right to be presumed innocent until proved guilty. This presumption of innocence constitutionally guaranteed an accused person has therefore cast on the prosecution the burden of proving the guilt of the accused. That is so because, it is the prosecution that alleges the commission of crime by the accused, and therefore, by Section 131 and 132 of the Evidence Act they bear the burden of prove. In criminal cases that burden remains throughout the trial on the prosecution, save where the law has imposed on the accused the onus of proving particular facts. This burden in criminal cases does not shift, and thus remains static, even where the accused in his statement to the police has admitted committing the offence. The standard of proof to be discharged is as set out in Section 135 of the Evidence Act, 2011 which provides that:
“135.(1) If the commission of a crime by a party to any proceeding is in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the Person who asserts, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the Defendant.”

It would be seen therefore that the burden of prove in criminal proceedings is always on the prosecution. It would appear that the only exceptions are as stipulated in Section 139 of the Evidence Act, 2011. Those are situations where the accused pleads the existence of facts which bring his case within the exception or exemption from, or qualifications, to the operation of the law which creates the offence for which he has been charged. In such a case, the burden of proving that exception or exemption from, or qualification to, the operation of that law rests upon the accused. Save in those instances, the burden of prove is always on the prosecution which they must discharge beyond reasonable doubt. Thus, Oguntade, JSC in the case of Igabele v. State (2006) 6 NWLR (Pt. 975) p.100 at 127 paragraphs E-F, drew from the dictum of Ademola, CJF in the case of Alonge v. I.G.P. (1959) SCNLR 516, (1959) 4 FSC 203, where the esteemed Chief Justice of the Federation observed that:
“Now, the commission of a crime by a party must be proved beyond reasonable doubts. The burden of proving that any person is guilty of a crime rests on the person who asserts it and this is the law as laid down in Section 137 of the Evidence Ordinance, Cap. 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof, which the law lays upon it and the prisoner is entitled to an acquittal.”

EVIDENCE: BURDEN OF PROOF; WAYS IN WHICH THE PROSECUTION CAN DISCHARGE THE BURDEN CAST ON IT
It therefore follows that, for the prosecution to discharge the burden cast on it, it must lead cogent, credible and compelling evidence which proves all the essential ingredients of the offence beyond reasonable doubt. The prosecution may prove their case by any or a combination of the following ways:
(a) By evidence of eye witness(es) who heard or saw the incident or
(b) By the admission or confession of the accused, which must have been duly proved to have been voluntarily made; or
(c) By circumstantial evidence which is positive and compelling, and Pointing to one conclusion only; that the accused and no other person committed the offence.
See Ilodigiwe v. State (supra) at p.29; Igabele v. State (supra) at pages 120-121 paragraphs H-A. Oka v. The State (1975) 9-11 S.C. p.17 and Emeka v. The State (2001) FWLR (Pt. 66) p.682. In the instant case, it appeals to me from the evidence on record and the judgment of the trial court that the prosecution relied on the evidence of eye witness, and the confession of the Appellant. per. HARUNA SIMON TSAMMANI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENT OF THE OFFENCE OF ARMED ROBBERY

Having laid down the law on the burden and standard of proof, the stage has not been set to determine the complaint of the Appellant in this appeal. Before I proceed, it is necessary to restate that the Appellant was charged, tried and convicted at the lower court for having committed the offence of armed robbery. It is the law that for the prosecution to prove the commission of armed robbery beyond reasonable doubt, they must lead credible evidence which prove the following facts beyond reasonable doubt.
(a) That there was a robbery or series of robberies;
(b) That the robbery was an armed robbery; and
(c) That the accused was either the robber or one of those who took part in the robbery or series of robberies.
All above stated elements or ingredient must be proved beyond reasonable doubt. See Obasi Onyenye v. The State (2012) – 7899; Demo Oseni v. The State (2012) LPELR-7833(SC); The State v. Olashehu Salami (2011) LPELR-8252(SC); Lukmon Osetola & Anor v. The State (2012) LPELR-9348(SC) and Chukwuka Ogudo v. The State (2012) LPELR-860(SC). per. HARUNA SIMON TSAMMANI, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATION OF EVIDENCE AND WHEN IS A DECISION OF THE COURT SAID TO BE PERVERSE

The law, which now appears to be settled is that, the evaluation or appraisal of the admitted evidence at the trial court level is within the province of the powers of the trial court. The law takes the view that the trial court, unlike as appellate court, which had the advantage of seeing and hearing the witness is better placed to evaluate and apportion probative value or weight to the evidence adduced before it. An appellate court has no such advantage, so appellate courts are always slow to interfere with the evaluation of the evidence done by the trial court. An appellate court will therefore interfere where the trial court did not demonstrate in its judgment that the court indeed utilized the advantage it had of hearing and seeing the witnesses, in that the evaluation and findings made by the trial court led to a perverse decision or a miscarriage of justice.

A perverse decision is said to have been occasioned where:
(a) A trial court fails to evaluate the evidence on record and thus reached a conclusion which is contrary to the evidence adduced or a principle of law;
(b) The trial erroneously disregarded or overlooked some principle of substantive law or procedure;
(c) Where the trial court wrongly applies the facts to the applicable principle of law or misapplied the laws to the facts;
(d) The inference drawn by the trial court from established facts, are erroneous or not supported by credible evidence;

In all these cases, the Appeal Court is in a good position as the trial court to re-evaluate and make findings on those facts, so long as the findings will not touch on the credibility of witnesses. It therefore means that, once the trial court dutifully performed its duty of evaluating the evidence and properly ascribed probative weight to the evidence, the appellant court will not interfere, See Garuba v. Yahaya (2007) 3 NWLR (Pt. 1021) p.390; Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (Pt. 822) p.308; Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 706) p.203; Sule Anyagwu & Anor. v. Aidoko Onuche (2009) 3 NWLR (Pt. 1129) p.659 and Tinubu v. Khalil & Dibbo Trans Ltd. (2000) 11 NWLR (Pt. 677) p.171. See also Mil. Gov; Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) p.291 at 334. per. HARUNA SIMON TSAMMANI, J.C.A.

CRIMINAL PROCEDURE: STATEMENT OF AN ACCUSED; WHETHER THE STATEMENT OF ACCUSED PERSON SHOULD BE TAKEN OR RECORDED IN THE LANGUAGE IN WHICH THEY ARE MADE AND THE SCENARIOS THAT MAY ARISE IN THE PROCESS OF RECORDING THE STATEMENT OF AN ACCUSED PERSON

It is the practice and in fact the law that, statements of accused persons should, whenever practicable, be taken or recorded in the language in which they are made. This is so, so as to avoid technical arguments which could be raised, as in the instant case. Furthermore, it serves the purpose of ensuring the correctness and accuracy of the statements. Though it is desirable that such statements be made in the language in which the maker said it is not ipso facto inadmissible merely because this practice was not followed. In other words, where the police records the statement of an accused in a language other than that in which the accused made his statement and later interpret it to the accused in the language in which he spoke, the statement may still be admitted in evidence, despite the fact that it was not recorded in the language in which he made his statement.

