MATTHEW v. STATE (2020)

MATTHEW v. STATE

(2020)LCN/14262(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/B/190C/2019

Before Our Lordships:

Helen Moronkeji Ogunwumi juJustice of the Court of Appeal

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

OKORO MATTHEW APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE CRIMINAL OFFENCE OF CONSPIRACY

In respect of Count 1, the conspiracy was limited to the incident in September 13, 2011 wherein the PW1 was robbed along with his family and several items were stolen. The ingredients of the offence of conspiracy are as follows:
(a) that there is an agreement between two or more people
(b) that the agreement is for the purpose of committing an offence. In the ERIM V. STATE (1994) 5 NWLR (Pt.346) 522 (SC), it was held that the offence of conspiracy is completely committed the moment two or more persons have agreed that they will do, immediately or at some future time, certain unlawful things. See also the case of BOUWOR V. THE STATE Supra
The problem with proving the offence of conspiracy is that most of the time to prove conspiracy, one may have to look at the commission of the offence itself. Since the intention and agreement to commit the offence is what culminates in the commission of the offence itself. Therefore the offence of conspiracy can be inferred from the circumstances. See OMOTOLA V. THE STATE (2009) 2-3 MJSC 76. In GBADAMOSI V. THE STATE (1991) 6 NWLR Pt. 196 Pg. 182 the Court held as follows:
“The Court should not only consider the physical meeting of the minds in a known and identifiable place or spot as the crime hatching or planning base or ground, but the totality of the conduct of the parties. The law is trite that for the purpose of convicting on conspiracy, direct and distinct evidence, though most desirable is not invariably indispensable.” PER OGUNWUMIJU, J.C.A.

THE MEANING OF “PROOF BEYOND REASONABLE DOUBT”

It is my humble view that “proof beyond reasonable doubt” is not “proof beyond every shadow of doubt. It is not, therefore, proof beyond all possible or imaginary doubt that it is such proof as precludes every reasonable hypotheses except that which it tends to support. It is proof “to moral certainty”, such proof as satisfied the judgment and conscience of the Judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the Defendant and so satisfied him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial Judge”. See AFOLALU V. STATE (2010) 6-7, MJSC 187. I cannot find the evidence of PW1 credible enough in all particulars to sustain Counts 1 & 2 of the charge. PER OGUNWUMIJU, J.C.A.

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading judgment): This is an appeal against the judgment of the Edo State High Court of Justice delivered by Hon. Justice Ohimai Ovbiagele on 12th day of December, 2018.

The learned trial judge sentenced the Appellant to death on the three counts charge of (1) Conspiracy to commit armed robbery (II) Armed robbery and (III) 15 years imprisonment for attempted Armed Robbery. The Appellant with the leave of this Court amended the Notice of Appeal and the extant Notice of Appeal is the Amended Notice of Appeal filed on 28th of May, 2019 from where the Appellant has distilled an issue for determination.

FACTS OF THE CASE
The prosecution’s case against the Appellant at the trial was that on the 13th of September, 2011 the Complainant, one Monday Ayamenkhue (who testified as PW1) and his family were robbed by the Appellant and his gang. On the said date, the PW1 returned home and waited at the gate for a long time before his daughter came in from outside to opened the gate. Upon driving in, PW1 alighted from the car only to see four boys in his compound armed with guns. One of the boys brought

out an AK47 gun and instructed his daughter to open for him. The Appellant and the co-defendant and others now at large robbed the PW1 of his double barrel gun, two laptops, eighteen handsets belonging to him, his children and wife and the sum of three hundred and seventy-five thousand naira. The bandits were not caught. However, on the 25th of November, 2011 the PW1 was inside his room with his wife and one of his daughters when suddenly he saw a man pointing an AK47 at him, he asked him if it was money he needed, he pushed the robber and the gun he was holding started shooting sporadically. The PW1 picked his double barrel gun and shot at the robber that entered his room. The robbers later escaped and he called his neighbour for help and his daughter who was shot on the leg was rushed to UBTH. The PW1 returned home that same day and he got a call from his daughter that she saw one of the robbers who came to rob them who had sustained injury during the operation in the University of Benin Teaching Hospital (UBTH) come for treatment. The police from Ugbowo were contacted and they came and arrested the injured armed robber, later known as Emmanuel Erukewve. The

said Emmanuel Erukewve confessed to committing the offence with three others including the Appellant and the co-defendant. The Appellant and his co-defendant were subsequently arrested, and the Appellant made a confessional statement to the police at the State Criminal Investigation Department (State CID), Benin describing his involvement in the offence.

During the 25th November, 2011 operation, the PW1 overpowered the robbers and they ran away living expended cartridges and their AK47 gun and other items that were recovered by the police. The Appellant and the above named co-defendant were arrested following the confession of one Emmanuel Erukewve linking the Appellant to the offence. The Appellant and the above named co-defendant were charged respectively. At the close of investigation, the Appellant and a co-defendant were charged to count for conspiracy, armed robbery and attempted armed robbery. Emmanuel Erukewve whose confession led to the arrest of the Appellant could not be charged as he escaped from the police custody.

At the trial, the prosecution listed three witnesses to give evidence including the Investigating Police Officer (IPO) at

the Ugbowo police Division. However, when the trial commenced the prosecution could not call the nominal complainant to testify the other witnesses having travelled overseas. The IPO in fact testified halfway but could not conclude his evidence before he travelled overseas. The PW1 testified on how the Appellant and his gang invaded his home on two different occasions. The first operation took place on 13th of September, 2011 and the second (which failed) took place in November, 2011. He narrated his ordeal in the hands of the robbers. He also tendered several exhibits recovered by the police from the scene of crime after the second operation.

The Appellant and his co-accused then opened their defence. Each of them testified for himself and called no witness. They also tendered no exhibit. In their defence, they denied the allegations. At the close of trial, counsel for all the parties addressed Court and judgment was delivered. The Appellant was found guilty and sentenced to death by hanging and fifteen years imprisonment. The Appellant being dissatisfied with the said judgment has now appealed to this Court to set aside his conviction and to discharge

and acquit him.

In the Appellant’s brief filed on 28th of May, 2019 settled by Olayiwola Afolabi Esq., Counsel distilled the following sole issue for determination:
Whether having regard to the nature of the offence which carries a death penalty and the evidence of the only nominal witness and the absence of the evidence of Investigative Police Officer, whether the prosecution successfully proved its case beyond reasonable doubt against the Appellant.

In the Respondent’s brief settled by Mrs. V.U. Adeleye Deputy Director Ministry of Justice Edo State; Mrs. Iryn Omorogiuwa (CSC); Mrs. M.E. Obayuwana (ACSC) and E.E. Ageloisa (SSC) filed on 29th of May, 2020, the Respondent distilled also a sole issue stated as follows:
Whether having regard to the totality of the evidence led at the trial and the circumstances of this case, the prosecution can be said to have proved its case against the Appellant beyond reasonable doubt as required by law.

I am persuaded after reading the record and the briefs of Counsel that the issue distilled by the Respondent’s Counsel is clear and sufficient to be used to determine the Appeal.

Learned Appellant’s Counsel argued that by Section 135 (1) of the Evidence Act 2011 burden of proof in a criminal charge is beyond reasonable doubt in view of the presumption of innocence enshrined in Section 36 (6) (5) and (11) of the 1999 Constitution. Counsel submitted that any doubt in a criminal trial should be resolved in favour of the accused. Counsel cited OJO V. FRN (2008) 11 NWLR Pt. 1099 Pg. 467 at 474, OKEKE V. THE STATE (2016) LPELR 40024 (CA) Pg. 30-31. Counsel argued that the evidence presented by the prosecution in this case cannot sustain the entire charge preferred against the Appellant because the evidence presented by the PW1 was so incredible, uninvestigated, filled with grave doubts and even contradicted the entire three counts brought against the Appellant which every reasonable Court ought to exercise restrain in treating such an evidence in an offence which carries death penalty.