It is necessary to point out that there are two scenarios that may arise in the process of recording the statement of an accused person. The first scenario may arise where both the recorder and the accused, who makes the statement do not understand each other; and a third party interprets the statement between the accused and the recorder and vice versa. In such a scenario, for the statement to be admissible, both the interpreter and the policeman who did the recording must testify. The second scenario arises where the recorder understands the language in which the accused makes the statement. He listens to the accused person speak in that language which both he and the recorder understand; and the recorder simultaneously translates and writes down whatever the accused says in the official language of the court; which is the English language. In such a scenario therefore, the police officer is both the interpreter as well as the recorder, thus playing the dual role of an interpreter and recorder. In such a circumstance, the statement so made and recorded is admissible, once it has been duly proved. See for this. R. v. Oguewu (1949) 12 WACA p.483. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: IDENTIFICATION EVIDENCE; IDENTIFICATION EVIDENCE IN CRIMINAL TRIALS AND CIRCUMSTANCES IN WHICH IDENTIFICATION PARADES ARE CONDUCTED

The question to be asked now is, what is identification evidence in criminal trials? In the case of Ndukwe v. State (2009) 7 NWLR (Pt. 1139) p.43 at 79, the Supreme Court defined identification evidence as one tending to show that the person charged with the offence, is the same person who was seen committing the offence. Such identification evidence is generally essential or desirable in situations where the victim or witness to the crime did not know the accused before or prior to the day of the incident, but was confronted by the offender for a very short time, and in which time and circumstances, he might not have had adequate opportunity to observe the features of the accused. It therefore means that, the question whether an accused was properly identified as the one who committed the offence or was a party to the commission of the criminal act, is a question of fact to be considered by the trial court on the evidence adduced for that purpose. Thus, identification evidence is therefore the means of ascertaining whether a person charged with the offence is the same person who committed the offence. In certain circumstances, to arrive at some degree of certainty, identification parades are conducted; and that is done in the following circumstances:-
(a) Where the victim or witness did not know the accused before and his first acquaintance with him was during the commission of the offence.
(b) Where the victim or witness was confronted by the offender for a very short time.
(c) Where the victim, due to time and circumstances might not have had the full opportunity of observing the features of the accused.

It should however be noted that, identification parade is not the only means or way of establishing the identity of an accused person as a party to or person who committed the crime. Thus where the witness or witnesses had ample chance and opportunity to identify the accused, an identification parade will not be necessary. Furthermore, and as pointed out by My Lord, Adekeye, JSC in the case of State v. Salami (2011) 8 NWLR (Pt. 1279) p.580 at 620 paragraphs G-H:
“It is settled law that, it is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for any further identification parade.”
Identification parade will also not be necessary where the accused is caught, “in the act or red handed”, to use the popular cliche. In other words, where the accused is arrested at the scene or immediately after committing the crime, identification parade will not be necessary. See Osung v. State (2012) 18 NWLR (Pt. 1332) p.256 at 278 paragraph F; Adesina v. State (2012) 14 NWLR (Pt. 1321) p.429; Ochiba v. State (2011) 17 NWLR (Pt. 1277) p.663; Ndukwe v. State (supra) and Osuagwu v. State (2009) 1 NWLR (Pt. 1123) p.523. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT AND THE DETERMINATION OF THE WEIGHT TO BE ATTACHED TO SUCH CONFESSIONAL STATEMENT THAT WAS RETRACTED

The law is that, a statement which confesses to the commission of the crime charged, and which statement has been proved to have been voluntarily made; is sufficient either alone or in conjunction with other evidence, to sustain or be the basis for the conviction of an accused person. In doing that, it would not matter that the accused resiled or retracted the statement in the course of the trial, so long as the statement of confession made is positive, direct, unequivocal and therefore amounts to an admission of guilt. Thus in the case of Osung v. State (supra) at page 291 paragraphs F-H, Galadima, JSC pointedly laid down the law in these words:
“It should be noted that the Appellant did not object to the admission of his statements. It means that he had conceded that he made the statements and agreed with the contents of the said statements. It is trite law that a valid voluntary statement tendered without objection and admitted in evidence, is good evidence and no amount of subsequent arguments against it or a retraction will vitiate its admissibility and potency as a voluntary statement; and the mere denial by the accused, will not be a good reason for rejecting it. It is only desirable to have some evidence of circumstances which make it probable that the confession was truly confessional although a free and voluntary confession alone is sufficient without further corroboration to warrant and sustain a conviction.” It therefore means that, once a statement has been duly proved and admitted in evidence, it becomes part of the prosecution’s case, and the trial court is bound to evaluate and utilize same in the determination of the case. Such statement, if it satisfies all the requirements of law and therefore admitted, is sufficient to discharge the burden on the prosecution to prove the accused person’s guilt beyond reasonable doubt. See Osuagwu v. State (supra) at p.541; State v. Salami (supra) at pages 624-625 paragraphs G-D and Adesina v. State (supra) at p.447. In the determination of the weight to be attached to such confessional statement that was retracted by an accused person, as in the instant case, the trial court is enjoined to examine the statement in the light of other credible evidence before the court, so as to determine whether:
(a) There is anything outside the confession to show that it is true;
(b) The statement therein is corroborated;
(c) The statements made in it are in fact true as far as they can be tested;
(d) The accused (or prisoner) had the opportunity of committing the crime;
(e) The confession is possible; and
(f) It is consistent with other facts which been ascertained and which have proved.
In support see; Adesina v. State (supra) at pages 447-448; Osuagwu v. State (supra) at p.541-542. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: CALLING WITNESSES; WHETHER THE PROSECUTION IS NOT BOUND TO CALL EVERY PERSON THAT WAS LINKED TO THE SCENE OF CRIME BY PHYSICAL PRESENCE OR, TO GIVE EVIDENCE OF WHAT IS SAW
It is however settled principle of law that prosecution is not bound to call every person that was linked to the scene of crime by physical presence or, to give evidence of what he saw. Once persons who can testify to the actual commission of crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act.
It is not also incumbent on the prosecution to call every eye witness to testify in order to discharge the onus placed on it by law of proving a criminal case beyond reasonable doubt and as a matter of fact, a single witness who gives cogent eye witness account of the incident will suffice even in a murder charge. Effiong v. State (1998) 8 NWLR (Pt. 562) p.362.”

EVIDENCE: WITHHOLDING EVIDENCE; WHETHER A COURT MAY PRESUME THAT EVIDENCE WHICH COULD BE AND IS NOT PRODUCED COULD, IF PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

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

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

KAREEM SUNDAY Appellant(s)

AND

THE STATE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the leading Judgment): Kareem Sunday who is the Appellant in this appeal was arraigned, tried and convicted for having committed the crime of armed robbery, which is an offence contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004.

The brief facts of the case have been ably set out in the judgment of the court below. It is to the effect that, the Appellant who was wearing a black cap, black goggles and a black handkerchief which covered his mouth, visited the cement shop of one Ramotalai Alege under the pre that he was buying cement. He then requested to know the price of one bag of cement, which was divulged to him by the said Ramotalai Alege who testified at the trial as the PW1. According to the prosecution, the Appellant then requested to know the price of seventy (20) bags, and as the PW1 was about taking out a calculator from her bag, the Appellant suddenly snatched the bag and bolted out of the shop. The Appellant then jumped onto a waiting motor cycle in a bit to escape with the PW1 in pursuit. That the Appellant then threatened her (PW1) with a dagger which he pulled out from his back pocket, but the PW1 then began to shout for help, which attracted people to the scene.

According to the PW1 when people started coming to the scene, the person who was waiting with the motor cycle tried to move away with the Appellant, but the PW2 pulled down the motor cycle and the Accused/Appellant then jumped down and started running away. However, with the help of people and a policeman who happened to be at the scene, the Appellant was arrested together with the motor cyclist and taken to the police station. That the bag the Appellant snatched from the PW1 contained the sum of three thousand, six hundred naira (N3,600.00) only.

The defence of the Appellant is that, he was a farmer and a commercial motorcyclist before the incident which led to his arrest, trial and conviction. He stated that, on the 9th day of March, 2004, he took his motorcycle to Ijebu-Igbo for business in the evening. That as he was moving around, a young man waved him down and requested to be taken to the Licensing office. That on getting to the Licensing office, he stopped and demanded for his fees, but the young man came down from the motorcycle and crossed to the other side of the road, while telling him (Appellant) to wait for him. That he then parked aside and that as he was waiting, he saw some people fighting with his passenger and rushing towards him. According to the Appellant, the people then started beating him to the extent that he sustained injury on his head. That himself and the passenger were then arrested and taken to the Police Station at Ijebu-Igbo.

The Appellant further stated that, at the Police Station in Ijebu-Igbo, his passenger was released on bail, while he (Appellant) was taken to the State Criminal Investigation Department (State C.I.D.), Abeokuta together with the motorcycle. That he had made a statement at the the Ijebu-Igbo Police Station, which he contends contains the evidence he was giving in court. He denied making any statement at the State C.I.D., Abeokuta, and insisted that, the only statement he made to the Police is the one he made at Ijebu-Igbo. That the Police at the State C.I.D. wrote the statement (Exhibit B) and asked him to sign and he did. He also contended that, at the State C.I.D., Abeokuta, the Police enquired about the whereabouts of his passenger, and the I.P.O. at Ijebu-Igbo was arrested as a result of his failure to produce the said passenger. The Appellant therefore denied committing the offence.

At the trial, the prosecution called three witnesses, who testified as the PW1, PW2 and PW3 respectively. They also tendered eight Exhibits which were admitted in evidence as Exhibits A, B-B1, C, D, E-E1 and F respectively. The Appellant testified in his defence but called no other witness. He also did not tender any Exhibit. At the conclusion of evidence, counsel on either side addressed the court. Thus, in a considered judgment delivered on the 28th day of December, 2011, the learned trial Judge; N. I. Agbelu, J found the Appellant guilty as charged, and proceeded to convict him accordingly. The learned trial Judge then sentenced him to death by hanging. The Appellant is displeased with his conviction by the trial court and has now filed this appeal.

The Notice of Appeal which is at pages 82-82E of the record of appeal, consists of ten (10) Grounds of Appeal. In compliance with the Rules of this court, the parties filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments was dated and filed the 28/05/2014. Therein, the Appellant formulated three (3) issues for determination as follows:
1. Whether a calm and objective review of the testimonies of all the prosecution witnesses, particularly PW1 and PW2 and Exhibits B-B1, would justify the findings of facts and the decision of His Lordship in respect of these witnesses such that it may be said that the prosecution proved its case against the Appellant.
[Grounds 2, 3 and 4].
2. Taking into consideration the totality of the evidence of the prosecution to what extent did the prosecution succeed in proving that the robbery herein was armed and that the Appellant was the actual person that committed the crime in issue?
[Grounds 5, 6 and 8].
3. Whether a calm and objective assessment of the totality of the evidence led (i.e. evidence of the prosecution and that of the accused) before His Lordship of the Honourable Court below justify the conclusion that prosecution proved its case beyond reasonable doubt in accordance with our criminal law.
[Grounds 1, 7, 9 and 10].

The Respondent’s Brief of Arguments was dated and filed the 04/11/2014 but deemed filed on the 06/11/2014. Therein, the Respondent formulated only one issue for determination; and that issue is:
(a) Whether having regard to the evidence adduced and the circumstances of this case, the prosecution has not proof (sic) the charge against the Appellant beyond reasonable doubt.
After a very careful reflection on the issues formulated by the Appellant and the Respondents, I am of the view that a determination of all the three issues distilled for determination by the Appellant can be adequately subdued in the one issue distilled by the Respondent. In that respect, I propose to resolve the issues that have arisen for determination by this appeal, on that one issue formulated by the Respondent.

In arguing the appeal learned counsel for the Appellant contended under the Appellant’s issue 3 that, it is a fundamental aspect of our criminal jurisprudence that at the close of a case by the parties and after addresses of counsel if any, it is the duty of the trial Judge to ascribe probative force to every piece of evidence led. He then cited the case of Odofin & Ors v. Mogaji & Ors. (1978) N.S.C.C. p.275 at 277 lines 44-53 and 278 lines 1-9 to further contend that, the trial court must create an imaginary scale of justice and put the evidence of the parties on the two sides of the scale to know which one outweighs the other. The cases of Bozin v. State (1985) 2 NWLR (Pt. 8) p.405; Opeyemi v. State (1985) 2 NWLR (Pt. 5) p.101; Adisa v. State (1991) 1 NWLR (Pt. 168) p.490; Omopupa v. State (2006) All FWLR (Pt. 445) p.1648 and Abudu v. State (1985) 1 NWLR (Pt. 1) p.55 were also cited to submit that, in all criminal trials, the law is that the evidence of the prosecution must weigh beyond reasonable doubt. That the accused need not call evidence, and if he does, the law only requires his evidence to create a reasonable doubt on a balance of probabilities. It was thus submitted that, the learned trial Judge failed in his duty of evaluation before ascribing probative force to the totality of evidence led by the parties at the trial.

Learned counsel for the Appellant further contended at paragraphs 7.25-7.33 (pages 24-27) of the Appellant’s Brief of Arguments, that the learned trial Judge misdirected himself on the incidents of burden of proof of guilt of the Appellant and thereby placing the burden of prove of guilt on the Appellant. That, there is nothing in the case of Oforlette v. State (2010) FWLR (Pt. 12) p.2081, which justified the pronouncement of the learned trial judge. Learned counsel then cited the cases of Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) p.117 at paragraphs C – D and Udengwu v. Uzuegbe & Ors (2003) 13 NWLR (Pt. 836) p.136 at 152 paragraphs C-D, to submit that the decision of the learned trial Judge is therefore perverse. On what a perverse decision is, he referred to the cases of Ramonu Atolagbe v. Korede Olayemi Shorun (1985) 1 NWLR (Pt. 2) p.360; Baridam v. State (1994) 1 NWLR (Pt. 320) p.250; N.E.P.A. v. Osasanya & Ors (2004) 5 NWLR (Pt. 867) p.601 and F.A.T.B. Ltd v. Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt. 851) p.35. It was then submitted that, the learned trial Judge shut his eyes to the obvious facts, which shall be referred to later in the course of this judgment. Furthermore, that the trial court drew wrong inferences from the totality of the evidence led before it and thereby reached at a perverse decision.

Learned counsel for the Respondent contended at paragraphs 4.17, 4.22, 4.23 and 4.24 of the Respondent’s Brief of Arguments that, the learned trial Judge did a good job in his evaluation of the evidence before him and properly ascribed probative force to the totality of the evidence led by the prosecution at the trial. That the learned trial Judge was not perverse in his judgment but gave proper consideration to the evidence placed before him, both by the prosecution and the Appellant before arriving at a conclusion which to all intents purposes was fair, just and appropriate in the eye of the law, and having regard to the circumstances of this case. The case of Osuagwu v. State (2013) S.C.M. p.170 at 181 was cited in support. That, before arriving at his decision, the learned trial Judge gave consideration to the defence of the Appellant, and upon the totality of the evidence led before him, found as a fact that the Appellant committed the offence of armed robbery. We were then urged not to disturb the findings, and the decision of the court that the prosecution proved all the ingredients of armed robbery charged against the Appellant, as the prosecution successfully discharged the burden of proof placed on her.