Counsel further submitted that in any criminal trial, failure to call the IPO during trial is fatal to the case of the prosecution. Counsel cited MRS. BAJULAIYE V. THE STATE (2012) LPELR- 7995 (CA); USUFU V. THE STATE (2007) 1 NWLR Pt. 1020 Pg. 194

at 104; STATE V. AZEEZ (2008) 14 NWLR Pt. 1108 Pg. 439 at 451.

Counsel argued that the prosecution did not conduct a proper identification parade before concluding that the Appellant was the armed robber who robbed the Respondent and his family. Counsel submitted that where a victim never knew the accused before commission of an offence, an identification parade must be conducted to enable the eyewitness pick out the accused from among a group of other people. Counsel cited FABIAN NWATURUOCHA V. THE STATE (2010) LPELR 4646 (CA). DARE ALEBIOSU V. THE STATE (2016) LPELR 41359 (CA) and others.

Counsel also argued that the Court should investigate the evidence of PW1 at the trial since the PW1 never reported the first robbery to the police. He cited ALIYU ADAMU V. THE STATE (2018) LPELR 44172; ONYIRIMBA V. THE STATE (2002) ALL NWLR Pt. 777 Pg. 83 at 96-98; EKAIDEM V. STATE (2012) ALL FWLR Pt. 631 Pg. 1587 at 1614 in which the Courts held that all doubt must be resolved in favour of the accused. Counsel also submitted that where the evidence led by the prosecution is at variance with the charge, the charge will collapse. Counsel cited

RAYMOND NWOKEDI V. COMMISSIONER OF POLICE (1977) ALL NLR Pg. 11; MOHAMAMED IBRAHIM V. THE STATE (2015) LPELR- 40833 (SC) at Pg. 38.

Appellant’s Counsel argued that the circumstances are such that the doubts are so many and they must be resolved in favour of the Appellant. Counsel cited OSUMARE V. PEOPLE OF LAGOS STATE (2014) ALL FWLR Pt. 757 Pg. 605 at 630; ALMU V. THE STATE (2001) 10 NWLR Pt. 1148 Pg. 31. Counsel stated that the Appellant’s lies even if they concede so is not evidence of guilt. Counsel cited AJAEGBO V. STATE (2019) ALL FWLR Pt. 979 Pg. 459 at Pg. 495.

In reply, learned Respondent’s Counsel argued that the ingredients of conspiracy and armed robbery were proved beyond reasonable doubt by the prosecution against the Appellant.

On Count 1 of the charge, Respondent’s Counsel argued that the offence of conspiracy was established as required by law bearing in mind that the elements of the offence are embedded in the agreement or plot among the parties, a position that is rarely capable of direct proof and so can be deduced from the acts of the parties channeled or focused towards the realization of a common or mutual

criminal purpose. Counsel cited ERIM V. THE STATE (1994) 5 NWLR Pt. 346 Pg. 522; BOUWOR V. THE STATE (2016) LPELR- 26054 (SC).

Counsel submitted further that although none of the witnesses gave evidence of seeing or hearing the Appellant and the other accused now at large planning the robbery, the law permits that conspiracy can be inferred from the circumstances. Counsel cited OMOTOLA V. STATE (2009) 2-3, MJSC, 76 (SC). InERIM V. STATE (1994) 5, NWLR (Pt.346) 522 (SC) the Court held as follows:
“In order to prove conspiracy, it is not necessary that there should be direct communication between conspirator and every other. All that need be established is that the criminal design alleged is common to all of them. Proof of how they connected with or among themselves or that the connection was made is not necessary for there could even be cases where one conspirator may be in one town and the other in another town and they may never have seen each other.”

On Count 2, learned Respondent’s Counsel argued that from the evidence of the prosecution witnesses which was consistent, the three elements (ingredients) of the offence

of armed robbery were established beyond all reasonable doubts. The evidence of PW1 in addition to all the exhibits tendered through him proves and it is not in controversy that there was robbery and that the robbers were armed with guns.
Counsel cited NWACHUKWU V. STATE (1985) 11 NWLR (Pt.11) page 218; ADEYEMI V. STATE (1991) 1, NWLR 170 page 679. Counsel submitted that the guilt of an accused person can be proved by any of the following ways:
(a) his confessional statement; or
(b) circumstantial evidence; of
(c) evidence of an eye-witness of the crime.

Counsel argued that in this case the prosecution has in fact relied on the evidence of PW1 who was a victim and an eye-witness of the crime. Counsel urged the Court to accept as the trial Court did the evidence of PW1 in proof the offences committed by the Appellant.

Learned Respondent’s Counsel submitted that the prosecution can rely on any of the three methods stated above to prove its case against an accused person to secure conviction. See the cases of EMEKA V. STATE (2001) 14 NWLR (Pt.734) p. 66 and IGABELE V. THE STATE (2006) 6 NWLR (Pt.915) p. 100. Counsel

emphasised that in this case in particular, the prosecution in fact relied on the third of the three modes stated above which is by the evidence of an eye-witness, the victim himself.

On Count 3, learned Respondent’s Counsel submitted that the prosecution has proved the count of attempted armed robbery against the Appellant beyond reasonable doubt, in addition that “reasonable doubt” here means proof which carry a high degree of probability and not proof beyond every shadow of doubt. Learned Respondent’s Counsel argued that even though the learned Counsel to the Appellant has argued vehemently against the non-tendering of any statement made by the PW1 about the incident of September, 2011 to the police and one of the points he felt very strongly and quite sentimentally about is that there was no evidence that investigation by the police was conducted in respect of the charge. Counsel submitted that the argument is preposterous in that, the PW1 in his statement at the police station and the said statement which was marked as “Exhibit A“, express mention was made of the two incidents of armed robbery by the same Appellant

and his gang. The PW1 during his cross examination told the trial Court that he narrated the incident of 13th of September, 2011 to the police and that he did not write down the statement.

Learned Respondent’s Counsel argued that the case of BAJULAIYE V. THE STATE is distinguishable from the facts of this case. Counsel argued that it is settled law under Section 129 (1) of the Evidence Act that the prosecution is not obliged to call a host of witness and also that the Court can convict on the evidence of a single witness where the evidence is cogent, compelling and capable of being believed. Counsel argued that there is no law that imposes an obligation on the prosecution to call any particular witness or a host of witnesses. All that is expected for the prosecution is to call sufficient material witnesses to prove its case and in doing so, the prosecution has discretion in the matter. Counsel cited AFOLALU V. THE STATE (2010) 4 NSC QR 227 at 265.

Counsel urged this Court to hold that the trial Court was right to have convicted on the evidence of a single witness since the quality of the evidence was cogent and positive leading to the

involvement of the Appellant in the offence. Counsel argued that there was no need in the circumstances of the case for there to be a special identification parade for the victim to identify the armed robbers who attacked him. Counsel cited USUFU V. STATE (2007) 3 NWLR (Pt.1020) 74, see also GARBA V. STATE (2006) 6, NWLR (Pt.997) 524; EFFIA V. STATE (1999) 8, NWLR (Pt.613); ONUBOGU & ANOR V. THE STATE (1974) 1 ALL NLR (Pt.11) 5; ISIBOR V. STATE (2002) 94 LRCN 279 @ 284TT & 285A; ANYANWU V. THE STATE (1986) 5 NWLR (Pt.43) 612; EYISI & ORS V. THE STATE (2000) LPELR-1186 (SC). Counsel urged the Court to dismiss the appeal.