Now, Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates that:
“36(5). Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
It is beyond argument therefore that Section 36(5) of the 1999 Constitution (supra), guarantees to any person charged with the commission of a crime, the right to be presumed innocent until proved guilty. This presumption of innocence constitutionally guaranteed an accused person has therefore cast on the prosecution the burden of proving the guilt of the accused. That is so because, it is the prosecution that alleges the commission of crime by the accused, and therefore, by Section 131 and 132 of the Evidence Act they bear the burden of prove. In criminal cases that burden remains throughout the trial on the prosecution, save where the law has imposed on the accused the onus of proving particular facts. This burden in criminal cases does not shift, and thus remains static, even where the accused in his statement to the police has admitted committing the offence. The standard of proof to be discharged is as set out in Section 135 of the Evidence Act, 2011 which provides that:
“135.(1) If the commission of a crime by a party to any proceeding is in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the Person who asserts, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the Defendant.”

It therefore remains settled that the onus of proof is constant and it lies on the prosecution to discharge beyond reasonable doubt. The burden never shifts except in a few instances where the law has placed that onus on the accused. See Adekunle v. State (2006) 14 NWLR (Pt. 1000) p.663; Ilodigiwe v. State (2012) 18 NWLR (Pt. 1331) p.1 at p.29; Oladotun v. State (2010) 15 NWLR (Pt. 1217) p.490 at 521. It therefore means that in discharging that burden, the prosecution must prove every essential element of the offence charged, including the rebuttal of any defence that may be raised by the accused. Accordingly, where the evidence led by the prosecution does not establish all the ingredients of the offence charged, it would mean that a reasonable doubt has been created, and the accused would be entitled to an acquittal. It should however be noted that proof beyond reasonable doubt does not mean proof to the hilt or beyond all show of doubt. It is only a reasonable doubt that would be entertained. My Lord Onnoghen, JCA (as he then was) defined proof beyond reasonable doubt lucidly in the case of Millar v. State (2005) 8 NWLR (Pt. 927) p.236 at 265 paragraphs E-G, as follows:
“In the case of Bakare v. State (1987) 1 NWLR (Pt. 52) p.599, (1987) 3 SC 1 at 32, the Supreme Court stated the meaning of the term or phrase “proof beyond reasonable doubt” as follows:
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence, of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty, of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice.”
Accordingly, if the evidence is strong against the accused person 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.
It therefore follows that, for the prosecution to discharge the burden cast on it, it must lead cogent, credible and compelling evidence which proves all the essential ingredients of the offence beyond reasonable doubt. The prosecution may prove their case by any or a combination of the following ways:
(a) By evidence of eye witness(es) who heard or saw the incident or
(b) By the admission or confession of the accused, which must have been duly proved to have been voluntarily made; or
(c) By circumstantial evidence which is positive and compelling, and Pointing to one conclusion only; that the accused and no other person committed the offence.
See Ilodigiwe v. State (supra) at p.29; Igabele v. State (supra) at pages 120-121 paragraphs H-A. Oka v. The State (1975) 9-11 S.C. p.17 and Emeka v. The State (2001) FWLR (Pt. 66) p.682. In the instant case, it appeals to me from the evidence on record and the judgment of the trial court that the prosecution relied on the evidence of eye witness, and the confession of the Appellant.

Now, from the evidence adduced at the trial, and the arguments of counsel in this appeal, there is no dispute or at least an appeal against the finding of the learned trial Judge, that the fact of robbery has been established. The first issue contested by the Appellant is the finding of the learned trial Judge that the robbery was an armed robbery. This was argued by the Appellant as his issue two (2), and which arguments is at pages 13-17 of the Appellant’s Brief of Arguments. Here, learned counsel referred to the testimonies of the PW1 at page 26 lines 3-8 and that of the PW2 at page 32 lines 25-30 to contend that those witnesses stated categorically that they saw a knife in the hand of the Appellant when they were pursuing him. That the testimony of the PW1 is that, the Appellant brought out the knife as he jumped out of the shop but before attempting to board the motorcycle, while the PW2 stated that he saw knife after the abortive attempt by the accused to board the motorcycle. That, this discrepancy would ordinarily not be a matter of concern, but considering that the parties were ad idem that they saw a knife, the discrepancy becomes a matter of concern, as it was shown that the PW1 did not state in her extra-judicial statement which was made at the earliest opportunity that, the accused was holding a knife. That the robbery incident occurred on the 9th March, 2004, while the PW1 who made her statement to the police did not state therein that the Appellant had a knife. That, even if the PW1 failed to mention the issue of knife, the police should have questioned her on that.

It was therefore observed that, though the prosecution tried to proffer an explanation, which the PW1 stated at the trial that, she had mentioned seeing the Appellant with a dagger, the records show that this explanation could not be the truth; because the PW1 on her own stated that the police read out her statement to her before she signed. That if truly she had mentioned that the Appellant pointed a dagger at her, she should have drawn the attention of the police to it. That this fact has therefore put a lie to her statement that she had mentioned it to the police but the police failed to record it. It is the further submission of learned counsel for the Appellant that, relying on the bare ipse dixit of the PW2 so as to overlook the failure of the PW1 to state at the earliest chance she had that the Appellant was armed with an offensive weapon during the robbery is perverse. The cases of Debs v. Cenico Ltd (1986) 3 NWLR (Pt. 32) p.846 at 853 and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) p.170 at 188 were cited to submit that, though ipse dixit is admissible evidence which can be evaluated, the issue whether or not the Appellant was armed with offensive weapon is an element of the offence of armed robbery which must be proved beyond reasonable doubt. That, the learned trial Judge was expected to carefully weigh the testimonies of PW1 and PW2 and Exhibit A before coming to the conclusion that the accused was armed at the time of committing the offence. It was therefore submitted that, the PW1 having not mentioned at the earliest opportunity that the Appellant was armed, the only presumption to be drawn is that, the Appellant was not armed, and that, if he was so armed, the PW1 would have said so. We were thus urged to hold that the Appellant was not armed at the time of the robbery.

Mr. J. K. Omotosho of learned D.D.P.P., Ogun State submitted that, the learned trial Judge was well aware that the prosecution had a duty to prove that the robbery was an armed robbery and rightly held on the evidence before him that, the fact that the robbery was an armed robbery had been proved by the prosecution. The learned trial Judge also rightly observed that the issue of dagger is material to the charge of armed robbery, because once it proved that the accused was armed during the robbery, the offence committed is armed robbery. That the PW1 and PW2, it should be remembered were eye witnesses to the robbery incident.

Indeed, the issue whether or not the robber that robbed the PW1 on the 9th day of March, 2004 was armed, is a fact in issue, and which fact must be proved beyond reasonable doubt. This is because, it is the law that, in all criminal trials, the prosecution has the duty to proof by credible evidence each and every ingredient of the offence charged. In the instant case, the PW1 stated at page 26 lines 3 – 6 of the record of appeal as follows:
“However I immediately followed him by jumping down from the shop. But the accused put his hand in his pocket and took out a dagger which he pointed at me. On seeing the dagger I was afraid and he started kicking me with his fist.”

The PW1 when remanded by counsel for the Appellant in cross-examination that she did not mention in her statement to the police that the Appellant had a dagger, told the court that she had told the police that the accused drew out a dagger from his pocket and pointed it against her, but the police did not record it. The argument of learned counsel for the Appellant is that, the statement of the PW1 is an afterthought, because the fact of the assailant being armed is an essential element to be proved before the offence of armed robbery can be said to have been proved. While it is true that, it is not stated in the statement of the PW1 made to the police that she saw the Appellant with a dagger or that the Appellant threatened her with a dagger, her testimony that she told the police that the Appellant was armed, but the police failed to record same, was never contradicted in cross-examination. If she had told the police but the police failed to do record, she cannot be blamed for that lapse. In any case, if the Appellant entertains any doubt about the fact that the prosecution led evidence about the fact of his being armed during the robbery, the testimony of the PW2 should put to rest that issue. The testimony of the PW2 amply corroborates the testimony of the PW1 that the Appellant was armed at the time of committing the robbery. For the avoidance of doubt, the PW1 testified as follows:
“While we were pursuing the accused, I saw a small pen knife with him. He was holding the pen knife.”