OPINION
The charges against the Appellant and one other at the trial Court are set out below as stated on pages 118-120 of the Record;
That you Okoro Matthew ‘m’ and Okechukwu Ayeni ‘m’ and others now at large on about the 13th day of September, 2011 at No. 1 Ayamenkhue Street B.D.PA. in the Benin Judicial Division did conspire among yourselves to commit a felony to wit: armed robbery and thereby committed an offence contrary to Section 6(b) and punishable under

Section 1(2) (a) of the Robbery and Firearms (special Provisions) Act Cap R11, Laws of the Federation of Nigeria 2004.
COUNT II
That you Okoro Matthew ‘m’ and Okechukwu Ayeni ‘m’ and others now at large, on about the 13th day of September, 2011 at No. 1 Ayamenkhue Street B.D.P.A in the Benin Judicial Division did rob one Monday Ayamenkhue ‘m’ of one Dobule Barrel gun valued at N200,000.00 (Two Hundred Thousand Naira). Two laptops valued at N189,000.00 (One Hundred and Eighty-nine Thousand Naira) jewelries and gold valued at N500,000.00 Five Hundred Thousand Naira) Eighteen Nokia handset and blackberry valued at N600,000.00 (sic hundred thousand Naira), cash sum of Three hundred and Seventy-five thousand Naira (N375,000.00) and at the time of the robbery you were armed with offensive weapons to wit: guns and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria 2004.
COUNT III:
That you Okoro Matthew ‘m’ and Okechukwu Ayeni ‘m’ and others now at large, on about the 25th day of November, 2011 at No. 1

Ayamenkhue Street, B.D.P.A in the Benin Judicial Division did attempt to rob one Monday Aymenkhue and at the time of the robbery you were armed with offensive weapon to wit: gun and thereby committed an offence under Section 2(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria 2004.”

Simply put, we are looking at conspiracy to commit armed robbery on September 13, 2011 in Count 1, substantive offence of armed robbery on 13th of September, 2011 in count 2, and attempted armed robbery on 25th of November, 2011 in count 3.

We have now to determine whether the prosecution was able to prove any of the ingredients of the offences of conspiracy, armed robbery and attempted armed robbery on the dates specified in the charge.

In the ERIM V. STATE (1994) 5 NWLR (Pt.346) 522 (SC), it was held that the offence of conspiracy is completely committed the moment two or more persons have agreed that they will do, immediately or at some future time, certain unlawful things. See also the case of BOUWOR V. THE STATE Supra
The problem with proving the offence of conspiracy is that most of the time to prove conspiracy, one may have to look at the commission of the offence itself. Since the intention and agreement to commit the offence is what culminates in the commission of the offence itself. Therefore the offence of conspiracy can be inferred from the circumstances. See OMOTOLA V. THE STATE (2009) 2-3 MJSC 76. In GBADAMOSI V. THE STATE (1991) 6 NWLR Pt. 196 Pg. 182 the Court held as follows:
“The Court should not only consider the physical meeting of the minds in a known and identifiable place or spot as the crime hatching or planning base or ground, but the totality of the conduct of the parties. The law is trite that for the purpose of convicting on conspiracy, direct and distinct evidence, though most desirable is not invariably indispensable.”

As I said, let us look

at the proof of the substantive offence so that we can indeed determine that the offence of conspiracy was committed.

Let us look at the evidence of PW1 in relation to the offence of robbery which took place on 13th of September, 2011. I have no doubt that indeed the witness and his family were robbed. His testimony was not shaken under cross examination on that head. The question is whether there is sufficient evidence that in fact the witness could recognize the Appellant as part of the gang of robbers, who robbed him on 13th of September, 2011. I have carefully perused the record of proceedings. I have great doubt that indeed he was able to give a description of those who had robbed him on 13th of September, 2011 to the police. I would have had no hesitation in this regard if the statement of the PW1 made contemporaneously to 13th of September, 2011 was tendered by the police to prove that the PW1 stated at the time that even though the incident occurred at 8pm at night in his compound, he had sufficient light to recognize the Appellant in his compound and then went on to give a fair description on record of the Appellant.