It should be noted that, even if the statement of the Appellant to the police should be disregarded, the PW2 was an eye witness to the events that unfolded. He was with the PW1 when her bag was snatched and he actively participated in apprehending the assailant. Furthermore, the defence did not ask him a single question with a view to contradicting him on that vital aspect of his testimony. It remains therefore established that his testimony on that aspect is true; and that testimony amply corroborates the testimony of the PW1 that the Appellant was armed at the time of committing the robbery. It has thus been proved that the robbery was an armed robbery.

The Appellant also contended that, the Appellant was said to have confessed to the commission of the offence in a language that he does not understand. He referred to testimony of the pw3 at page 43 lines 27-31 of the record of appeal, to submit that, the statement was said to have been made in the Yoruba language, although it is very clear that the Appellant stated that he is an Igala man from Kogi State. That by Exhibits B-B1 and the statement of the Appellant in court, it is more probable that he is an Igala by tribe and not Yoruba. Learned counsel then contended that, without evidence from the prosecution that he understands the Yoruba language, he could not have volunteered the statement in the Yoruba language; especially when it is a notorious fact that an Igala man does not understand the Yoruba language. That it will be a great injustice to use a confession given in a language that an accused does not understand against him; but that, that is exactly what the learned trial Judge did.

Learned Counsel for the Appellant further submitted that, the prosecution led evidence that the Appellant does not understand the English language, thus the need to interpret his confessional statement from English to the Yoruba language. That the Appellant was neither cautioned in Yoruba language nor in the Igala language, but in the English language which he does not understand. That, if he was cautioned in English and the statement read to him in the English language, he could not have understood what he signed.

At paragraph 4.27 of the Respondent’s brief of arguments, learned counsel for the Respondent contended that the Appellant is being mischievous because, it is a known fact that the Appellant lives and works in the midst of predominantly Yoruba spoken people and that he has been so living for a period of four years before the case came up. Further, that it is common knowledge that there are Yoruba speaking people in Kogi State, and that though the Appellant may be from the Igala tribe, it does not take away the fact that he understands the Yoruba language.

In the instant case, the PW3 who testified to having recorded Exhibits B-B1 stated at pages 43-44 of the record of appear as follows:
“The accused and the case file was referred to me together with the complainants. I rearrested, caution and charged the accused with the offence of armed robbery in English language. I read the cautionary words to him which was translated into Yoruba language. He confirmed to understand the cautionary words and signed it. He volunteered a statement in Yoruba language and recorded same in English Language. I read the statement to the hearing of the Accused in English language which I translated to him in Yoruba language. He confirmed the statement as true and signed the statement as the maker while I counter signed as the recorder.”
My simple and literal understanding of the pw3 is that, the Appellant made the statement to the pw3 in the Yoruba language, which the PW3 wrote down in the English language. After that, he read out what he had written down to the Appellant to the hearing of the Appellant in English and interpreted same to the Appellant in the Yoruba language. I am of the view that this procedure does not make such a statement ipso facto inadmissible. Such a statement is admissible.

The complaint of the Appellant, as I understand it, is that there is no evidence to show that he understands the Yoruba language, there being abundant evidence on record that he is Igara by tribe. It should be noted that, the Appellant had initially objected to the statement being admitted in evidence at the trial, on the ground that he was forced to sign the document. The learned trial Judge then adjourned the matter for a trial within trial, so as to determine the voluntariness of the statement. However at the resumed hearing, after four adjournments, Alhaji Oduwole of learned counsel who the Appellant at the trial court, withdrew the objection as to the voluntariness or otherwise of the statement, and proceeded to in the court that, their objection would be on the ground that “the accused did not make the statement in question”. He then intimated the court that he would lead evidence to prove that the accused did not make the statement. On that score, the statements were admitted in as Exhibits B-B1. However, the learned counsel did not ask the PW3 a single question in cross-examination on the issue of Exhibits B-B1. There was no suggestion at all to PW3 that the Appellant does not understand the Yoruba language, so he could not have made a statement to PW3 in the Yoruba language. In that respect, the issue that the Appellant does not understand the Yoruba language did not arise at all at the trial.

Now, what is the evidence that the defence red at the trial in prove of these position that the Appellant did not make Exhibits B-B1? I find such evidence at page 60 lines 17-20 0f the record where the Appellant said:
“I did not make any statement at Abeokuta. The only statement I made in respect of this case is the one I made in Ijebu-Igbo. The shown to me (Exhibit B) was not my own. The police wrote the statement and asked me to sign it and I signed same. I did not commit the offence contained in the charge.”

It would be seen here that the evidence which learned counsel said the defence would read in proof that the Appellant did not make the statement, is a bare denial of the statement. He only disowned the statement. He did not however say that he does not understand the Yoruba language, so he could not have made the statements ascribed to him in Exhibits B-B1. Perhaps, he forgot that he made those statements, since he could forget the name of the primary school he attended in Kogi State. It is clear to me therefore, that the issue that the Appellant does not speak or understand the Yoruba language, as an issue in this appeal, did not arise at the trial, at all. In the circumstances, I have no hesitation in agreeing with learned D.D.P.P., Ogun State, that the Appellant is being mischievous by this argument. I am also of the view that this issue has been introduced just to create confusion. As can be seen arguments of Mr. Adetunbi of learned counsel for the Appellant, on this issue has not been substantiated. I therefore hold the view and do hold that the learned trial Judge having admitted the statement without objection was right in ascribing probative value to it.

Now, it is not sufficient for the prosecution to prove that there was a robbery and that the robbery was an armed robbery. The prosecution must go further to prove that, the accused person was either the robber or one of the robbers that committed the robbery charged. That is why learned counsel for the Appellant contended that the prosecution put the wrong person on trial. He then contended that, the question is whether the Appellant was the passenger or the okada rider in the face of the totality of the evidence on record? That, to answer the question, it should be remembered that, from the totality of evidence, it is obvious that on the 9/3/2004, being the day of the incident, two men came to the shop of PW1, riding on the same motorcycle. That one was the rider, while the other was a passenger; and that on getting to the PW1’s shop, the passenger alighted and walked to the shop and pretended to be a customer who wanted to buy cement. That in the course such pretence, he snatched the PW1’s bag and bolted away, but with the help of neighbours and a police officer, he was arrested. That before that date, neither PW1 nor PW2 has ever seen any of the two men. That two men were arrested as a result of the incident.

Learned counsel for the Appellant conceded that, the two persons were arrested at the scene of crime. He however contended that, if the two of them had been put on trial, the issue of identity would not call for consideration; but that as only one of them was put on trial, it must be shown beyond reasonable doubt that the person put on trial was the passenger, because it was the passenger that committed the actus reus of the crime and not the rider. That the rider who was the “junior partner” ought not to have been tried while the “principal character” was left off the hook. He then cited the case of Abudu v. State (1985) 1 NWLR (Pt. 1) p.55 at 62-63 paragraphs H-C to submit that, evidence that cannot sustain the trial of “a senior character” cannot certainly sustain the trial of a “junior character”. In other words, that since it is only one person that was tried, then, the person that should be tried must be the passenger, as it was the passenger who snatched the bag and also wielded the knife.

Learned counsel for the Appellant referred to the findings of the learned trial Judge at page 77 lines 1-7 of the records, to contend that the learned trial Judge failed to appreciate the nature of the evidence of identity that is necessary in this case. That the view of the learned trial Judge that, since the Appellant was arrested at the scene of crime, evidence of identity is not necessary does not hold water because, two men were arrested at the scene of crime. That, since the totality of the prosecution’s case is that one was innocent while the other was culpable, the duty to identify the criminal between the two men lies heavily on the prosecution. The cases of Ani v. State (2009) 16 NWLR (Pt. 1168) p.443 at 457-458 paragraphs F-D; Adisa v. State (supra); Bozin v. State (supra) and Oladele v. State (1993) 1 NWLR (Pt. 269) p.298 were cited to submit that, the prosecution failed to lead any cogent evidence that the Appellant was the passenger. That, the learned trial Judge relied on the testimonies of PW1, PW2 and Exhibits B-B1 to hold that the Appellant was the criminal, but he failed to address his mind to issue of whether the Appellant was the passenger. That in any case the prosecution merely tendered the Appellant like an Exhibit at the trial by pointing to him while in the dock and asking the pw1 if he could identify him. It was therefore submitted that, the identification would not have been necessary if the two persons arrested at the scene of crime had been arraigned for the same offence.

Learned counsel for the Appellant went on to submit that, in the case at hand, two men were caught and arrested at the scene of crime, one was innocent while the other was not. It is the view of learned counsel that, the innocent was the rider, while the criminal was the passenger, thus, the passenger must be pointed out with reasonable certainty, therefore, there is the need for evidence to properly identify the Appellant as the passenger. That the situation becomes worst when the I.P.O. who investigated the matter was not fielded to give any evidence as to the identity of the Appellant. That there was no shred of evidence from the I.P.O., to identify the Appellant as the person who was the passenger of the motorcycle at the material time. That this is more so as the PW1 stated that, the operation took place within two minutes and that her attacker was wearing a black cap covering his face, a dark goggles over his eyes and a black handkerchief tied around his mouth, so neither she nor the PW2 saw the facial look of the said attacker. That as they could not have the opportunity of seeing his face, they could not have seen his face as to identify him as the one between the two men arrested as the one who robbed the PW1. The case of Ndidi v. State (2007) 13 NWLR (Pt. 1052) p.633 at 651-652 paragraphs F-G was cited in support.

It was further contended by learned counsel for the Appellant that, the prosecution was conscious of the need to identity the Appellant as the passenger, and by extension the criminal, when they listed two vital witnesses who could identify the Appellant as the passenger and by extension, the criminal. That Alaba Adesina was listed as the okada rider who would identify the Appellant as the rider, and Inspector Uroko as the policeman that fired the shot at the Appellant and effected his arrest; but none of those persons was called to testify at the trial. It was then submitted that, the prosecution bears the burden to identify the Appellant as the passenger, and that they could only discharge that burden if Alaba Adesina whom the prosecution claimed to have been the rider of the motorcycle, and Alfred Uroko who first arrested the Appellant were called to testify. He then relied on the cases of Opeyemi v. State (1985) 2 NWLR (Pt. 5) p.101, Onah v. State (1985) 3 NWLR (Pt. 12) p.236 at 237, and State v. Nnolim (1994) 5 NWLR (Pt. 345) p.394 at 406 paragraph D, to submit that failure to call those vital witnesses is fatal to the prosecution’s case.

Learned counsel for the Appellant also contended that, the prosecution also front loaded another confessional statement made by the Appellant. That the prosecution failed to tender that statement in evidence because, it is obvious that it would support the Appellant’s assertion that he was the okada rider, and thus could not have committed the offence. It was therefore submitted that, the prosecution was under a duty to tender the said statement which would have enabled the court to know that the Appellant could not at the same be the Okada rider and also the passenger. That this would have corroborated the Appellant’s story that he did not make Exhibits B-B1. Furthermore, that, it is settled law that the prosecution is under a duty to tender all the confessional statement(s) of an accused person. He cited the case of Ogudo v. State (2011) 18 NWLR (Pt. 1278) p.1 at 31 paragraphs E-G, to submit that, the failure of the prosecution to tender the said confessional statement occasioned a miscarriage of justice in the sense that it deprived the Appellant of a piece of evidence which would have shown beyond any iota of doubt that he was the rider and not the passenger.

Finally, learned counsel for the Appellant submitted that, the totality of evidence of the prosecution in this case, cannot sustain the conviction of the Appellant. That the learned trial Judge relied so much on the purported confessional statement made by the Appellant. But that, it is not in every case that a court of law must rely on a confessional statement, and especially when it is obvious that the said confessional statement is unreliable. The cases of Nwosu v. State (1986) 4 NWLR (Pt. 35) p.348 and Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) p.547 at 582 paragraph F, were then cited to submit that, it is one thing to admit a document and another thing to ascribe probative value to them. It was therefore submitted that, the entire case for the prosecution ought to have collapsed in the face of the analysis by the Appellant. We were accordingly urged to allow the appeal and set aside the conviction and sentence meted on the Appellant.

Learned Counsel for the Appellant contended that, the prosecution is not in any doubt as to the identity of the person who carried out the robbery attack between the passenger and the rider. That, the PW1 knew who her attacker was, likewise, the PW2 who witnessed the incident. That the incident occurred at 5.00p.m when the day was still bright and the accused was arrested within the vicinity of the scene of crime shortly after the commission of the crime, thus it cannot be true to say that the PW1 will not be able to identify the person that robbed her that day. That the issue of mistaken identity does not therefore arise at all. That in law, identification parade need be conducted;
(a) When the offence was committed in the dark and the victim only had a fleeting encounter with the robber;
(b) When it is clear that the victim was traumatized when the offence was committed; or
(c) When the robber was not arrested at the scene of the robbery, but was arrested after the robbery.

Learned D.D.P.P., Ogun State for the Respondent further cited the case of Agboola v. State (2013) 8 S.C.M. p.157 at 160, to submit that, where the accused person confessed to commission of the crime, identification parade is not necessary. That in the instant case, the robbery incident occurred during the day time, i.e. 5.00p.m. and not in the dark. The victim (PW1) was not traumatized as the robber did not immediately revealed his mission on meeting the PW1, but did so after snatching the bag and when the PW1 attempted to pursue him. Above all, that the Appellant herein was pursued and arrested shortly after the robbery near the scene of the crime. Learned counsel then cited the case of Osuagwu v. State (2013) 1 S.C.M. p.170 to submit that, in those circumstances, the identity of the robber is not in doubt. That the learned trial Judge confirmed this when he held that:
“…. These facts were confirmed by PW2 an eye witness who was at the scene while it was also contained in Exhibit B-B1. It is to be noted that the accused was arrested while he attempted to escape from the scene. The identity of the accused was therefore, not in doubt. From the evidence before the court, I hold that the accused was the one who committed the offence on 9th March, 2004.”

It was therefore submitted that, the above findings and conclusion by the trial court is just and rightly arrived at after the evaluation of the facts before him. On the contention of the Appellant that two persons were arrested at the scene of crime; and that one of them was, the criminal; while the other not a criminal, learned D.D.P.P., agreed with that contention to the extent that, it was based on that scenario that, after the police investigation only the Appellant was arraigned and no charge of conspiracy was included on the information paper. That the prosecution and the witness knew who the criminal was and duly arraigned and prosecuted him.

Learned Counsel for the Respondent drew our attention to page 78 lines 36-38 and page 79 line 1 of the record to contend that the learned trial Judge duly reviewed the evidence and the Exhibits; particularly Exhibits B-B1, and after such evaluation found and held that, even though the Appellant denied making Exhibits B-B1, the statements were confessional in nature and duly endorsed. That the learned trial Judge therefore proceeded to determine the truth or otherwise of the confessions made therein by applying the test for determining the truth of such statements. We were accordingly urged to hold that, the learned trial Judge properly considered the principles laid down in determining the truth of Exhibits B-B1, and hereby arrived at a just decision.