On the issue of whether

a Court can convict on the evidence of a single witness, this Court held in IYARE V. STATE (2019) LPELR- 48309 (CA), as follows:
“It is also worthy of note that PW2 gave direct positive and unequivocal evidence identify the Appellant as one of the two armed robbers who robbed him of his phones, recharge cards and money. This overwhelming piece of evidence was neither rebutted nor controverted. Again, this Court cannot wish away the fact that the Appellant made a confessional statement which failed the test of the trial within trial conducted at the lower Court. However, the law is quite settled on the point that the evidence of even one convincing witness is sufficient to ground a conviction if the said piece of evidence is accepted and believed by the Court. See MAGAJI V. THE NIGERIAN ARMY (2008) LPELR 1814 (SC) at Page 65 P-E. Failure by the prosecution to call the Investigating Police Officer was therefore not fatal to the case. PW2 had put a nail to the Appellant’s coffin when he again identified him on his visit to his premises and thus alerted the police who subsequently arrested him.”
Thus a Court of law is not so much

concerned with the number of witnesses called by each party to a dispute to arrive at its decision. What is material is the quality of the evidence before the Court. While the evidence of PW1 was vivid and no doubt true about the incident on 25th November, 2011, it did not include any information to suggest that he could have recognised the Appellant after the incident on 13th of September, 2011.

The Appellant’s Counsel raised the issue that an identification parade should have been conducted by the police to determine the identity of the robbers. It is trite that it is not in every case that identification is needed. It has been held in plethora of cases that the purpose of identification parade is only one way of establishing the identification of an accused person in relation to the offence charged. See ANYANWU V. THE STATE (supra).

In this case, PW1 said nothing about the Appellant at the time he was robbed to suggest that he could identify him specifically.

Let us look at the undisputed facts in this case. On the night of 25th of November, 2011 when the robbery took place, PW1 recognised the Appellant as one of the robbery in his

sitting room holding his family hostage. This was after he had tackled in his bedroom Erukevwe one of the robbery who had held a gun to him to rob him. In the scuffle according to the evidence of PW1 which I believe in its entirety, there was exchange of gun shots between PW1 and the Erukevwe. He shot the Erukevwe several times and the Appellant and the other robbers fled. Thereafter he discovered one of his daughters Amalawa had been wounded in the leg by gunshot and neighbours helped him convey her to UBTH.

It was at UBTH that Amalawa identified Erukevwe who also had come to UBTH for treatment of his gunshot wounds. The police arrested Erukevwe and thereafter, Erukevwe identified his other cohorts including the Appellant and he too was arrested.

The problem here is that the police were unable or unwilling to prosecute this case to a successful conclusion. The evidence of PW2 was expunged from the record. No confessional statement usually relied on by the police to secure a conviction was tendered. Even with the confession of one of the perpetrators, (the confession not tendered) it is in the realm of speculation as facts stand now whether or not

the Appellant was one of the robbers of 13th of September 2011. In any event even if there was a confessional statement, it would only be credible evidence against the accused and not a co-accused.

There is no doubt in my mind that the police should have conducted an identification parade to ensure that indeed the Appellant was one of the armed robbers of 13th of September, 2011. Then the Court would have been able to determine whether or not the victim was able to recognize him by a certain feature which he had noted during the earlier robbery and which he had indicated to the police i.e. colour of skin, height, dialect etc.

It is my humble view that “proof beyond reasonable doubt” is not “proof beyond every shadow of doubt. It is not, therefore, proof beyond all possible or imaginary doubt that it is such proof as precludes every reasonable hypotheses except that which it tends to support. It is proof “to moral certainty”, such proof as satisfied the judgment and conscience of the Judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the Defendant

and so satisfied him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial Judge”. See AFOLALU V. STATE (2010) 6-7, MJSC 187. I cannot find the evidence of PW1 credible enough in all particulars to sustain Counts 1 & 2 of the charge.

Every serious doubt in a criminal matter must be resolved in favour of the accused, who is the Appellant in this case. I find myself on closely reading the record of proceedings, not being able to find that this Appellant participated in the conspiracy to rob and the robbery of the complainant and his family on 13th of September, 2011. The conviction and sentence of the Appellant on counts 1 & 2 of the charge are hereby set aside.

In respect of the 3rd count of attempted robbery which occurred on 25th of November, 2011, I cannot find any contradiction or confusion in the narration of the incident by PW1 of the assault and attempted robbery of his family by the Appellant and his gang. There was no attempt during cross examination at the trial to

indicate that PW1 did not see one of them clearly in his own bedroom where he was eating or the others in the sitting room where they had overpowered his family by threat of arms.

However, in respect of the said crime of attempted robbery committed on 25th of November, 2011, the theory of spontaneous recognition by victim of the crime a few hours after the crime was committed could have aided the case of the prosecution if the Appellant was the one spontaneously recognized by the victim a few hours after the crime. The recognition of Erukewve (alleged leader of the gang by Amalawa (daughter of PW1) would have been the smoking gun on the theory of spontaneous recognition. In OCHIBA V. THE STATE (2011) LPELR- 8245 (SC); (2011) 17 NWLR Pt. 1277 Pg. 663 the Supreme Court held that recognition and visual spontaneous evidence of identification in most instances are more reliable than a formal identification parade, if that evidence is acceptable by the trial Court. See also OLAGUNJU V. THE STATE (2014) LPELR- 22097 (CA); WAKALA V. THE STATE (1991) 8 NWLR Pt. 211 Pg.552 at 565. The problem here is that this Appellant was not the person spontaneously recognized

by the daughter of PW1 at UBTH. There is no evidence on record linking the said Erukewve (who magically disappeared along the way) with the Appellant. The evidence of the IPO would perhaps have linked the two. However, in the absence of any evidence linking the two, the Appellant was already in custody and shown to the PW1 as a suspect in his case, I find that no proper identification has been conducted to satisfy the dictates of the law.

As I said earlier, the conviction in respect of the offences committed on 13th of September, 2011 cannot be affirmed. According to the evidence of PW1, relating to the events of 13th of September, 2011, the failure of the prosecution to call Ivie his daughter held by the armed robbers for over an hour, the ineptitude and failure of the police to tender any statement showing that PW1 could recognize the Appellant show clearly that the prosecution have not been able to prove the offence beyond reasonable doubt.

In the circumstances, the police had no smoking gun in this case, no proper identification of the Appellant, no evidence at all that the Appellant was one of the robbers who had previously robbed the victim and

his family and the case against the Appellant in my view is merely sound and fury signifying nothing at all. A Court cannot sentence a person to death on the basis of speculation and sentiment or empathy with the victim. The police grossly mismanaged the investigation and prosecution of this case as they are usually wont to do. No one took the pains to separate the proof of the incident on 13th of September, 2011 from the incident of 25th of November, 2011. This lacuna is fatal to the case of the prosecution.

I find that indeed the prosecution could not prove that the Appellant committed the offence in Count 3 and his conviction and sentence thereon is not supported by the facts and law. In the circumstances the judgment containing the conviction and sentence of the Appellant in Charge No. B/CD/64C/2013 delivered on 12th of December, 2018 by Hon. Justice Ohimai Ovbiagele in relation to the charge of conspiracy to commit armed robbery and armed robbery on 13th of September, 2011 and attempted armed robbery on 25th November, 2011 is hereby set aside. Thus the conviction of death by hanging is set aside. The conviction and sentence of imprisonment for 15

years with hard labour is hereby also set aside. Appellant is discharged and acquitted.
Appeal Allowed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I am in agreement with the leading judgment just read by my learned brother, H.M. OGUNWUMIJU JCA, a draft of which I have had the advantage of reading before now.

The undisputed facts have been copiously stated and the issues in contention have been thoroughly examined. I have nothing extra to add.

I also allow the appeal and set aside the judgment of the High Court of Edo State delivered on the 12th day of December, 2018.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Helen Moronkeji Ogunwumiju, JCA just delivered.

I agree that this appeal has merit and for the elaborate reasons given by my learned brother, I also allow it.
I abide by the orders in the leading judgment.

Appearances:

O. Afolabi, Esq. with him, Mrs. F.O. Igbineweka and S.U. Enyawuile, Esq. For Appellant(s)

Mrs. V.U. Adeleye (DDPP) Ministry of Justice Edo State, with him, Mrs. J.A. Odihirin (ACSC) For Respondent(s)