On the failure of the prosecution to tender the other statement made by the Appellant in the course of the investigation, learned counsel contended that the Appellant confirmed that same was front loaded by the prosecution in the information paper served on him. That the Appellant had notice of the availability of the statement, therefore, it cannot be a truism that the failure of the prosecution to tender same amounts to concealment of information that was favourable to the Appellant. That it was therefore left for the Appellant to cross-examine the prosecution witnesses, especially the PW3 on the issue at hand and to have same tendered in evidence. It was accordingly submitted that, the prosecution is only expected to read evidence in proof of the charge against the accused beyond reasonable doubt, and therefore there is no law which compels the prosecution to call a particular witness or all the witness listed on the proof of evidence. That in any case, a cursory rook at the statement not tendered, showed same to be confessional in nature, having been made on the very date the Appellant was arrested. Learned Counsel then submitted that, if the Appellant felt strongly about the statement, he ought to have requested for same and have same tendered in his defence, as he did in respect of the statement of PW1, which was admitted as Exhibit A. We were accordingly urged to discountenance the arguments of the Appellant and to dismiss the appeal; and affirm the conviction and the sentence imposed on the Appellant by the trial court.

In the instant case, the PW1 was a victim of the crime, while the PW2 was together with the PW1 when the act of robbery occurred. Both of them are therefore eye witnesses to the entire events that led to the arrest of the Appellant. Both of them testified to the effect that when the Appellant snatched the PW1’s handbag, they pursued the appellant who attempted to jump onto a waiting motorcycle, but the PW2 pulled down the motorcycle. That the appellant then bolted away, they raised an alarm which attracted other people, who together with one policeman, the Appellant was arrested and immediately taken to the police station at Ijebu-Igbo. It is therefore an undisputed fact that the Appellant was arrested at the scene or close to the scene, in a bit to escape, some few minutes after he snatched the PW1’s bag. The evidence also shows that the PW1 and PW2 were not traumatized or intimidated by the events of the robbery. Though the Appellant disguised himself, it is very reasonable and accords with common sense that after his arrest the disguise was removed. The PW1 and PW2 therefore need not say so. Furthermore, the entire events happened at 5.00p.m when it was still very bright at that time of the day, as to afford them a very good vision to see the Appellant and his partner.

The Appellant does not deny that he was arrested at the scene of crime some few moments after the incident. His case is that, it was the passenger he took on his motorcycle who committed the robbery, while he was only the rider without any knowledge that his passenger was a robber. In other words, that he was not the robber but the passenger. He did not however, deny that he was arrested together with the said “passenger”. In resolving the issue of identity, the learned trial Judge found and held at pages 77-78 of the record of appeal as follows:
“I shall now consider the defence of the Accused person. It is trite law that the defence of an Accused however stupid, fanciful or doubtful, it must be considered for what is worth. See Bozin v. The State (1985) 2 NWLR (Pt. 8) 481; Opayemi v. The State (1985) 2 NWLR (Pt. 101) at 163. The Accused denied knowledge of the offence and also denied committing it. As regards Exhibits C, D and F which are the items recovered from him, he denied being in possession of them when he was arrested. He gave evidence that he was a commercial motorcyclist. On 9th March, 2004, he was riding his motorcycle for business when he was stopped by a passenger. He told him that he was going to Licensing Office which he obliged him but that he did not know the place. The passenger told him he would direct him.

On getting there, the passenger told him to stop and he demanded for his fares. The passenger told the Accused to hold on while the passenger crossed the road. The Accused parked the motorcycle. While he was waiting, he saw some people with his passenger fighting with him while they approached him. The people came to him and alleged that both of them came together to do business hence they started beating him and was consequently arrested.
The evidence was at variance with Exhibit B-B1. However, I had earlier, in this judgment, held that the Exhibits B-B1 is the statement of the accused person wherein he narrated vividly how the Armed Robbery offence was carried out together with one Alabi Adesina. I reject the evidence of the Accused and hold that he made Exhibits B-B1 and that the contents were true. The statement finds support with the evidence of PW1 and PW2 who witnessed the offence when it was committed. I do not believe the evidence of the Accused that he did not commit the offence.”

It is therefore clear from the portion of the judgment of the trial court quoted above; that the learned trial Judge considered the Appellant’s defence and disbelieved him. This he did in view of the confessional statement of the Appellant admitted in evidence as Exhibits B-B1. I had in the beginning of this judgment, considered the issue of the statements (Exhibits B-B1) and agreed with the learned trial Judge that the statement was duly made by the Appellant, it was voluntarily made, it having been admitted without objection. In determining the issue, the learned trial Judge duly considered the denial by the Appellant, and in evaluation of those statements with a view to according them probative value, he stated at page 75 of the record of appeal, thus:
“At this juncture, it is now pertinent to consider the evidential value of Exhibits B-B1. The Accused denied making the statement and testified that the only statement he made in connection with his arrest was made at Ijebu-Igbo Police Station. Alhaji Oduwole, counsel to the Accused, initially opposed the admissibility of the statement on the ground that it was involuntarily. He later withdrew the objection and contended that it was not made by the accused, hence it was admitted as Exhibits B-B1.
The Accused denied making the statement and testified that he did not know anything about it. He testified that the statement was written by the police and was asked to sign it and he signed it in one place. The statement was confessional in nature and it was accordingly endorsed. In the circumstances, my duty is to decide the truth or otherwise of the confessional statement, calling in aid, guides and principles laid down in decided cases… ”

The learned trial Judge then applied the tests for determining the truthfulness of Exhibits B-B1 as laid down by the Supreme Court in Idowu v. The State 3 NSCQR 132-136; Ekpenyong v. The State (1991) 6 NWLR (Pt. 200) 683 at 688 and Ojegele v. The State (1988) 1 NWLR (Pt. 71) p.414 at 416. Having thus done, the learned trial Judge held the defence of the Appellant to be “a carefully woven tissue of lies” designed to deceive the court, and an afterthought.

The statement of the Appellant admitted in evidence as Exhibits B-B1 was duly proved and admitted without objection. However, the Appellant resiled from or retracted same at the trial and painted a picture diametrically opposed to or inconsistent with the contents of Exhibits B-B1.

In the instant case, it is apparent on the record that the learned trial Judge adverted to those requirements in the determination of the issue. The evidence on record in this appeal show without doubt that the Appellant was arrested at the scene of crime some minutes after the incident. The statement in question was made barely two days after the incident and his subsequent arrest. The narration of the events leading to his arrest agrees totally with the testimony of the PW1 and PW2. I think it will be helpful if I reproduce portions of the statement which I find relevant on the issue. He had stated in Exhibit B as follows:
“On the 9th March, 2004, at about 17.00 hours, one Owolabi “M” of Ijebu-Igbo who is an Indian hemp dealer and from whom I do buy Indian hemp to smoke came to my house with his motorcycle Reg. No. OY 1765 DU, while he told me that self and him should go for robbery operation with his motorcycle of which I immediately followed him for the operation. On that day, Owolabi who is also known to be Alaba Adesina took me on his motorcycle while both of us proceeded to station area, Ijebu-Igbo. On our way going for robbery operation, Alaba carried a small gun and two cartridges while I was with one dagger knife and charm for my protection. On getting to the station area in Ijebu-Igbo, he saw a woman selling cement and we branched at this place. When we branched, Alaba was on the motorcycle while I came down from the motorcycle and pretended as if I wanted to buy cement. I priced the cement, while pricing, the woman was trying to calculate its money, unexpected I snatched the bag containing some amount of money from the woman and I immediately took to my heels. The people around started pursuing me and shouting thief! Thief but Alaba was trying to escape with the motorcycle but he was eventually arrested on the spot. When I was running, one man who I later known to be police man he was firing up before I was arrested. I am a robber. When I was going for the operation with Alaba, I wore black cap to cover my face and a black eye. While Alaba also used glass and cap to cover his face. I have never robbed in any place before that was the first time I went for robbery operation and it was Alaba Adesina that took me to the place.”

It would be seen that this statement of the Appellant, which is undeniably confessional, amply and substantially supports the testimony of the prosecution witnesses. It therefore puts a lie to the contention that he was not the passenger but one Alaba. Accordingly when read along with the testimony of the PW1 and PW2, there is no doubting the fact that it was the Appellant who robbed the PW1 on the 9th day of March, 2004 at about 5.00p.m. The Arguments of learned counsel for the Appellant, with due respect, apparently tried to pull wool on the eye of the court. In the abundance of evidence on the record against the Appellant, that cannot be achieved. The Appellant was caught “red-handed” committing the act of robbery while armed with a dagger, and so cannot escape the consequence of his action. I therefore agree with the learned trial Judge, that the evidence (defence) of the Appellant was “a carefully woven design” to deceive the court. The learned trial Judge promptly saw through it.

On the issue that the prosecution failed to call the person arrested with the Appellant (Alaba Adesina) and Mr. Uroko who is the police officer that fired the shot at the Appellant and finally arrested him, and whose names were listed on the proof of evidence, it was contended that such failure is fatal to the prosecution’s case as it amounts to with-holding evidence. That those witnesses are vital witnesses who ought to have been called. In the case of Ochiba v. State (2011) 17 NWLR (Pt. 1277) p.663 at 696 paragraphs A-B, Adekeye, JSC defined a vital witness as:
“… A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”

At page 695 paragraphs D – H, of the above cited case, His Lordship further stated that:
“On the issue of witnesses, the prosecution has a duty to name all the witnesses it intends to call at the back of an information, where it decided not to call any of those witnesses, such witnesses should be produced for the purpose of cross-examination, if available. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness – as there is nothing stopping the accused himself from calling such witness when defence opens. Okoroji v. State (2002) 5 NWLR (Pt. 759) p.21. It is the prerogative of the prosecution to call witnesses relevant to its case.
It is however settled principle of law that prosecution is not bound to call every person that was linked to the scene of crime by physical presence or, to give evidence of what he saw. Once persons who can testify to the actual commission of crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act.
It is not also incumbent on the prosecution to call every eye witness to testify in order to discharge the onus placed on it by law of proving a criminal case beyond reasonable doubt and as a matter of fact, a single witness who gives cogent eye witness account of the incident will suffice even in a murder charge. Effiong v. State (1998) 8 NWLR (Pt. 562) p.362.”

What can be deciphered from the above dicta of the Supreme Court is that, although it is desirable for the prosecution to call vital witnesses which are listed on the information sheet, such failure to call those vital witnesses alone, shall not be a ground or reason for quashing any conviction of the Appellant. This is because, there is no law which says that once a particular witness is not called; it will lead to the quashing of the decision of the trial court. It will only be fatal to the decision where there are no other evidence, sufficient and convincing enough to sustain the conviction of the prisoner. Accordingly where despite the failure to call those vital witnesses, there are other evidence which prove the charge beyond reasonable, the of the trial court will not be disturbed. See Ogege Egberetamu v. The State (2014) LPELR-22615(CA); Olabode v. State (2007) 2 N.C.C. p.711; Imhanria v. Nigerian Army (2007) 14 NWLR (Pt. 1053) p….. It therefore means that, it is not in all cases that failure to call a vital or material witness will be fatal to the prosecution’s case. In the instant case, the Appellant was arrested at the scene of crime or so near to it, some few minutes after the offence was committed. The Appellant made a statement confessing to have committed the crime. Furthermore, PW1 and PW2 are direct eye witnesses to the commission of the crime. It is therefore my view that, failure to call the policeman who arrested the Appellant (Alaba Adesina) and the other person who was arrested along with the Appellant was desirable, but in the abundance of other credible evidence against the Appellant, his conviction cannot be quashed for the sole reason that those witnesses were not called. Though the decisions cited by the Appellant apparently laid it down that failure to call a vital witness is fatal to the prosecutions, case, those decisions did not state that in such circumstances, the conviction of the Appellant must be quashed. Thus, where a material issue at the trial has been proved by some other evidence red and proved at the trial, failure to call such “vital or material” witness will not affect the judgment of the trial court.

The Appellant also contended that, he had made a statement at the Ijebu-Igbo Police station, which statement was never tendered by the prosecution. That failure to so tender, deprived him the benefit of a piece of evidence which would show beyond iota of doubt that he was the rider and not the passenger. Learned counsel made spirited effort to show that such statement showed that, he was the rider and not the passenger when he quoted a portion of the statement to support his argument. I wish to first of all state that, that statement is not in evidence so counsel cannot make use of it. Furthermore, learned counsel for the Appellant deliberately tried to mislead the court by suppressing the fact that the entire statement if read sufficiently damnified the Appellant and clearly admits that on the 9/3/2004, when he went to visit his brother, as he said, he was the passenger and not the rider.

Now, the law is trite that, a court may presume that evidence which could be and is not produced could, if produced be unfavourable to the person who withholds it. See Aremu v. The State (1991) 7 NWLR (Pt. 201) p.1 at 17-18; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) p.466; Ware v. A.G. Adamawa State (2000) 8 NWLR (Pt. 668) p.229 and Asake v. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) p.408. See also Section 167(d) of the Evidence Act, 2011. However, for that rule to apply, it must be shown that the defence made a demand for the statement but the prosecution refused to honour the demand. In that respect, there must be a demand, and a refusal to honour the demand by the prosecution, before the presumption of withholding evidence under Section 167(d) of the Evidence Act, 2011 can apply. See Adekoya v. The State (2010) LPELR-3604(CA). In the instant case, learned counsel for the Appellant had admitted that the prosecution frontloaded the said statement on the proof of evidence. That being so, the Appellant had notice of the statement before and during the trial. If the Appellant considered such document relevant to his defence, he was at liberty to cross-examine the PW3 who stated that the said statement was in the police case file, and to have that document tendered as part of the case for the defence. It is not on record that the defence made a demand for the document which the prosecution refused to honour, nor was there any attempt to have that document or statement tendered. On the circumstances of this case, I am of the view that the prosecution is not guilty of withholding evidence.

It would be seen that the issues in contention in this appeal have been resolved against the Appellant. It therefore means that the appeal has failed as it has no merit. It is accordingly dismissed. I therefore affirm the judgment of the Ogun State High Court, holden at Ijebu-Igbo in charge No. HCB/10C/2007, delivered on the 28th December, 2011.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the benefit of reading before now the draft of the judgment of my brother Haruna Simon Tsammani, J.C.A.
My lord has given a detailed consideration of the issue for determination and I have nothing to add.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the judgment just delivered by my learned brother Haruna Simon Tsammani JCA. I agree with the reasons advanced therein to arrive at the conclusion that the appeal lacks merit and should be dismissed.

In the case at hand the prosecution has diligently discharged the burden of proof beyond any shadow of doubt. It is for this and the fuller reasons articulated in the lead judgment that I also hold that the appeal is unmeritorious and I dismiss it.

I also affirm the judgment of the Ogun State High Court holding at Ijebu-Igbo in charge No. HCB/10C/2007 delivered by Hon. Justice N. I. Agbelu on 28/12/2011.

Appearances

Musibau Adetunbi; Esq., with R. O. Muraina; Esq.For Appellant

AND

J. K. Omotosho; Esq., (D.D.P.P.; Ogun State)For Respondent